| Krishina Leach v. Nashville and Davidson County
M2000-01487-COA-R3-CV
This is a Tennessee Governmental Tort Liability Act case. A tow truck owned and operated by an employee of the Metropolitan Government of Nashville and Davidson County was traveling northwardly on Second Avenue South when it struck and killed Jacob Leach, age three, and seriously injured his mother, Krishina Leach. Jacob and his mother were walking southwardly on the sidewalk when Jacob broke free of his mother's restraint and darted into the path of the truck. The trial judge concluded that the driver of the tow truck was negligent because he "should have seen what was there to be seen." The judgment is reversed upon a finding that a motorist is under no duty to assume that an escorted child, in the restraint of an adult, will suddenly break free and run into traffic.
Authoring Judge: Per Curiam
Originating Judge:Thomas W. Brothers |
Davidson County | Court of Appeals | 11/15/02 | |
| Glenn Elizabeth Tefft v. Weakley County Ambulance
M2001-02270-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the evidence preponderates against the trial judge's finding that the plaintiff sustained a back injury on September 13, 1999 from lifting a patient where the evidence shows the plaintiff never lifted a patient, (2) the evidence preponderates against the trial judge's finding that the plaintiff gave proper notice as required by Tenn. Code Ann. _ 5-6-21 where, without a reasonable excuse for delay, plaintiff began treatment but did not inform defendant that plaintiff's alleged injury was work related until a month and fourteen days later, (3) the trial judge erred in admitting the plaintiff's entire deposition into evidence, over the objection of the defendant, when the plaintiff offered the same after excerpts of the deposition were properly offered by defendant pursuant to Tenn. R. Civ. P. 32.1, and (4) the trial judge erred in awarding the plaintiff medical expenses paid by the plaintiff's health insurance, a nonparty. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Sean Antone Hunt, Spicer, Flynn & Rudstrom, Memphis, Tennessee, for the appellant, Weakley County Ambulance Service Charles L. Hicks, Camden, Tennessee, for the appellee, Glenn Elizabeth Tefft MEMORANDUM OPINION The employee or claimant, Ms. Tefft, initiated this civil action to recover workers' compensation benefits, as provided by Tenn. Code Ann. _ 5-6-11 et seq, for injuries allegedly suffered in a work related accident on September 13, 1999. Following a trial on August 9, 21, the trial court awarded to her, among other things, permanent partial disability benefits based on 35 percent to the body as a whole. The employer, Weakley County Ambulance Service, has appealed. For injuries occurring on or after July 1, 1985, appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Allen W. Wallace, Judge |
Weakley County | Workers Compensation Panel | 11/15/02 | |
| State of Tennessee v. Thomas Michael Shinavar
M2002-00598-CCA-R3-CD
A Montgomery County jury convicted the defendant, Thomas Michael Shinavar, of driving under the influence (DUI), his fourth offense and a Class E felony. On appeal, the defendant presents the following issues: (1) whether the indictment charging DUI failed to satisfy constitutional and statutory requirements; and (2) whether the indictment failed to provide adequate notice to the defendant that he was charged with a felony rather than a misdemeanor. After reviewing the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Michael R. Jones |
Montgomery County | Court of Criminal Appeals | 11/15/02 | |
| Alma Haney v. Mabry Health Care, Inc.
M2001-02533-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the trial court's award of permanent partial disability benefits based on 8 percent to the left leg. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and TOM E. GRAY, SP. J., joined. Kirk L. Clements, Nashville, Tennessee, for the appellant, Mabry Health Care, Inc. William E. Halfacre, Cookeville, Tennessee, for the appellee, Alma Haney MEMORANDUM OPINION The employee or claimant, Alma Haney, commenced this civil action to recover workers' compensation benefits for injuries arising out of and in the course of her employment with the employer, Mabry Health Care, Inc. Specifically, the employee alleged that on or about November 18, 1998, she suffered injuries to her left leg, including reflex sympathetic dystrophy (RSD). After a trial on the merits, the trial court awarded the claimant, among other things, permanent partial disability benefits based on 8 percent to the left leg. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Clara Byrd, Judge |
Jackson County | Workers Compensation Panel | 11/15/02 | |
| Chester Gray Thompson v. Nashville Electric Service
M2001-02306-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the award of permanent partial disability benefits based on 37.5 percent to the body as a whole is excessive, (2) the trial court erred in finding that the employee suffered a back injury "in the scope and course of the employment," and (3) the trial court erred in commuting the award to a lump sum. The employee questions the admissibility of the treating physician's records because the records were neither admitted through a medical records custodian nor the deposition of the treating physician, and no C-32 form was submitted. As discussed below, the panel has concluded that any error in the admission of the medical records was harmless. We therefore affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Mark A. Baugh and Eugene Ward, Nashville, Tennessee, for the appellant, Nashville Electric Service E. Guy Holliman and William Joseph Butler, Lafayette, Tennessee, for the appellee, Chester Thompson MEMORANDUM OPINION The employee or claimant, Mr. Thompson, initiated this civil action to recover workers' compensation benefits for injuries to his back and ankle allegedly resulting from a fall during a training exercise authorized by the employer, Nashville Electric Service. The trial court awarded permanent partial disability benefits based on 37.5 percent to the body as a whole and 5 percent to his ankle.1 Both parties have appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:John H. Gasaway, III, Judge |
Chester County | Workers Compensation Panel | 11/15/02 | |
| Royal & Sunalliance v. Barbara Cooper
M2001-01580-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer's insurer questions the trial court's finding that the employee's injury is causally related to her employment; and the employee questions the sufficiency of the award. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and TOM E. GRAY, SP. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal and SunAlliance Keith Jordan, Nashville, Tennessee, for the appellee, Barbara Cooper MEMORANDUM OPINION The appellant initiated this civil action seeking a declaration of its rights and liabilities relative to the appellee's claim for benefits under the Workers' Compensation Law. By her answer and counterclaim, the employee or claimant, Barbara Cooper, demanded medical and permanent disability benefits for an injury allegedly arising out of and in the course of her employment by Nissan North America, Inc. After a trial on the merits, the trial court awarded lifetime medical benefits and permanent disability benefits based on 13 percent to the left leg. Both parties have appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Robert Corlew, III, Chancellor |
Rutherford County | Workers Compensation Panel | 11/15/02 | |
| State of Tennessee v. James Corey Edmiston
M2002-00059-CCA-R3-CD
A jury convicted the Defendant, James Corey Edmiston, of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, aggravated assault, vandalism and resisting arrest. The trial court merged the aggravated assault conviction into the attempted murder conviction. The court sentenced the Defendant as a Range I offender to ten years for the attempted murder; twenty-four years for the especially aggravated robbery; ten years for the especially aggravated burglary; and eleven months, twenty-nine days for each of the two misdemeanor convictions. The trial court ordered the felony sentences to run consecutively to each other, with the misdemeanor sentences to run concurrently with the attempted murder sentence, for an effective sentence of forty-four years. The Defendant now appeals, challenging the sufficiency of the evidence for the attempted second degree murder conviction, and the trial court's imposition of consecutive sentences. We affirm the trial court's judgment.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge W. Charles Lee |
Marshall County | Court of Criminal Appeals | 11/15/02 | |
| State of Tennessee v. James Dewey Jensen, Jr.
E2002-00712-CCA-R3-CD
A Hamilton County jury convicted the defendant, James Dewey Jensen, Jr., of a seventh offense of driving under the influence, theft of identity, and violation of the Motor Vehicle Habitual Offenders Act. The sole issue presented by the defendant in this appeal is whether the trial court erred in denying the motion to suppress evidence obtained as a result of the vehicle stop. We affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Stephen M. Bevil |
Hamilton County | Court of Criminal Appeals | 11/15/02 | |
| Harper Enterprises vs. City of Bean Station
E2002-01734-COA-R3-CV
The City of Bean Station ("the City") denied the application of the plaintiff ("the applicant") for a permit to sell beer for off-premises consumption. The applicant filed a petition for certiorari, naming the City and seeking a writ of mandamus to compel it to issue the requested permit. On cross motions for summary judgment, the trial court granted the City summary judgment. The applicant appeals. It contends that the City, "by actions and/or inaction," has caused its beer ordinance, which limits beer permits within the municipality to two, to be invalid. In the alternative, it contends that the City "has engaged in discriminatory, arbitrary and capricious application of the ordinance." We vacate the trial court's judgment and remand for further proceedings.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Richard R. Vance |
Grainger County | Court of Appeals | 11/15/02 | |
| State of Tennessee v. Jason Allen Mobley
W2001-02022-CCA-MR3-CD
The defendant, Jason Allen Mobley, appeals as of right from the Henry County Circuit Court's revoking his eight-year probation. The defendant contends that the trial court erroneously revoked his probation without sufficient proof that he was using drugs. We affirm the trial court.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Julian P. Guinn |
Henry County | Court of Criminal Appeals | 11/15/02 | |
| Michael Eugene Duff v. State of Tennessee - Order
E2000-03041-CCA-R3-PC
The state has filed a Petition to Rehear relative to our opinion’s apparent imposition of limitations upon the trial court’s reconsideration of the facts upon remand. The state asserts that the trial court should have the ability to determine whether prejudice exists by considering the evidence in toto. The state notes that the trial court has not made any findings regarding prejudice and should not be restricted in its assessment. The petitioner responds that our court’s opinion foreclosed any need for the trial court to assess prejudice generally. He states that we have already concluded that prejudice exists if the trial court finds a particular witness to be credible.
|
Knox County | Court of Criminal Appeals | 11/14/02 | |
| Kenneth Smith v. State of Tennessee
W2001-02088-CCA-R3-PC
Petitioner, Kenneth Smith, appeals pro se the trial court's dismissal of his Petition for Post-Conviction Relief, which he also filed pro se. The record on appeal does not contain the transcript of the proceedings below. There is nothing in the record to indicate that Petitioner's court-appointed counsel was allowed to withdraw or that Petitioner waived the assistance of counsel on appeal. Pursuant to our holding in Drummer v. State, 6 S.W.3d 520 (Tenn. Crim. App. 1999), the judgment of the trial court is vacated and this case is remanded for the trial court to reinstate the order dismissing the Petition for Post-Conviction Relief. If Petitioner is still indigent, counsel appointed to represent Petitioner at the post-conviction hearing shall continue to represent Petitioner on appeal and the case shall proceed pursuant to the Tennessee Rules of Appellate Procedure.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Jon Kerry Blackwood |
Fayette County | Court of Criminal Appeals | 11/14/02 | |
| State of Tennessee v. Opal Gause
W2002-01225-CCA-R3-CD
Defendant, Opal Gause, entered a guilty plea to two counts of aggravated assault. The trial court sentenced Defendant to two consecutive three-year terms, for an effective sentence of six years. The sentences were suspended, and Defendant was placed on probation for the length of his original sentences. A violation warrant was subsequently issued alleging Defendant had failed to meet the conditions of his probation. Following a hearing, Defendant's probation was revoked, and he was ordered to serve his original sentence with credit for time served pre-trial. Defendant now challenges the revocation of his probation. Following a review of the record, we affirm the decision of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Clayburn L. Peeples |
Haywood County | Court of Criminal Appeals | 11/14/02 | |
| Chelsea Pirkle vs. Justin Parker
E2002-01751-COA-R3-CV
The trial court refused to set aside the Default Judgment. On appeal, we vacate and remand.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 11/14/02 | |
| Sammy Vest vs. Francis Goswitz
E2001-01613-COA-R3-CV
This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:James B. Scott, Jr. |
Anderson County | Court of Appeals | 11/14/02 | |
| Kevin Wilkins v. State of Tennessee
W2002-00436-CCA-R3-PC
Petitioner, Kevin Wilkins, filed his petition for post-conviction relief in the Shelby County Criminal Court on December 6, 2001. The State filed a response moving the trial court to dismiss the petition because it was filed after the statute of limitations had expired. Without a hearing, the trial court entered an order granting the State's request and dismissed the petition on the basis that it was filed past the one-year limitation set forth in Tennessee Code Annotated section 40-30-202. Petitioner filed a timely notice of appeal. We reverse the judgment of the trial court and remand this case for a hearing.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge John P. Colton, Jr. |
Shelby County | Court of Criminal Appeals | 11/14/02 | |
| Alica Rakestraw vs. Gregory Rakestraw
E2002-01151-COA-R3-CV
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Jerri S. Bryant |
Bradley County | Court of Appeals | 11/14/02 | |
| Nancy Crawford vs. Roger Crawford
E2002-00372-COA-R3-CV
Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Thomas R. Frierson, II |
Hawkins County | Court of Appeals | 11/14/02 | |
| Gweneth J. Freels vs. Evelyn Jones
E2002-00895-COA-R3-CV
Defendant demanded a jury in Answer but the trial judge ruled defendant waived right to a jury trial. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Frank V. Williams, III |
Morgan County | Court of Appeals | 11/14/02 | |
| Michael Eugene Duff v. State of Tennessee
E2000-03041-CCA-R3-PC
The petitioner, Michael Eugene Duff, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his convictions for two counts of aggravated rape and one count of aggravated kidnapping for which he received three twenty-five-year sentences to be served consecutively. This court affirmed the judgments of conviction on direct appeal. See State v. Michael Eugene Duff, No. 03C01-501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8, 1996), app. denied (Tenn. July 8, 1996). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to call a DNA serologist to testify and (2) failed to present witnesses who could testify about his physical appearance at the time of the offenses. We conclude that the trial court’s findings are insufficient for us to determine whether the petitioner received the ineffective assistance of counsel. We reverse the trial court’s judgment and remand the case in order for the trial court to make findings of fact and conclusions of law consistent with this opinion.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Mary Beth Leibowitz |
Knox County | Court of Criminal Appeals | 11/14/02 | |
| The Rogers Group vs. Anderson County
E2002-00409-COA-R9-CV
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Telford E. Forgerty, Jr. |
Anderson County | Court of Appeals | 11/13/02 | |
| State of Tennessee v. William Jerry Neal, aka William Jay Neal
M2001-02364-CCA-R3-CD
The defendant, William Jerry Neal, also known as William Jay Neal, appeals his jury convictions for especially aggravated burglary, a Class B felony, and vandalism under $500, a Class A misdemeanor, resulting in concurrent sentences of eleven years, three months and eleven months, twenty-nine days, respectively. On appeal, the defendant argues: (1) the evidence was insufficient to establish serious bodily injury, as required for a conviction for especially aggravated burglary; and (2) the trial court erred by failing to grant a new trial after learning that one of the jurors had once been incarcerated with the defendant. We affirm the judgment of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge W. Charles Lee |
Bedford County | Court of Criminal Appeals | 11/13/02 | |
| Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Originating Judge:Ben K. Wexler |
Hawkins County | Court of Appeals | 11/13/02 | |
| State of Tennessee v. George William King
M2001-02026-CCA-R3-CD
Defendant, George William King, has appealed the sentence imposed upon him by the trial court after he pled guilty to one count of statutory rape. We affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Steve R. Dozier |
Davidson County | Court of Criminal Appeals | 11/13/02 | |
| Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
|
Hawkins County | Court of Appeals | 11/13/02 |
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