Opinions

Ronald Moore v. Averitt Express
M2001-02502-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
Plaintiff was a former state employee and newly hired employee of Averitt when he was terminated by Averitt due to statements he made alleging illegal conduct of state officials. Plaintiff made the statements to the press prior to being hired by Averitt. Plaintiff filed suit alleging statutory and common law retaliatory discharge. The trial court dismissed the action. We affirm.

John Hessmer v. Rosa Hessmer
M2002-01024-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Clara W. Byrd
This appeal involves a state prisoner who is seeking a divorce from his wife. The prisoner filed a pro se divorce complaint in the Circuit Court for Wilson County. After the prisoner failed to obtain service on his wife, the trial court dismissed his complaint for failure to prosecute. On this appeal, the prisoner takes issue with the dismissal of his complaint because the trial court clerk failed to comply with a local court rule regarding notice before dismissing a complaint for failure to prosecute. Even though the trial court clerk may have failed to comply with the local rule, we have determined that the trial court did not err by dismissing the prisoner's divorce complaint for failure to prosecute.

Larry Seal v. Charles Blalock & Sons
E2001-00050-SC-WCM-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Kindall T. Lawson
In this workers' compensation case, we are asked to determine whether the trial court erred in awarding benefits for a 93% vocational disability to the body as a whole. The employer contends that compensation should be limited to an award for loss of a scheduled member. After reviewing the record and applicable authority, we conclude that the evidence preponderates against the trial court's award of benefits for disability to the body as a whole; accordingly, we modify the judgment of the trial court to provide for an award of 100% disability to the leg. Additionally, we find no error in the trial court's admission of the physical therapist's testimony.

State of Tennessee v. Randy Tyrone Crawford - Order
M2001-03063-CCA-R3-CD
Authoring Judge: Judge David G. Hayes

The Appellant, Randy Tyrone Crawford, appeals from the order of the Sumner County Criminal Court revoking his probation and ordering him to serve his sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

State of Tennessee v. Thomas Dee Huskey - Order
E1999-00438-CCA-R3-CD
Authoring Judge: Per Curiam
Trial Court Judge: Judge Richard R. Baumgartner

On August 23, 2002, the defendant filed a petition to rehear claiming that the opinion of this court fails to consider material facts, contains misstatements of fact, and overlooks or misapprehends case law. We disagree.

State of Tennessee v. Rufus E. Neeley
E2001-02243-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck
Defendant, Rufus E. Neeley, was convicted of the following offenses following a jury trial: (1) unlawful possession of a prohibited weapon, to wit: a short-barreled shotgun, a Class E felony; (2) possession of a knife with a blade length exceeding four inches with intent to go armed, a Class C misdemeanor; (3) driving on a revoked driver's license, a Class B misdemeanor; and (4) operating a motor vehicle while possessing an open container of beer, a Class C misdemeanor. Defendant was sentenced to serve three years and six months as a Range II multiple offender for the felony offense, thirty days for each Class C misdemeanor, and six months for the Class B misdemeanor. All sentences were ordered to be served concurrently with each other. He was ordered to serve the felony sentence in the Department of Correction. Defendant has appealed, challenging the sufficiency of the evidence to support the convictions for unlawful possession of a prohibited weapon and possession of a knife with intent to go armed, and argues that he should have been sentenced to split-confinement rather than total incarceration. We affirm the judgments of the trial court.

State, ex rel Mary Clark v. Vernon Wilson
M2001-01626-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Soloman
The State of Tennessee, ex rel. Mary E. Clark appeals the final order of the trial court awarding retroactive child support from the date DNA test results established the appellee as the father of the child in question, instead of from the date of the parties' separation by divorce decree entered almost six years earlier. We find that the trial court incorrectly ordered retroactive child support from a date other than the date of the parties' separation and failed to make the required written findings to support a deviation from the guideline amount in its award of retroactive child support. Therefore, we vacate the trial court's decision and remand for further proceedings consistent with this opinion.

Leslie Moore v. James DeVault
M2001-02225-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Landowners sought declaratory judgment against neighboring landowners to terminate an easement over their property. The trial court granted summary judgment to the neighbors holding that the easement was an express easement appurtenant, that necessity was not a required element, and that mere nonuse was insufficient to establish abandonment of the easement. We agree with the trial court and affirm.

Mitzi Gay Gregory Blair v. John David Blair
M2001-02790-COA-R3-C
Trial Court Judge: C. L. Rogers

Lee Kraft, Executor for Ms. Helen Bergida v. Ezo-Goten
M2001-03137-COA-R3-CV
Authoring Judge: Judge John A. Turnbull
Trial Court Judge: Walter C. Kurtz
Personal representative of deceased patron brought this premises liability suit against restaurant owner/occupier alleging that patron tripped and fell from dangerous top step of front stairs to restaurant. On defendant's motion for summary judgment, the trial judge accorded no weight to the opinion of plaintiff's expert architect, ruled that there was no proof of causation, and granted summary judgment. We find that a reasonable juror could conclude from the circumstantial evidence in the record that patron fell due to tripping on the dangerous top step. Because the circumstantial evidence creates a dispute as to a genuine issue of material fact, we hold that summary judgment was inappropriate, reverse the trial court, and remand the case.

Jenny Parrott v. John Abraham
M2001-02938-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: L. Raymond Grimes
Appellant/Father appeals dismissal of his petition seeking to be named residential custodian of his minor child. The trial court found that Tennessee was not the "home" state of the child under Tennessee Code Annotated section 36-6-216 and dismissed the case for lack of subject matter jurisdiction. We reverse.

Eilene Copenhagen v. Roger Copenhagen
M2002-00217-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
Appellant, former wife of Appellee, filed a Petition seeking to convert alleged rehabilitative alimony into permanent alimony in futuro and requesting certain other relief, including all accrued and vested benefits in her former husband's retirement plan. The trial court dismissed the Petition in its entirety holding the alimony previously awarded to be alimony in solido. We reverse the finding as to the character of the alimony previously awarded and affirm as to all other relief sought. The case is remanded to the trial court for further proceedings.

Barbara Cagle v. Gaylord Entertainment Co.
M2002-00230-COA-R3-CV
Authoring Judge: Judge John A. Turnbull
Trial Court Judge: Carol L. Soloman

J.C. Bradford v. Douglas Kitchen
M2002-00576-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Ellen Hobbs Lyle
The principal issue in this case is whether the defendant, a member or partner of J.C. Bradford, Inc., waived his right to the arbitration of his claim for damages against the defendants allegedly resulting from various machinations involving fraud and deceit and the violation of Federal and State Securities Laws, by joining a plaintiff class in an action for damages in the U.S. District Court which was voluntarily dismissed after pending four months. The Chancellor held that the defendant filed the District Court action with full knowledge of the facts and thus made an election of remedies, thereby waiving his right of arbitration. We disagree, and reverse the judgment granting an injunction against arbitration.

Sydney Couch v. Bell South Telecommunications, Inc.,
W2001-02216-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George H. Brown, Jr., Judge
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 employee questions the trial court's disallowance of benefits. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. 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 HAMILTON V. GAYDEN, JR., SP. J., joined. Steve Taylor, Memphis, Tennessee, for the appellant, Sydney Couch J. Mark Griffee and Robert B. C. Hale, Memphis, Tennessee, for the appellee, Bell South Telecommunications, Inc., d/b/a South Central Bell MEMORANDUM OPINION The employee or claimant, Sydney Couch, initiated this civil action on May 5, 2 seeking an award of worker's compensation benefits for an injury to her elbow allegedly resulting from repetitive use of her arm at work. After a trial on the merits on July 17, 21, the trial court dismissed the complaint for failure to establish causation by a preponderance of the evidence. By this appeal, the claimant seeks a reversal of that judgment and an award of benefits. 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). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Eric Boyd v. State of Tennessee
E2001-02069-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mary Beth Leibowitz
Appellant, Eric Boyd, appeals the trial court's denial of his petition for post-conviction relief. The issues presented for review are, whether the State's promise not to offer Appellant's co-defendant a lesser sentence than Appellant, was in fact a condition of Appellant's plea agreement, and if so what relief Appellant should receive as a result of the State's breach of that condition. We hold that the State breached the conditions of its plea agreement with Appellant, thereby entitling him to post-conviction relief. We further hold that the appropriate remedy is to set aside Appellant's guilty pleas and for the original charges to be reinstated.

David Andrew Jackson, Jr. v. State of Tennessee
E2001-02646-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, David Andrew Jackson, Jr., was convicted by a jury in the Criminal Court of Knox County of six counts of aggravated sexual battery, Class B felonies, and two counts of rape of a child, Class A felonies. Prior to sentencing, the petitioner also pled guilty to one pending count of aggravated sexual battery and two pending counts of rape of a child. Pursuant to the plea agreement, the petitioner received an effective sentence of twenty years incarceration in the Tennessee Department of Correction to be served at one hundred percent (100%). The petitioner timely filed for post-conviction relief, alleging ineffective assistance of counsel. The post-conviction court denied his petition. On appeal, the petitioner challenges the post-conviction court's finding that the petitioner received effective assistance of counsel. After reviewing the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Donnie W. Foulks v. State of Tennessee
E2002-00224-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James E. Beckner

The petitioner, Donnie W. Foulks, appeals the summary dismissal of his petition for post-conviction relief. The post-conviction court, citing Tennessee Code Annotated section 40-30-202(c) (1997), determined that the petitioner had previously filed a petition for post-conviction relief and was therefore precluded from seeking relief in a second proceeding. Concluding that the post-conviction court failed to consider that the petitioner's first post-conviction petition was not resolved on the merits, we reverse the judgment of the post-conviction court and remand for further proceedings.

Thomas Dyer v. Tennessee Department of Correction
M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Thomas Dyer has filed a respectful and timely Petition to Rehear. He states that our opinion mistakenly asserted that he failed to petition the Department for a Declaratory Order. Upon further examination of the record, we are obligated to conclude that he is correct. The record shows that he indeed filed a Petition for Declaratory Order, and that the petition was denied. Thus, we were mistaken to conclude that we lacked jurisdiction to consider his Petition for a Declaratory Judgment under the UAPA.

Textron Financial Corp., v. Elaine E.Powell, et al.
M2001-02588-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Walter C. Kurtz

This dispute arises out of a personal guaranty executed by the defendants securing a loan. Following a trial by jury, the court below awarded the plaintiff $68,330 in damages plus attorney's fees and costs. On appeal, the defendants contend that the court below erred in applying the parol evidence rule to evidence which would show mistake and in not permitting the defendants to amend their answer. We reverse the judgment entered below and remand for a new trial.

State of Tennessee v. Steven D. Fish
E2001-02200-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.

As a result of his guilty plea to one count of attempted rape of a child, the appellant, Steven D. Fish, was sentenced to eight years incarceration in the Tennessee Department of Correction, with thirty days to be served in confinement and the balance served on supervised probation. After the appellant began serving his probationary sentence, a probation violation warrant was issued. Subsequent to a probation revocation hearing, the trial court found that the appellant had violated the terms of his probation and ordered the appellant to serve the remainder of his sentence in confinement. On appeal, the appellant alleges that the trial court erred in revoking his probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Mark D. Nunnally
W1999-01305-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant seeks appellate review of his motion to clarify the prior judgments of the trial court. We dismiss the appeal because the record does not reflect any order of the trial court concerning the motion.

State of Tennessee v. Donna F. Benson
W2001-01926-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bernie Weinman

The defendant, a former employee of the Shelby County Criminal Court Clerk's office, pled guilty to two counts of public servant accepting a bribe, in violation of Tennessee Code Annotated section 39-16-102, a Class C felony. The trial court sentenced her as a Range I, standard offender to concurrent terms of three years on each count, but suspended all but ninety days of the sentence, to be served on weekends at the county workhouse. The defendant was also placed on probation for three years, ordered to perform 300 hours of community service, and assessed a $1000 fine for each count. She argues on appeal that the trial court erred in denying her judicial diversion or full probation. After reviewing the record, we affirm the judgment of the trial court.

Harold Wayne Nichols v. State of Tennessee
E1998-00562-SC-R11-PD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The petitioner, Harold Wayne Nichols, filed post-conviction petitions seeking relief from his conviction for felony murder, his sentence of death, and his numerous convictions for aggravated rape, first degree burglary, and larceny upon the basis of ineffective assistance of counsel, as well as other legal grounds. After conducting several evidentiary hearings, the trial court denied relief as to the felony murder conviction and sentence of death, but granted partial relief by ordering new sentencing hearings as to the remaining convictions. The Court of Criminal Appeals concluded that the trial court erred by allowing the petitioner to assert his right against self-incrimination during the post-conviction proceedings, yet upheld the trial court’s judgment in all other respects. After reviewing the record and applicable authority, we conclude: (1) that the petitioner was not denied his right to the effective assistance of counsel based on the failure to investigate and challenge his confessions as false; (2) that the petitioner was not denied his right to the effective assistance of counsel based on the failure to challenge the legality of his arrest; (3) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to present additional mitigating evidence; (4) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to object to misconduct by the prosecution; (5) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to request mitigating instructions; (6) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to raise issues regarding the constitutionality of capital punishment; (7) that the petitioner was not denied his right to the effective assistance of counsel at the sentencing phase of his capital trial based on the failure to object to the discovery of notes prepared by a defense psychologist on self-incrimination grounds; (8) that the Court of Criminal Appeals did not err in refusing to remand the case for additional DNA testing; (9) that the Court of Criminal Appeals erred by addressing the issue of whether the petitioner had a right against self-incrimination in this post-conviction proceeding but the error had no effect on the outcome; and (10) that the trial court’s findings were not clearly erroneous and cumulative -2- error did not require the reversal of the petitioner’s convictions. Accordingly, we affirm the Court of Criminal Appeals’ judgment. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed
 

Harold Wayne Nichols v. State of Tennessee - Concurring/Dissenting
E1998-00562-SC-R11-PD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge D. Kelly Thomas, Jr.

I fully concur in the conclusion of the majority that Nichols's convictions should be affirmed. To the extent, however, that the petitioner's allegations of ineffective assistance of counsel may be interpreted to include the failure to object to the method of proportionality review, I continue to adhere to the views expressed in a long line of dissents beginning with State v. Chalmers, 28 S.W.3d 913, 923-25 (Tenn. 2000) (Birch, J., concurring and dissenting), and elaborated upon in State v. Godsey, 60 S.W.3d 759, 793-800 (Tenn. 2001) (Birch, J., concurring and dissenting). Those dissents suggest, essentially, that the comparative proportionality review protocol currently embraced by the majority is inadequate to shield defendants from the arbitrary and disproportionate imposition of the death penalty. See Tenn. Code Ann. § 39-13-206(c) (1997). Accordingly, while I concur in the affirmance of Nichols's convictions, I cannot, for the reasons above stated, concur in the imposition of the death penalty in this case.