Opinions

Insura Property & Casualty Ins. v. Terry Ashe
M2002-00374-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: C. K. Smith
This is a declaratory judgment action wherein Plaintiff insurance company seeks a declaration as to coverage under its commercial general liability insurance policy issued to Lineberry Properties, Inc. Defendant, Dewey Lineberry, and his wholly owned corporate entities, Defendants Lineberry Properties, Inc. and Lawdog Communications, LLC, sought defense and indemnity from Plaintiff insurance company relative to a defamation, libel, slander, and outrageous conduct complaint previously filed against them in the Circuit Court for Wilson County, Tennessee by Defendants, Terry and Judy Ashe. The trial court granted summary judgment to the insurance company holding that the general commercial liability policy provided no coverage as to the underlying action. We affirm the trial court.

Tamika Washington v. Federal Express Corporation
W2001-02215-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Kay S. Robilio, 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 permanent disability 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, Tamika Washington J. Mark Griffee and Robert B. C. Hale, Memphis, Tennessee, for the appellee, Federal Express Corporation MEMORANDUM OPINION It is undisputed that the employee or claimant, Tamika Washington, suffered a work related injury when she slipped while working for the employer, Federal Express, on September 29, 1999. She received medical and temporarydisability benefits from the employer, but was denied permanent disability benefits because the treating physician found no permanent impairment and prescribed no permanent restrictions. She commenced this civil action to recover permanent disability benefits on November 16, 1999. The case was tried on August 13, 21. The trial court found that the claimant's proof failed to establish permanency by a preponderance of the evidence, but awarded medical benefits as provided by law. The claimant seeks a reversal of the denial of permanent partial benefits and an award of such benefits by this tribunal. 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.

James William Dash v. Howard W. Carlton, Warden
E2001-02867-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Lynn W. Brown

The petitioner, James William Dash, filed a petition for writ of habeas corpus which was denied by the trial court for lack of jurisdiction. In this appeal of right, the petitioner argues that the trial court clerk erroneously filed the petition in the criminal court rather than the circuit court, that his judgment of conviction is void, and that the trial court erred in the assessment of costs. The trial court's order taxing costs to the petitioner is reversed. Otherwise, the judgment of the trial court is affirmed.

R.B. Toby v. State of Tennessee
E2000-03127-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Rex Henry Ogle
The appellant filed a Motion to Vacate an Illegal Sentence. The trial judge treated the motion as a petition for post-conviction relief and dismissed the case as time barred. In this appeal, the appellant claims the actions of the trial court were erroneous. We respectfully disagree. The judgment of the trial court is affirmed.

State of Tennessee v. Joseph G. Batts
M2001-00896-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

The appellant, Joseph Batts, was convicted by a jury of the offense of rape. He was sentenced to a term of twelve (12) years in the Tennessee Department of Correction. In this appeal he contends that the evidence is insufficient to sustain the conviction for rape and that his sentence is excessive. After carefully reviewing the record as presented, we are of the opinion that the evidence is legally sufficient to support the conviction. Moreover, in the absence of a transcript of the sentencing hearing we must presume the sentence is correct. The judgment of the trial court is affirmed.

State of Tennessee v. Kenneth Ray White
M2002-00125-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, Kenneth Ray White, appeals from the sentencing decision of the Humphreys County Circuit Court denying his request for probation. In this appeal, White raises the issue of whether the trial court abused its discretion by ordering a sentence of incarceration rather than the less restrictive alternative of community corrections. After review, we find no abuse of discretion. As such, the trial court's decision is affirmed.

Randy Hensley v. Department of Corrections
M2001-02721-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
An inmate who was allowed to commence and proceed in forma pauperis in this litigation, but who was unsuccessful and had costs taxed against him, appeals the trial court's denial of his motion to quash execution on his trust fund account to collect the costs. We affirm.

Vanderbilt University v. Charles Haynes
M2001-02688-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Walter C. Kurtz
The Circuit Court of Davidson County dismissed an appeal from the General Sessions Court because the appeal was not perfected within ten days of the date of the General Sessions judgment. The appellant contends that Rules 6.01 and 6.05 of the Tennessee Rules of Civil Procedure extended the time for filing the appeal to the date it was actually perfected. Because the Rules of Civil Procedure do not apply to the General Sessions Court, we affirm the Circuit Court's judgment.

Dept of Children's Services v. Florence Hoffmeyer
M2002-00076-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Max D. Fagan

M2002-00076-COA-R3-JV-
M2002-00076-COA-R3-JV-
Trial Court Judge: Max D. Fagan

Gregory Hedges v. TDOC
M2002-00140-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes

Gregory Hedges v. TDOC
M2002-00140-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes

Tyrone Sterling v. Lolita Williams
M2002-00352-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Michael R. Jones
The Chancery Court of Montgomery County awarded Tyrone Sterling a divorce from Lolita R. Sterling and custody of the parties' minor child. Ms. Sterling asserts on appeal that the division of the marital property violated the automatic stay issued in her bankruptcy proceeding, and that the court erred in granting Mr. Sterling the divorce and custody of the child. We affirm the judgment of the trial court.

Clifford Goolesby v. Abb C-E Services, Inc.
E2001-02435-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Frank Brown, Judge
The trial court found the plaintiff was entitled to permanent total disability benefits. The trial court further found the defendant was not entitled to offset social security benefits against the award. The defendant appeals only from the judgment of the trial court which denied the social security offset. We affirm the judgment of the trial court.

Russell Wellington v. State
M2002-01090-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Hamilton V. Gayden, Jr.
Inmate appeals the trial court's order dismissing his lawsuit for failure to prosecute. Because the State had been granted a transfer of this case from the Claims Commission for the purpose of consolidating it with another case pending in the trial court, but took the position in this appeal that no consolidation had occurred, we vacate the dismissal and remand.

State of Tennessee v. Harold D. Roberts
M2001-02291-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The defendant was convicted of driving under the influence, third offense; driving on a revoked license; felonious evading arrest; and violating the open container law. The trial court granted a motion for judgment of acquittal as to the felonious evading arrest conviction and imposed the following sentences: eleven months, twenty-nine days, suspended after serving ten months in continuous confinement, for DUI, third offense; four months in the county jail, plus six months' probation, for driving on a revoked license; and thirty days for violating the open container law, with all sentences to be served concurrently. The defendant appealed, arguing that the trial court erred by denying his request to give the jury the missing witness instruction and by improperly sentencing him. We affirm the judgments of the trial court but remand for entry of a corrected judgment as to Count 2 reflecting that the defendant was convicted of third offense DUI.

State of Tennessee v. Harold D. Roberts
M2001-02291-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The defendant was convicted of driving under the influence, third offense; driving on a revoked license; felonious evading arrest; and violating the open container law. The trial court granted a motion for judgment of acquittal as to the felonious evading arrest conviction and imposed the following sentences: eleven months, twenty-nine days, suspended after serving ten months in continuous confinement, for DUI, third offense; four months in the county jail, plus six months' probation, for driving on a revoked license; and thirty days for violating the open container law, with all sentences to be served concurrently. The defendant appealed, arguing that the trial court erred by denying his request to give the jury the missing witness instruction and by improperly sentencing him. We affirm the judgments of the trial court but remand for entry of a corrected judgment as to Count 2 reflecting that the defendant was convicted of third offense DUI.

Roy C. Smith, Jr. v. State of Tennessee - Concurring
W2001-01457-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt
I concur in the results reached by the majority. Although I agree that the petitioner’s sentence may be vulnerable to a proper habeas corpus attack, I see no basis for commenting that the petitioner was convicted pursuant to a statute that was not in effect at the time the offenses were committed.

Roy C. Smith, Jr. v. State of Tennessee
W2001-01457-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Roy C. Smith, Jr., pled guilty to one count of rape of a child and was sentenced to fifteen years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner, acting pro se, filed a petition for a writ of habeas corpus, alleging that his conviction is illegal because he pled guilty to a crime that was not in effect at the time of the commission of the offense.  The trial court dismissed the petition and the petitioner now appeals. Upon review of the record and the parties’  briefs, we affirm the judgment of the trial court.

Mark Edward Warf v. Zion Christian Academy,
M2001-01583-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Stella Hargrove, 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. The trial judge found the plaintiff had suffered an injury arising out of his employment, but found the plaintiff was barred from recovering benefits under the Workers' Compensation Act because he failed to file timely notice of the injury which he suffered. We reverse the judgment of the trial court and remand this case thereto for further proceedings. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA III, C. J. and JOE C. LOSER, SP. J., joined. Richard T. Matthews, Columbia, Tennessee, attorney for the appellant, Mark Edward Warf. Luther E. Cantrell, Jr., Nashville, Tennessee, attorney for the appellees, Zion Christian Academy and Church Mutual Insurance Company. MEMORANDUM OPINION The plaintiff has a Bachelors of Science degree, was born September 13, 1959, is married and the father of three children. The plaintiff was a teacher, coach and athletic director at Zion Christian Academy (Zion). His work history is that of a teacher and coach. On March 16, 1999, a student at Zion was electrocuted. The plaintiff was the first adult to reach the student after the accident. The plaintiff gave CPR to the student, however, this was not successful and the student died in his arms. During the course of the CPR, the student regurgitated and the vomit was projected into the plaintiff's mouth and on his clothes and on the student. After the event, the plaintiff and others met with the headmaster and a member of the Board of Directors of Zion. The plaintiff was emotional and upset at the time. The school brought a counselor, a psychologist, to the academy to meet with the teacher. The plaintiff was very upset and expressed his grief at seeing the student for the last time as he lay dead in vomit. The counselor, with the headmaster, helped arrange for the plaintiff to see the student in the casket at a private viewing.1 The plaintiff testified that when school resumed a few days after the event he was unable to concentrate and perform his duties. He was admitted to the hospital on May 18, 1999 with chest pains which apparently were stress related. The plaintiff resigned from Zion at the end of the school year in May 1999. He testified his mental status was not the cause of this but was because of changes made by the headmaster. The headmaster testified the plaintiff's work performance was deficient prior to the death of the student and the retention of the plaintiff was not likely because of this. The plaintiff attempted to teach at other schools but was unable to do so because of his mental condition. Ultimately, the plaintiff began to receive medical care for his condition. The trial judge made the following finding of facts concerning the plaintiff's injury: WORK-RELATED MENTAL INJURY: The Court finds that Plaintiff has suffered a permanent mental injury, arising out of his employment, caused by an identifiable, stressful work-related event producing sudden mental stimulus of fright, shock and excessive, unexpected anxiety; to-wit: the electrocution death of a student. Further, that Plaintiff's stress is extraordinary and unusual in comparison to stress that is ordinarily expected. As a result, the Court finds that Plaintiff's vocational ability has been diminished. The trial court further found that plaintiff knew of his mental illness by November 3, 1999 and that he should have given notice to Zion within thirty days of this. The plaintiff did not give notice, written or otherwise, until July 6, 2 when he delivered a message to the headmaster concerning his mental injury. The trial judge found the plaintiff gave no reasonable excuse for failure to do so. The insurance company sent a letter to the plaintiff after he delivered the message to the head master that the plaintiff would receive no compensation because he suffered no physical injury. 1The viewing and funeral was to be closed casket. -2-

State of Tennessee v. Harley B. Upchurch
M2001-03170-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lillie Ann Sells

Defendant pled guilty to burglary, theft under $500, and vandalism under $500 and was sentenced by the trial court to an effective sentence of four years with the requirement that he serve one year "day for day" in the county jail followed by twelve years of supervised probation. On appeal, defendant contends (1) the length of his sentence is excessive; (2) he should have been granted full probation; and (3) the trial court erred in requiring him to serve his time of confinement "day for day." We remand for deletion of the "day for day" requirement because it deprives the defendant of the opportunity to earn statutory sentencing credits; however, we affirm the judgments of the trial court in all other respects.

State of Tennessee v. Harley B. Upchurch
M2001-03170-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lillie Ann Sells

Defendant pled guilty to burglary, theft under $500, and vandalism under $500 and was sentenced by the trial court to an effective sentence of four years with the requirement that he serve one year "day for day" in the county jail followed by twelve years of supervised probation. On appeal, defendant contends (1) the length of his sentence is excessive; (2) he should have been granted full probation; and (3) the trial court erred in requiring him to serve his time of confinement "day for day." We remand for deletion of the "day for day" requirement because it deprives the defendant of the opportunity to earn statutory sentencing credits; however, we affirm the judgments of the trial court in all other respects.

David Michael Long v. State of Tennessee
E2001-03086-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Carroll L. Ross

The petitioner, David Michael Long, appeals the denial of his petition for post-conviction relief. In this appeal of right, the petitioner asserts that his plea was neither knowingly nor voluntarily made and that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed

State of Tennessee v. David Allen Lackey
M2001-01043-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

A Davidson County jury convicted the Defendant of one count of premeditated murder, one count of felony murder during the perpetration of a theft, and one count of misdemeanor theft. The trial
court merged the two murder convictions and sentenced the Defendant to life imprisonment in the Tennessee Department of Correction for the murder conviction. The trial court sentenced the
Defendant to eleven months and twenty-nine days for the theft conviction and ordered that the sentence run concurrent with the murder sentence. The Defendant now appeals, challenging the
sufficiency of the evidence supporting the murder convictions and arguing that the trial court erred in failing to suppress his confession. After review, we affirm the judgments of the trial court.

Memphis Publishing Company, et al, v. Cherokee Children & Family Services, Inc., et al. and John Morgan v. Cherokee Children & Family Svcs., Inc.
M2000-01705-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge John R. McCarroll, Jr.

These two cases, consolidated for consideration, present two issues of enormous significance. First, we must decide whether a non-profit corporation that provides privatized services to a governmental entity is subject to the public access requirements of the Tennessee Public Records Act. The second issue concerns the authority of the state, acting through the Comptroller of the Treasury, to require said corporation to submit to a state audit. In Memphis Publishing Co. v. Cherokee Children & Family Services, Inc., Memphis Publishing Company and others seek access to records belonging to Cherokee Children & Family Services, Inc., a non-profit corporation which contracted with the Tennessee Department of Human Services to help administer a state-subsidized day care program. In seeking access to the records, the plaintiffs rely on both the Tennessee Public Records Act and provisions in the contracts between the corporation and the state. In Morgan v. Cherokee Children & Family Services, Inc., the Comptroller of the Treasury, John Morgan, seeks to require the same corporation to submit to a state audit. As authority for the audit, Morgan relies upon the contracts at issue in Memphis Publishing Co. and upon 2000 Tenn. Pub. Acts. 960 (now codified at Tenn. Code Ann. § 8-4-116 (Supp. 2001)), which authorizes the Comptroller to audit the records of entities which derive fifty percent or more of their gross revenue from state or local government. The trial -2- courts in the two cases found that Cherokee Children & Family Services, Inc. was not a governmental agency, but that all records in its possession were state property pursuant to the contracts between it and the state. Additionally, the trial court in Morgan found that an audit was authorized by 2000 Tenn. Pub. Acts 960. The Court of Appeals reversed, holding that (1) the contractual provisions at issue did not render the records public; (2) Cherokee Children & Family Services, Inc. was not a governmental agency subject to the Public Records Act; and (3) retroactive application of 2000 Tenn. Pub. Acts 960 in Morgan would be unconstitutional. We granted permission to appeal. Because we have determined, for the reasons outlined below, that Cherokee Children & Family Services, Inc. operates as the “functional equivalent” of a governmental (state) agency, we hold that all of its records are subject to the Tennessee Public Records Act and therefore
are accessible by the public. This resolution effectively resolves the audit issue, and a separate decision thereupon is unnecessary. Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed