State of Tennessee v. Alvin Dobbins, Jr.
M2003-03062-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The Defendant appeals from an order of the trial court which found him to be in violation of the terms of his community corrections sentence. The trial court ordered that the remainder of the Defendant's sentence be served in confinement. On appeal, the Defendant argues that the trial court abused its discretion in ordering that the Defendant serve his sentence in confinement rather than allowing him to continue in the community corrections program. We affirm the judgment of the trial court.

State of Tennessee v. Roger K. Jones
E2003-02501-CCA-R3-HC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Roger K. Jones, appeals the order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Tony Ivens v. State of Tennessee
E2003-02216-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carroll L. Ross

Defendant, Tony Ivens, appeals the trial court's denial of his motion for new trial. Following a jury trial, Defendant was convicted of sexual battery. Defendant was fined $3,000 and sentenced to serve two years with all but 90 days to be suspended and served on probation. Defendant filed a motion for new trial or mistrial, alleging that one of the jurors failed to disclose during voir dire that she was related to a staff member of the Monroe County Sheriff's Department. The trial court denied the motion, and Defendant appeals. After a careful review of the record, we affirm the judgment of the trial court.

Derrick Bryant v. State of Tennessee
E2003-02911-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James E. Beckner

The Defendant, Derrick Bryant, was convicted by a jury of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. Derrick Bryant, No. E2000-01835-CCA-MR3-CD, 2001 WL 1187916 (Tenn. Crim. App., Knoxville, Oct. 9, 2001). In this post-conviction proceeding, the Defendant alleges that he received ineffective assistance of counsel. After a hearing, the trial court denied relief. We affirm the judgment of the trial court.

One Commerce Square, LLC v. Ausa Life Insurance Company, Inc.
CH-01-1015-3
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

Appellant purchaser of commercial building sued appellee seller to recover payment of a tenant improvement allowance made by the appellee to a tenant pursuant to a lease agreement assigned to the purchaser as part of the transaction. The trial court granted appellee seller summary judgment based upon a construction of the terms of the assignment transferring the lease to the purchaser. Appellant purchaser appeals. We affirm.
 

Charles Rodger Wilson v. National Healthcare
M2003-01195-WC-R3-CV
Authoring Judge: Roger A. Page, Sp. J.
Trial Court Judge: Tom E. Gray, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5- 6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. In this appeal, the employer contends that the trial court erred in holding that the employee proved by a preponderance of the evidence that his complaints of mid-back pain were caused by a November 5, 2 work-related accident. The employer also contends that the trial court erred by not holding that the instant case is barred as a result of release language in a December 13, 2 court-approved workers' compensation settlement agreement that concluded a previous claim by this same employee. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ROGER A. PAGE, SP. J., in which ADOLPHO A. BIRCH, JR., J. and RITA STOTTS, SP. J., joined. M. Bradley Gilmore and Kathleen W. Smith, Nashville, Tennessee for appellant, National Healthcare Corporation. Thomas Jay Martin, Jr., Gallatin, Tennessee, for appellee, Charles Rodger Wilson. MEMORANDUM OPINION STANDARD OF REVIEW The review of the findings of the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code. Ann. _ 5-6-225 (e)(2); Stone v. City of McMinnville, 896 S.W. 2d 548, 55 (Tenn. 1995). This Court is not bound by the trial court's findings, but instead conducts its own independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W. 2d 584, 586 (Tenn. 1981). FACTUAL BACKGROUND Charles Rodger Wilson was forty-seven years old at the time of trial. He had worked primarily as a cook, kitchen manager, and executive chef since graduating from high school. Wilson had two previous workers' compensation claims prior to the November 5, 2 injury. Each of those claims resulted in a court-approved settlement. Wilson was injured on November 5, 2 when a box of frozen food fell on his back while he was inside the employer's walk-in freezer. Wilson was treated at the Middle Tennessee Family Wellness Center by Dr. Michael R. Bernui on several occasions in November, December and January 21. The first office visit with Dr. Bernui was on November 6, 2. The treatment by Dr. Bernui continued until January 1, 21. Wilson was then referred to Dr. Arthur R. Cushman. Wilson saw Dr. Cushman for the first time on February 16, 21. Dr. Cushman treated Wilson approximately six times with the last office visit occurring on March 29, 22. Dr. Cushman and Dr. Bernui did not relate Wilson's mid-back injury to the November 5, 2 accident. However, Dr. Cushman stated in a letter, "We know he had a previous thoracic disc herniation, again that was almost certainly caused by the trauma he described." An independent medical evaluation was performed by Dr. David W. Gaw on November 2, 22. Dr. Gaw has specialized in orthopedics since 1973. He examined all of the medical records concerning the employee's mid-back injury before examining him. Dr. Gaw also read the depositions of Dr. Cushman and Dr. Bernui before examining Wilson. After interviewing and examining Wilson, Dr. Gaw specifically related the mid-back injury to the November 5, 2 accident and gave Wilson a rating of 5% permanent partial impairment to the body as a whole. CAUSATION

Richard Hickey v. David Mills, Warden
E2003-01520-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Richard Hickey, appeals the Morgan County Criminal Court's dismissal of his petition for habeas corpus relief. We affirm.

State of Tennessee v. Joseph Carl Ganus
W2003-02589-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley

The Appellant, Joseph Carl Ganus, appeals the sentencing decision of the Hardin County Circuit Court. Ganus pled guilty to Violation of the Motor Vehicle Habitual Offender (MVHO) statute and DUI, third offense. Following a sentencing hearing, Ganus was sentenced to four years confinement in the Department of Correction for violation of the MVHO statute and to eleven months and twenty-nine days for DUI, third offense.1 These sentences were ordered to be served concurrently. On appeal, Ganus argues that the trial court erred: (1) by not granting him a non-incarcerative sentence and (2) by improperly weighing enhancing factors in establishing the length of his sentence. After review of the record, we find no error and affirm the judgment of the trial court.

Woodrow Jerry Hawkins v. Case Management, Incorporated, et al.
W2004-00744-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Karen R. Williams

This is an appeal from the trial court’s grant of Defendants/Appellees’ motion for summary judgment. Under T.C.A. §40-38-108, the trial court found that Defendants/Appellees were immune from prosecution for their alleged failure to properly inform Plaintiff/Appellant of his possible right to recover from the Tennessee Criminal Injury Compensation Fund. We affirm.
 

State Farm Mutual Auto Ins. Co., and its Insured, Louella McNutt, v. George Agagnost
E2003-00055-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Dale C. Workman

A suit for property damages resulting from a motor vehicle accident resulted in an award for damages based on a finding by the Trial Court that defendant was 75% at fault for the accident. On appeal, we affirm.

State of Tennessee, ex rel, Ashley Mitchell v. Patrick D. Armstrong
W2003-01687-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Herbert J. Lane

This is a Title IV child support case. The mother established paternity against the father in juvenile court, and the father was ordered to pay child support. Prior to establishing the father’s paternity, the mother had intermittently received public assistance. Consequently, the father was to send the child support payments to the State’s collection and disbursement unit, pursuant to Title IV, chapter D of the Social Security Act. The father failed to pay the required child support. The State then intervened by filing a petition for contempt against the father. In the contempt hearing, the mother asked that the father’s child support obligation be terminated. The trial court suspended the father’s obligation to pay current child support in a set amount through the State disbursement unit, with the understanding that the father would pay child support in an undetermined amount directly to the mother, pursuant to an unwritten private agreement between the mother and the father. The father was required to make payments to the State on his past arrearages. The State appealed. We reverse and remand, holding that the trial court was required to have the child support payments, in a set amount that comports with the child support guidelines, sent to the State collection and disbursement unit, and remand for modification of the amount paid on the father’s arrearages.
 

Darrell Taylor v. Allstate Insurance Company
W2003-00341-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Kay S. Robilio

This is an action to collect on a homeowner’s insurance policy. The roof and attic of the plaintiff’s home sustained about $9,800 in damages. The plaintiff filed a claim on the homeowner’s insurance policy he had purchased from the defendant insurance company. The claim was denied. The plaintiff filed the instant lawsuit to recover the insurance proceeds. After the plaintiff presented his proof, the trial court entered a judgment in favor of the insurance company. The plaintiff now appeals. Based on the sparse record on appeal, we affirm.
 

Danny Silsbe v. Houston Levee Industrial Park, L.L.C.
W2003-00717-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This is a contract case. On December 21, 2001, the parties entered into a contract granting the plaintiff an option to purchase real property. The plaintiff was required to exercise his option by 5:00 p.m., January 21, 2002, either by delivering written notice by that date to the defendant corporation, or by mailing written notification, postmarked no later than January 21, 2002. At the time the contract was executed, the parties were unaware that January 21 was a national holiday recognizing Martin Luther King, Jr. On January 21, 2002, the plaintiff attempted to hand-deliver written notification of his intent to exercise the option, found no one at the defendant’s office at the time and mistakenly assumed the office was closed because of the holiday. On January 22, the plaintiff hand-delivered written notice to the defendant. The defendant maintained that the option had expired. The plaintiff filed this lawsuit, seeking a declaratory judgment that the January 22 notice was timely and that the defendant was obligated to sell him the property pursuant to the option contract. After a trial, the trial court held in favor of the defendant, finding that the option had expired. The plaintiff appeals, arguing impossibility of performance and mutual mistake. We affirm, finding that the trial court did not err in concluding that the doctrines of impossibility of performance and mutuality of mistake are not applicable.
 

State of Tennessee v. Calvin Grissette
M2003-02061-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury convicted the Defendant, Calvin Grissette, of second degree murder and attempted second degree murder. On appeal, the Defendant contends that the trial court erred when it refused to instruct the jury on self-defense. We affirm the judgments of the trial court.

In Re: The Estate of J.D. Davis, Deceased
M2003-02614-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Frank G. Clement, Jr.

The probate court awarded summary judgment to Defendants/Appellees upon determining that, under Florida law, the antenuptial agreement entered into by Plaintiff/Appellant and Deceased was valid and enforceable. On appeal, Plaintiff/Appellant argues that the agreement is not enforceable as a violation of Tennessee public policy and by reason of duress. We reverse the award of summary judgment and remand for further proceedings.

David Hickman v. Continental Baking Company
W2003-00405-SC-R3-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Floyd Peete, Jr.

The present workers’ compensation case requires us to consider the trial court’s assessment of vocational disability and, with respect to the employer’s alleged subrogation interest, 1) the applicability of Tennessee Code Annotated section 50-6-112(c)(1); 2) the extent of the employer’s credit against future liability under Tennessee Code Annotated section 50-6-112(c)(2); 3) the appropriate disposition of medical expenses incurred prior to the time of trial in the employee’s workers’ compensation suit but not paid by the employer; and 4) the propriety of requiring the employer to pay a proportionate share of the employee’s attorney’s fee from a third-party tort action. The trial court’s judgment is affirmed in part and reversed in part, and the case is remanded. Tenn. Code Ann. 50-6-225(e)(3); Judgment of the Trial Court Affirmed in Part and Reversed in Part, Case Remanded
 

Michael Ray Wolford v. Ace Trucking, Inc.
W2003-02783-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employee insists the trial court erred in awarding disability benefits based on 1 percent permanent partial disability and seeks an award of permanent total disability benefits. As discussed below, the panel has concluded the judgment should be remanded to the trial court for a determination of whether the trial court intended to award permanent total disability benefits or the maximum allowable award for permanent partial disability benefits.

State of Tennessee v. William Edward Bellamy
E2004-00241-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The petitioner, William Edward Bellamy, appeals the trial court's denial of his motion to correct an illegal sentence. The State has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The motion is without merit. Accordingly, the judgment of the trial court is affirmed.

H.M.R., et al v. J.K.F.
E2004-00497-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor G. Richard Johnson

The trial court terminated the parental rights of J.K.F. ("Father") with respect to his minor child, S.B.R. (DOB: September 16, 1996), and granted the petition of the child's maternal grandparents, H.M.R. and S.M.R. ("the grandparents") to pursue adoption of the child. Father appeals, arguing, inter alia, that the evidence preponderates against the trial court's dual findings by clear and convincing evidence that grounds for terminating Father's parental rights exist and that termination is in the best interest of the child. We affirm.

State of Tennessee v. Brandon Abernathy
M2003-03058-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Timothy L. Easter

The Defendant, Brandon Abernathy, pled guilty to two counts of armed robbery. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the trial court erred when it denied his motion to suppress. Finding no error, we affirm the judgments of the trial court.

Edwin R. Oliver
W2003-00670-SC-WCM-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: John R. Mccarroll, 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 facts and conclusions of law. In this case the trial court held that ProLogis Trust and Steve Graves were employers of the employee, Edwin C. Oliver pursuant to Tenn. Code Ann. _ 5-6-113 and awarded workers' compensation benefits for an injury to his left lower extremity. The sole issue presented for review is whether the defendant ProLogis Trust, at the time of the employee's accident, was the employee's statutory employer as defined by Tenn. Code Ann. _ 5-6-113, and therefore liable for workers' compensation benefits. For the reasons discussed in this opinion, we find that the judgment of the trial court should be reversed as to the defendant, ProLogis Trust Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed JAMES L. WEATHERFORD, SR.J., in which JOE H. WALKER, III, SP.J., and JANICE M. HOLDER, J., joined. John Robert Cannon, Jr., Memphis, Tennessee, for appellant, ProLogis Trust. Clyde W. Keenan, Memphis, Tennessee, for appellee, Edwin R. Oliver, Individually as next friend of Edwin C. Oliver, a minor. MEMORANDUM OPINION ProLogis Trust is a global company that leases, owns and manages industrial buildings. They have approximately 45 buildings in the Memphis - Shelby County area with approximately seven million square feet. At the time the employee was injured, Steve Graves owned a company called ABC Roofing and Tree Service. The name of his company was later changed to ABC Repair because he did not do much tree work anymore. Mr. Graves described his work as cleaning, repair, fix-up and paint- up. An employee of ProLogis described Graves' work as putting up sheetrock, building some type of office, installing carpet, cleaning up the space, cleaning the windows, and pressure washing the inside of a building to get cobwebs down. On July 19, 1999, Plaintiff, Edwin C. Oliver, called Defendant, Steve Graves, and inquired about summer work with Mr. Graves. Mr. Oliver and Mr. Graves had not met before, but they attended the same church. At this time, Mr. Oliver was 17 years of age. Mr. Graves instructed Mr. Oliver to come to a warehouse owned and operated by ProLogis Trust. When Mr. Oliver arrived at the warehouse, Mr. Graves was not there. Mr. Oliver began to sweep floors in the warehouse. When Mr. Graves arrived, Mr. Graves and Mr. Oliver began to straighten concrete poles. The poles were approximately 4 feet tall and 12 inches in diameter. As a pole was being straightened, the pole broke and struck Oliver's left foot, causing injury to his foot. This injury necessitated the amputation of three toes and the tip of the fourth toe. At the conclusion of the proof, the trial court found that ProLogis Trust and Steve Graves were employers of Mr. Oliver pursuant to Tenn. Code Ann. _ 5-6-113.1 The trial court found that Graves had an obligation to provide workers' compensation coverage, which he didn't. Further, the trial court found that ProLogis knew that Graves did not have coverage as required under the contract between ProLogis and Graves, and allowed Graves to work nevertheless. The trial court found that Mr. Oliver suffered a disability of 5 percent to the left lower extremity. ANALYSIS Our review of the findings of fact made by the trial court is de novo upon the record of the 1Tennessee Code Annotated _ 5-6-113 provides in pertinent part: (a) A principal, or intermediate contractor, or subcontracter shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer. ........... (d) This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under the principal's control or management. -2-

David B. Cloninger v. City of Dyersburg, Tennessee,
W2003-01716-SC-WCM-CV
Authoring Judge: E. Riley Anderson, Justice
Trial Court Judge: J. Steven Stafford, Chancellor
. The Chancellor determined that the employer rebutted the statutory presumption that the employee's stroke arose out of his employment as a police officer, see Tenn. Code Ann. _ 7-51-21(a)(1) (1998), and that the employee failed to establish that the stroke arose out of his employment. After reviewing the record and applicable authority, we conclude that the evidence in the record does not preponderate against the Chancellor's findings. We therefore affirm the judgment.

Samuel F. Sanchez v. Saturn Corp.
M2003-01894-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: Hon. R. E. Lee Davies, Judge
The employee suffered a biceps tendon rupture in the course and scope of his employment. While performing arthroscopic surgery to confirm the existence of a rotator cuff tear, the treating physician performed a resection of the employee's distal clavicle. The employee contends that the trial judge erred in failing to consider any impairment for this resection in the calculation of the employee's vocational disability and therefore rendered an inadequate award. The Panel finds that medical testimony refutes any causal connection between the work-related injury and the clavicle resection. The Panel also concludes that the employee has failed to meet his burden of showing that the resection was reasonably necessary to treat the work-related injury. We affirm the judgment of the trial court.

William Seale v. Church of God d/b/a Pathway Press
E2003-01559-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Jerri S. Bryant, Chancellor
The trial court found the claim was compensable and ordered the employer to provide medical treatment of total knee surgery. The employer contends the employee's condition was the result of pre-existing condition of arthritis and did not result from the accident. Judgment of the trial court is affirmed.

Betty Jo Sissom v. State of Tennessee Department of Labor
M2003-01605-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: Hon. Robert E. Corlew, III, Judge
The employee in this reconsideration case sustained a work-related back injury and previously sustained other work-related and nonwork-related injuries. Although she initially settled for a permanent partial disability award as compensation for her recent back injury and returned to work, she was later discharged due to that back injury. She argues that the trial court erred in not raising her prior permanent partial disability award to an award of permanent total disability. A reconsideration award is limited to 6 times the medical impairment rating due to the subject injury under Tenn. Code Ann. __ 5-6-241(a)(2) and 5-6-241(b), and the trial court's decision within that maximum is supported by the evidence. We affirm the judgment of the trial court.