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.

Jimmy Darryl Ingle v. Nissan North America Inc., and Royal and
M2003-01912-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: Hon. Robert E. Corlew Iii
Plaintiff contends the Chancellor erred in denying his benefits under the Workers' Compensation Act when the only medical evidence presented after his final work at Nissan demonstrated permanency of injury. The chancellor properly found that the plaintiff has not suffered a permanent anatomical injury and therefore no permanent partial impairment under the Tennessee Worker's Compensation Act. Therefore, the plaintiff is not entitled to any further benefits for vocational disability. We affirm the judgment of the trial court.

Kenneth Townsend v. Auto Zone, Inc.
M2002-02958-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves the grant of summary judgment to Defendant in a slip and fall case. The trial court found no genuine issue as to any material fact existed and that Defendant was entitled to judgment as a matter of law. Because we find the summary judgment motion was improperly granted, we reverse the judgment of the trial court.

Thomas Wayne Storm v. Jane Anne Storm
M2002-02882-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Russell Heldman

When the parties divorced in 1999, they entered into a marital dissolution agreement that was incorporated into the final divorce decree. That agreement acknowledged that the alimony payments agreed to "more than likely may have to be modified" if Husband lost his job or his insurance license. In this modification of alimony proceeding, the trial court found Husband had lost his job and was unable to find employment with comparable income. The court interpreted the MDA as authorizing it to reduce the amount of monthly payments but not to reduce the total amount due. We interpret the agreement as allowing modification of the total obligation and remand for reconsideration in light of this holding.

State of Tennessee v. Robert Lee Mallard
M2003-00953-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Steve Daniel

The defendant, Robert Lee Mallard, appeals the revocation of his probation relating to his convictions for attempting to tamper with evidence and resisting arrest. On appeal, the defendant contends: (1) the trial court erred in revoking his probation; (2) the drug tests administered by the probation officers constituted improper body cavity searches; and (3) the drug tests violated his right to privacy. We affirm the judgment of the trial court.

Freddie L. Osborne v. State of Tennessee
M2003-02088-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John H. Gasaway, III

The petitioner was convicted for sale of a controlled substance and sentenced to 32 _ years in the Tennessee Department of Correction. The petitioner appealed his conviction to this Court. We affirmed his conviction. The petitioner then filed a Petition for Post-conviction Relief. The post-conviction court granted his petition. The State now appeals the post-conviction court's decision, arguing two issues: (1) Whether failure of trial defense counsel to follow the mandatory provisions of Rule 609 amounted to ineffective assistance of counsel at trial, and (2) whether failure of trial defense counsel to request the jury charge of facilitation amounted to ineffective assistance of counsel at trial, where that charge would now be automatically given. We reverse and remand the decision of the post-conviction court.

State of Tennessee v. Kenneth Lamar Tucker
M2003-02847-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Larry B. Stanley, Jr.

The petitioner, Kenneth Lamar Tucker, plead guilty to one count of rape of a child in exchange for a fifteen-year sentence at 100%. In this post-conviction appeal, the petitioner argues that: (1) he did not knowingly and voluntarily enter his plea of guilt; (2) he was denied effective assistance of counsel; (3) he was denied the right to a trial by jury; (4) the state withheld exculpatory evidence; (5) the newly discovered exculpatory evidence entitles him to relief; and (6) the post-conviction court erred in refusing to admit trial counsel’s case file into evidence. For the following reasons, we affirm the dismissal of the post-conviction petition.

Roane County v. Weston Tucker, et al.
E2003-00446-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

Weston Tucker and Mary Louise Tucker ("the defendants") subdivided and sold land in Roane County for residential use. Roane County filed a declaratory judgment action against the defendants contending that the defendants "have failed to have a subdivision plat approved by the Regional Planning Commission" and that the new road/easement constructed by the defendant is unpaved and "approximately thirteen (13) feet wide", and "drainage has generated a complaint by a neighboring property owner." Roane County asked the court to, among other things, declare that the land in question is subject to the Roane County Subdivision Regulations ("the regulations"); grant injunctive or other relief; enforce the regulations; and declare the rights and/or liabilities of each party under the regulations. In their answer, the defendants contend that an official in the Roane County Zoning Office represented to them that the subdivision of land into parcels of more than 5 acres does not need approval from the Roane County Planning Commission ("the planning commission"). The trial court dismissed the case, finding, among other things, that Roane County's actions in attempting to prosecute the defendants civilly and criminally were "discriminatory, arbitrary and capricious."

Mitchell Lloyd MaGill v. Mary R. MaGill
E2003-02209-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Dennis W. Humphrey

This is a divorce case. The trial court granted Mary R. MaGill ("Wife") a divorce based upon the inappropriate marital conduct of her spouse, Mitchell Lloyd Magill ("Husband"); awarded Wife rehabilitative alimony of $600 per month for four years, plus attorney's fees of $600; and divided the parties' marital property. Husband appeals the trial court's award of rehabilitative alimony. In a separate issue, Wife contends that the trial court failed to divide marital assets in the form of two businesses, i.e., MaGill Electric and C&M Lounge. She also seeks an award of damages for a frivolous appeal. We affirm.

State of Tennessee v. David Lee Bellamy - Concurring
E2003-02936-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

In my view, we must recognize the possibility that Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), hampers a trial judge’s authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing. See Tenn. Code Ann. §§ 40-35-102(6) (2003) (establishing presumption of favorable candidacy for alternative sentencing for certain mitigated or standard offenders convicted of felonies in Classes C through E), -103(1) (2003) (establishing factual bases which may support a sentence of confinement).