Robert Foster v. Morrow Trucking, Inc., W2002-00041-SC-WCM-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: C. Creed Mcginley, 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 sustained a compensable injury to his back as a result of a fall. Further, the trial judge found the plaintiff had sustained a previous disabling condition by reason of diabetes and spondylolisthesis, which were non-work related conditions, and found that the current disability coupled with the pre-existing disabilities rendered the plaintiff totally and permanently disabled. The trial judge applied Tenn. Code Ann. _ 5-6-28(a) and ordered the award to be compensation for a period of 842 weeks and 8 days. The defendant was ordered to pay 421 weeks and 4 days of the award and the Second Injury Fund was ordered to pay 421 weeks and 4 days of the award thereafter. The trial judge, however, failed to make specific findings of fact regarding the extent of disability the employee would have experienced without any preexisting disabilities. We therefore remand the case so that such a determination can be made. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Case Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, SP. J., joined. Richard W. Mattson, Nashville, Tennessee, for appellants, Morrow Trucking, Inc. and Logistics Personnel Corporation. Ricky L. Boren, Jackson, Tennessee, for appellee, Robert Foster. Paul G. Summers, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for appellee, Second Injury Fund, State of Tennessee. MEMORANDUM OPINION Review of the findings of fact made by 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). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff was forty-nine years of age at the time of this trial. He had completed nine years of school and does not have a GED. His work history is primarily labor-type jobs and truck driving. At the time the plaintiff was hired by the defendant, he submitted a physical report to the defendant. In that report, the plaintiff reported that he had diabetes and was taking pills for it. The record reflects the plaintiff told the defendant at the time of the pre-hire interview that he had a significant diabetic problem. The plaintiff testified that to be able to drive a truck diabetics had to be controlled by medication but if the diabetic is controlled by insulin a person is prohibited by Department of Transportation [DOT] regulations from driving. The plaintiff had been treated for back pain and diabetes prior to going to work for the defendant. According to his physician of many years, the plaintiff was diagnosed with diabetic peripheral neuropathy, a disease caused by uncontrolled diabetes, in June of 1997. The plaintiff began working for the defendant in October of 1999. On or about November 4, 1999, as the plaintiff was descending from his truck to put fuel in the tank, he fell and struck the left side of his back on the concrete platform upon which the pumps sat. The plaintiff attempted to continue his assigned delivery route but was unable to do so and had to return to the drivers' terminal because of back pains. The plaintiff subsequently saw Dr. Michael Glover for treatment and Dr. Joseph C. Boals for evaluation. The plaintiff testified that as a result of his back injury he was ultimately unable to drive a truck because his left leg became so weak he could not depress the clutch pedal on a truck. Medical Evidence Dr. Y. N. Pakkala testified that he first started treating the plaintiff in 1993. The plaintiff complained of low back pain and was given medication. In March of 1994, the plaintiff again complained of back pain. Dr. Pakkala found a muscle spasm suggesting a sprain of the plaintiff's back. In April 1995, he diagnosed the plaintiff as being diabetic. Dr. Pakkala testified the plaintiff -2-
Hardin
Workers Compensation Panel
Steve Kyger v. State of Tennessee M2002-01449-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Douglas A. Meyer
The Appellant, Steve Kyger, appeals the dismissal of his petition for post-conviction relief by the Rutherford County Circuit Court. On December 21, 1987, Kyger was convicted of first degree murder, armed robbery, and joyriding, and received a sentence of life imprisonment plus thirty-five years in the Department of Correction. On appeal, Kyger challenges these convictions raising the single issue of ineffective assistance of counsel. Finding no error, we affirm the judgment of the post-conviction court.
Rutherford
Court of Criminal Appeals
Bob Kielbasa, et al v. B & H Rentals M2002-00129-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: John D. Wootten, Jr.
Plaintiffs appeal from the action of the trial court dismissing their Complaint for Declaratory Judgment on the basis that it is barred by the statute of limitations. A previous Petition for Writ of Certiorari under Tennessee Code Annotated section 27-9-101 had been dismissed by the Chancery Court of Wilson County because it was filed after the limitation period provided by Tennessee Code Annotated section 27-9-102 had expired. That dismissal was upheld on appeal and this suit for declaratory judgment followed. The trial court correctly dismissed the complaint because of the expiration of the statute of limitations.
The petitioner, Christopher Curry, filed in the Lake County Circuit Court a pro se petition for writ of habeas corpus, alleging that his confinement was illegal due to the expiration of his sentence. The habeas corpus court summarily dismissed the petition and the petitioner appealed. Upon review of the record and the parties' briefs, we reverse the dismissal of the petition for habeas corpus relief and remand to the habeas corpus court for the appointment of counsel and an evidentiary hearing to determine whether the petitioner's sentence has expired.
Thurman G. Ledford appeals a certified question of law whether the strong odor of ammonia emanating from his residence supported probable cause for the issuance of a search warrant, which resulted in his arrest for drug-related activities. Because we conclude that the issue is not dispositive of the defendant's case, we dismiss his appeal.
Hamblen
Court of Criminal Appeals
Chattanooga-Hamilton County Hospital Authority vs. Ade Oni, M.D. E2002-01758-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jacqueline E. Schulten
Action on lease and trial court awarded judgment for rent and expenses. On appeal, we affirm as modified.
Hamilton
Court of Appeals
In Re: Estate of Donald Lee Keith E2002-02056-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jeffrey F. Stewart
This is a will contest. Freddie A. Johnson and wife, Marie Johnson ("the grandparents"), filed a petition to probate the holographic will of their grandson, Donald Lee (D.J.) Keith, Jr. ("the decedent"). The decedent's widow, Alexis Keith ("the wife"), and his minor daughter, Kassce Mae-Kyle Keith ("the minor child"), contested the alleged will, arguing that it did not constitute a valid holographic will. The trial court granted the motion for summary judgment filed by the wife and the minor child, holding that the document under contest was not a last will and testament. The grandparents appeal, contending that summary judgment is not appropriate. We vacate the trial court's judgment and remand for further proceedings.
Bledsoe
Court of Appeals
Joseph Houston vs. Charles Mounger E2002-00779-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Frank V. Williams, III
After judgment was entered, certain inaccuracies, deemed to be clerical errors in an engineering survey of extensive properties, were discovered which were resolved by the trial court following hearings, and the judgment was corrected or amended over the appellant's objections. This appeal followed, but no transcript of the proceedings was filed, and the appellant's purported Statement of the Evidence did not receive the approbation of the Chancellor. Consequently, the appellant court must assume that the evidence was sufficient to support the judgment, and the appeal is dismissed.
The Overton County Criminal Court revoked the probation of the defendant, Bruce Hollars, and ordered his original sentences of two consecutive terms of eleven months and twenty-nine days be served in confinement. On appeal, the defendant contends that the trial court erred by requiring him to serve the entire sentence. We affirm the judgment of the trial court.
Overton
Court of Criminal Appeals
Glenn Basham v. Henry Tillaart M2002-00723-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jeffrey F. Stewart
The plaintiff, Glenn Basham, doing business as Glenn Basham Nursery, sued Henry Tillaart and Martin Tillaart ("the individual defendants"), who are identified in the complaint as Ontario, Canada businessmen, for monies due as a result of a commercial sale of nursery stock. The style of the complaint refers to the trade name of the individual defendants as "Dutchmaster Nurseries." Over six years later, the plaintiff moved the trial court to substitute a Canadian corporation, i.e., "Dutchmaster Nurseries, Ltd.," for the individual defendants. The individual defendants moved to dismiss the complaint for "insufficiency of service of process." They also claimed that the plaintiff's cause of action was barred by the statute of limitation. The trial court denied the motion to amend. It granted the motion to dismiss the complaint. The plaintiff appeals, arguing that the motion to dismiss should have been denied and that he should have been permitted to amend his complaint to name the correct defendant. We affirm.
The petitioner, Michael J. Bailey, filed a petition for post-conviction relief alleging that he was denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
The Defendant, Mario Antoine Leggs, was convicted by a jury of theft, robbery, two counts of reckless endangerment, aggravated robbery, two counts of evading arrest, three counts of reckless aggravated assault, leaving the scene of an accident, and driving on a suspended license. After a sentencing hearing, the trial court ordered the Defendant to serve an effective sentence of twenty-three years, eleven months, and twenty-eight days in the Department of Correction. In this direct appeal, the Defendant raises the following issues: (1) whether the trial court erred by denying the Defendant's motion to sever the offenses; (2) whether the trial court erred by admitting prior identification testimony; (3) whether the Defendant is entitled to a new trial based upon improper remarks made by the prosecutor during closing argument; (4) whether the trial court erred by not reducing the Defendant's three convictions for reckless aggravated assault to simple assault; (5) whether the trial court erred by not merging one of the Defendant's convictions for evading arrest with his conviction for leaving the scene of an accident; and (6) whether the trial court properly sentenced the Defendant. We hold that the trial court erred by not severing the offenses that occurred on November 16, 2000. However, we deem the error harmless. Because we find insufficient evidence to support the Defendant's second conviction for evading arrest, we reverse it and dismiss that charge. In all other respects, we affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Gwendolyn Jackson vs. Zodie Hamilton W2000-01992-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts
This action arises out of an automobile accident, and Plaintiffs' claimed damages of lost wages, loss of consortium, medical expenses, and pain and suffering. The case was tried before a jury, who found in favor of the Plaintiffs and awarded one of the Plaintiffs $600. Plaintiffs appeal the verdict, and this Court reverses and remands the case for a new trial.
Shelby
Court of Appeals
State v. Maurice Nash W2001-01703-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III
Maurice Lashaun Nash was tried before a Tipton County jury for possession of marijuana, a schedule VI controlled substance, with intent to deliver. The jury convicted Nash of the lesser-included offense of facilitation of possession of marijuana with the intent to deliver. On appeal, the Court of Criminal Appeals concluded that there was insufficient evidence to support an instruction to the jury and conviction on the lesser-included offense of facilitation of possession with the intent to deliver. The Court of Criminal Appeals reversed Nash's conviction and remanded the case to the trial court for a new trial on the charge of simple possession. Both Nash and the State sought permission to appeal the decision of the Court of Criminal Appeals. We granted both petitions and after conducting a thorough review of the record and applicable law, we hold that there was sufficient evidence to support a conviction for facilitation of possession of marijuana with the intent to deliver. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the trial court for enforcement of its judgment of conviction.
Tipton
Supreme Court
Thomas Bronson vs. Horace Umphries vs. Norfolk Railway W2002-01260-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
This appeal is from judgments on jury verdicts in a wrongful death case and personal injury cases resulting from a collision of a freight train with a vehicle. Suits were filed for the wrongful death and personal injury claims against the railroad, and the passengers in the vehicle also sued the owner and driver of the vehicle. The cases were consolidated for trial, and the jury returned a verdict for defendant railroad in all cases. The jury also returned a verdict awarding damages for plaintiffs' in their suit against the driver and owner of the vehicle. Judgments were entered on the jury verdicts, and all plaintiffs appealed. We affirm.
Kathleen Earley vs. Robert Earley W2002-01354-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
In this divorce case, the final decree granting wife a divorce made a division of marital property but failed to include as part of the marital estate several expenditures made by the husband. Wife asserts that such expenditures constitute a dissipation of assets by the husband and should have been included as part of the marital property. Wife appeals. We affirm.
Shelby
Court of Appeals
W2002-01946-COA-R3-CV W2002-01946-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Donald H. Allen
The appellant, Sandra Ann Whaley, was convicted by a jury in the Hamilton County Criminal Court of driving under the influence (DUI) and assault. The trial court imposed a total effective sentence of eleven months and twenty-nine days incarceration in the workhouse, to be suspended upon service of thirty days in confinement. On appeal, the appellant challenges the sufficiency of the evidence supporting her DUI conviction and she also complains about the sentences imposed. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.
Hamilton
Court of Criminal Appeals
In Re: Estate of Flora King vs. John B. Oakley E2002-01745-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Richard R. Vance
In this will contest, the Trial Court granted the Executor summary judgment upholding the Will. On appeal, we affirm.
Sevier
Court of Appeals
Barbara Pritchett v. Wal-Mart Stores, Inc., Larry E2001-01257-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: John Hagler, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employee appeals the dismissal of her claim for workers' compensation benefits asserting that the trial court erred in admitting findings of the Social Security Administration, and in finding that her injury was non-compensable. We affirm.
Knox
Workers Compensation Panel
Louis Federico v. Aladdin Industries M2002-02351-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Irvin H. Kilcrease, Jr.
Louis Federico ("Plaintiff") began working for Aladdin Industries, LLC ("Aladdin") after they agreed in writing to his terms of employment. Among other things, they agreed Plaintiff would receive an annual salary of $180,000, plus a guaranteed bonus in the first year of $72,000. They also agreed to a separation package which provided that should Plaintiff lose his job other than through his own volition, he would receive "12 months' salary, prorated bonus and outplacement services." Plaintiff's position was eliminated before his first year of employment was completed. Plaintiff filed this lawsuit claiming the language in the separation package entitled him to a "separation bonus" of $72,000 in addition to the guaranteed first year bonus in the same amount. Aladdin disagreed, arguing Plaintiff was not entitled to any additional bonus over and above the guaranteed first year bonus because he never began working a second year. The Trial Court agreed with Aladdin and dismissed Plaintiff's complaint. Plaintiff appeals, and we affirm.
Davidson
Court of Appeals
Johnny Gant v. Suncom Wireless M2002-02574-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
Davidson
Court of Appeals
Paula Bowman v. State M2002-02616-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
This is an action against the State for damages for personal injuries sustained by the Appellant when she slipped on the icy surface of a State-owned parking lot. The single Commissioner found in favor of the State. The Claimant requested an en banc hearing which was granted with a concurrent Order entered affirming the single Commissioner, without notice to the Claimant. We vacate and remand.
