Peter Zabaski v. Mary Ann Zabaski
M2001-02013-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Marietta M. Shipley
The trial court granted a divorce to the parents of an only child with a history of severe medical problems, and awarded them joint custody. The wife contends on appeal that the trial court's order of custody and visitation was not in the child's best interest. She also argues that the court erred by setting the husband's child support obligation too low, and by failing to award her alimony in futuro. We affirm the trial court.

James Staggs v. Lori Staggs
M2001-01192-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Leonard W. Martin
The trial court transferred custody of the parties' two children from the mother to the father. The mother argues on appeal that there was no change of circumstances to support a change of custody, and no proof that the change would be in the best interest of the children. We affirm the trial court.

Paul E. Johnson v. The Metropolitan Government Of
M2001-00633-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Carol L. Mccoy

State of Tennessee v. James Charles Cavaye
M2001-02154-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Following a jury trial, Defendant, James Charles Cavaye, was convicted of first degree felony murder and especially aggravated robbery. He was sentenced to life imprisonment for the murder, and to a consecutive sentence of twenty-four years for the especially aggravated robbery. In this appeal as of right, Defendant contends that (1) the trial court failed to fulfill its role as the thirteenth juror; (2) the accomplice's testimony was insufficiently corroborated; (3) the trial court erred in applying enhancement factors in setting Defendant's sentence for especially aggravated robbery; and (4) the trial court erred in ordering Defendant's sentences to run consecutively. Based upon our review of the record, we affirm the judgment of the trial court.

F. T. Greer v. Joseph Marci
M2001-02536-COA-R3-CV
Authoring Judge: Judge Thomas W. Graham
Trial Court Judge: Tom E. Gray
This appeal arises from the denial of the Chancery Court of Sumner County of Plaintiffs' request for an injunction. The dispute involves the construction of a brick entranceway which connects a county road to Defendants' driveway easement over the Plaintiffs' property. The entranceway lies within the "metes and bounds" of a county road. The Chancellor refused to grant an injunction ordering removal of the entranceway holding that the county was the only party with standing to seek removal of obstructions within the right-of-way of a county road. We disagree with the Chancellor and find that the Plaintiffs own fee simple title to the pertinent portion of the right-of-way and therefore have standing to assert their ownership rights independent of the county. We therefore reverse the finding of the Chancellor and remand the case for further proceedings.

City of Oak Hill v. AAMP
M2001-00688-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
This appeal concerns the City of Oak Hill's efforts to enforce its exclusively residential zoning restrictions over a parcel of land situated at the city's eastern border. The city appeals the trial court's finding that "parcel 109" was located outside of Oak Hill's city boundary and, therefore, not subject to the city's zoning ordinances. We affirm the action of the trial court.

Herman Howard. v. American Industries Services
M2001-02711-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Ellen Hobbs Lyle
The Chancery Court of Davidson County dismissed the complaint in this case for the plaintiffs' failure to respond to discovery requests. The plaintiffs assert on appeal that the chancellor abused her discretion. We affirm the chancery court.

State of Tennessee v. Carlos E. Bryan
M2001-02705-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Timothy L. Easter

This is yet another case in which the parties have been ensnared in the procedural pitfalls of a certified question of law. Defendant entered a negotiated plea of guilty to possession of over seventy pounds of marijuana with intent to sell or deliver with an agreed sentence of eight years. He attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(iv), "with the consent of the court," relating to the search and seizure of the contraband. Because the defendant entered a negotiated plea of guilty and neither the judgment nor the order of the court reflects the state's consent to the certified question, we must dismiss the appeal.

James Pemerton & Deborah Pemerton v. Beauty Wall Painting
M2001-01638-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Soloman
This is a breach of warranty case. The plaintiff homeowners contracted with the defendant painter to have their home painted. The contract included a one-year warranty on labor and materials. After the work was completed, the paint began to peel, blister, and separate from the wood siding. The homeowners sued the painter under the warranty. The trial court found that the homeowners complained of the problems within the one-year warranty period. The trial court awarded the homeowners damages for the amount paid to the painter, substantial damages for repairs, and discretionary costs. On appeal, the painter argued that the trial judge failed to properly understand the testimony of the parties regarding the painter's actions after being informed of the paint problems, and therefore, improperly discredited the painter's testimony with regard to the issue of the date the homeowners told the painter about the defective work. We affirm, finding that the defendant painter failed to show any basis for reversing the credibility determination of the trial court.

Greg Melton v. Gerald Melton
M2002-00532-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: J. B. Cox
Beneficiaries of irrevocable insurance Trust filed a Complaint against the Trustees, seeking to have the corpus of the trust distributed and the Trust terminated by its own terms. One Trustee, acting pro se, answered the Complaint. Beneficiaries filed a Motion for Summary Judgment supported by their joint affidavits. No response or countervailing affidavit was filed, and an Order was entered granting the Motion. Trustee appeals. We affirm

McLane Co. v. State
M2002-00838-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
Licensed wholesale tobacco distributor filed petition against the State seeking the disclosure of identities of all licensed tobacco wholesale distributors in the State of Tennessee pursuant to the provisions of the Tennessee Public Records Act. State opposed petition on the grounds that disclosure of this information was controlled by the taxpayer confidentiality provisions of the revenue statutes. Chancery Court granted petition and ordered disclosure of the names and addresses of all licensed wholesale tobacco distributors in Tennessee but, on the state's motion, stayed its order pending appeal. State appeals. We reverse and dismiss.

State v. Patty Grissom
M2002-00279-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Charles D. Haston, Sr.
The appellant, Patty Francine Grissom, was convicted of the simple possession of a Schedule II controlled substance and she received a probationary sentence of eleven months and twenty-nine days. Subsequently, the trial court revoked the appellant's probation upon finding that she had possessed drugs and drug paraphernalia while on probation. On appeal, the appellant raises several issues concerning her probation revocation. Upon reviewing the record and the parties' briefs, we affirm the judgment of the trial court.

State v. Phillip Wilcox
M2002-00667-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: L. Craig Johnson
The defendant contends the trial court erred in revoking his probation. He claims the trial court improperly considered evidence of probation violations, because he was not given proper notice of the violations by the probation revocation warrant. He further claims that the evidence adduced at the probation revocation hearing was insufficient to revoke his probation. The trial court heard evidence of probation violations that were not included in the probation warrant, but the trial court specifically stated it did not consider such evidence in revoking the defendant's probation. Because sufficient evidence exists to prove the defendant violated Rule One of his Rules of Probation, we affirm the judgments of the trial court.

State of Tennessee v. Mark Anthony Griffin
E2001-01233-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Baumgartner

A jury convicted the Defendant of aggravated robbery and attempted robbery. The trial court sentenced the Defendant to an effective nine-year term. The Defendant appealed, and our Court affirmed the case in part, but remanded the case in part for the trial court to determine whether the Defendant's right to a speedy trial was violated. On remand, the trial court found that the Defendant's right to a speedy trial had not been violated. The Defendant now appeals from the trial court's order denying his motion to dismiss for a violation of his right to a speedy trial. Finding no error, we affirm the judgment of the trial court.

Ray Wright v. Brittany Pate
11-01-135-M
Trial Court Judge: A. Andrew Jackson

State of Tennessee v. Sherrie Mae Crawford
E2002-01292-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Phyllis H. Miller

Pursuant to a plea agreement, the Defendant pled guilty to theft under $500 and to violating an habitual traffic offender order. She entered Alford pleas to possession of marijuana with intent to sell, possession of drug paraphernalia, and two counts of contributing to the delinquency of a minor. Her total effective sentence was two years as a Range I standard offender plus eleven months and twenty-nine days on supervised probation. The manner of service of the two-year sentence was to be determined by the trial court following a sentencing hearing. The trial court denied alternative sentencing and ordered the Defendant to serve the entire two years in the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court erred in failing to impose an alternative sentence. Concluding that the record supports the trial court's denial of alternative sentencing, we affirm the judgments of the trial court.

E2002-01703-COA-R3-CV
E2002-01703-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.

Rose Warnick vs. Carter County
E2002-00833-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jean A. Stanley
This is a negligence action filed by Rose F. Warnick against Carter County ("the County") seeking damages for personal injuries arising out of an automobile accident involving the plaintiff and Keith G. Range ("Deputy Range"), a Carter County deputy sheriff, who, according to the complaint, was "acting within the course and scope of his authority as an agent, servant and employee of" the County at the time of the accident. The County filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02(6). The trial court dismissed the plaintiff's complaint, holding that it was not filed within one year of the accident as required by the Governmental Tort Liability Act ("the GTLA"). We affirm.

Pigeon Forge vs. William Loveday
E2002-00643-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Richard R. Vance
Landowner seeks a new trial in eminent domain case on grounds that the Trial Court admitted in evidence the price paid for the land 19 years earlier. We reverse the Trial Court's Judgment.

Sandra Sparkman & Joe Sparkman vs. Bluecross Blueshield
E2002-00932-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Samuel H. Payne
Plaintiffs' action was dismissed by the Trial Court on the grounds plaintiffs failed to exhaust administrative appeals. On appeal, we Vacate and Remand.

John Garland vs. Tonia Garland
E2002-00949-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James W. Mckenzie
In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified.

Teresa Malone vs. Shane Maddox
E2002-01403-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Neil Thomas, III
This case focuses on an insurance company's liability under the uninsured motorist ("UM") provisions of an automobile insurance policy. It arises out of an automobile accident involving Teresa Malone ("the policyholder") and Shane Maddox ("the uninsured motorist"). The policyholder appeals the trial court's judgment decreeing that the policyholder's uninsured motorist carrier, Harleysville Mutual Insurance Company ("the UM carrier"), cannot be held liable for prejudgment interest under the facts of this case because such an award would cause the total judgment against the UM carrier to exceed the UM coverage limit in the policy. We affirm.

Edward Howell vs. NHC Healthcare
E2002-01321-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Harold Wimberly
The Trial Court refused to enforce an Agreement for Mediation and Arbitration. On appeal, we Affirm.

Dexter Lebron Joshen v. Mckee Foods Corporation
E2002-00194-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: W. Frank Brown, III, Chancellor
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 trail court found the plaintiff had sustained a compensable injury to his shoulder and fixed an award of 3 percent vocational disability to the body as a whole. The defendant says the trial judge fixed this award on the basis of a 6 percent medical impairment to the body rather than on the basis of 4 percent medical impairment, which the defendant asserts is the correct medical impairment rating. The plaintiff responds to the defendant's claim by saying he is satisfied by the ruling of the trial court on the award to the plaintiff. However, the plaintiff says if we reverse the trial court's judgment he wishes us to address the four assignments of error raised by him. These assignments concern the treatment of the plaintiff by a Dr. Alan Odom, who did surgery on the plaintiff's shoulder. The trial court found the treatment by Dr. Odom was not shown to be related to the compensable injury the plaintiff suffered while working for the defendant. We affirm the judgment of the trial court.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and HOWELL N. PEOPLES, SP. J., joined. Charles D. Lawson and J. Barlett Quinn, Chattanooga, Tennessee, attorneys for appellant, McKee Foods Corporation. Gary W. Starnes, Chattanooga, Tennessee, attorney for appellee, Dexter Lebron Joshen. 1 We will not discuss the issues raised by the plaintiff other than to say the record supports the action of the trial judg e in ruling on D r. Od om's tre atment of the p laintiff. MEMORANDUM OPINION At the time of this trial, the plaintiff was thirty-eight years of age. He is a high-school graduate and has no post high school education, vocational or academic. He is married and the father of a child who was seventeen at the time of trial. For the most part the plaintiff's work history shows him to have been employed in low paying jobs such as a busboy and dishwasher, work as a brick mason during high school and as a cook in a restaurant. The plaintiff became employed by the defendant in 1985, and continued in this job until May 17, 1999. The plaintiff's job required him to remove cartons from a conveyor and stack them into a trailer (truck) for delivery. This required lifting, turning and reaching above the shoulders. There is no dispute that the plaintiff injured his right arm and shoulder on May 17, 1999 in the course of doing the stacking required by his job. Medical Evidence 2 Dr. Dennis Lee Stohler, an orthopaedic surgeon, first saw the plaintiff on June 11, 1999. He diagnosed the plaintiff's condition as a result of the injury as left rotator cuff tendinitis with subacromial bursitis with mild left biceps tendinitis. Dr. Stohler treated the plaintiff and determined he had reached permanent medical impairment of 1 percent to the upper extremity, which in medical jargon encompasses the shoulder, which we consider a part of the whole body. He converted this to 6 percent medical impairment to the body as a whole. Dr. Stohler testified that a clinical examination showed that the plaintiff's range of motion had improved by December 21, 1999. He testified that if there had been improvement the original assessment of 6 percent "can be certainly [inaccurate] in that original impairment." Upon being further questioned about the range of motion, Dr. Stohler testified it would reflect a 4 percent whole body impairment. Dr. Stohler based this evaluation on the 4th Edition of the AMA Guidelines. Upon further questioning, Dr. Stohler testified he did not give any consideration for pain in reaching his evaluation. The evidence shows the plaintiff continued to suffer pain and the 4th Edition considers pain as pertinent in fixing the extent of medical impairment from an injury. Discussion There is little discussion needed in this case. The only question is whether the trial court should have found the medical impairment was 6 percent or 4 percent to the body as a whole. 2 We will not discuss the testimony of Dr. Odom because Dr. Odom testified the injury he treated could not have been cause d by the M ay 17 , 199 9 injur y. -2-

Harold J. Garth v. Siskin Steel & Supply Company,
E2002-00090-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: W. Frank Brown, III, Chancellor
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 court found the plaintiff suffered 75 percent disability to his right hand as a result of an on-the-job injury, which occurred on March 1, 2. The defendant says the trial judge erred in not finding the plaintiff's recovery for the injury should be limited to the thumb or the first phalange of the thumb. The plaintiff says the trial court properly found the plaintiff suffered an impairment to his right hand but says the trial court should have granted a higher award. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Kent T. Jones, Chattanooga, Tennessee, attorney for appellant, Randstand Staffing Services. David D. Moore, Chattanooga, Tennessee, attorney for appellant, Siskin Steel & Supply Company. Richard H. Winningham, Chattanooga, Tennessee, attorney for appellee, Harold J. Garth. MEMORANDUM OPINION Plaintiff, Harold Garth, is a high school graduate with vocational training as a bricklayer. After serving in the military, he attended Draughon's Junior college where he received a degree or diploma in trucking and has past experience in both trucking and construction. The undisputed evidence shows the plaintiff sustained an injury to his right thumb or hand on March 1, 2 while working as a materials handler with Siskin Steel & Supply Company through Randstad Staffing Services.1 Medical Evidence Dr. Daniel Labrador, Jr., a plastic surgeon, saw the plaintiff at the emergency room on March 1, 2, shortly after he was injured. He testified that the tip of the plaintiff's right thumb had been torn off. The portion of the thumb was reattached to the plaintiff's thumb and treatment began. Dr. Labrador saw the plaintiff on several occasions and last saw him on April 3, 2. Dr. Labrador denied that the plaintiff's hand injury had developed gangrene. Dr. Labrador concluded that the plaintiff's injury had healed on April 2, 2, and testified the plaintiff sustained a 1 percent permanent medical impairment to his right thumb. Dr. Labrador testified he was somewhat limited in his finding because Mr. Garth did not return for a final appointment after April 3, 2.2 Dr. Robert Mastey, a hand and upper extremities specialist, saw the plaintiff on July 27, 21 at the request of the defendant for purposes of evaluation. He found the plaintiff had no bone loss and had normal nerve function in the hand, which was based upon a review of an EMG and CV done previously. He also found the plaintiff had loss of motion in the thumb and loss of digital height. Dr Mastey determined the plaintiff had sustained a 14 percent medical impairment to the right thumb. Dr. Mastey did not consider a loss of grip finding because he felt it was unreliable.3 Dr. Cauley W. Hayes, a hand surgeon, saw the plaintiff on April 6, 2. He testified that the tip of the plaintiff's thumb had been amputated (soft tissue), that the soft tissue had been reattached and that the wound had become necrotic and gangrenous. Dr. Hayes found the plaintiff's right thumb was numb almost past the metacarpal phalange joint and that the plaintiff was experiencing swelling of the hand. Dr. Hayes opined the plaintiff would have a permanent partial medical impairment of 33 percent to his hand, with loss of motion and "fine manipulation." Lay Testimony The plaintiff and other witnesses testified at trial that his right hand continues to swell. On two occasions the plaintiff exhibited his hand to the trial judge for observation, once at the request of counsel and once at the request of the trial judge. The only response by the judge on these 1 Randstad Staffing and Siskin Steel stipulated at trial that Randstad was the actual statutory employer of the plaintiff at the time of the alleged injury and, by agreement, Randstad Staffing Services took on sole responsibility for the jud gme nt. 2 The plaintiff testified he did not return to Dr. Labrador because his finger was swollen and infected and he did not think he was being properly treated. 3 Dr. Mastey appeared antagonistic to questions from plaintiff's counsel and also interjected his legal opinion into his testim ony b y citing a co mpe nsation decisio n by the Sup reme Court. -2-