State v. Timothy McKinney
W1999-00844-SC-DDT-DD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Joseph B. Dailey

State v. Timothy McKinney
W1999-00844-SC-DDT-DD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Joseph B. Dailey

Mary Johnson, et al. v. LeBonheur Children's Medical Center, et al.
W1999-01719-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Robert L. Childers
We granted appeal to determine whether the vicarious liability of a private hospital may be based upon the acts or omissions of a state-employed physician resident. We hold that a private hospital may be vicariously liable under the doctrine of respondeat superior based solely upon the acts of a state-employed physician resident when the resident is acting as an agent of the hospital. The judgment of the Court of Appeals is affirmed, and the case is remanded to the trial court for proceedings consistent with this opinion.

Terry Lynn, et al. v. City of Jackson
W1999-01695-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Roy Morgan
We granted this appeal to determine whether the trial court and the Court of Appeals erred in dismissing the plaintiffs' wrongful death claim after concluding that the one-year statute of limitations was not tolled during the minority of the decedent's children or during the time the action was pending in federal district court before it was dismissed for lack of jurisdiction. After careful consideration, we affirm the judgments of the trial court and the Court of Appeals. In so holding, we reaffirm Jones v. Black, 539 S.W.2d 123 (Tenn. 1976), in which this Court held that the statute of limitations for a wrongful death claim is not tolled during the minority of the decedent's children. We also reaffirm the well-established rule of Tennessee law that general saving statutes do not apply to extend the time for filing an action under the Tennessee Governmental Tort Liability Act.

In Re Estate of Fannie Barnhill
W2000-00289-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Martha B. Brasfield
We granted this appeal to determine whether the Fayette County Chancery Court had jurisdiction to hear the issue of devisavit vel non in this case, and whether the law in Tennessee permits a voluntary dismissal without prejudice in a will contest. We conclude that the chancery court had jurisdiction to hear the will contest in this case, but that the appellant's voluntary dismissal was with prejudice, barring the filing of a second will contest. Accordingly, the judgments of the trial court and the Court of Appeals are affirmed.

James O'Neal Vineyard, et ux. v. Walker Betty, et ux.
M2001-00642-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert E. Burch
Following a bench trial, the trial court found sufficient evidence to show the existence of a prescriptive easement across the property of the defendants in favor of the plaintiffs. Defendants appeal, arguing that clear and convincing evidence did not exist to support the trial court's finding and that at trial plaintiff did not submit proof of irreparable harm necessary to secure injunctive relief. Appellant failed to submit a transcript of the trial court proceedings or a statement of the evidence to the appellate court leaving this court only the technical record for consideration on appeal. In the absence of a transcript or statement of the evidence, this court must presume the evidence supported the trial court's findings. Therefore, we affirm the decision of the trial court.

Trau-Med of America, Inc. d/b/a Bellevue Clinic v. AllState Ins. Co.
W1999-01524-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Robert L. Childers
The plaintiff, a medical clinic, filed an action against the defendants alleging, among other things, tortious interference with business relationships and civil conspiracy. The defendants filed a motion to dismiss, which the trial court granted. The Court of Appeals reversed the trial court's dismissal of these claims, finding that the facts alleged in the complaint were sufficient to state claims upon which relief could be granted. This case is now before us to determine whether the trial court should have granted the defendant's motion to dismiss. We hold that the complaint in this case alleges sufficient facts to state a cause of action for tortious interference with business relationships. However, we dismiss the plaintiff's claim of civil conspiracy for failure to satisfy the plurality requirement necessary to establish an actionable conspiracy claim. Consequently, we affirm in part and reverse in part the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

Connie Givens v. Ed Mullikin, Admin. ad litem for Larry McElwaney
W1999-01783-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: John R. Mccarroll, Jr.
The principal issue in this case is whether an insurance carrier and an insured may be held vicariously liable for the alleged tortious actions of an attorney hired to defend the insured. The trial court held that the plaintiff's complaint stated a claim of vicarious liability against the defendant insured and his insurance carrier for abuse of process, inducement to breach express and implied contracts of confidentiality, inducement to breach a confidential relationship, and invasion of privacy. The Court of Appeals affirmed the trial court's ruling with respect to the vicarious liability issue, though it dismissed the claims for inducement to breach a confidential relationship and invasion of privacy. The defendants then appealed to this Court, and we now hold that an insurer and an insured may be held vicariously liable for the tortious acts or omissions of an attorney hired to defend the insured, if the attorney's tortious actions were directed, commanded, or knowingly authorized by the insurer or by the insured. We further hold that the complaint in this case states a claim of vicarious liability against the insurer alone for abuse of process. The judgment of the Court of Appeals is affirmed in part and reversed in part.

Planters Gin v. Federal Compress & Warehouse
W1999-02460-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Kay S. Robilio
This appeal from a denial of summary judgment arises from a contract dispute between Planters Gin Company and Federal Compress & Warehouse Company, Inc. Federal Compress & Warehouse Company, Inc. leased warehouse space to Planters Gin Company. At issue is whether an indemnity clause holding Federal Compress & Warehouse Company, Inc. harmless for "any liability or loss" arising out of the "use of the premises" and requiring Planters Gin Company to carry insurance on the contents stored in the warehouse bars recovery against Federal Compress & Warehouse Company, Inc. for damages caused by negligence occurring in an adjacent storage compartment. We find the contract unambiguous and valid. Accordingly, we hold that the indemnity provision limiting Federal Compress & Warehouse Company, Inc.'s liability is enforceable and bars recovery under the facts of this case. The Court of Appeals's judgment against Federal Compress & Warehouse Company, Inc. is reversed, and the judgment of the trial court is reinstated.

State of Tennessee v. Janice Carol Biskner
E2000-01440-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Rebecca J. Stern

Defendant was convicted of driving under the influence ("DUI"), fourth or subsequent offense, driving while license revoked, and child endangerment. In this appeal, Defendant challenges all convictions on the ground that the trial court's refusal to bifurcate the trial proceedings violated her right to a fair trial. Defendant also argues that recently amended Tennessee Code Annotated section 55-10-403(a)(1) is unconstitutional and that her sentence is excessive. After a review of the record and applicable law, we reverse Defendant's convictions and remand this case for a new trial.

12-98-044-CC
12-98-044-CC
Trial Court Judge: A. Andrew Jackson

In Re: D.M.S., G.H.S., and T.M.S.
M2004-02584-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Betty K. Adams
Mother appeals the Davidson County Juvenile Court's Order Terminating her parental rights to three children, T.M.S., and D.M.S. and G.H.S. Father of D.M.S. challenges the trial court's termination of his parental rights. We affirm the decision of the trial court in all respects.

State of Tennessee v. Nordell Buggs
M2000-02759-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carol L. Soloman

Defendant contends that the evidence was insufficient to support the convictions of attempted burglary and possession of burglary tools. We affirm the judgments from the trial court.

State of Tennessee v. Rita Davis
M2000-03227-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Charles Lee

The Appellant, Rita Davis, pled guilty to one count of failure to appear, a class E felony, and was sentenced as a career offender to six years confinement. No direct appeal of her sentence was taken. Davis then filed a petition for post-conviction relief, requesting (1) a delayed direct appeal of her sentence; and (2) that her conviction be vacated upon grounds: (a) that her guilty plea was involuntarily entered based upon ineffective assistance of counsel; and (b) that her conviction was obtained in violation of "constitutional due process rights."

After review, we find that the post-conviction court's consolidation of issue (1), granting the direct appeal of her sentence, and issue (2), the collateral review of Davis' challenge to her conviction through post-conviction process, conflicts with our previous holding in Gibson v. State, 7 S.W.3d 47 (Tenn. Crim. App. 1998). Thus, consistent with Gibson, we reverse and remand issue (2) with instructions that Davis' collateral attack of her conviction be dismissed without prejudice. With respect to issue (1), we grant review of Davis' six-year sentence. After review, we find this issue is without merit and affirm her sentence as imposed.

David Kee v. Unimin Corporation
W2000-02673-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Julian P. Guinn, Judge
This workers' compensation appeal has been referred to theSpecial 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. This is an action by an injured employee to recover workers' compensation benefits for three separate claimed injuries by accident occurring at different times. After a trial on the merits, the trial judge dismissed the claim based on an arm injury for insufficient proof that it occurred at work, but awarded, inter alia, permanent partial disability benefits based on 4 percent to the body as a whole for the injuries to the neck and back. The employer has appealed contending (1) the evidence preponderates against the trial court's finding that the employee's claimed neck injury is compensable and (2) the trial court erred in awarding permanent disability benefits for the neck injury and for an admittedly compensable low back injury. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Richard C. Manglesdorf, Jr., and Thomas J. Dement, II, Nashville, Tennessee, for the appellant, Unimin Corporation Terry J. Leonard, Camden, Tennessee, for the appellee, David Kee MEMORANDUM OPINION The employee or claimant, David Kee, is 59 years old with a high school education and no vocational training. He worked for Genesco for one year after graduating from high school and worked for Unimin, formerly Hardy Sand Company, for 37 years, advancing to the position of shift production and shipping supervisor until he was terminated on February 24, 1999. One of the claimed injuries is to the left arm. It appears from the record, as the trial court found, that the arm injury was an old one, not related to work, although a manifestation of it occured at work on or about April 21, 1998. The testimony of Dr. Lowell F. Stonecipher clearly supports that finding. It also appears from the record that the claim should fail for lack of written notice. No issue is raised in the appellee's brief concerning the trial court's disallowance of benefits for the arm injury. As Dr. Joseph C. Boals, III, understated in his deposition, theclaimant's history is convoluted and confusing. It appears from the record that an injury occurred at work on April 28, 1998, when the claimant slipped on oil and fell,, injuring his lower back. The employer does not contest the compensability of the back injury, but insists it did not cause any permanent disability. The treating physician, Dr. John Neblett, diagnosed acute lumbar sprain with nerveroot irritation at L5-S1 on the left side. The injury was superimposed on preexisting degenerative arthritis. Conservative care was provided by Dr. Neblett. Dr. Boals, to whom the claimant was referred by his attorney for evaluation, estimated his permanent impairment at 1 percent to the whole body. The claimant testified that he fell down a flight of stairs at work on Feb ruary 22, 1999, landing on his neck and injuring it. There is conflicting testimony as to whether the employer had notice of it. A supervisor at Unimin, David Hayes, was nearby when it happened. Hayes testified that he heard a noise and saw the claimant picking himselfup. When he asked the claimant if he was hurt, the claimant said something, then walked away, according to the testimony of Hayes. The claimant believes the supervisor saw more than he is telling. No written report was made. Dr. Neblett diagnosed acute neck sprain and exacerbation of preexisting arthritis. Dr. Boals estimated the claimant's permanent impairment for all three injuries at 33 percent. The trial judge found the employee to be a credible witness and awarded permanent partial disability benefits on the basis of 4 percent to the body as a whole. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri- Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The appellant first argues the neck injury did not happen. The argument overlooks the -2-

State of Tennessee v. Kenneth Lee Pipkin
M1999-00870-CCA-OT-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

A Stewart County grand jury indicted the defendant on one count of first degree murder involving Marilyn June Adkins' death. Following a jury trial, he stood convicted of second degree murder. For this offense he received fifteen years as a Range I, standard offender. Thereafter the defendant elected not to file a new trial motion and waived his right to bring a direct appeal. Nevertheless, he later filed a post-conviction petition alleging five grounds for relief. Finding that trial counsel had provided ineffective assistance in advising the defendant regarding waiving direct appeal, this Court allowed him to file a delayed appeal. See Kenneth Lee Pipkin v. State, No. 01C01-9608-CC-00328, 1997 WL 749441 at *1, 8-9 (Tenn. Crim. App. at Nashville, Dec. 4, 1997.) As no new trial motion had been brought, the defendant was also allowed to file such motion. See id. at *9. Through this motion the defendant unsuccessfully alleged that there was insufficient evidence to support his conviction. He now brings the same issue before this Court. However, after reviewing the matter, we find it to lack merit and affirm the action of the lower court.

State of Tennessee v. Pamela Sue King
M2000-00148-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

The defendant, Pamela Sue King, was indicted by a Davidson County Grand Jury on one count of first degree premeditated murder. She was subsequently convicted by a jury of second degree murder, and was sentenced by the trial court to twenty-three years incarceration at 100% as a violent offender. Following the denial of her motion for a new trial, she filed a timely appeal to this court, raising two issues: (1) whether the evidence was sufficient to support her conviction for second degree murder; and (2) whether the trial court erred in allowing the jury to use a dictionary in its deliberations. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Marquis Day
W2000-01618-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge John Franklin Murchison

The defendant appeals his convictions for first degree murder, conspiracy to commit first degree murder, tampering with or fabricating evidence and unlawful possession of a weapon. He challenges the sufficiency of the convicting evidence based on accomplice testimony, the issue whether Brian Morrow was in fact an accomplice, the admission of graphic photographs of the decedent, and the actions of the trial judge as thirteenth juror. We affirm the judgment of trial court.

Thomas T. Cummings v. State of Tennessee
W2000-02813-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Thomas T. Cummings, pled guilty in the Shelby County Criminal Court to second degree murder. Pursuant to a negotiated plea agreement, he was sentenced as a violent offender to twenty-five years incarceration, to be served at one hundred percent (100%), in the Tennessee Department of Correction. The petitioner timely filed for post-conviction relief, alleging that he received ineffective assistance of counsel and that his plea was not knowing and voluntary because his attorney erroneously advised him that he would be required to serve only eighty-five percent (85%) of his sentence before becoming eligible for parole and that his sentence could be reduced an additional fifteen percent (15%) for "good behavior." On appeal, the petitioner challenges the post-conviction court's conclusion that he received effective assistance of counsel. After a review of the record, we affirm the judgment of the post-conviction court.

Javier Soto-Hurtado v. State of Tennessee
W2000-03173-CCA-R3-CO
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Javier Soto-Hurtado, appeals from the trial court's denial of habeas corpus relief. In this appeal of right, the petitioner contends that his conviction for sexual battery is void. The judgment is affirmed.

Cedric Franklin v. Tennessee Department of Correction
M2001-00279-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

A prison disciplinary board found a minimum security prisoner to be guilty of violation of state law. The prisoner filed a Petition for Writ of Certiorari, claiming that the board had denied him due process. The trial court dismissed the petition. We affirm.

Billy R. Sadler v. Tennessee Board of Probation and Parole
M2001-02341-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Ellen Hobbs Lyle

A prisoner who was denied parole filed a Petition for Writ of Certiorari, challenging, on constitutional grounds, the procedures followed by the Parole Board. The trial court dismissed the petition. We affirm.

State of Tennessee, Department of Children's Services, v. Jennifer Lee Netherton Whited, et al.
M2000-03213-COA-R3-JV
Authoring Judge: Special Judge Walter C. Kurtz
Trial Court Judge: Judge A. Andrew Jackson

This appeal involves the termination of parental rights. The juvenile court terminated the parental rights of both parents. Appellant/mother challenges the juvenile court’s termination of her rights contending the juvenile court erred by allowing in certain documentary evidence, that the evidence did not clearly and convincingly establish that termination was in the child's best interest, the court failed to state affirmatively that termination was in the best interest of the child, and the petition for termination was defective as it did not explicitly state the statutorily mandated language of Tenn. Code Ann. § 36-1-113(d)(3)(C) (Supp. 2000). As discussed below, we affirm the judgment of the juvenile court.
T

Richard Thomas Bogan v. Doris Mae Bogan - Dissenting
E1998-00060-SC-R11-CV
Authoring Judge: Justice Janice M. HOlder
Trial Court Judge: Judge John S. Mclellan, III

The majority holds that Mr. Bogan’s ability to provide support has been significantly reduced based solely upon a unilateral, voluntary decision to retire. If Mr. Bogan currently is unable to pay Ms. Bogan the alimony she was awarded at the time of the divorce, it is only because Mr. Bogan became dissatisfied with his job and voluntarily decided to leave. His employment was not terminated or in danger of termination. Mr. Bogan decided to retire despite his existing obligation to his former wife. I therefore cannot agree with the majority’s decision to reduce Ms. Bogan’s alimony and must respectfully dissent.

Richard Bogan v. Doris Bogan
E1998-00060-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor John S. McLellan, III

The sole question in this appeal is whether an obligor’s retirement constitutes a substantial and material change in circumstances so as to permit modification of a spousal support obligation. The trial court held that the obligor’s retirement did constitute a substantial and material change in circumstances, but the Court of Appeals reversed, finding that because the retirement was voluntary and foreseeable, the obligor could not seek modification of the original alimony award. We granted permission to appeal and hold that a bona fide retirement need only be objectively reasonable under the totality of the circumstances to constitute a substantial and material change in circumstances. In so holding, we reject, in the retirement context, the traditional test requiring an involuntary and unforeseeable change in circumstances to modify a support award. We further hold that the retirement in this case was objectively reasonable and that the trial court did not abuse its discretion in modifying the support award. We reverse the judgment of the Court of Appeals and reinstate the trial court’s modification of the support award. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Reversed