Jesse C. Minor by and through counsel, Hal Hardin v. State of Tennessee
M2001-00545-CCA-R10-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

We accepted this extraordinary appeal, see Tenn. R. App. P. 10, to review certain pre-hearing actions of the Davidson County Criminal Court in this post-conviction case. Our grant of review extends to these issues: (1) whether a "next friend" may file a post-conviction petition on behalf of an incompetent prisoner; (2) if so, may the post-conviction court, sua sponte, order a mental evaluation of the prisoner or conduct other inquiries into the matter to determine whether the "next friend" petition was properly filed on the prisoner's behalf; and (3) whether the court below properly denied the petitioner's motion for recusal. We conclude that we improvidently granted extraordinary review in part, but we otherwise affirm the rulings of the lower court and remand for further proceedings.

Thomas A. Smythe v. Phil Jones, et al .
M2000-02062-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Russell Heldman

In this suit wherein the Plaintiff, Thomas a. Smythe, seeks damages against the Defendant, Donald Cowan, for willfully interfering with contractual relations between Mr. Smythe and Phil Jones, the Trial Court granted summary judgment because in his opinion the Statute of Limitations barred the claim asserted. We affirm.

Loretta Trull, v. Margaret Culpepper, Commissioner of Tennessee Department of Employment Security, and Kerr Plastic Products, Manpower Temp Svcs., et al.
02A01-9603-CH-00041
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George R. Ellis

This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the order of the chancery court dismissing her petition for certiorari and affirming the decision of the Board of Review that disallowed her claim for unemployment compensation benefits.

Mary Kindred, On Her Own Behalf, And as Next of Kin of Marcus Briggs, v. The Board of Education of Memphis City Schools, et al.
02A01-9512-CV-00280
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert A. Lanier

In this wrongful death action, Plaintiff-Appellant Mary Kindred (Plaintiff), on her own behalf and as next of kin of Marcus Briggs, appeals the trial court’s judgment entered in favor of Defendants-Appellees Board of Education of Memphis City Schools, Willie Anderson, and Raybon Hawkins (Defendants).

Cultra Landscaping Supply Company, v. Director of HIghways, Department of Transportation and W.L. Sharpe Contracting Company, Inc. and Charles Hill, Individually and D/B/A C.H. Hill Landscape and Excavating
02A01-9512-CV-00275
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

This is an action by the appellant, Cultra Landscaping Supply Company (Cultra), seeking to recover the balance allegedly due on an open account. Cultra’s complaint, as amended, was filed against the Director of Highways, Department of Transportation, W. L. Sharpe Contracting Company, Inc. (Sharpe) and Charles Hill, individually and d/b/a C. H. Hill Landscape and 2The Director of Highways was named as a defendant pursuant to T.C.A. § 54-5-124 (civil actions against contractors by claimants). Cultra’s complaint states that it “seeks no remedies” against Sharpe, but acts to put the latter “on notice” of said claim having been filed with the Department of Transportation. Prior to trial, a summary judgment was entered in favor of Sharpe. The order granting summary judgment provided that the State of Tennessee and the Department of Transportation were to retain certain funds to satisfy Cultra’s claim in the event it proved meritorious at trial, in accordance with T.C.A. § 54-5-123. After trial, an agreed order was entered with this Court dismissing the Department of Transportation, Director of Highways as a party. 2 Excavating (Hill). For purposes of this appeal, however, the only other party before us is Hill, the appellee.2 A bench trial resulted in a judgment for Hill. Cultra appeals on the sole basis that the evidence presented at trial preponderates against the trial court’s findings. For reasons hereinafter stated, we affirm.

Glenn T. McColpin, v. North Atlantic Casualty & Surety Insurance Company, Inc.
03A01-9602-CH-00067
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor R. Vann Owens

This is a suit for damages against an insurance company for the alleged breach of a lawyer’s professional liability insurance policy. Plaintiff, Glenn McColpin, appeals from the judgment of the chancery court for the defendant, North Atlantic Casualty & Surety Insurance 2 Company, Inc. (hereinafter, “North Atlantic”).

Bobby R. Reed, v. National Foundation Life Insurance Company and Mark Bradshaw
03A01-9603-CV-00081
Authoring Judge: Senior Judge William H. Inman

This is a Rule 9 appeal from a judgment denying the defendants’ motions for summary judgment. The issue is whether an insurance agent has the apparent authority to waive the conditions for issuance of a policy and the limitations on his authority as contained in the application for the policy. We hold that the agent has no such authority and therefore grant the motions for summary judgment.

Austin Powder Co., et al., v. Walter Thompson
03A01-9607-CV-00229
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge W. Dale Young

The Defendant appeals a judgment entered by the Blount County Circuit Court awarding the Plaintiffs discretionary costs including attorney fees. This appeal arises from an earlier action (second lawsuit) seeking specific performance of a settlement agreement resolving the original lawsuit filed by the Defendant.

Flora Mae Melton v. Glen Houston Melton
2001-00128-COA-R3-CV
Trial Court Judge: J. Russ Heldman

Emmett Earl Falcon v. Gaylord Entertainment Company,
M2000-02948-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol L. Soloman, 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)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer contends (1) the trial court erred in concluding that the Last Injurious Exposure Rule applied to the facts of this case and (2) the trial court erred in finding the employee was not barred from recovery because of a misrepresentation in the employment application process. In this case, the employee had two successive employers. The trial court found that the employee developed symptoms of bilateral carpal tunnel syndrome while he worked for the first employer but that the employee's condition was aggravated from his work for the second employer. We agree with the trial court that the Last Injurious Exposure Rule applies to this case. As discussed herein, 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 FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Byron Davis, Jr. and M. Scot Ogan, Nashville, Tennessee, for the appellant, Wal-Mart Stores, Inc. Richard K. Smith, Nashville, Tennessee, for the appellee, Gaylord Entertainment Company. Steve C. Norris, Nashville, Tennessee, for the appellee, Emmett Earl Falcon. MEMORANDUM OPINION The employee or claimant, Emmett Earl Falcon, is forty-nine years of age. His limited college education pertained specifically to airplane mechanics which requires extensive use of the hands. From June of 1994 to January 9, 1998, the claimant was employed as an oiler engineer on river taxis for Gaylord Entertainment Company. While employed with Gaylord, the claimant began experiencing tingling and numbness in his right arm. On May 22, 1996, Dr. James Wolfe, a neurologist, diagnosed the claimant with a mild generalized peripheral neuropathy. Dr. Wolfe concluded that he could not exclude the possibility of mild left carpal tunnel syndrome. On January 13, 1998, four days following the end of his employment with Gaylord, the claimant was diagnosed with mild to moderate bilateral carpal tunnel syndrome by Dr. Richard Rubinowicz, a neurologist. On March 2, 1998, the claimant began working at the employer-appellant, Wal- Mart Stores, Inc. At Wal-Mart, the claimant worked as a floor maintenance attendant using vibrating floor cleaning machines, specifically butane buffers. At times, he was required to use the buffers for periods as long as four to five hours. The claimant began wearing hand braces in an attempt to alleviate the increased pain of his carpal tunnel condition. He also took unscheduled breaks at Wal- Mart to "rest his hands" and relieve the pain. The claimant was terminated from his job at Wal-Mart on April 28. Dr. Thomas E. Tompkins, an orthopedic surgeon, performed carpal tunnel release surgery on the claimant's hands; his left hand on August 12, 1998, and his right hand on September 2, 1998. On October 23, 1998, Dr. Tompkins estimated a five percent permanent impairment in each hand. Dr. Tompkins released the claimant from medical treatment with instructions to avoid repetitive forceful gripping for three months. On February 23, 1999, Dr. David W. Gaw, an orthopedic surgeon, assigned a ten percent partial permanent impairment to each arm, constituting twelve percent to the body as a whole. Dr. Gaw said that the carpal tunnel syndrome was caused by the claimant's job at Gaylord. However, he acknowledged that if the claimant's symptoms worsened at Wal-Mart, then that would be evidence of an actual aggravation of the condition. Dr. Gaw recommended that the claimant avoid continuous gripping, squeezing or constant manipulation with his hands. During the application process at Wal-Mart, the claimant indicated that he would be able to perform the physical functions of the job, including repetitive hand grasping and firm hand gripping. Wal-Mart did not inquire about the claimant's physical condition. From the above summarized evidence, the trial court found that the claimant's carpal tunnel syndrome was aggravated by his employment at Wal-Mart and dismissed the claim against Gaylord. The trial court awarded medical and disability benefits against the second employer, Wal-Mart. When an employee becomes disabled as a result of an occupational disease, the employer for whom the employee was working when he was last injuriously exposed to the hazards of the disease is responsible for payment of compensation benefits. Tenn. Code Ann. _5-6-34. A similar rule applies when a worker suffers two or more disabling injuries by accident while working for different -2-

Dwain Parks v. Royal Insurance Company of America
W2000-02778-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Martha B. Brasfield, 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. In this appeal, the employer's insurance carrier contends (1) the award of permanent partial disability benefits based on 5 percent to the body as a whole is excessive because the trial judge considered aggravation of a pre-existing mental condition in addition to carpal tunnel syndrome, (2) the trial court erred in awarding any permanent vocational disability benefits, (3) the trial court erred in awarding a psychologist's witness fee as discretionary costs, and (4) the trial court erred in awarding a medical examiner's fee as discretionary costs. The employee insists the award of permanent partial disability benefits is inadequate. As discussed below, the panel has concluded the judgment should be modified with respect to discretionary costs, but otherwise affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Robin H. Rasmussen, Cordova, Tennessee, for the appellant, Royal Insurance Company of America Michael W. Whitaker, Covington, Tennessee, for the appellee, Dwain Parks MEMORANDUM OPINION The employee or claimant, Parks, is a 52 year-old high school graduate. He began working for Ring Can in 1989. He gradually developed bilateral carpal tunnel syndrome from repetitive use of the hands at work. The date of injury is June or July of 1997. When conservative care failed, the treating physician performed carpal tunnel releases and estimated the claimant's permanent impairment at 2 percent to each. The claimant returned to work for the employer on October 15, 1997, but again developed symptoms of carpal tunnel syndrome. He worked regularly until the death of his father. An independent medical examiner, Dr. Janovich, estimated his permanent impairment at 9 percent on the right and 13 percent on the left, considering his post-operative symptoms. A psychiatrist testified that anxiety from the injury permanently aggravated his pre-existing depression. The psychiatrist characterized the claimant's depression as serious and established the required causal connection to the claimant's carpal tunnel syndrome. The claimant's testimony, accredited by the trial court, is that he is significantly limited in his ability to work. A psychologist testified regarding the claimant's limitations, based on personal observations. Upon the above summarized evidence, the trial court awarded permanent partial disability benefits based on 5 percent to the body as a whole. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e) (2). The extent of an injured worker's permanent vocational disability is a question of fact. Collins v. Howmet Corp., 97 S.W.2d 941, 943 (Tenn. 1998). 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 that 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 appellant insists the claim, to the extent it is based on aggravation of a preexisting mental condition, should be dismissed for lack of notice. Immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and practicable, an injured employee must, unless the employer has actual knowledge of the accident, give written notice of the injury to his employer. Tenn. Code Ann. _ 5-6-21 (2). Benefits are not recoverable from the date of the accident to the giving of such notice, and no benefits are recoverable unless such written notice is given within 3 days after the injurious occurrence, unless the injured worker has a reasonable excuse for the failure to give the required notice. Id. Whether or not the excuse offered by an injured worker for failure to give timely written notice is sufficient depends on the particular facts and circumstances of each case. A. C. Lawrence Co. v. Britt, 22 Tenn. 444, 454, 414 S.W.2d 83, 834 (1967). The presence or absence of prejudice to the employer is a proper consideration. McCaleb v. Saturn Corp., 91 S.W.2d 412, 415 (Tenn. 1995). The reasons for the 3 day statutory notice requirement are (1) to give the employer an opportunity to make an investigation while the facts are accessible, and (2) to enable the employer to provide timely and proper treatment for the injured employee. Id. In determining whether an employee has shown a reasonable excuse for failure to give such notice, courts will consider the following criteria in light of the above reasons for the rule: (1) the -2-

Mike G. Pauley, v. Madison County, Madison County Penal Farm, David Woolfork, Madison County Sheriff, Penal Farm Superintendent, Captain Jackson, et al.
02A01-9607-CH-00161
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

Plaintiff, Mike G. Pauley, an inmate at the Madison County Penal Farm (Penal Farm), appeals from an order of the trial court dismissing his pro se complaint against the defendants, 1 Plaintiff filed suit against Madison County, Madison County Penal Farm, David Woolfork, the Madison County Sheriff and Penal Farm Superintendent, Captain Jackson, the Penal Farm’s Head Controller and Acting Warden, Sergeant Jered, the first shift sergeant, Sergeant Evans, the third shift sergeant, Officer Steven Horner, and Officer Cleo King in their official and individual capacities. 2 4which include Madison County, the Penal Farm, and several of the Penal Farm’s personnel.1

Lawrence Woodward Hamilton, v. Brenda K. Smith Hamilton
02A01-9601-CV-00009
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

In this divorce action, the Plaintiff, Lawrence Woodward Hamilton, filed his petition 2 for divorce on July 20, 1993. The Defendant, Brenda Kay Smith Hamilton, filed a countercomplaint seeking a divorce on the grounds of inappropriate marital conduct. The trial court granted the Defendant’s request for a divorce on the grounds of inappropriate marital conduct. The trial court awarded the parties’ marital residence as well as household furnishings to the Defendant. The Plaintiff was ordered to pay all outstanding marital debts other than the first and second mortgage on the marital residence, all expenses incurred by the Defendant as a result of this action including the Defendant’s attorney fees and $2,200.00 per month in permanent alimony. The trial court awarded the Defendant onehalf of the Plaintiff’s retirement proceeds and ordered the Plaintiff to maintain the Defendant on his health insurance policy for three years. The trial court further ordered the Plaintiff to maintain a $50,000.00 life insurance policy naming the Defendant as the irrevocable beneficiary. The Plaintiff has appealed the judgment of the trial court arguing that the trial court erred in awarding the Defendant permanent alimony and attorney fees. For the reasons stated hereafter, we affirm the judgment of the trial court.

State of Tennessee, v. Robert Willis Chance, Jr.
02C01-9605-CC-00178
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley

The appellant, Robert Willis Chance, pled guilty to one count of second degree murder and one count of attempted first degree murder. Pursuant to the plea agreement, the sentences were to be served concurrently. The Hardin County Circuit Court imposed a sentence of twenty-three years for each conviction. In his sole issue, the appellant contends that the trial court erred in imposing twenty-three year sentences because of the misapplication of Tenn. Code Ann. § 40-35-210 (1995 Supp.), regarding the presumptive sentence of a class A felony.

State of Tennessee, v. Michael Anthony Pike
02C01-9509-CC-00261
Authoring Judge: Judge William M. Barker
Trial Court Judge: Judge Julian P. Guinn

The Appellant, Michael Anthony Pike, appeals as of right his sentences for simple possession of marijuana, possession of marijuana with intent to sell, and possession of drug paraphernalia. He argues on appeal that the trial judge erred by not placing him in community corrections or, in the alternative, by not giving him the minimum statutory sentences. After a careful review of the record on appeal, we affirm the trial court’s judgment.

State of Tennessee, Elton Donald Bowers, A/K/A Rashid Qawwi
02C01-9509-CC-00282
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge Franklin Murchison

The defendant, Elton Donald Bowers, also known as Rashid Qawwi, was convicted of aggravated robbery and possession of a weapon with the intent to employ in the commission of the robbery. Tenn. Code Ann. § 39-13-402 and Tenn. Code Ann. § 39-17-307. The trial court ordered the weapons conviction merged with the aggravated robbery, classified the defendant as a career offender, and imposed a thirty-year sentence.

E.L. (Eldred) Reid, v. Jason Petty
02A01-9611-CV-00269
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Joe G. Riley. Jr.

Eldred L. Reid (Plaintiff) sued Jason Petty (Defendant) for “pain and suffering with mental stress” alleged to have resulted from the defendant’s failure to timely respond to Plaintiff’s request for pain medication. Summary judgment was entered in favor of Defendant on the grounds that the trial court lacked jurisdiction and that the defendant was immune pursuant to T.C.A. § 9-8- 307(h).

Gary Bernard Sanders, #76973, v. Jimmie L. Jones - Concurring
02A01-9610-CV-00261
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Joseph H. Walker

Plaintiff, Gary Bernard Sanders, an inmate in the custody of the Tennessee Department of Correction (TDOC) at the Cold Creek Correctional Facility, appeals from an order of the trial court dismissing his complaint against the defendant, Jimmie L. Jones, a correctional officer at  the facility.¹

Lynn Bernice Carraher, v. Michael Thomas Carreher
03A01-9608-CV-00259
Trial Court Judge: Senior Judge William H. Inman

The plaintiff’s employer had a generous profit-sharing plan to which the plaintiff was not required to contribute. The trial judge declined to treat this fund as marital property because the “plaintiff didn’t earn it, and the defendant didn’t contribute to it.”

Patricia Broadwell, v. Thomas Michael Broadwell
03A01-9607-CV-00242
Authoring Judge: Senior Judge William H. Inman

This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.
 

Patricia Broadwell, v. Thomas Michael Broadwell
03A01-9607-CV-00242
Authoring Judge: Senior Judge William H. Inman

This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.

Lori Lee Grissom (Brown) v, Jeffrey Donald Grissom
03A01-9607-CV-00219
Authoring Judge: Per Curiam
Trial Court Judge: Judge Bill Swann

This appeal came on to be heard upon the record from the Circuit Court of Knox County and briefs filed on behalf of the respective parties. Upon consideration thereof, this Court is of the opinion that there is reversible error in the trial court's judgment.

Heck Van Tran v. State of Tennessee
W2000-00739-SC-R11-PD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.

We granted this appeal to determine whether the trial court and the Court of CriminalAppeals erred by denying the petitioner’s motion to reopen his post-conviction petition. In hismotion, the petitioner asserted that new evidence establishes that he is mentally retarded and,therefore, ineligible for the death penalty under Tenn. Code Ann. § 39-13-203, which prohibits theexecutionof the mentally retarded. The petitioner also argued on appeal that the Eighth Amendmentto the United States Constitution and article I, § 16 of the Tennessee Constitution prohibit the execution of mentally retarded individuals.

Heck Van Tran v. State of Tennessee - Concurring/Dissenting
W2000-00739-SC-R11-PD
Authoring Judge: Justice William M. Barker and Justice Janice M. Holder
Trial Court Judge: John P. Colton, Jr.

With its decision today, a majority of this Court has effectively permitted a defendant, who was sentenced to death in 1989 for the brutal execution of a 74-year-old grandmother, an opportunity to escape the ultimate punishment for his actions solely because he has managed to obtain a lower score on a revised I.Q. test than he was previously able to do. Before today, the Constitution of this State has never been held to provide blanket capital immunity to a class of persons based only on the fact of low intellectual ability and deficits in adaptive behavior. Instead, the Constitution has barred such executions only when the defendant’s mental condition displaces the following capacities: (1) the cognitive capacity to appreciate that certain action will lead to the death of others; (2) the moral capacity to appreciate the wrongfulness of murder; or (3) the volitional capacity to behave in a lawful manner.

Eddie Heath, v. Jayne S. Creson, Waylon Wininger, and Pat Hutchinson, and A.C. Gilless
02A01-9505-00105
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor C. Neal Small

In this action, Plaintiff Eddie Heath (“Heath”) filed a pro se complaint for declaratory judgment to determine whether he provides a taxable service under the Business Tax Act. Heath brought suit against A.C. Gilless (“Gilless”), the Shelby County Sheriff, Jayne S. Creson (“Creson”), the Shelby County Clerk, as well as two employees of the Shelby County Clerk’s Office, Waylon Wininger (“Wininger”) and Pat Hutchinson (“Hutchinson”). The trial court dismissed Heath’s complaint, finding that it failed to state a claim upon which relief could be granted. We affirm.