Mayhew vs. Wilder
M2000-01948-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.

Mayhew vs. Wilder
M2000-01948-COA-R10-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.

State vs. Margaret Somerville
W1999-01333-CCA-R3-CD
Authoring Judge: Judge Cornelia A. Clark
Trial Court Judge: Julian P. Guinn
Defendant Margaret Ree Somerville was convicted by a jury of one count of possession of cocaine with intent to sell or deliver, a Class B felony, and one count of possession of drug paraphernalia, a Class A misdemeanor. Following a sentencing hearing, the trial court imposed a sentence of twelve (12) years on the felony offense and eleven (11) months, twenty-nine (29) days on the misdemeanor offense. The sentences were run concurrent to one another. Defendant challenges her convictions, asserting that (1) she was denied her right to the timely appointment of counsel; (2) the indictments against her were defective and should be quashed; and (3) the search warrant executed in this case was defective. The judgment of the trial court is affirmed.

Stephen Stamps vs. Victoria Dibonaventura
W1999-00534-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Julian P. Guinn
This case arises from the Appellee's legal representation of the Appellant in a Petition for Post Conviction Relief. The Appellant's Petition was denied by the Criminal Court of Henry County and the Court of Criminal Appeals. After denial of his Application for Permission to Appeal by the Tennessee Supreme Court, the Appellant filed a Complaint of Legal Malpractice with the Circuit Court of Henry County. The trial court dismissed the Appellant's Complaint following a Motion to Dismiss filed by the Appellee. The Appellant appeals from the dismissal of his Complaint filed in the Circuit Court of Henry County. For the reasons stated herein, we affirm the trial court's decision.

State vs. Samuel Pegues
W1999-01865-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: John Franklin Murchison
The Defendant, Samuel Pegues, was convicted of second degree murder after a jury trial. In this appeal as of right, the Defendant asserts that the evidence presented at trial is insufficient to sustain his conviction, that the trial court erred by denying proposed testimony regarding statements made by the victim on the night of the incident, and that the trial court erred by excluding the Defendant's testimony regarding statements made by the victim that she had stabbed or cut someone. We conclude that the evidence is sufficient to sustain the conviction, that the trial court did err by denying the proposed testimony of statements made by the victim but that such error was harmless, and that the Defendant has waived his issue regarding the statements of the victim that she had stabbed or cut someone. Accordingly, we affirm the judgment of the trial court.

State vs. Michael Smith
W1999-02413-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Jon Kerry Blackwood
The Defendant, Michael W. Smith, appeals as of right from the trial court's denial of post-conviction relief. On appeal, he asserts that his conviction for escape, which was entered pursuant to his guilty plea, should be set aside because the plea was entered involuntarily due to his trial counsel's ineffectiveness. We conclude that the trial court properly denied relief based on its findings that the Defendant received effective assistance of counsel and that he entered the plea knowingly and voluntarily. Accordingly, we affirm the denial of post-conviction relief.

State vs. Jason Weiskopf
W2000-02308-CCA-RM-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Arthur T. Bennett
This case is before the court upon remand from the Supreme Court of Tennessee for reconsideration in light of State vs. Nichols, ___ S.W.3d ___ (Tenn. 2000). Previously, this court found the "weigh and consider" jury instruction to be in violation of due process. Nichols reached a contrary conclusion; therefore, we now affirm the judgment of the trial court.

State of Tennessee v. Trent Stark
W2002-03078-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: J. C. Mclin

State vs. David Wayne Salley
E1999-00203-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Phyllis H. Miller
David Wayne Salley appeals from his conviction of aggravated rape. He raises issues related to sufficiency of the evidence, jury instructions on lesser-included offenses, admission of evidence obtained pursuant to search warrants, impeachment of the defendant with prior violent felony convictions, exclusion of evidence of consensual sexual relations with the then-minor victim 21 years before the crime, deficient notice that the state was seeking Range III classification for sentencing, and an excessive sentence. Because there is no error requiring reversal, we affirm.

Tonya Ray vs. William Ray
M2000-00895-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This appeal involves a dispute over the custody of three-year-old twins between their biological father and the former husband of their biological mother. The biological father intervened in the divorce proceeding between the twins' mother and her husband in the Circuit Court for Davidson County seeking custody of the children. Following a bench trial, the trial court declared the parties divorced and awarded custody of the parties' two biological children to the mother's former husband. The trial court also concluded that the mother's former husband was comparatively more fit than the twins' biological father to have custody of the twins. In response to the biological father's Tenn. R. Civ. P. 59.04 motion suggesting that it had applied the wrong legal standard when it determined the custody of the twins, the trial court found that placing the twins with their biological father would expose them to a "substantial risk and danger of great harm." On this appeal, the twins' biological father takes issue with the evidentiary foundation of the trial court's refusal to grant him custody of his children. We have determined that the record does not contain clear and convincing evidence to support the trial court's conclusion that placing these children in their biological father's custody will expose them to substantial harm. Accordingly, we vacate the portion of the decree awarding custody of the twins to their biological mother's former husband.

Keeton vs. Hill
M1999-02272-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Plaintiff, a former employee, appeals from the trial court's grant of summary judgment to her former employer on her sexual harassment claim. Because the employer successfully demonstrated the elements required to establish the affirmative defense for employers recognized in Parker vs. Warren County Util. Dist., 2 S.W.3d 170, 175-76 (Tenn. 1999), we affirm the trial court.

Karine Bailey vs. Michael Bailey
M2000-00325-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Don R. Ash
These parties were divorced in September 1995, and their Marital Dissolution Agreement was incorporated in the decree of divorce. They were parents of two children, and the court approved the agreement for shared physical custody of the children whereby each parent had custody of both children fifty percent of the time. The MDA provided, "[T]he parties have agreed to deviate from the child support award guidelines due to the shared physical custody of the children." Husband paid Wife $500 per month, which was not in accordance with the guidelines. In June 1999, Husband filed a motion to terminate his child support obligation because of a significant increase in Wife's income. The trial court denied the application, and Husband appeals. We vacate and remand for further proceedings.

Elliott vs. The Blakeford at Green Hills
M2000-00365-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Brothers
The Director of Food Service at the defendant retirement home injured her hand on the job, and was terminated by her supervisor. She filed suit against her employer, claiming that she had been discharged in retaliation for making a workers' compensation claim. At the close of the plaintiff's proof, the trial court granted the defendant's motion for directed verdict. We reverse.

McBee vs. HCA Health Svcs. of TN
M2000-00271-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a hospital patient who was injured in a fall two days following surgery. The patient and her husband filed suit against the hospital in the Circuit Court for Davidson County alleging that her attending nurse had negligently permitted her to ambulate without adequate assistance and support. The hospital filed a motion for summary judgement supported by the attending nurse's affidavit stating that she had complied with the applicable standard of care for the post-operative ambulation of surgical patients. The patient did not submit any countervailing expert affidavits, and the trial court granted the hospital's summary judgment motion. On this appeal, the patient asserts that she should not have been required to file countervailing expert affidavits either because her complaint was based on simple negligence or because the attending nurse's negligence was so plain that no expert testimony was required. We find that the patient's complaint is for medical malpractice and that the attending nurse's conduct is not so plainly negligent that it obviates the necessity of expert proof. Accordingly, we affirm the trial court.

Connie Givens vs. Ed Mullikin
W1999-01783-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
Plaintiff filed this action against defendant in an underlying personal injury suit and the defendant's liability insurance carrier, alleging that the defendants are vicariously liable for the actions of the attorneys the insurance company hired pursuant to its policy to represent the insured in defense of plaintiff's personal injury suit. The complaint alleges that said attorneys were guilty of abuse of process, invasion of privacy, inducing the breach of a confidential relationship, inducing the breach of an implied contract of confidentiality, and inducing the breach of an express contract. The trial court denied defendants' motions to dismiss, and this case is before this Court on a Tenn.R.App.P. 9 interlocutory appeal.

McDonnell P.L.C. vs. Select-O-Hits
W2000-00044-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Floyd Peete, Jr.
This is a suit for the recovery of attorney's fees. The Appellee brought a complaint against the Appellant in the Chancery Court of Shelby County, seeking to recover $120,000.00 in attorney's fees. The Appellant filed an answer and counterclaim, seeking to recover $10,000.00 it paid to the Appellee and $10,953.05 it paid in legal fees to another law firm. The Chancery Court of Shelby County found that the $120,000.00 fee was excessive and entered a judgment in favor of the Appellee in the amount of $89,685.00. The trial court dismissed the Appellant's counterclaim. The Appellant appeals from the decision of the Chancery Court of Shelby County granting a reduced amount of attorney's fees to the Appellee and dismissing the Appellant's counterclaim. For the reasons stated herein, we affirm the trial court's decision as modified.

Wills & Wills vs. Raymond Gill
W1999-01755-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Walter L. Evans
Owners of adjacent properties entered into negotiations and a subsequent agreement regarding issues concerning their properties. Dispute between the parties arose after one owner began construction of a Walgreens store in an area one party contended was other than that designated for the location of future buildings on the plat configuring the parties' properties. The other party alleged that the parties did not have an agreement between them concerning the location of future buildings on the adjacent properties. The trial court determined that the parties only had a meeting of the minds as to drainage improvements and further determined that the agreement was a contract only for drainage in that the agreement did not contain specific, written restrictive covenants as to the location for future buildings. We affirm.

Douglas Shanklin vs. UT Medical
W1999-01982-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This appeal arises from a trial court's finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court's decision in an earlier case. On appeal, Doctor argued that his earlier action for age discrimination and retaliation in violation of the Tennessee Human Rights Act was not the same as the current action, which involves breach of contract and unjust enrichment. We affirm the trial court's ruling.

Arthur/Mary Anderson vs. John Howser
W2000-00937-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: James F. Russell
This is a medical malpractice case. The defendants filed a motion for summary judgment, supported by an affidavit from the defendant physician. The plaintiffs filed the opposing affidavit of an expert physician. When the defendants attempted to depose the plaintiffs' expert, they were informed that he would not be testifying at trial. However, the plaintiffs' expert's affidavit was never withdrawn from the record, nor was his testimony recanted. The trial court gave the plaintiffs additional time to secure an expert for trial. The plaintiffs failed to secure an expert within the time period and filed a notice of voluntary non-suit. The trial court granted the defendants' motion for summary judgment, holding that the plaintiffs' response to the motion for summary judgment must be supported by the affidavit of an expert who is expected to testify at trial. The plaintiffs appealed. We affirm. Where the plaintiff submits the affidavit of an expert in response to a motion for summary judgment, and it is undisputed that the expert will not testify for trial, the plaintiff has not demonstrated that he has a justiciable claim warranting a trial, and the granting of summary judgment is appropriate.

Nancy Record vs. Brian Record
W2000-01294-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier
Husband appeals a final decree of divorce as it pertains to an upward deviation of child support, division of marital property and debt, and the award of alimony in solido for attorney fees. We affirm as modified.

Allied Business vs. Abraham Musa
W1999-00378-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: John R. Mccarroll, Jr.
This appeal involves a breach of contract regarding a commission owed for the sale of a business. Allied, the broker, claims that Abed Amro owes it a commission based on the contract between the parties. Amro, however, claims that he is not liable under the Listing Agreement even though it is undisputed that he signed the contract. The trial court held that Allied was not entitled to a judgment against Amro because Amro did not have an ownership interest in the business that was sold. We reverse.

State of Tennessee, Ex Rel. Judy Lynn Stanley v. John
04-99-009-M
Trial Court Judge: A. Andrew Jackson

Donald Mccormick, Etc. v. Aabakus Incorporated, et al
M1999-01234-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Leonard Martin, 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. As discussed below, the panel has concluded the judgment should be reversed and the cause remanded for further proceedings. The claimant, Donald McCormick, is the surviving spouse of Deborah Elaine McCormick. The couple lived together until Deborah's death on September 1, 1998. At the time of her death, Deborah, the employee, was employed byAabakus Incorporated as a shampoo technician at Illusions Salon and Spa. On September 9, 1998, Deborah clocked out for lunch at 11:31 a.m. She walked to a nearby sandwich shop, where she purchased her meal and an iced tea for a co-worker. At 11:45 a.m., she returned to Illusions and went to the employee break room to eat her lunch. She did not clock back in. Shortly thereafter, she choked on a portion of her sandwich. Responding to Deborah's distress, a co-worker called for paramedics while the salon manager performed the Heimlich maneuver. Initial attempts to dislodge the blockage were unsuccessful. Deborah lost consciousness before paramedics arrived, incurring irreversible brain injury. An ambulance transported her to St. Thomas Hospital, where she was pronounced dead the following morning. Illusions Salon and Spa allows its employees to take a thirty minute lunch break during the workday. Employees clock out during lunch and are not compensated for the break time. The salon's break room contains a refrigerator, microwave and sink. Employees are free to take advantage of the break room during lunch or to eat somewhere off the premises. At trial, Deborah's co-workers testified that management did not require them to be "on call" during lunch: however, two of the three shampoo technicians admitted to working occasionally though infrequently during these breaks. Upon the above evidence, at the conclusion of the plaintiff's case, the defendants moved for a directed verdict on the ground that reasonable minds could not disagree that Deborah's death did not arise out of the employment because she was "off the clock" at the time of the fatal injury. The trial judge found that the claimant had "failed to make out a prima facie case" and dismissed the complaint. 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). Conclusions of law are reviewed de novo without any presumption of correctness. Presley v. Bennett, 86 S.W.2d 857 (Tenn. 1993). A motion for a directed verdict is neither necessary nor proper in a case which is being tried without a jury. See City of Columbia v. C.F.W. Construction Co., 557 S.W.2d 734 (Tenn. 1977). Since the present claim is one for workers' compensation benefits, the case was tried to the court without a jury. For an accidental injury to or death of an employee to be compensable under the Workers' Compensation Act, it must be one arising out of and in the course of employment. See Tenn. Code Ann. _ 5-6-12(12). "Arising out of" refers to the origin of the injury in terms of causation and "in the course of" relates to time, place and circumstance. McCurry v. Container Corp. of America, 982 S.W.2d 841, 843 (Tenn. 1998). Not every injury by accident which occurs in the course of employment is compensable; it is only compensable if it also arises out of employment, but any reasonable doubt as to whether such an injury arises out of the employment should be resolved in favor of the employee. The Act expressly declares itself to be a remedial one and should be construed liberally to effectuate its purpose of justly compensating injured employees and their families. Tenn. Code Ann _ 5-6-116; Williams v Preferred Development Corp., 224 Tenn. 174, 452 S.W.2d 344 (197); see also Story v. Legion Ins. Co., 3 S.W.3d 45 (Tenn. 1999). Acts necessary to the life, comfort and convenience of an employee while at work are incidental to the -2-

Mitchell Lynn Roberts, v. Beverly Jean Roberts
M2000-00216-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Allen W. Wallace

This is an appeal from the trial court's modification of an order of visitation increasing the appellee's amount of summer visitation. We affirm the judgment of the trial court.

State of Tennessee v. Guy Binette
E1998-00236-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Rebecca J. Stern

This is an appeal from the Criminal Court for Hamilton County, which overruled the defendant’s
motion to suppress all evidence obtained by the State after the defendant was stopped by a police
officer on suspicion of driving while under the influence of an intoxicant. The defendant entered a
conditional plea of guilty and reserved for appeal as a dispositive question of law the issue of the
lawfulness of the stop. The Court of Criminal Appeals affirmed the trial court’s judgment. The
defendant thereafter sought, and this Court granted, permission to appeal on the following issue: whether reasonable suspicion, based on specific and articulable facts, existed to authorize a stop of the defendant’s vehicle. Having reviewed the record in this case, we hold that the evidence does not support the trial court’s finding that the police officer acted with reasonable suspicion when he stopped the defendant. Accordingly, the judgment of the Court of Criminal Appeals is reversed, the
conviction as entered by the trial court is vacated, and the charge of driving while under the influence of an intoxicant is dismissed. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Case Dismissed