Ray Gabrielle Cox v. Anderson County Highway Dept. and Anderson County, Tennessee - Concurring
E1999-01697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge James B. Scott, Jr.

In this tort action, the defendants appeal from an award of compensatory damages capped by the trial court at $130,000 pursuant to the Governmental Tort Liability Act (“GTLA”). They also seek to reverse the trial court’s decision to assess them with discretionary costs of $3,440.98. We affirm all of the trial court’s judgment except the award of discretionary costs.

Ray Gabrielle Cox v. Anderson County Highway Dept. & Anderson County, Tennessee - Dissenting
E1999-01697-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

I dissent from the majority opinion affirming the judgment of the Trial Court awarding compensatory damages of $130,000. From my review of the record, Plaintiff did not meet her burden of proving that Defendant had notice of the condition of the roadway, and therefore I would reverse the judgment of the Trial Court.

Pamela Lannom v. Board of Education for the Metropolitan Government of Nashville and Davidson County
M1999-00137-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

The Davidson County Board of Education conducted a termination hearing for a tenured teacher who had been caught on videotape stealing pills from a student’s prescription bottle. After the hearing, the teacher was dismissed -2- from her position. She subsequently filed a Petition for Writ of Certiorari, which was dismissed after a Chancery Court hearing. We affirm the Chancery Court.

Virginia A. Parker, v. First American Corporation
M2000-00456-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Thomas Goodall

This appeal involves the jury’s assessment of damages arising out of a premises liability case. Finding the plaintiff to be 49% at fault and the defendant to be 51% at fault, the jury awarded to the plaintiff 51% of the damages that it had assessed. On appeal, the plaintiff argues that the jury’s damage award is not supported by material evidence in that it does not include damages for pain, suffering and loss of enjoyment of life. We agree with the plaintiff. Therefore, we reverse the jury’s award as to damages and remand this case for a new trial only on the issue of damages.

Robert Glen Coe v. State of Tennessee
M1999-01313-SC-DPE-PD
Authoring Judge: Justice Adolpho A. Birch, Jr.

In Heck van Tran v. State,1 a majority of this Court established the protocol that an inmate sentenced to death must follow to assert a common law and constitutional challenge to his or her competence to be executed. In the context of a Separate Concurring and Dissenting Opinion, I identified three components of the protocol which, when implemented, would each produce an unconstitutional result. Two are most significant: (1) use of the protocol would permit the execution of inmates who are, due to mental defect or disease, unable to consult with and assist their counsel; and (2) use of the protocol would deprive inmates of the right to have the ultimate issue–-competence to be executed-- determined by a jury of their peers.

Clarice C. White v. Mary Jo Dozier and the Montgomery County Election Commission, et al.
M1999-02386-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Carol A. Catalano

This is an appeal by the contestant in an election contest brought pursuant to Tennessee Code Annotated sections 2-17-101 to 2-17-116. The trial court dismissed the complaint specifically holding that the mandate of section 17-106, that trial of an election contest “be held no more than fifty days from the date the complaint was filed,” was jurisdictional such that after the expiration of this fifty-day period, the trial court lost jurisdiction.

Steven DeWayne Bolden v. State of Tennessee
W1999-00029-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Lee Moore Jr.

The petitioner, Steven DeWayne Bolden, appeals the dismissal of his petition for post-conviction relief by the Lake County Circuit Court on March 26, 1999. Following a review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Patricia Spencer
W1999-00030-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon Kerry Blackwood

On December 11, 1998, the defendant, Patricia Spencer, pled guilty to one count of second degree murder and one count of attempted especially aggravated robbery. The trial court sentenced her as a Range I Violent Offender to 25 years for the second degree murder and as a Range I Standard Offender to 8 years for the attempted especially aggravated robbery, the sentences to be served concurrently. From this sentencing, the defendant now appeals asserting that the trial court erred in its 25-year sentence for the second degree murder; accordingly, she requests that her sentence be reduced. After careful review, we AFFIRM the sentence as imposed by the trial court.

State of Tennessee v. Tim D. Smith
W1999-00039-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

Defendant, Tim D. Smith, was found guilty by a Shelby County jury of automobile burglary, a Class E felony, and was sentenced by the trial court to six years as a career offender. The sole issue in this appeal as of right is whether the evidence is sufficient to support the guilty verdict. After a careful review of the record, we conclude the evidence is indeed sufficient to support the verdict.  Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Marco Boyd
W1999-00046-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Arthur T. Bennett

The defendant, Marco Boyd, pled guilty to two counts of reckless endangerment, Class E felonies. In his negotiated plea, he agreed to a fine of $500 on each count and two one-year concurrent sentences. The manner of service of the sentences was reserved for a later hearing. At the hearing, the trial court denied the defendant probation, and from that decision the defendant now appeals. After careful review, we AFFIRM the judgment from the trial court.

State of Tennessee v. William Padilla
W1999-00009-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bobby H. Capers

The defendant, William Padilla, appeals from his Haywood County jury conviction of one count of rape of a child. The defendant received 25 years, the maximum sentence for a Range I standard offender. He appeals this conviction and sentence, arguing that:

(1) The evidence was insufficient to support the jury’s verdict; and

(2) the sentence was excessive.

After careful review, we AFFIRM the judgment and sentence from the trial court

Carlous Coman v. State of Tennessee
W1999-01074-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Carlous Coman, appeals from the Madison County Circuit Court’s order denying his petition for post-conviction relief. On April 19, 1997, the petitioner was convicted by a Madison County jury of second degree murder. For this offense, the defendant, a Range I offender, was sentenced to twenty years in the Department of Correction. On February 17, 1999, he filed a post-conviction petition alleging ineffective assistance of counsel at trial and upon appeal. The trial court denied this petition after a hearing. After careful review, we AFFIRM the order of the trial court denying the petition.

State of Tennessee v. Christopher Walls
E1999-00617-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Christopher Walls, appeals from the denial of his motion for reduction of sentence by the Criminal Court of Morgan County. The defendant pleaded guilty to escape, a Class E felony, Tenn. Code Ann. § 39-16-601 (1997), and theft of property valued over $1000, a Class D felony, Tenn. Code Ann. § 39-14-103 (1997). In accordance with his plea agreement, the trial court sentenced the defendant to serve his bargained-for sentence of three years in the Department of Correction. In his appeal, he complains that the trial court erred in failing to grant his motion to reduce his sentence. Following a review of the record and the briefs of the parties, we affirm the trial court's judgment.

Craig Stephen Portman v. Camelot Care Centers, Inc.
03S01-9901-CH-00007
Authoring Judge: H. David Cate, Special Judge
Trial Court Judge: Hon. Frank V. Williams, III,
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 only issue for resolution is whether the trial court properly concluded that the injury to the eye of the plaintiff, Craig Stephen Portman, arose out of his employment with the defendant, Camelot Care Center, Inc. We agree with the trial court and affirm.1 The plaintiff Portman was an employee of the defendant on September 4, 1996, when he was involved in an incident, where a minor child spit in his eye. Three to five days later he experienced irritation in that eye. He sought medical treatment on the seventh day following the incident. Ultimately he came under the care of Dr. Subba Rao Gollamudi, an ophthalmologist who focuses on diseases and surgery of the cornea and anterior segment of the eye. Dr. Gollamudi noted the plaintiff related to him that he had normal ocular health prior to the onset of symptoms in the eye, which occurred coincident with the incident at work, and further testified as follows: Q. Doctor, if you assume Mr. Portman worked at the Camelot Care Center which was where he worked in the capacity as a counselor with children and that on the 4th day of September, 1996, a child spit in his eye, assume that's correct, and that he is then followed with the conditions that he described to you, are you able to form an opinion based upon a reasonable degree of medical certainty given the current level of scientific and medical research whether or not that episode at work was the causative factor in the development of the condition you ultimately diagnosed and treated? A. I would say that I feel reasonably certain that the time frame and episode as related to me are consistent with saliva that has herpes in it causing ocular surface herpes. The Plaintiff testified: Q. Prior to September of 1996, had you ever experienced any symptoms, problems, been treated for or been told you had the herpes simplex virus? A. No. There is no evidence the plaintiff's ocular simplex herpes condition was caused by any other occurrence. The standard of review of factual issues in workers' compensation cases is de novo upon the record of the trial court with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (1991 of Supp. 1998). "In order to be eligible for workers' compensation benefits, an employee must suffer `an injury by accident arising out of and in the course of employment which causes either disablement or death.' Tenn. Code Ann. _ 5-6-12(a)(5). The phrase `arising out of' refers to causation. The causation requirement is satisfied if the injury 1W hile all th e issu es in this ca se w ere n ot co nclu ded, the p arties and the tria l cour t agre ed th at it should be treated as a final judgment pursuant to Tennessee Rules of Civil Procedure No. 54. 2

James Webb v. State of Tennessee
W1998-00047-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Dick Jerman, Jr.

The petitioner, James Webb, appeals as of right from the trial court’s order summarily dismissing his pro se petition for post-conviction relief without an evidentiary hearing. We REVERSE the judgment of the trial court and REMAND for appointment of counsel and review of petitioner’s claims.

State vs. Michael Gerard Coppola
W1999-01975-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Julian P. Guinn

On April 28, 1997, the appellant, Michael Gerard Coppola, pled guilty in the Benton County Circuit Court to an array of offenses. The plea agreement provided for an effective six-year sentence with the Tennessee Department of Correction (T.D.O.C.) and payment of $3,363.10 of restitution to various victims. In March 1998, appellant completed boot camp and T.D.O.C. released him to probation, the terms of which required payment of the previously ordered restitution. The sole issue on appeal is the trial court’s revocation of probation for failure to pay restitution. Based upon our conclusion that no probation violation occurred, we REVERSE and REMAND to the trial court.

Jackson Manufacturing Company, and Liberty Mutual Insurance Company v. Marie Lambert
03S01-9906-CV-00057
Authoring Judge: Hon. Carroll L. Ross, Circuit Judge
Trial Court Judge: Hon. Carroll L. Ross,
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 plaintiffs, Jackson Manufacturing Company and Liberty Mutual Insurance Company, contend the trial court was incorrect in awarding the defendant, Marie Lambert, 4% permanent partial disability to the body as a whole instead of a lesser amount to a scheduled member on the basis that the disability associated with the shoulder and neck area was not caused by the accident at work. We disagree with the plaintiffs and affirm the judgment of the trial court. The defendant Lambert was born March 15, 194. She failed to complete the ninth grade and has had no other formal education or vocational training. She went to work when she was seventeen. Her work history consists primarily of operating sewing machines in chair factories. Prior to April 21, 1995, the defendant had never experienced any pain in her shoulder or neck area. On April 21, 1995, while in the employ of Jackson Manufacturing Company, she was pulling and feeding material into an industrial computer-operated sewing machine when she injured her left ring finger at the knuckle which joins the hand. In order to pull the material she had to pull very hard with her whole arm. She described the incident as follows: ". . . as I got to the end of it (a 2 inch piece of material) my hand came off and that's when whatever popped hurt, hit - - and I hit myself so hard, you know, and my arm went backwards." She was promptly sent to Dr. Chalmer Chastain, Jr., who examined her and recommended she be referred to an orthopedic specialist or hand specialist. She returned to her place of employment and was referred that same day by her employer to Dr. Cauley Hayes, a specialist in hand surgery. Dr. Hayes treated her hand and on May 11, 1995, performed surgery on her left ring finger metacarpophalangeal joint. Dr. Hayes returned her to work three months after the accident and she was placed on light duty carrying cushions, which was too much for her condition. Thereafter she cleaned tables and bathrooms. Subsequently she was terminated for missing work and has not worked since then. While under Dr. Hayes' care the defendant and her boyfriend testified she complained at each visit to Dr. Hayes of problems with her arm, shoulder and neck. Dr. Hayes' medical records dated November 7, 1995, show her first complaint of heaviness in the arm. On that occasion the x-rays showed an abnormal cervical spine, and Dr. Hayes referred her to Dr. Adele Ackell, a neurologist. Dr. Hayes felt the defendant had sustained permanent impairment to the hand but did not assign a percentage of impairment. He did not believe the shoulder and 2

Mary Alice Maupin v. Methodist Medical Center of Oak Ridge
03S01-9901-CC-00009
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. James B. Scott, Jr.
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 employer, Methodist Medical Center of Oak Ridge, has appealed from the trial court's ruling awarding the employee, Mary Alice Maupin, certain travel expenses pursuant to the provisions of T.C.A. _ 5-6-24. All other issues were settled and approved by the trial court. The sole issue is whether the employee is entitled to a mileage allowance under subsection (a)(6)(A) of the statute which provides; "When an injured worker is required by the worker's employer to travel to an authorized medical provider or facility located outside a radius of fifteen (15) miles from such insured worker's residence or workplace, then, upon request, such employee shall be reimbursed for reasonable travel expenses. The injured employee's travel reimbursement shall be calculated based on a per mile reimbursement rate, as defined in subdivision (a)(6)(B), times the total round trip mileage as measured from the employee's residence or workplace to the location of the medical provider's facility. . . . . . . ." The trial court made findings that the employee "was not able to work at the time these medical expenses were incurred, and that the plaintiff's residence was more than fifteen miles from the location of the requested medical treatment and as the plaintiff had to travel in excess of fifteen miles from her home to the location for medical treatment, the Court finds that these expenses should be reimbursed." The order also recited that plaintiff had not been released to return to work at the time her travel expenses were incurred and that the medical treatment was authorized. The employer contends the trial court misconstrued the statute and that the mileage allowance should not have been allowed as the authorized medical treatment was within fifteen miles of the workplace and that the statute measured the right to mileage reimbursement by determining whether the travel was fifteen miles from the worker's residence or workplace. The employee insists the statutory language does not give the option to the employer to measure mileage from the location it may choose but the statute must be examined in light of actual distance traveled. It is also argued that the statute does not say mileage is to be determined and measured "from the employee's residence or workplace, to be determined by the employer" or it does not state measurement shall be "from the employee's residence or workplace, whichever is less." The case is to be reviewed de novo accompanied by a presumption of the findings of fact unless we find the preponderance of the evidence is otherwise. T.C.A. _ 5-6-225(e)(2). However, in reviewing a question of law, there is no presumption in favor of the ruling. Union Carbide Corp. v. Huddleston, 854 S.W.2d 89, 91 (Tenn. 1993). There is no issue concerning the factual findings of the trial court. In construing a statute, proper interpretations should give effect to the entire statute by giving its words their natural and ordinary meaning. Pryor Oldsmobile v. 2

Kathleen J. Young-Green v. Richard W. Green
W1999-00093-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

Kathleen Young-Green appeals from the judgment of the Chancery Court of Shelby County. Her complaint had sought imposition of a constructive trust over assets allegedly procured through the exercise of undue influence. The trial court dismissed the case under Rule 41.02 of the Tennessee Rules of Civil Procedure finding that the Plaintiff had not satisfied her burden of proof. For the reasons stated herein, we affirm the trial court’s dismissal.

Dorothy West Harmon v. Harvey Carl Harmon
W1998-00841-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Joe C. Morris

This is a divorce case. The husband is a physician employed by a professional association. The trial court granted the wife the divorce and awarded the wife, inter alia, 50% of the value of the husband’s interest in his medical practice and 45% of the husband’s retirement and profit sharing plans. The wife was awarded alimony in futuro of $6000 per month for 13 years. The husband was ordered to assume responsibility for the parties’ marital debt. The wife’s request for attorney’s fees was denied. The wife appeals the trial court’s valuation of the husband’s interest in the medical practice, the amount of alimony awarded, the division of the retirement and profit sharing plans, and the denial of attorney’s fees. The husband appeals the trial court’s order that he pay the marital debt. We reverse the trial court’s valuation of the husband’s interest in his medical practice, holding that the values set forth in buy-sell agreements executed by the husband are relevant but not binding on the wife in the divorce. The remainder of the trial court’s decision is affirmed.

State of Tennessee v. Bryon A. Peete
W1998-02116-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The appellant, Byron A. Peete, appeals his conviction in the Shelby County Criminal Court of second degree murder. Pursuant to the appellant’s conviction, the trial court sentenced the appellant to thirteen years and six months incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence underlying his conviction. Although not clearly articulated, his argument appears to encompass the following specific contentions: (1) the evidence presented at trial concerning his low intellectual quotient (I.Q.) precluded a finding that the killing was knowing as required by Tenn. Code Ann. § 39-13-210(a)(1) (1997); (2) alternatively, in light of the evidence concerning the appellant’s low I.Q., the record demonstrates the provocation required by Tenn. Code Ann. § 39-13-211(a) (1997); or (3) in light of the evidence concerning his low I.Q., the record demonstrates that the appellant killed the victim, Terrance Baker, in self-defense within the meaning of Tenn. Code Ann. § 39-11-611(a) (1997). Following a thorough review of the record and the parties’ briefs, we affirm the judgment of the trial court.

State of Tennessee vs. Ernest Puryear
W1999-02031-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John P. Colton, Jr.

A Shelby County jury found defendant guilty of aggravated robbery, a Class B felony. Defendant received an eight-year sentence. In this appeal as of right, defendant claims (1) the evidence was not sufficient to sustain the conviction for aggravated robbery, and (2) he received ineffective assistance of trial counsel. Upon our review of the record, we conclude the evidence was sufficient to sustain defendant's conviction, and defendant received effective assistance of counsel. Thus, we AFFIRM the judgment of the trial court.

Timothy Shaun McClure, v. Stacy Dawn McClure
W1998-00804-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a divorce case. The trial court awarded the husband sole custody of the parties’ children and ordered the wife to pay child support. Supervised visitation was awarded to the wife, and visitation was also awarded to the maternal grandmother and great-grandmother. The trial court also ordered that the marital home be sold, with the proceeds divided between the parties. We affirm the award of custody to the husband, reverse the award of visitation to the maternal grandmother and great-grandmother, reverse the order that the marital home be sold, and remand.
 

Pamela F. Jones v. Middle Tennessee Publishing Co., et al
M1999-00697-SC-WCM-CV
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Tom E. Gray, Chancellor
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference

Flora Richardson v. Saturn Corporation
M1998-00080-WC-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Robert L. Holloway,
This case is before the Court upon motion for review pursuant to Tenn. Code Ann. _ 50-6-225(e)(5)(B), the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference; Whereupon, it appears to the Court that the motion for review is not well taken and should be denied; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court.