Bobby L. Blaylock v. Dacco, Inc.,
M2003-00315-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: John Turnbull, Circuit Court Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found that the plaintiff's respiratory conditions did arise out of the scope and course of his employment. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO BIRCH, J. and ALLEN W. WALLACE, SR. J., joined. Randolph A. Veazey, Nashville, Tennessee, for the appellants, Dacco Inc., and Zurich Insurance Company Jon E. Jones, Cookeville, Tennessee, for the appellee, Bobby L. Blaylock MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(25); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found that the plaintiff established a direct causal connection between the conditions under which the plaintiff worked and his respiratory conditions. The defendants/appellants argue that the plaintiff did not show that the plaintiff's respiratory conditions arose out of his scope and course of employment. We agree with the trial court. Facts The plaintiff/appellee, Bobby Blaylock, began working at Dacco in 1979, and has not returned to work there since June 2. Dacco re-manufactures torque converters for use in motor vehicles, and Blaylock's responsibilities there included assembling torque converters, maintenance work, and occasional welding, where he was exposed to some welding smoke. He was also exposed to smoke from other welders in the building. Blaylock has also smoked one to two packs of cigarettes a day for thirty-four years, and now has some respiratory conditions. He never complained of a problem before he left work, but contends now that his conditions arose out of his exposure to the smoke at work. In the early 198's, Dacco did not have very good ventilation, and although some improvements were made throughout the years, a major ventilation system was not installed until approximately 1995. In addition, air samples were not taken by OSHA or TOSHA until approximately 1997, and as such, Dacco does not have any air quality records prior to 1997. Medical Evidence The medical proof at trial consisted of testimony of three doctors, Dr. David Henson, Dr. John Tumen, and Dr. John McElligott. Drs. Tumen and McElligott testified by deposition, while Dr. Henson testified live. Dr. Henson, a board certified pulmonologist, testified that Blaylock suffers from chronic obstructive pulmonary disease, and that Blaylock's exposure to welding fumes at work, and his prolonged smoking, causally contributed to his respiratory disabilities. Dr. Henson also explained that the two exposures were synergistic, that is, the disability a person suffered from the two was greater than the sum of each exposure individually. Dr. John Tumen, Blaylock's treating physician testified that Blaylock's twenty- one year exposure to welding fumes at work, as well as his smoking, both contributed to his respiratory impairments. Dr. Tumen testified that Blaylock's exposure to welding fumes on top of his smoking is what caused his chronic obstructive pulmonary disease. Dr. John McElligott is a board certified internist, and also has a Master's Degree in Occupational Health and Safety. Dr. McElligott relied on a number of sources, including diagrams of the work site that Blaylock worked in, when testifying that Blaylock's respiratory problems where caused solely from Blaylock's cigarette smoking. Dr. McElligott testified that the Dacco facility where Blaylock worked was large enough to accommodate the number of welders and properly ventilate the welding smoke. Dr. McElligott also testified that all of the respiratory conditions from which Blaylock suffers can be caused solely from smoking cigarettes. Dr. McElligott further testified that Drs. Tumen and Henson are incorrect in their assertions that -2-

Frederick J. Jackson v. Paccar, Inc. d/b/a Peterbilt
M2003-00406-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Carol Soloman, Circuit Judge
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 defendant/appellant argues that the trial court erred in finding that the plaintiff/appellee sustained his carpal tunnel injuries while he was employed with the defendant/appellant, and the defendant/appellant also argues that the trial court's assignment of a 12.5 percent vocational disability is excessive. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which ADOLPHO A. BIRCH, J., and ALLEN W. WALLACE, SR. J., joined. Terry L. Hill, Nashville, Tennessee, for the appellant, Paccar, Inc. d/b/ a Peterbilt Motors Company Jay R. Slobey and Michael Hornback, Nashville, Tennessee, for the appellee, Frederick Jackson MEMORANDUM OPINION Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1998). The trial court in this case found that the plaintiff, Frederick Jackson, sustained a work related carpal tunnel injury in each arm while employed by the defendant, Paccar, Inc., d/b/a Peterbilt Motors Company, and that the plaintiff had sustained a 12.5 percent vocational disability to each arm as a result of his work related injury. We do not find that the evidence preponderates against this finding, and therefore affirm the ruling of the trial court. Facts The plaintiff/appellee began working at Peterbilt in July 1995, where he was first assigned to work as a painter's helper, but moved on to building air piping assemblies, and working in the cab assembly department. In January 2, Jackson reported to Peterbilt that he was having pain and numbness in his hands, but initially his workers' compensation claim was denied. However, under order of the Tennessee Department of Labor, the defendant/appellant provided Jackson with a panel of doctors from which Jackson chose Dr. Schmidt. Jackson was never put under any work restrictions by Dr. Schmidt. Jackson was laid off from Peterbilt July 28, 2. Jackson then took a job with Penske as a mechanic, which also required the use of his hands. Jackson was treated by a number of doctors, but was not diagnosed as having carpal tunnel until May 17, 21 when he was seen by a Dr. Milek, who performed surgery on Jackson. Jackson now works for J.B. Hunt as a lead/foreman. He still has problems griping small objects and still experiences numbness sometimes. Jackson also experiences cramping after prolonged writing. Medical Evidence Jackson consulted a number of doctors regarding his pain and swelling in his hands. Dr. David Martin, a plastic surgeon, was the first to treat Jackson. Dr. Martin diagnosed Jackson as having hand pain of unknown etiology, and released Jackson with no impairments and no restrictions. Jackson also saw Dr. David Schmidt, an orthopedist, Dr. Daniel McHugh, a physiatrist, Dr. Lagron and Dr. Lawrence, none of whom diagnosed Jackson with carpal tunnel syndrome. Jackson was diagnosed with carpal tunnel syndrome on May 17, 21, by Dr. Milek, a hand and wrist doctor. Dr. Milek performed a synovectomy on Jackson's right arm and a carpal tunnel release on the left arm. The surgeries on both arms improved Jackson's condition, especially the synovectomy on the right arm. The only medical record before the trial court was the deposition of Dr. David Gaw, a physician specializing in orthopedics. Dr. Gaw reviewed numerous notes and records from Drs. Milek, Lawrence, Martin, and Schmidt, and also examined Jackson in making his evaluation of -2-

Letivias D. Prince v. State of Tennessee
M2003-00166-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Petitioner, Letivias D. Prince, filed a petition for post-conviction relief, which was subsequently amended. Following an evidentiary hearing, the trial court dismissed Petitioner's petition. On appeal, Petitioner argues the trial court erred in dismissing his petition for post-conviction relief and contends (1) that his counsel failed to develop a reasonable trial strategy or defenses for Petitioner; (2) that his counsel failed to fully investigate or adequately prepare the witnesses for trial; (3) that his counsel failed to allow Petitioner to testify at trial; and (4) that his counsel failed to ask for a continuance to investigate certain exculpatory evidence presented by the State at the time of trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Michael Lamberson v. Kathy Lamberson
M2002-02773-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

In this appeal, the ex-husband challenges the trial court's order denying his post-divorce petition to modify alimony and finding him in "technical contempt." We find that the proof is inadequate to establish willful efforts to defeat alimony obligations, that his change of employment was not voluntary and that a substantial and material change of circumstances has occurred, justifying some relief from the alimony obligation. The trial court did not err in holding the ex-husband to be in contempt. We reverse the judgment in part, affirm the judgment in part, and remand the case for further proceedings.

State of Tennessee v. Craig Quevedo
M2002-02468-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael R. Jones

The Defendant, Craig Quevedo, pled guilty to thirty counts of rape and twenty-four counts of incest and pled nolo contendere to two counts of aggravated sexual battery, four counts of rape of a child, nine counts of rape and one count of aggravated rape in the Circuit Court for Montgomery County. After a sentencing hearing, the trial court imposed an aggregate sentence of ninety-two years in prison. On appeal, the Defendant contends that his sentence was excessive and contrary to public policy. Finding no reversible error, we affirm the trial court's judgments.

State of Tennessee v. Thomas G. Lampley, Jr.
M2003-00531-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Thomas G. Lampley, Jr., was convicted of aggravated burglary, a Class C felony. After determining the Defendant to be a Range III, persistent offender, the trial court sentenced him to twelve years in the Department of Correction, consecutive to an prior sentence. The Defendant now appeals, alleging that his sentence for the instant crime should be ten years. We affirm the judgment of the trial court.

Todd Jones, et al., v. Tennessee Farmers Mutual Insurance Company
M2003-00862-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Jim T. Hamilton

By pre-complaint Petition under Tennessee Rule of Civil Procedure 27, insureds seek to obtain from their insurer copies of previous unsworn oral statements given to an adjuster before they will submit to a statement under oath pursuant to their obligations under the policy. The trial court granted the Petition, and insurer appeals. The judgment of the trial court is reversed, and the case is remanded with instructions to dismiss the Petition.

Dennis Lee Beedle v. Stephanie J. Beedle
M2003-00755-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Samuel E. Benningfield, Jr.

In this divorce appeal the Husband challenges the distribution of the only significant marital asset, the Husband's retirement benefit. The trial court divided that benefit by ordering the Husband to pay $530.82 of each monthly payment to the Wife. We affirm.

State of Tennessee v. Andrew Rochester
M2002-01332-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Holloway

The defendant was convicted of one count of burglary. He contends on appeal that 1) there is insufficient evidence to sustain the conviction, 2) no proper foundation was laid for opinion testimony by certain witnesses, 3) the warrantless search of the vehicle was improper, and 4) the trial court erred in sentencing the defendant. The judgment of the trial court is affirmed.

Jerry Lynn Wright v. State of Tennessee
E2003-01216-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Jerry Lynn Wright, appeals the dismissal of his petition for post-conviction relief, alleging that the post-conviction court erred in finding that his guilty plea was knowing and voluntary and that he received effective assistance of counsel. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Joseph Thompson v. Keith Wilson, Ted Como, Becky Campbell and Michelle Wilder
E2003-00885-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Presiding Judge John S. McLellan, III

Plaintiff's action for libel against defendants was dismissed on grounds the action was time-barred. We affirm.

B & S Enterprises v. William Rowland, Jr.,Individually, William Rowland, Sr., Individually, and William Rowland, Jr. and William Rowland, Sr. D/B/A/ USA Windows
E2003-00458-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor G. Richard Johnson

The Trial Judge refused to onerate an individual associated with defendant corporation with an obligation of the corporation which had been discharged in bankruptcy. On appeal, we affirm.

Corey Johnson, pro se., v. Tony Parker, Warden
W2003-02375-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Corey Johnson, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

Darrell Watkins, pro se, State of Tennessee
W2003-00995-CCA-R3-HC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The Petitioner, Darrell Watkins, appeals the trial court's denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Christy Renee Osborn v. Justin Chandler Marr
M2001-02890-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Russell Heldman

We granted this appeal to determine whether Tennessee Code Annotated section 36-1-113(g)(6), which provides for the termination of parental rights when a parent is imprisoned for at least ten years due to a criminal act and the child is under the age of eight when the sentence is imposed, also requires a showing of substantial harm to the child before a parent's rights may be terminated. Because we hold that a parent does not have standing to file a petition pursuant to Tennessee Code Annotated section 36-1-113(g)(6), we lack subject matter jurisdiction to hear the merits of the appeal. Accordingly, we dismiss this case and vacate the judgments of the lower courts.

State of Tennessee v. David I. Tucker
M2002-02602-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Don Ash

The Appellant, David I. Tucker, appeals the dismissal of his petition requesting DNA analysis pursuant to the Post-Conviction DNA Analysis Act. After review, we find no error and affirm the judgment of the Cannon County Circuit Court.

David T. Sears, et al., v. Charles Gregory, et al.
M2002-02771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff homeowners sued Defendant pest control operators for negligent misrepresentation and breach of warranty relative to the issuance by the Defendants of a wood destroying insect infestation inspection report pursuant to Tennessee Code Annotated section 62-21-201 to 206. The trial court granted summary judgment to Defendants. Because civil liability is limited by section 62-21-202 and Plaintiffs allege no damages caused by the presence of wood-destroying insects, we affirm the judgment of the trial court.
 

David T.Sears, et al., v. Charles Gregory, et al. - Dissenting
M2002-02771-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

The narrow question presented by this appeal is whether Tennessee recognizes the tort of negligent misrepresentation by nondisclosure. While the Sears family’s complaint faces a daunting battle on other fronts, I would not extinguish it at this stage of the proceeding by holding as a matter of law that a professional person cannot supply the false information required by Restatement (Second) of Torts § 552 (1977) by silence.

 

State of Tennessee v. Christopher Robert Smith
M2002-03128-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Christopher Robert Smith, was convicted by a Davidson County jury of possession with intent to deliver over 300 grams of cocaine, a class A felony. Following this conviction, he was sentenced to twenty-one years imprisonment. Smith appeals, arguing that (1) the trial court erred by denying his motion to suppress and (2) the trial court improperly admitted evidence of prior criminal conduct. After a review of the record, the judgment of the trial court is affirmed.

State of Tennessee v. Rodney Laron Covington
M2002-02714-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Rodney Laron Covington, was convicted by a Davidson County jury of one count of rape of a child and two counts of aggravated sexual battery. Covington received a twenty-year sentence for rape of a child and ten-year sentences for each aggravated sexual battery conviction. The sentences were ordered to be served concurrently. On appeal, he presents three issues for our review: (1) whether testimony by a nurse practitioner violated the holding of State v. Ballard, 855 S.W.2d 557 (Tenn. 1993); (2) whether the State's recitation of the facts supporting the charge of rape of a child was "specific enough to ensure that the jury would reach a unanimous decision" and "sufficiently corresponded to the State's proof;" and (3) whether the proof established that the offense of rape of a child occurred after July 1, 1992, as required for 100% service of the sentence imposed under Tennessee Code Annotated section 39-13-523(b). After review of the record, we find no reversible error. Accordingly, the judgments of the trial court are affirmed.

Anthony Darrell Hines v. State of Tennessee
M2002-01352-CCA-R3-PD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Burch

The petitioner, Anthony Darrell Hines, convicted of first degree felony murder and sentenced to death for a 1985 homicide, appeals from the denial of his petition for post-conviction relief, alleging that counsel were ineffective at his 1986 trial and 1989 resentencing hearing, that women were excluded from both juries, and that imposition of the death penalty violates his rights under the federal and state constitutions. The post-conviction court denied the petition after an evidentiary hearing. Following our review, we affirm the denial.

Shamain Johnson v. State of Tennessee
M2003-00470-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Shamain Johnson, appeals from the trial court's denial of his petition for writ of habeas corpus. Finding that denial of the petition was appropriate, we affirm the judgment of the trial court.

State of Tennessee v Robert Benjamin Bowen
M2003-00513-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

Upon his plea of guilty, the Defendant was convicted of DUI. In this appeal, he attempts to present two certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). Because we conclude that this appeal does not properly present certified questions of law, we dismiss the appeal.

State of Tennessee v. Emery Wells
M2003-00795-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge L. Craig Johnson

The Appellant, Emery Wells, pled guilty to two counts of aggravated assault and was sentenced to an effective eight-year sentence, with the sentence being suspended after service of ninety days in jail. A probation violation warrant was subsequently issued alleging violation of the following conditions: (1) failure to report to his probation officer; (2) failure to obey the laws of this state; and (3) failure to report a new arrest. Following a hearing, the trial court revoked Wells' suspended sentence and ordered his eight-year sentence to be served with community corrections, after service of an additional ninety-day period of jail confinement. Wells concedes that the violations occurred, but he argues that the revocation did not "aid the interest of both the public and the [Appellant]," as it will likely result in the loss of his employment.

State of Tennessee v. Dywand Carlos Pettway
M2003-00238-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee

A Bedford County Circuit Court jury convicted the defendant, Dywand Carlos Pettway, of aggravated robbery, a Class B felony, and possession of a Schedule II controlled substance, a Class A misdemeanor. The trial court sentenced him as a Range II offender to twenty years in the Department of Correction for the aggravated robbery conviction and eleven months, twenty-nine days for the possession of a Schedule II controlled substance conviction, to be served consecutively. In this appeal, the defendant claims (1) that the evidence is insufficient to support his aggravated robbery conviction and (2) that his sentences are excessive. We affirm the judgments of the trial court.