Freida Boyle v. The Procter & Gamble Manufacturing
W2000-00064-WC-R3-CV
Authoring Judge: C. Creed Mcginley, Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
The employer contends the trial court erred in determining that the employee's injury was causally connected to her employment and that the employee complied with statutory notice provision pursuant to Tenn. Code Ann. _ 55-6-21. It also contends that the award of 4% permanent partial disability to the body was excessive. As discussed below, the panel concludes that the judgment of the trial court should be affirmed.

State of Tennessee v. Robert Lee Pattee
M2000-00257-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, Robert Lee Pattee, appeals as of right following his conviction by a jury in the Sumner County Criminal Court for first degree murder. The trial court sentenced Defendant to life imprisonment in the Department of Correction. Defendant raises the following issues in this appeal: (1) whether the trial court erred by refusing to instruct the jury on the lesser-included offense of voluntary manslaughter; (2) whether the trial court erred when it determined Defendant’s suicide note was inadmissible at trial; and (3) whether the evidence of premeditation was sufficient to convict him of first degree murder. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Robert Lee Pattee - Concurring
M2000-00257-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Jane W. Wheatcraft

I concur in the result reached and most of the reasoning in the majority opinion. However, I believe that the evidence was sufficient to warrant the jury being instructed regarding voluntary manslaughter. I agree, though, that the failure to instruct the jury was harmless.

Vinson Taylor v. State of Tennessee
W2000-01991-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Moore

This is an appeal from the denial of post-conviction relief. Petitioner pled guilty to selling cocaine over 0.5 grams and received a sentence of eight years. He contends the trial court erred in denying his petition for post-conviction relief, alleging (1) ineffective assistance of trial counsel leading to his guilty plea, (2) an involuntary guilty plea, and (3) failure of trial counsel to perfect an appeal of the sentence. We affirm the post-conviction court with regard to the validity of the guilty plea; however, we grant a delayed appeal based upon trial counsel's failure to take any action regarding an appeal of the sentence.

Bobbie Hicks v. WaUSAu Insurance Companies,
W2000-01009-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the Second Injury Fund insists (1) the evidence preponderates against the trial court's finding that the employee suffered a compensable injury on January 14, 1997, (2) the trial court erred in admitting into evidence the testimony by deposition of a vocational expert and (3) the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled. As discussed below, the panel has concluded the judgment should be affirmed.

William David Holden v. Peterbilt Motors Company
M2000-00484-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to theSpecial Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer contends the evidence preponderates against the trial court's finding that the employee's carpal tunnel syndrome was work related and that the award of permanent partial disability benefits based on 5 percent to the arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR.. J., joined. Patrick A. Ruth, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant, Peterbilt Motors Company. William E. Farmer, Lebanon, Tennessee, for the appellee, William David Holden. MEMORANDUM OPINION The employee or claimant, Holden, is 48 with a high school education and one year of college with experience as a welder and in construction trades. He began working at Peterbilt in August 1983. On July 1, 1997, while using a pry bar to slide a truck on the line, his hand slipped and he hit his left hand against the truck. He felt immediate pain and numbness in the hand and arm. He chose Dr. John McInnis from a list of three provided by the employer. Dr. McInnis x-rayed and splinted the hand and returned the employee to one handed work, after diagnosing a fractured fifth metacarpal. The employee returned to work after an uneventful recovery, but has been unable to make production expectations, for which he was reprimanded, because of pain and numbness in the injured hand and arm. His testimony as to the effect of his injury on his ability to work is supported by the testimony of co-workers and by the testimony of Mrs. Holden. On November 5, 1998, he saw Dr. Richard Fishbein with complaints of pain in the injured hand. Dr. Fishbein attributed a 3 percent permanent impairment to the hand and an additional 5 percent to the left arm for carpal tunnel syndrome caused by the July 1, 1997 injury. Dr. McInnis testified that trauma could cause carpal tunnel syndrome, but estimated the employee's permanent impairment at 1 percent to the left hand only. Upon the above summarized evidence, the trial court found that both injuries, the fractured hand and the carpal tunnel syndrome, were work related and awarded permanent partial disability benefits based on 5 percent to the left arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

Allen Seratt v. Neo Products Corporation,
W1999-01246-WC-R3-CV
Authoring Judge: Henry D. Bell, Special Judge
Trial Court Judge: Hon. Joe C. Morris, Chancellor
The defendants Neo Products Corporation and State Auto Insurance Company appeal the judgment of the Chancery Court of Chester County awarding plaintiff permanent partial disability of ten (1%) percent to the body as a whole. For the reasons stated in the opinion we affirm the judgment.

First American Trust Co. v. Franklin-Murray Development Company, L.P.
M1998-00984-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Henry Denmark Bell

This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed. We have determined that the trial court lacked jurisdiction to establish the receivership and, therefore, that the receivership proceedings were null and void. Accordingly, the trial court did not err by declining to address the law firm's claim in the receivership proceeding.

Bobby R. George v. Building Materials Corp. of America, et al.
M1999-00449-SC-WCM-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carol L. Soloman

In this workers' compensation case, the trial court awarded Bobby R. George 90% permanent partial disability for loss of hearing in both ears. Mr. George's employer, Building Materials Corporation of America d/b/a GAF Materials Corporation ("GAF"), filed a post-judgment motion for leave to amend its answer to allege a statute of limitations defense. The trial court denied the motion. The Special Workers' Compensation Appeals Panel ("the Panel") reversed the trial court's denial of the motion to amend the answer and remanded the case for further proceedings on the statute of limitations defense. The Panel also reduced the award to 50% permanent partial disability should the statute of limitations defense be unsuccessful on remand. We disagree with the Panel's recommendation and affirm the trial court's judgment in all respects.

Bowdoin Grayson Smith v. Ginger Lee Marenchin Smith
M2000-01094-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

This is the second appeal regarding the setting of the amount of the father's child support obligation for four children. In the earlier appeal, this court remanded for a determination of the father's actual net income and his corresponding child support obligation. On remand, the trial court in early 2000 based its award of prospective support on an average of father's income in 1992 through 1995 and established the father's back support based on that figure. We find that the prospective award should be set on the most current income figures, but that an average of the most recent years is appropriate. We also find that the amount of back child support should be computed using actual income for the intervening years. Because the record does not contain sufficient information regarding challenged deductions from gross income for the years now at issue, we remand for an evidentiary hearing on the father's income in the years since the divorce in 1996, and a redetermination of both prospective and back support. We affirm the denial of prejudgment interest.

Valerie Jean Spivey, et al., v. Sumner County, Tennessee, et al.
M2000-00771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Arthur E. McLellan

Plaintiffs in this matter have alleged that their employment was terminated in violation of Tennessee's Public Protection Act, Tennessee Code Annotated section 51-1-304. The trial court ruled in favor of Defendants' Motion for Summary Judgment and dismissed this case in its entirety finding that all three Plaintiffs had failed to prove that their termination was based solely on "whistle blowing". We affirm the trial court's decision in this regard.

William Ronald Jordan v. State of Tennessee
M1999-01360-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jim T. Hamilton

The petitioner, William Ronald Jordan, was convicted by a jury in the Giles County Circuit Court of driving under the influence of an intoxicant ("DUI") and attempted robbery. The trial court sentenced Petitioner as a multiple Range II offender to six years for the attempted robbery conviction and to eleven months and twenty-nine days for the DUI conviction, with the sentences to be served concurrently. This court affirmed Petitioner's convictions on direct appeal, and Petitioner subsequently filed a pro se petition, with two amendments, for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied Petitioner relief. In this appeal, Petitioner asserts that he received ineffective assistance of counsel on the following grounds: (1) counsel failed to submit adequate evidence at the hearing on his motion to dismiss based upon denial of his right to a speedy trial; (2) counsel's advice to Petitioner not to testify at trial deprived him of a jury instruction on renunciation as a defense; and (3) counsel failed to object when the State filed an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. After a review of the record and applicable law, we affirm the post-conviction court's judgment.

Tammy Jewell Robertson v. Walter Scot Robertson
M1999-02103-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas W. Graham

This appeal involves a dispute over the division of a marital estate following a marriage that lasted approximately two and one-half years. Both parties sought a divorce on the ground of inappropriate marital conduct in the Circuit Court for Franklin County. During a bench trial lasting two days, the parties stipulated that they both had grounds for divorce but hotly contested the classification, valuation, and division of their marital and separate property. The trial court declared the parties divorced and divided their property without clearly classifying or placing a value on it. On this appeal, the wife asserts that the trial court erred by considering the husband's contributions to the marital home as his separate property and that the net division of the marital estate was inequitable. Despite the ambiguity resulting from the trial court's failure to classify and value the parties' property, we have determined that the trial court's division of the martial estate was essentially equitable.

Paul David Crews, et al., v. Hooters Restaurant of Nashville, Inc., et al.
M1999-02813-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant.

State of Tennessee v. Linda Gail Philpot - Concurring and Dissenting
M2000-01999-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: James Curwood Witt

I concur that a sentencing alternative of split confinement should be utilized in the present case; however, I respectfully disagree that confinement for 35 days is appropriate. A consecutive sentence of 20 days confinement for each count would be more in line with the sentence approved by this court in the remarkably similar case of State v. Cynthia D. Stacey, No. 03C01-9803-CC-00091 (Tenn. Crim. App., Knoxville, May 24, 1999) (approving 180 days of confinement followed by two years of community corrections, for defendant who, as a home health care worker, stole money from an elderly couple in her care). The cases are very similar, and in light of Cynthia D. Stacey, the present case, on its own facts, suggests a more punitive, deterrent sentence than 35 days in confinement. Thus, I would extend the confinement portion of the sentence to an aggregate of 140 days.

State of Tennessee v. Linda Gail Philpot
M2000-01999-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Lee Russell

Linda Gail Philpot entered “best interest” pleas to forty-one counts of forgery. Pursuant to the negotiated plea agreement, Philpot received an effective sentence of fourteen years. The manner of service, including entitlement to probation, was submitted to the trial court. The trial court denied all forms of alternative sentencing based upon its finding of lack of remorse and poor prospects for rehabilitation. On appeal, Philpot argues that the trial court erred in denying an alternative sentence.  After review, we conclude that a sentence of split confinement will best serve the interests of the public and the Appellant. The judgment, accordingly, is reversed and remanded for entry of a sentence of split confinement reflecting a period of thirty-five days confinement in the local jail or workhouse with the remainder of the effective fourteen-year sentence to be served on supervised probation.

Anthony Keith Eldridge vs. Julia Edity Eldridge
E1999-02583-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Richard E. Ladd

We granted review of this child visitation case to determine whether the trial court abused its discretion in ordering unrestricted overnight visitation with the mother. The Court of Appeals held that the trial court had abused its discretion and imposed restrictions prohibiting the presence of the mother's lesbian partner during overnight visitation. We hold that the record does not support a finding of an abuse of discretion. Accordingly, we reverse the judgment of the Court of Appeals.

State of Tennessee v. Clarence Davis
M2000-00480-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Clarence Davis, was convicted by a jury of premeditated first degree murder and sentenced to a term of life imprisonment. On direct appeal, this Court reduced the Defendant's conviction to second degree murder and remanded the case for re-sentencing. State v. Clarence Davis, No. 01C01-9811-CR-00451, 1999 WL 737873, at *1, Davidson County (Tenn. Crim. App., Nashville, September 22, 1999). After a sentencing hearing, the Defendant was sentenced to the maximum term of twenty-five years. The trial court further ordered the Defendant to serve this sentence consecutively to a previously imposed sentence in a case wherein Defendant's sentence to community corrections had been revoked. The Defendant now appeals contending: 1) the trial court erred in imposing the maximum sentence for second degree murder and 2) the trial court erred in ordering his sentence to run consecutively to a previously imposed sentence in an unrelated case. After a review of the record and applicable law, we affirm the length of the sentence and the order of consecutive sentencing, but remand for a determination of the amount of pretrial jail credit to which the Defendant is entitled.

State of Tennessee v. Charles Stillwell
W2000-00392-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Otis Higgs, Jr.

The defendant appeals the trial court's six-year sentence of total confinement and denial of any form of an alternative sentence. After review, we reverse the trial court's order of total confinement and denial of any form of an alternative sentence. We remand the case to the trial court to order the defendant to serve a sentence of split confinement with one (1) year of incarceration and the remaining five (5) years on supervised probation with restitution as a condition of probation.

State of Tennessee v. Michael Shawn Shoffner
E2000-00993-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

Michael Shawn Shofner appeals from the Knox County Criminal Court's denial of his "Motion to Void Judgment," in which he seeks relief under Rule of Civil Procedure 60.02 from an order declaring that he is an habitual motor vehicle offender. He claims on appeal that the habitual motor vehicle offender order is void because (1) no summons was attached to the show cause order served upon him to notify him of the habitual motor vehicle offender proceedings, and (2) the state failed to obtain an alias summons after process was not returned within thirty days of entry of the show cause order. We hold that Shofner's motion for relief under Rule 60.02 is untimely. Therefore, the judgment of the trial court is affirmed.

Patrick Joseph Edgin vs. Valentina Paulovna Edgin
M2000-02122-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jim T. Hamilton

Bonnie Elliott v. The Blakeford At Green Hills
M2000-00512-WC-R3-CV
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Russ Heldman, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, The Blakeford at Green Hills Corporation appeals the judgment of the Chancery Court of Williamson County where the trial court found: 1) the plaintiff, Mrs. Bonnie Elliott suffered a compensable work-related injury when she ruptured three extensor tendons in her left hand while working for the defendant; 2) Mrs. Elliott entitled to temporary total disability benefits for 32 weeks, and permanent partial disability benefits for 15 weeks based on a seven percent (7%) permanent anatomical impairment and twenty-eight percent (28%) vocational disability; 3) the defendant failed or refused to offer or provide medical attention to Mrs. Elliott in violation of Tennessee Code Annotated _ 5-6-24 entitling her to a judgment of $711.36 for reimbursement of medical and insurance premium expenses; and 4) the defendant wrongfully and in bad faith failed to pay Mrs. Elliott's claim for temporary total disability payments entitling her to an additional judgment of $711.36. For the reasons discussed in this opinion we find that the judgment of the trial court should be affirmed as modified.

Union Bank & Trust Company v. Kirby Boles v. Tn Dept of Labor
M2000-01366-WC-R3-CV
Authoring Judge: Tom E. Gray, Sp.J.
Trial Court Judge: Vernon Neal, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Second Injury Fund appeals claiming a setoff/credit for the amount of temporary total disability benefits paid to the employee by the employer and a setoff/credit for social security contribution made by the employer. For reason stated the judgment of the trial court is affirmed, and this case is remanded Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is affirmed. TOM E. GRAY, SP.J., in which FRANK F. DROWOTA, III, J. and JOHN K. BYERS, SR. J., joined. Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee for the Appellant, James Farmer, Director of the Tennessee Division of Worker's Compensation Second Injury Fund. Kelly R. Williams, Livingston, Tennessee for the Appellee, Kirby Boles. MEMORANDUM OPINION The trial court found that Kirby Boles, employee, was entitled to an award of 1% permanent and total disability to the body as a whole under Tennessee Code Annotated 5-6- 27(4)(A)(i) and apportioned disability of 47% to the employer, Union Bank and Trust Company, and 53% to the Second Injury Fund. Finding that the employee was more than 6 years of age at the time of the work related accident 26 weeks of permanent total disability were awarded in addition to all temporary total disability benefits paid. Employee Boles was found to be currently receiving social security disability benefits by the Court, and he was ordered to inform the Second Injury Fund within thirty (3) days of receiving any social security old age insurance benefits. The attorney representing Mr. Boles was granted a fee of $7,3.28 which amounted to 2% of the 26 week award, and the trial court commuted to a lump sum 1 weeks of benefits. BACKGROUND Kirby E. Boles was born on the 6th day of May, 1935. On the 9th day of March, 1996 while in the course and scope of his employment with Union Bank and Trust Company he was involved in an automobile accident. Union Bank and Trust Company commenced this action by filing a complaint in the Chancery Court for Overton County, Tennessee at Livingston to have the Court determine therights and responsibilities of the parties, Union Bank, plaintiff, and Kirby Boles, defendant, according to the Workers' Compensation Law, State of Tennessee. Kirby Boles filed an answer and counter- complaint. Thirteen months after the action was commenced Union Bank and Trust Company moved the Court to add the Tennessee Department of Labor, Second Injury Fund as a Third-Party Defendant. In support of the motion, movant attached a copy of an order entered in the Circuit Court for Overton County, Tennessee on the 1th day of February, 1995 whereby Kirby E. Boles was found to have suffered a 28% permanent partial impairment to the body as a whole as a result of an accident to his left shoulder arising out of and in the course and scope of his employment at First Baptist Church, Livingston. The motion was granted, and the Second Injury Fund became a party. No party presented testimony at trial but stipulated as follows: 1. Mr. Boles sustained a compensible injury to the body as a whole on March 9, 1996 as aresult of an automobile accident arising out of and in the course and scope of his employment; 2. Mr. Boles was over the age of 6 at the time of the accident; 3. Mr. Boles was permanently and totally disabled as a result of the injury on March 9, 1996; 4. The proper weekly compensation rate of Mr. Boles is $14.39 per week. -2-

Cassie Gilliland vs. Billy Pinkley
W2000-00982-COA-R3-CV
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Roy B. Morgan, Jr.
Plaintiffs appeal from a grant of summary judgment in favor of defendant Vision Care Properties, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by a vicious dog owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment, plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with his prior affidavit. We affirm the trial court in all respects.

Roy Anderson Corporation v. Westchester Fire
W2000-01489-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier