Joe/Lovie Ross vs. Shelby Co. Healthcare
W2000-01553-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises from the contraction of the HIV virus by the appellant after he received blood transfusions from the appellees. The appellants brought a complaint with the Circuit Court of Shelby County against the appellees but then filed a voluntary dismissal without prejudice. The appellants refiled the complaint against the appellees. Process for the appellees was issued but returned unserved. The appellants failed to reissue process within one year. The appellants filed a motion for enlargement of time to issue new process pursuant to Rule 6.02 of the Tennessee Rules of Civil Procedure. The trial court denied the appellants' motion and dismissed the complaint against the appellees. The appellants appeal from the denial of their motion and the dismissal of the complaint against the appellees by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision.

American Federation vs. Chris Turner
W2000-00166-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. Steven Stafford
This appeal arises from a collective bargaining agreement entered into by the Appellants and employees of the Shelby County General Sessions Court Clerk's office. The Appellees refused to recognize the collective bargaining agreement. The Appellants filed a complaint against the Appellees in the Circuit Court of Shelby County. The complaint alleged violations of Article 1, Section 8 of the Tennessee Constitution, the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the First Amendment to the United States Constitution, and breach of contract under Tennessee law. The parties filed cross-motions for summary judgment. The trial court entered summary judgment in favor of the Appellees. The Appellants appeal the grant of summary judgment in favor of the Appellees by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision.

Brian Elkins vs. Rex Berry & William Bolin
W2000-01143-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Julian P. Guinn
This case involves the right to a trial by jury. The plaintiff sued the defendants for injuries he sustained in an automobile collision that was allegedly caused by the defendants' negligence. In the plaintiff's complaint, he demanded a jury trial. The defendants also demanded a jury trial in their answers. On the eve of trial, unbeknownst to the defendants, the plaintiff withdrew his jury demand. On the morning of trial, the defendants appeared but were unrepresented by counsel. The trial court proceeded with a bench trial, and entered a judgment in favor of the plaintiff. The defendants now appeal, claiming, inter alia, that they were denied their right to a jury trial. We affirm, finding that the defendants' participation in the bench trial, without objection, constituted a waiver of their right to a jury trial under Rules 38.05 and 39.01 of the Tennessee Rules of Civil Procedure.

Paul Holmes vs. Christy Holmes
W2000-01759-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Joe C. Morris
This is an appeal from a final decree of absolute divorce in which custody of the parties' minor son was given to the father for the school year and to the mother during the summer months when regular school is not in session. We affirm.

Leslie Crossett vs. Roy Fuller
W2000-02482-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ron E. Harmon
This is an appeal from a boundary dispute. The property in dispute is a roadway used by both parties to access their properties. The trial court determined the common boundary line, provided the Crossetts with an easement for ingress and egress, and awarded the Fullers their costs. The Crossetts appeal. We affirm.

Michael Wayne Dean v. State of Tennessee
E2000-01452-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Buddy D. Perry

The petitioner challenges the trial court's dismissal of his petition for habeas corpus relief. He contends that the trial court lacked jurisdiction to enter a judgment for second degree murder because that offense is not a lesser included offense of felony murder with which he was indicted. We affirm the trial court's dismissal of the habeas corpus petition.

Karen Roth vs. Richard Roth
M1998-00911-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Thomas Goodall
This appeal involves the dissolution of a sixteen-year marriage. The wife filed suit in the Circuit Court for Sumner County seeking a divorce and custody of the parties' three children. The husband did not contest the divorce but requested custody of the parties' two older children. Following a bench trial, the trial court awarded the wife a divorce on the ground of adultery and granted her custody of the children. On this appeal, the husband takes issue with the trial court's valuation of marital property, the allocation of marital debt, and the award of long-term spousal support. We have concluded that the trial court's decisions regarding the valuation of the marital property should be modified but that the remainder of the judgment should be affirmed.

George Scott vs. Linda Scott
M1999-00322-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a post-divorce dispute over child support. Fifteen months after the parties were divorced in the Circuit Court for Davidson County, the custodial spouse petitioned the trial court to increase the noncustodial spouse's child support obligation because he was voluntarily underemployed and to hold the noncustodial spouse in criminal contempt. After being threatened with Tenn. R. Civ. P. 11 sanctions, the custodial spouse abandoned her criminal contempt allegations. Following a hearing, the trial court found that the noncustodial spouse was not voluntarily underemployed but increased his child support prospectively because of an anticipated increase in his income. On this appeal, the custodial parent takes issue with the trial court's refusal to find that the noncustodial parent was voluntarily underemployed, to make the increased child support retroactive to the date of her petition, and to award her only a portion of her legal expenses. We affirm the trial court and further find that the custodial spouse is not entitled to an additional award for the legal expenses she has incurred on this appeal.

State of Tennessee v. Ali Mohsenzadeh
M2000-01226-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter

The Defendant was convicted by a jury of DUI and sentenced to thirty days, suspended upon the service of five days, and eleven-months, twenty-nine days probation. The Defendant now appeals, contending that the arresting officer had no reasonable suspicion to pull him over or probable cause to arrest him; that the evidence is insufficient to support his conviction; that the State failed to prove venue; and that his sentence is excessive. We affirm the defendant's conviction and modify his sentence.

Patsy (Stiles) Templeton vs. Jeffrey Stiles
M1999-02388-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Charles D. Haston, Sr.
This appeal arises from a hearing in the Circuit Court of Warren County wherein the court divided the property of the Appellant and the Appellee following their divorce. In relevant part, the trial court awarded all the guns and retirement accounts to the Appellee and refused to hear the Appellant's testimony concerning improvements made to the real estate. The Appellant appeals from the order of the Circuit Court of Warren County, dividing the property of the Appellant and the Appellee. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision.

Jerry Thomas Ricks vs. Dept. of Correction
M1999-01916-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
This case arises from the commutation of the Appellant's prison sentence from eighty-five years imprisonment to forty years. The Appellant's commutation was revoked after he was arrested on misdemeanor charges. The revocation occurred following the expiration of the term of the commuted sentence but within the term of the original sentence. The Appellant filed a petition for declaratory judgment with the Chancery Court of Davidson County, claiming that the Appellee failed to correctly calculate his sentence expiration date. The trial court dismissed the Appellee's petition.

M1999-02801-COA-R12-CV
M1999-02801-COA-R12-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell

Suzanne Gibson vs. James Prokell
W2000-01236-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter L. Evans

Suzanne Gibson vs. James Prokell
W2000-01236-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Walter L. Evans

Cary Whitehead/Homer Bunker vs. Jim Rout
W2000-01239-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D. J. Alissandratos
This appeal involves a dispute over the sale of a tract of land to Shelby County for a road project. The trial court granted summary judgment to Shelby County. For the following reasons, we affirm.

Jodie Willis vs. Alan Willis
W2000-01613-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. Steven Stafford
Father petitioned the court for a reduction in his child support obligation based upon a significant variance between his former salary and his current salary. The trial court determined Father to be voluntarily underemployed. The trial court imputed Father's base salary as potential income but did not impute Father's overtime pay. As a result, the trial court reduced Father's child support obligation by ten dollars per week. We affirm the trial court's determination that Father was voluntarily underemployed; however, we reverse and remand the trial court's determination of Father's potential income.

State vs. Torrey Frazier
E2000-01364-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: E. Eugene Eblen
A Roane County grand jury indicted the defendant on one count of first degree premeditated murder. Following a jury trial, he stood convicted of second degree murder. For this offense he received a twenty-two year sentence as a violent offender. After unsuccessfully pursuing a motion for a new trial, the defendant brings the present appeal to this Court raising four issues. More specifically, he avers that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence a tech-nine weapon not associated with the offense; (3) the trial court erred in permitting the State to question a defense witness concerning a pending statutory rape charge; and (4) the trial court erred by sentencing the defendant to twenty-two years. Upon review of these issues, we find that all lack merit or constitute harmless error. We, thus, affirm the conviction and sentence.

Colonial Baking Com Pany v. Clayton Barrett
M1999-02276-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Ellen Hobbs Lyle, Chancellor
A court-approved settlement limited the employee to authorized, reasonable and necessary medical expenses resulting from the employee's injuries for a period of two years from the settlement. The employee appeals the trial court's denial of his Motion for Relief from Order seeking relief from the order approving the settlement, pursuant to Rule 6.2, of the Tennessee Rules of Civil Procedure. We affirm the trial court and dismiss the appeal.

State of Tennessee v. Lawrence Wyatt
W2000-01672-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Roger A. Page

The defendant appeals from his convictions for conspiracy to commit aggravated robbery and facilitation of aggravated robbery. He contends that the evidence is insufficient to support his convictions and that his sentences are excessive. We affirm the judgments of the trial court.

Glenna Fink vs. Richard Fink
E2000-02468-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Glenna C. Fink ("Wife") filed a Complaint for Divorce against Richard H. Fink ("Husband") on the grounds of inappropriate marital conduct and irreconcilable differences. Husband filed an Answer and Counter-Complaint seeking a divorce on the same grounds. The Trial Court awarded the divorce to Wife and dismissed Husband's Counter-Complaint. The parties agreed to the sale of the marital residence, and the Trial Court awarded Wife $14,000.00 in attorney's fees out of the sale of the proceeds, with the remaining proceeds from the sale to be split 55% to Wife and 45% to Husband. Wife was awarded the full interest in her retirement/disability benefits. The Trial Court also determined that certain sums which Husband claimed were marital property were actually a gift to the parties' minor daughter and the daughter was, therefore, entitled to keep these funds. The Trial Court further awarded Wife $450.00 per month as alimony in futuro. Husband filed a Motion pursuant to Rules 59.02 and 59.04 of the Tenn. R. Civ. P. challenging these determinations. The Trial Court denied Husband's motion, and Husband appeals. We affirm, award Wife attorney's fees incident to this appeal, and remand this matter to the Trial Court for a determination of the amount of reasonable attorney's fees incurred by Wife on appeal.

State of Tennessee v. Robert N. Rogers
E2000-00866-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant contends that the trial court erroneously ordered service of his original sentences upon the revocation of his probation. We affirm the trial court's judgment.

Judy Hall Travis vs. Kenneth D. Travis, Jr.
E2000-01043-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Thomas R. Frierson, II
This appeal from the Hamblen County Chancery Court questions whether the Trial Court erred in finding that a portion of the value of the marital residence is the separate property of the Appellee, Kenneth D. Travis, Jr.,and whether the Trial Court abused its discretion by allowing Mr. Travis to claim the parties' minor children as dependents for federal income tax purposes, by failing to award the parties joint custody of their minor children, and in setting Mr. Travis's visitation schedule. We reverse in part, affirm in part and remand for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against Judy Hall Travis and Kenneth D. Travis, Jr. equally.

Methodist Hospital of Dyersburg, Inc., v. Linda Ams
W2000-01569-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Lee Moore, Judge
The employer-appellant contends the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded that the evidence preponderates against an award based on five times the undisputed medical impairment rating.

Kathy Riley v. The Travelers Insurance Company
W2000-01738-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr, Sp. J.
Trial Court Judge: Martha B. Brasfield, Chancellor
The employer's insurer, Travelers, insists the employee's injury did not arise out of the employment and that the award of permanent partial disability benefits based on 55 percent to the right leg is excessive. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court.

Chad Conatser v. Metro Ready Mix,
M2005-00814-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Royce Taylor, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3), for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Plaintiff alleged a cervical injury apparently owing to two separate events, including an injury sustained while exercising on the job, and another injury occurring when the truck he was driving ran into a hole and bounced him upward, jamming his neck. A number of medical physicians found no basis for his complaint. A chiropractic physician, by a range of motion study, opined that he retained a 26 percent impairment. The trial court found that the Plaintiff retained percent disability as a result of his work related injury on July 22, 2, and we affirm. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which CORNELIA A. CLARK, J., and ROBERT E. CORLEW III, SP. J., joined. Robert L. Huskey, Manchester, Tennessee, attorney for Appellant, Chad Conatser. Bree A. Taylor, Nashville, Tennessee, attorney for Appellee, Metro Ready Mix and Lumberman's Underwriting Alliance. MEMORANDUM OPINION This complaint was filed on March 15, 21, alleging that the Plaintiff sustained a compensable injury to his neck and cervical spine on or about April 1, 2 during the course and scope of his employment as a truck driver. It appears that the Plaintiff first injured his neck while doing on-the-job exercises at a gym provided by the Employer. The Plaintiff was not treated for any injuries occurring as a result of this incident. Testimony revealed that while driving a ready-mix concrete truck on July 22, 2, the Plaintiff ran into a depression which jolted him vertically, with his head striking the roof of the cab resulting in a cervical injury1 of a disputed nature. A supervisor took the Plaintiff to the emergency room immediately following this incident, where he was treated and released. About six weeks after the described incident occurred, the Plaintiff sought medical attention from Dr. Thomas O'Brien, an employer-approved orthopedic specialist2. Dr. O'Brien sent the Plaintiff to physical therapy and placed him on light duty from October 23, 2 until November 1, 2, when he was released at maximum medical improvement. Dr. O'Brien opined that the Plaintiff retained a percent permanent partial impairment rating. He saw Dr. O'Brien a total of three times, and asked to see a different physician. He then saw Dr. J. Keith Nichols, also an orthopedic specialist, on two occasions. Dr. Nichols treated the Plaintiff with injections and physical therapy, but declined to impose any work restrictions on him. Dr. Nichols released the Plaintiff on December 5, 2, noting subjective complaints with no objective findings of abnormality. He released the Plaintiff at maximum medical improvement, gave him a permanent partial impairment rating of percent, and testified that he could continue in his normal job activities. Both doctors indicated that the Plaintiff's neurological exams were normal, and that any problem he was having would resolve over time. The Plaintiff continued to drive a concrete redi-mix truck, and began to have "little accidents" as he described, like backing into a guy wire and into a tree because he was unable to turn his head, owing to stiffness in his neck. He was fired on August 1, 21, apparently due to his inability to continue to drive a concrete truck safely. The Plaintiff, of his own volition, then saw Dr. Jeffrey McKinley, a chiropractor, on February 28, 21. He performed a range of motion study on the Plaintiff, using the Fourth Edition of the Guidelines, because he did not have the Fifth Edition, which was then current.3 Dr. McKinley testified that the Plaintiff never mentioned the July 2 or July 21 injuries during the course of his treatment, that his opinion was based exclusively on the April 1, 2 incident, and has nothing to do with subsequent injuries. He admitted that had he known about the subsequent injuries, it would have "had an impact". He last saw the Plaintiff on September 13, 21. Dr. McKinley opined 1 The Plaintiff filed another complaint, docket 2-32, which is not in the record. We are able to deduce, however, that he alleged back injuries sustained in an accident which occurred in July 21, four months after the complaint was filed in the case at bar. The cases were consolidated for trial. Judgment was entered in docket 2-32, dismissing the complaint and holding that the Plaintiff was not newly injured, and suffered no aggravation of a pre- existing injury. The judgment was not appealed. In point of fact, the Plaintiff testified that he was not injured, and the record does not explain why the suit was filed. See, Tenn. R. Civil P. Rule 11. 2 Although the Plaintiff contends that he was not afforded the opportunity to choose from a panel of physicians, his signature appears on a page listing three authorized physicians from which to choose, including Dr. O'Brien. 3 Dr. McKinley later compared the Fourth and Fifth Editions, and concluded that there is no difference in the ratings assigned based upon the range of motion model between the two editions of the AM A guides. -2-