Polly L. Andrews, v. Maurice J. Salter
M1998-00953-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

The defendant's automobile ran into the rear of the plaintiff's car. After the collision, the plaintiff learned that she had sustained a ruptured disk and commenced the underlying action, seeking compensation for both personal injury and property damage. At trial, the court admitted evidence that the plaintiff had been involved two prior accidents within the past ten months. The trial court granted a directed verdict to the plaintiff on the issue of liability for the accident, but left open the question of whether the defendant's actions caused the plaintiff's injuries. The jury awarded the plaintiff $2,500 in damages, notwithstanding the fact that her undisputed medical expenses were substantially higher. The plaintiff appealed, arguing that the admission of the prejudicial and irrelevant evidence of prior accidents was error and that the jury improperly speculated on the cause of her injuries. The evidence of the prior accidents was limited, included no proof of personal injuries, and included no connection between the mere occurrence of these accidents and the plaintiff's injuries. Because the evidence of the prior collisions invited speculation, we reverse.

Carolyn Donna Jarvis v. Thomas Holland Jarvis
M1998-00905-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Don R. Ash

This appeal involves the dissolution of a five-year marriage in the Circuit Court for Rutherford County. Following a bench trial, the trial court granted the wife a divorce on the ground of inappropriate marital conduct, divided the marital estate, and ordered the husband to pay long-term spousal support. The trial court also directed the husband to maintain the wife's health insurance for three years and to reimburse her for medical expenses incurred prior to the divorce. On this appeal, the husband takes issue with the decision to award the wife the divorce, the classification and division of the marital property, and the long-term spousal support award. We have determined that the spousal support award should be modified and that the remaining portions of the trial court's decree should be affirmed.

Carl D. Clark, v. Roger D. Lemley, et ux.
M1999-01271-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor W. Charles Lee

This case arises from a dispute between neighbors over the use of an old road which connected Appellant's landlocked farm to a public roadway. The road crossed Appellees' property. After Appellees erected a locked gate across the old road, Appellant sought injunctive relief to permit access to the old road. After a trial, the court found that the old road was never a public road and that no prescriptive easement existed. The court declined to provide the requested relief. Because the evidence does not preponderate against the trial court's findings, we affirm.

State of Tennessee v. Michael S. Jackson
W1999-00358-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph B. Brown

The defendant was convicted of aggravated robbery and sentenced to twelve years confinement as a standard, Range I offender. On appeal, the defendant argues that the evidence was insufficient to support the jury's verdict, and that the trial court erred in its application of sentencing enhancement factors. Based upon our review, we affirm the judgment of the trial court.

Arthur Blair vs. Marilyn Badenhope
E1999-02748-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Thomas R. Frierson, II

Arthur Blair ("Father") petitioned the Trial Court to modify a prior custody decree entered by a North Carolina court. Marilyn Badenhope, the child's maternal grandmother, has had custody of the child since the child's infancy. This is Father's second attempt in the Tennessee courts to obtain a modification of the North Carolina decree. In this suit, the Trial Court denied Father's petition, holding that Father failed to show that a material change in circumstances had occurred such that substantial harm to the child would not result if Father was awarded custody. Father appeals and contends that the Trial Court erroneously found no showing of a material change in circumstances and that substantial harm would result to the child if the child was placed in Father's custody. The grandmother does not dispute the Trial Court's ultimate decision, but she contends that the Trial Court only had to inquire as to whether a material change of circumstances had occurred and did not have to determine whether substantial harm would result to the child if custody was changed. We affirm.

Paula Sue Gilbert Brownyard, v. Robert Michael Brownyard
02A01-9803-CH-00063
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Joe C. Morris

This is a post-divorce action based on a petition for contempt and an accounting for delinquent alimony and child support. The trial court found the father in contempt, and granted the mother past due alimony and child support, attorney fees, and amounts owed for college expenses for the parties’ child. The father appealed to this Court. We affirm in part, reverse in part, modify, and remand.

Gregory Domincovitch v. Wilson County Board of Zoning Appeals
M1999-02334-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor C. K. Smith

Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner.

Edmond Brothers Supply Company, Inc., v. Boyle and Adams et al.
E1999-027310COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John S. McLellan, III

Edmond Brothers Supply Company, Inc. (“Plaintiff”), a building materials supplier, sold materials to a contractor for use in a construction project for Bristol Regional Women’s Center, P.C., (“Defendant”). Plaintiff did not send statements to Defendant because the contractor instructed Plaintiff not to bill Defendant. When the project was completed, the contractor took the Plaintiff’s final bill to Defendant for payment. Defendant’s office manager sent a check in full payment to Plaintiff, but Defendant stopped payment on the check and refused to pay the bill. Plaintiff brought
suit against Defendant, individual defendants, and a partnership to enforce a materialmen’s lien for the outstanding debt. All defendants denied enforceability of the lien. The Trial Court dismissed the action to enforce the materialmen’s lien, dismissed the action against the individual defendants and the partnership, and granted judgment to Plaintiff against Defendant on an agency theory. The Trial Court found that the contractor had authority to make the purchases for Defendant and that since Defendant had used the materials in its building, Defendant was obligated to pay for them, despite its instruction to the contractor not to charge any materials for the project. Defendant appeals this judgment. We hold that the contractor had no actual, implied, apparent, or ostensible authority to charge building materials to Defendant. We reverse the judgment of the Trial Court, and dismiss the Complaint against Defendant. Tenn. R. App. Rule 3; Judgment of the Trial Court Reversed; Case Remanded.
 

C.M.Reagan, v. Ima J. Connelly, et al.
E2000-00451-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

C.M. Reagan filed this action seeking to collect a money judgment previously obtained against the defendant Dan Connelly ("Connelly"), which judgment was based upon Connelly's guaranty of a note executed by his brother-in-law. Following a bench trial, the court below found that Connelly had fraudulently conveyed three pieces of real property to the defendant corporation, Dan Connelly, Inc. ("the Corporation"). With respect to a fourth piece of property, the trial court found that its transfer to the Corporation was not fraudulent. The trial court, however, went on to disregard the separate identity of the Corporation and find that 96% of the value of the fourth piece of property was available to satisfy the underlying judgment. This determination was based upon the trial court's finding that Connelly owned that percentage of the Corporation's stock. The Corporation and its record shareholders appeal. We affirm in part and reverse in part.

James Roden, et al., v. Clark Heck, Sr., et al.
E2000-00969-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a chicken -- more specifically a rooster -- that allegedly ran "afoul" of the law. James Roden and his wife, Janet Roden, brought this action against their neighbors, Clark Heck, Sr., and Clark Heck, Jr., after Mr. Roden was injured by a chicken that had escaped from the defendants' property. The trial court granted the defendants summary judgment. We affirm.

State of Tennessee v. Norico S. Woods
W2000-00057-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy Morgan

The appellant, Norico S. Woods, appeals from the order of the Madison County Circuit Court revoking her Community Corrections sentences and reinstating her original nine-year sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20, Tenn. Crim. App. R.

State of Tennessee v. Earl Arnoz Taylor
W2000-00071-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph H. Walker, III

The appellant, Earl Arnoz Taylor, was convicted of second degree murder in the Lauderdale County Circuit Court. On appeal, he argues that the evidence produced at trial was insufficient to support the verdict. After review, we find the evidence sufficient and affirm the judgment.

William Davidson v. Richard Holtzman, et al.
E2000-01091-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank Brown, III

The jury awarded the plaintiff, William Davidson, damages for breach of two oral contracts between Davidson and his former employer, the defendant Richard Holtzman, who, at the time the contracts were made, was the sole shareholder of the defendant Engel Stadium Corporation ("the Corporation"). Defendants appeal, arguing (1) that one of the agreements is barred by the Statute of Frauds; (2) that the same agreement is too indefinite to be enforced; and (3) that the trial court erred in admitting the testimony of another former employee of Holtzman. We affirm.

Jim Hockaday v. Dennis Freels
E1999-02719-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

This is an action for conversion of a $10,169.59 check. Responding to the plaintiff's allegations, the defendant claimed he had authority to negotiate the check because he and the plaintiff had orally entered into a partnership or joint venture. Following a bench trial, the court below found that no such relationship existed and that the defendant had wrongfully converted the check. We affirm.

William A. Dalton v. Gerald Dale
M2002-01205-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Barbara N. Haynes
Defendant appeals adverse summary judgment as to diminution in value of a 1995 Jaguar XJ6 automobile based upon alleged undisputed expert testimony. Judgment is reversed, and the case is remanded.

Cecilia Hutcheson v. Andrew Hutcheson
M2000-00894-COA-R3-CV
Authoring Judge: Per Curiam
Before these parties were married, Husband earned $60,000.00 per year as an independent insurance agent. Wife earned $50,000.00 yearly as a registered nurse. After their marriage in 1986, Husband never earned more than $10,000.00 yearly. Wife became disabled in 1997 and thereafter received social security benefits. She was awarded alimony of $150.00 weekly upon a finding that Husband was reasonably capable of earning an income from which he could pay this amount. He disagrees. We affirm.

Johnnie Roberts vs. Carl England
M1999-02688-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Vernon Neal
This is an appeal from a bench trial involving a boundary dispute between the parties. Testimony of the parties, other witnesses, the deeds, and the surveys of each party's surveyor were admitted into evidence. Considering all of the testimony and documentation submitted, the trial court held that the boundary as stated by the plaintiff's surveyor was the proper boundary. The sole issue on appeal is whether the plaintiff failed to join a third party adjoining land owner as an indispensable and necessary party, thereby resulting in the failure of the trial court to properly resolve fully and completely the dispute. For the reasons below, we vacate the judgment of the trial court and remand.

Ronald Davis vs. Robert Sanders, et al
M2000-01600-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Stella L. Hargrove
A prisoner filed a petition under the Public Records Act, asking the court to order a prosecutor and a police chief to send him their files on his case. The prosecutor claimed that he had in fact sent a copy of the requested files to the petitioner. The trial court dismissed the petition. We reverse.

City of Chattanooga vs. Kevin Davis
E2000-00664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Douglas A. Meyer

City of Chattanooga vs. Kevin Davis
E2000-00664-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Douglas A. Meyer

City of Chattanooga v. Kevin Davis
2000-00664-COA-R3-CV
Trial Court Judge: Douglas A. Meyer

Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc
M1999-02260-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: J. Richard McGregor, Special Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Circuit Court Affirmed, Remanded JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J. and FRANK G. CLEMENT, Jr., Sp. J, joined. William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company MEMORANDUM OPINION Facts This case encompasses two separate on-the-job injuries, and two separate awards by the trial judge. Harold W. Ferrell, Jr., ("Ferrell"), the 37 yearold employee-appellee, worked approximately 18 years for APAC-Tennessee ("APAC") employer-appellant, doing construction and manual labor. He has an eleventh grade education, but no G.E.D. On or about March 18, 1997, Ferrell injured his back while lifting a manhole cast-iron casting while working for APAC. Ferrell went to the emergency room, received treatment and was referred by APAC to Dr. Campbell for further treatment. Ferrell returned to work at a light duty assignment for a short time, but soon resumed his full duties. On or about April 2 or 3, 1997, Ferrell sustained an injury to his left arm when he slipped and fell while climbing down the tracks of a bulldozer he had been operating. The injury occurred when Ferrell reached his arm out to prevent his fall. Ferrell sought medical treatment for the arm approximately one week later. APAC once again referred Ferrell to Dr. Campbell. The only medical proof offered by either side at trial was the C-32 Form of Dr. C. Robinson Dyer, a board certified orthopaedic surgeon who examined Ferrell at his attorney's request. Dr. Dyer indicated that it was more probable than not that Ferrell's back and arm injuries arose out of his employment. He assigned Ferrell a permanent partial impairment rating of 5% to the left arm, and 5% to the body as a whole for the back injury. In addition, Dr. Dyer imposed significant restrictions related to the back injury which included: no lifting or carrying more than 5 pounds; no frequent lifting or carrying over 2 pounds; and only occasional climbing, stooping and kneeling. Restrictions placed by Dr. Dyer relative to the left wrist injury included avoiding overhead motion and repetitive twisting of the wrist. These restrictions were first placed on Ferrell by Dr. Dyer on August 11, 1999. After his injuries, Ferrell continued to work for APAC and performed the full duties and occasional heavy lifting and bending required by his job. Ferrell testified that performance of these tasks was followed by resultant pain and stiffness. Ferrell was permanently laid off by APAC in May of 1998 for "lack of work." The only other witness at trial was Harold W. Ferrell, Sr., who, in addition to being the employee's father, was Ferrell's foremen at APAC. APAC offered no witnesses and no evidence. The trial judge made as a specific finding: "I find the witnesses to be credible." The trial court assigned Ferrell a 15% permanent partial disability to the left arm and 12% permanent partial disability to the body as a whole. The trial court was forced to rely heavily on Dr. Dyer's C-32 Form, the only medical proof before the court. The standard of review for findings of fact by the trial court is "de novo upon the record of trial court, accompanied by a presumption of the correctness ofthe finding, unless the preponderance of evidence is otherwise." Tenn. Code Ann. Section 5-6-225(e)(2)(1999). The trial court is in the best position to evaluate the credibility of witnesses. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). APAC contends that the employee missed no work as a consequence of his injury and has subsequently obtained employment with another construction company doing a similar job at an increased wage with no seasonal layoff. APAC argues that the test for vocational disability is "whether there has been a decrease in the employee's capacity to earn wages in any line of work [2]

Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and CignaProperty & Casualty Insurance Co.,
M2000-00223-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: J. Richard McGregor, Special Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. section 5-6-225 (e)(3). The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence. JOHN A. TURNBULL, SP. J., in which FRANK F. DROWOTA, III, J., and FRANK G. CLEMENT, Jr., Sp. J, joined. Tyree B. Harris, IV, and Alan D. Johnson, Nashville, TN, for the Appellants APAC-Tennessee, Inc. and Cigna Property and Casualty Insurance Company William Joseph Butler and Frank D. Farrar, LaFayette, TN, for the Appellee Harold W. Ferrell, Jr. MEMORANDUM OPINION Facts The employee, Harold Ferrell, Jr., a 38 year old heavy construction worker with an eleventh grade education, had worked for APAC for eighteen years. In this work he performed such jobs as running a jackhammer, loading dynamite behind a track drill, and operating large equipment in which tasks he was exposed to loud noises approximately ninety percent of the time. In 1985, Mr. Ferrell noticed a ringing in his ears. The problem gradually worsened, and in February, 1994, he consulted Dr. Bell who did not offer an explanation for the cause of his condition, or advise him that his condition was permanent. For the purpose of having his hearing checked by a company doctor, Mr. Ferrell wrote the following letter to APAC on May 1, 1995: I went for a checkup on 2/22/94, and my hearing was bad. Since then it has gotten worse and [is] bothering me. I want this letter to be put in my file. I also want to know what company doctor I need to go to. APAC followed this letter by sending Mr. Ferrell to see Dr. Steele for an examination. During this exam, he specifically asked Dr. Steele if his hearing condition was job related. By letter dated May 25, 1995, the employer advised Mr. Ferrell to wear hearing protection on the job and stated: "According to Malcolm Steele, M.D., you have a hearing condition. This condition is probably inherited instead of job related." Dr. Steele did not advise the employee that his condition was permanent. Shortly thereafter, Mr. Ferrell asked APAC about going to a doctor and was advised that he could go to any doctor he chose at the expense of his own insurance. Mr. Ferrell's hearing continued to worsen and in April, 1998, he returned to Dr. Bell. At that visit, Mr. Ferrell did not ask, nor was he told that his hearing problem was work related. However, in August, 1998, Mr. Ferrell was consulting his attorney, Frank Farrar, on another matter when he was advised that his hearing problem might be work related. This suit was filed the next day, August 2, 1998. The country lawyer's opinion on causation was confirmed by the only medical evidence presented at trial, a C-32 Form, and attached medical records of Dr. Bell, a board certified otolaryngologist. This medical evidence, which APAC chose not to cross-examine, indicates that between 1994 and 1998, Mr. Ferrell's hearing had deteriorated. The 1994 audiogram showed a % combined hearing loss, but the 1998 tests indicated a combined hearing loss of 7% with increased loss of hearing levels to speech. Dr. Bell also expressed the opinion that Mr. Ferrell's permanent hearing impairment more probably than not arose out of his employment with APAC. The C-32 Form was dated March 25, 1999. Mr. Ferrell had been permanently laid off by APAC in April of 1998, but at the time of trial, was working for another construction company wearing noise protection with no reduction in pay. The trial judge, who had the opportunity to observe Mr. Ferrell's reaction to sound at trial, found that notice was timely, the suit was filed within the statute of limitations, and that Mr. Ferrell had suffered a permanent vocational bilateral hearing loss of 4%. The trial judge specifically found Mr. Ferrell's testimony to be credible. Issues [1]

State vs. William A. Holt
M2000-01063-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: W. Charles Lee
The appellant was originally convicted by a Marshall County jury of attempt to commit first degree murder, and he received a sentence of twenty-one years imprisonment. The conviction was affirmed on direct appeal. He sought post-conviction relief, which was denied by the trial court. In this appeal as a matter of right, the appellant contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.

State vs. Jimmy Ray Mitchell
M1999-02536-CCA-R3-CD
Authoring Judge: Sr. Judge L. Terry Lafferty
Trial Court Judge: Seth W. Norman
The appellant/defendant, Jimmy Ray Mitchell, appeals as of right from a judgment of the Davidson County Criminal Court from a jury conviction for the offense of driving under the influence of an intoxicant, first offense. The trial court imposed a sentence of eleven (11) months and twenty-nine (29) days, after the defendant serves fifteen (15) days, the defendant shall be on probation for eleven (11) months and twenty-nine (29) days. The trial court imposed a fine of five hundred dollars ($500). In his single appellate issue, the defendant contends that the trial court erroneously admitted evidence of the breath test results. After a complete review of the record in this cause, we find the defendant failed to allege such trial error in his original motion for a new trial. The judgment of the trial court is affirmed.