Lifepoint Hospital, Inc. v. Ann Morgan
M2003-02365-WC-R3-CV
Authoring Judge: Special Judge J. Steven Stafford
Trial Court Judge: Judge Stella L. Hargrove

This workers’ compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that the employee was entitled to retain temporary total disability benefits paid by the employer, but was not entitled to any additional benefits. On appeal, the employee submits that the trial court erred in (1) holding that her injury did not entitle her to further benefits or reimbursement of past medical expenses, (2) adopting inappropriate contingent findings of fact, and (3) making a factual finding that she resigned from her employment. The employer raises the additional argument that the trial court erred by denying its motion for reimbursement of temporary total disability benefits. For the reasons set forth below, we affirm the judgment of the trial court.

Alice Williamson v. A.O. Smith Corporation, et al.
W2004-00843-SC-WCM-CV
Authoring Judge: Special Judge Carol L. McCoy
Trial Court Judge: Chancellor Dewey C. Whitenton

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn.Code Ann. § 50- 6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. In this appeal, the Second Injury Fund insists that the trial court improperly allocated 90% of the disability award to the Fund and further that the trial court erred in finding the employee permanently and totally disabled. For the reasons set out below, the panel has concluded that the evidence fails to preponderate against the findings of the trial court. Judgment of the trial court is affirmed with costs assessed against the Second Injury Fund.

Wylie Steel Fabricators, Inc. v. Ruth E. Johnson, Commissioner of Revenue for the State of Tennessee
M2003-02482-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Irvin H. Kilcrease, Jr.

This appeal involves a sales and use tax assessment issued by the Tennessee Department of Revenue against a taxpayer engaged in the business of fabricating steel products for use in various structures. The taxpayer obtained purchase orders from three churches for raw materials to be used in the fabrication of steel products which were to be incorporated into the churches then under construction. The taxpayer secured the raw materials, fabricated the steel products, and installed them in the churches. The taxpayer did not pay sales or use tax on any of the raw materials used in the fabrication process. The department subsequently audited the taxpayer and assessed a tax liability for taxes owed on the materials. The taxpayer paid the amount assessed and filed suit in the chancery court to contest the assessment. Specifically, the taxpayer asserted that it was entitled to an exemption under section 67-6-209(b) of the Tennessee Code. After both parties filed cross-motions for summary judgment, the chancery court granted the department's motion and denied the taxpayer's motion. We affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion.

James Edward Dunn v. Knox County Sheriff's Department Merit System Council, et al.
E2004-00384-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

Following a hearing, the Knox County Sheriff's Department Merit System Council ("the Council") voted to uphold Sheriff Tim Hutchison's termination of the plaintiff, James Edward Dunn. Dunn filed a petition for writ of certiorari in the trial court. He also filed a separate complaint in the same court alleging that the Council had violated the Open Meetings Act. Each side filed a motion for summary judgment on this latter issue. The trial court denied both motions. The trial court then held that the Council's decision to uphold Dunn's termination was supported by material evidence; but the court remanded the case to the Council, because the court held that the Council had failed to follow one of its procedural rules. Both parties have raised issues on appeal. We affirm.

Darrell Massingale v. Yung Gil Lee, P.C., et al.
E2004-01364-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John B. Hagler, Jr.

During surgery to repair a bilateral hernia, Yung Gil Lee, M.D. ("Defendant") also performed an orchiectomy and removed Darrell Massingale's ("Plaintiff") left testicle. Plaintiff sued Defendant claiming, in part, that Defendant had committed both medical malpractice and medical battery. The Trial Court granted Defendant's motion for a directed verdict on the claim of medical battery. The claim of medical malpractice went to the jury and resulted in a mistrial. The Trial Court then reconsidered Defendant's motion for a directed verdict on the claim of medical malpractice and entered an order granting a directed verdict on that claim as well and dismissing the case. Plaintiff appeals claiming that the Trial Court erred in directing a verdict as to both the medical battery claim and the medical malpractice claim. We affirm the directed verdict on the medical malpractice claim, reverse the directed verdict on the medical battery claim, and remand for a new trial on Plaintiff's medical battery claim.

Walker Gray Haun v. Louis Eugene Haun, Jr.
E2004-01895-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge W. Dale Young

This appeal involves a dispute between two brothers over the use of a roadway that lies on their adjacent tracts of property. The issue presented is whether Walker Gray Haun has an easement across the property of his brother, Louis Eugene Haun, Jr. The trial court granted Walker Gray Haun an easement either by prescription or by implication which allowed him to use the roadway that had existed for at least fifty years and provided the only vehicular access to a rental house on his property. We hold that Walker Gray Haun did not establish a prescriptive easement, but that his proof satisfied the elements of an easement by implication, and therefore we affirm the trial court’s judgment.

Lee Ketchersid v. Rhea County Board of Education
E2004-01153-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey F. Stewart

Lee Ketchersid, a tenured teacher in the Rhea County School System, appealed her dismissal to the Rhea County Board of Education (“the School Board”). Following a hearing, the School Board determined that the evidence supported the charges against Mrs. Ketchersid of insubordination, incompetence, and inefficiency under the Teachers’ Tenure Act, Tenn. Code Ann. § 49-5-501, et seq., and voted to terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid appealed the School Board’s decision to the trial court, which, following a de novo review, held that her dismissal was supported by sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial court erred in this determination. We affirm.

Stephanie Ann Troglen vs. Vincent Lamar Troglen
E2004-00912-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Samuel H. Payne

The issues presented in this divorce case are whether the trial court erred in calculating Mr. Troglen's child support obligation; and whether the trial court erred in awarding Ms. Troglen transitional alimony. The trial court established Mr. Troglen's monthly child support obligation at $755. Additionally, the trial court ordered Mr. Troglen to pay to Ms. Troglen transitional alimony in the amount of $400 per month for a period of five years. We hold that the child support was properly calculated at $755 per month and that the trial court properly awarded Ms. Troglen alimony. However, we modify the alimony award from $400 per month transitional alimony for five years to $400 per month rehabilitative alimony for five years.

J. Stephen Amison, et al. v. Jack D. McCarty, et al.
E2004-00955-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"), purchased a house from Jack D. McCarty and wife, Bertha B. McCarty ("the defendants"). Thereafter, the plaintiffs sued the defendants for damages and, in the alternative, for rescission of the contract of purchase. The plaintiffs alleged that, unbeknownst to them when the contract was signed and when the sale subsequently was closed, the house was infested with termites; that the defendants had prior knowledge of the termite infestation; and that the defendants intentionally or negligently misrepresented the true condition of the house. Following a bench trial, the court decreed rescission, awarded the plaintiffs discretionary costs, and denied the plaintiffs' request for their attorney's fees. Both sides raise issue on appeal. We affirm.

State of Tennessee v. Kendrick Lamont Brooks
W2004-00475-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Appellant, Kendrick Lamont Brooks, appeals the revocation of his probation by the Madison County Circuit Court. On appeal, Brooks argues that the trial court was without authority to revoke his probation because the violation warrant was issued after his sentence had expired. Finding this argument without merit, we affirm the judgment of the trial court.

Luvell L. Glanton v. Bob Parks Realty, et al.
M2003-01144-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Russell Heldman

The plaintiff purchased a house that was marketed by the defendant realtors. The house had been described as including over 5,800 square feet of living space. After the purchase, the plaintiff discovered that the actual square footage of the house was considerably less, depending on what was included. He sued for unfair or deceptive practices under the Tennessee Consumer Protection Act and for intentional misrepresentation. The trial court dismissed his complaint on summary judgment, and ordered the plaintiff to pay all the defendants' attorney fees. We affirm the dismissal, but modify the award of attorney fees.

Jerry D. Carmack, et al. v. Tina M. Earp, et al.
M2003-03100-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Tom E. Gray

Property owners filed suit against neighbors for trespass. Trial court entered judgment for plaintiffs in the amount of $13,740, applying the "mild rule" for calculation of damages for trespass. Trial court also made rulings establishing the boundary lines between property of plaintiffs and defendants, and confirmed the plaintiffs' continuing right of ingress and egress through defendant's property to their own property. On appeal, plaintiffs contend that trial court erred in failing to award damages based on "harsh rule" rather than mild rule; in failing to find that the boundary lines were in keeping with plaintiffs' expert's survey; and in granting summary judgment to defendant water utility district. We conclude that the trial court erred in granting summary judgment to the water utility district. In all other respects, we affirm.

Becky Elliott v. Donna Akey, Individually and d/b/a Owner of Plaza Restaurant
E2004-01478-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge W. Dale Young

This appeal involves a dispute between a former employee and her employer. Becky Elliott filed suit in Blount County Circuit Court alleging that Donna Akey failed to properly train and supervise employees at her restaurant in Loudon County, Tennessee resulting in an unsafe workplace. Because the workplace was unsafe, Ms. Elliott claims she had to quit her job and was damaged. According to the complaint, the Plaintiff resided in Blount County, the Defendant resided and operated the business in Loudon County, and the cause of action arose in Loudon County. The trial court granted the Defendant's motion to dismiss for improper venue and awarded sanctions to the Defendant. After careful review, we hold that 1) the trial court properly granted the Defendant's motion to dismiss for improper venue, 2) the trial court properly denied the Plaintiff's motion for default judgment, and 3) the trial court erred in awarding sanctions to the Defendant. Accordingly, we affirm the decision of the trial court in part and reverse in part.

Darrell Anderson v. State of Tennessee
W2004-01758-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

On May 14, 2004, the petitioner filed a petition for post-conviction relief to challenge his 2002 Madison County Circuit Court conviction of assault and aggravated assault. See State v. Darrell M. Anderson, No. W2002-01269-CCA-R3-CD (Tenn. Crim. App., Jackson, May 15, 2003). The postconviction
court appointed counsel, and after conducting an evidentiary hearing, it rejected the petitioner’s claims of ineffective assistance of trial counsel and of trial error and denied relief. The petitioner appealed in a timely manner, but following our review upon the record, we affirm the order denying post-conviction relief.

State of Tennessee v. Steven Ray Thacker - Concurring and Dissenting
W2002-01119-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge R. Lee Moore Jr.

State of Tennessee v. Steven Ray Thacker
W2002-01119-SC-DDT-DD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge R. Lee Moore Jr.

A jury convicted the defendant, Steven Ray Thacker, of first degree murder. Following a capital sentencing hearing, the jury found two aggravating circumstances: (1) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant; and (2) the murder was knowingly committed by the defendant while the defendant had a substantial role in committing, or was fleeing after having a substantial role in committing, a first degree murder, rape, robbery, burglary, theft or kidnapping. Tenn. Code Ann. § 39-13-204(i)(6), (7)(1997). The jury also found that these aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. Accordingly, the jury imposed a sentence of death. The Court of Criminal Appeals affirmed both the conviction and sentence. Upon automatic appeal pursuant to Tennessee Code Annotated section 39-13-206 (2003) this Court entered an order specifying five issues for oral argument,1 including (1) whether the evidence is sufficient to support the conviction; (2) whether the trial court erred in limiting the testimony of Dr. Keith Caruso, a forensic psychiatrist, at the sentencing hearing; (3) whether the trial court committed reversible error when it refused to instruct on the defendant’s “history of abuse and neglect” as a non-statutory mitigating circumstance; (4) whether the State improperly relied upon aggravating circumstance (i)(6) to support the death penalty; and (5) whether the death sentence is comparatively proportionate and valid under the mandatory review provisions of Tennessee Code Annotated section 39-13-206(c)(1)(A)-(D) (2003). After a careful review of the record  and relevant legal authority, we affirm the judgment of the Court of Criminal Appeals.

Gladys Boles, et al. v. National Development Company, Inc., et al.
M2003-00971-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge R.E. Lee Davies

This is a class action on behalf of purchasers of 3,876 lots at Hidden Valley Lakes Development, a residential development in Hickman County. Plaintiffs seek to recover compensatory damages resulting from a breach of contract by the developer, National Development Company, Inc., and its alleged alter ego, Clyde W. Engle. Plaintiffs allege that National breached its contract by failing to provide the centerpiece of the development, a thirty-acre lake. The lake failed to hold water and thus became a thirty-acre hole in the ground. It was stipulated that the failure of National to provide the thirty-acre lake was a breach of contract. The trial was bifurcated into two phases. The first was limited to the plaintiffs' claim for damages against National, following which the plaintiffs were awarded compensatory damages in the amount of $2,540,867 against National. The second phase of the trial was limited to the plaintiffs' claim that Clyde Engle was the alter ego of National and thus liable for the damages assessed against National. Following an evidentiary hearing, the trial court pierced the corporate veil and held Engle personally liable for the judgment against National. The defendants appeal contending that the plaintiffs' proof of damages was neither competent nor sufficient, that the wrong legal standard was applied to pierce the corporate veil and that the proof was insufficient to pierce the corporate veil. Engle also appeals contending that the court did not have personal jurisdiction over him and thus the judgment against him is void. Finding no error, we affirm.

State of Tennessee v. Robert Wayne Pryor
M2003-03124-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge W. Charles Lee

A Bedford County jury convicted the defendant, Robert Wayne Pryor, of robbery, a Class C felony. Following a sentencing hearing, the trial court sentenced him as a Range I, standard offender to five years and six months in the Department of Correction consecutive to sentences in another case for which he was on probation. In this appeal, the single issue presented for our review is whether the evidence was sufficient to support the conviction. We affirm the judgment of the trial court.

Mark Stephen Barlew v. Alice B. Barlew
E2004-01654-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Samuel H. Payne

The issues presented in this divorce case are whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony; whether the alimony award to the wife was excessive; and whether the trial court erred by refusing to hear evidence regarding the relative fault of the parties.  The trial court awarded the wife $1,500 per month in alimony when the wife requested alimony of $1,248 per month and her income and expense statement showed a need of $1,248 per month. We hold that the wife was properly awarded alimony in futuro, but we modify the alimony award to $1,248 per month and affirm the trial court’s judgment in all other respects.

Susan Diane Jones v.s Steven Travis Dorrough, et al.
E2003-02749-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Wheeler A. Rosenbalm

This case arises out of a long-running dispute between Steven Travis Dorrough and his former wife, Susan Diane Jones over possession of the parties' former residence which was awarded to Ms. Jones in the divorce, but was subsequently leased to Mr. Dorrough. Ms. Jones first filed suit against Mr. Dorrough and his new wife for possession of the residence and for unpaid rents, penalties, interest and attorney's fees. The Dorroughs counterclaimed asserting that Ms. Jones had agreed to sell them the property and that they had paid her in full and were entitled to specific performance. The trial court granted a summary judgment in favor of Ms. Jones, awarded her possession of the property, judgment for unpaid rents and attorney's fees, and dismissed the counterclaim. The Dorroughs appealed and we affirmed the trial court's decision as to the dismissal of the Dorroughs' counterclaim and remanded for further findings as to the funds allegedly paid by Mr. Dorrough. The Dorroughs then filed suit against Ms. Jones and this suit was consolidated with the remanded suit. In the second suit, the Dorroughs alleged breach of contract, fraudulent misrepresentation, and outrageous conduct. The trial court granted Ms. Jones' motion for summary judgment on the contract and tort claims. The trial court held an evidentiary hearing on the remanded issue as to whether Mr. Dorrough was entitled to a set-off based on alleged payments by him to Ms. Jones of $192,000. The trial court denied the set-off and awarded judgment to Ms. Jones for rents, late fees, prejudgment interest and attorney's fees. The Dorroughs appealed this adverse decision. After a careful review of the record, we hold that 1) the trial court's grant of summary judgment to Ms. Jones was proper as to the breach of contract claim because the Dorroughs' contract claim was a compulsory counterclaim that they were required to have presented in the original case, 2) the trial court's grant of summary judgment was proper as to the claims for outrageous conduct and fraudulent misrepresentation since the claims were time barred by the applicable statutes of limitation, 3) the evidence does not preponderate against the trial court's finding of fact regarding the rents due, payments made by Mr. Dorrough, and the award of attorney's fees. Accordingly, we affirm the decision of the trial court.

George Hutsell and Teresa Hutsell, v. Jefferson County Board of Zoning Appeals
E2004-00968-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Richard R. Vance

Plaintiffs obtained a permit and built a "garage and storage building" on their property. The zoning officer received complaints after the building was built, and the Board of Zoning Appeals determined that plaintiffs' use of the building was not allowed in the zoning classification. On certiorari, the Trial Judge affirmed the Board of Zoning Appeals' decision and enjoined plaintiffs from using the building in violation of the zoning ordinance. On appeal, we affirm.

State of Tennessee v. Brooks Jonathan Lee
M2004-00598-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Lillie Ann Sells

The Defendant was found guilty by jury verdict of second offense driving under the influence of an intoxicant (DUI), simple possession of marijuana, and possession of drug paraphernalia, all Class A misdemeanors. He was sentenced to concurrent sentences of eleven months and twenty-nine days with eighty-five days to be served, had his driver's license suspended for two years, and was fined a total of $3,150. The Defendant now appeals his DUI conviction claiming: 1) the trial court erred in admitting testimony from an expert witness; and 2) the evidence was insufficient to support his DUI conviction. We affirm the judgment of the trial court.

State of Tennessee v. Charles Tawwater
M2004-02115-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Curtis Smith

The defendant, Charles Tawwater, pled guilty in Franklin County Circuit Court to facilitation of the manufacture of methamphetamine, a Class D felony, and received two years probation in the Community Corrections Program. The defendant appeals upon certified questions of law from the
denial of his motion to suppress evidence seized pursuant to a warrantless search of his car. He claims the trial court should have granted his motion because (1) the officers lacked probable cause or reasonable suspicion to believe he had committed a criminal offense when stopping his vehicle; (2) his consent to the search of his car was not voluntary; and (3) statements made by him to officers during his detention were inadmissible because he was not advised of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). We affirm the trial court.

State of Tennessee Department of Children's Services v. Binta Ahmad
M2004-02604-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Timothy R. Brock

Mother appeals termination of her parental rights to her two minor children. She and her two infant children immigrated to the United States illegally in 1998 when the children were two and one years of age, respectively. In 1999, Mother was arrested on felony theft charges. Being unable to make bond, she remained incarcerated for over a year following which she pled guilty to a felony. She was then turned over to immigration officials and was detained for an additional two years only to be deported to Nigeria in December 2002, where she remains. The children have remained in foster care for more than five years. Mother appeals claiming the evidence to be insufficient to prove grounds for termination and that termination is not in the children's best interest. We affirm.

Billy James Matthews v. Warden Glenn Turner
W2004-01547-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon K. Blackwood

The petitioner appeals the trial court’s denial of his petition for habeas corpus relief. Upon our review, we conclude that the petitioner has failed to allege any ground that would render the judgment void. Therefore, we affirm the judgment of the lower court pursuant to Tennessee Court of Criminal Appeals Rule 20.