State of Tennessee v. Stanley Davis In Re: Ray D. Driver, D/B/A Driver Bail Bonds - Order
E2003-00765-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton

Upon its own motion, the court hereby withdraws the opinion and vacates the judgment
previously filed on April 26, 2004, in this case. A new opinion and judgment will be filed.

Sally Qualls Mercer, et al., v. Vanderbilt University, Inc., et al.
M2000-00801-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carol L. Soloman

We granted this appeal, in part, to determine whether fault was properly assessed against the patient in this medical malpractice action. We overrule Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn. 1996), and hold that fault may not be assessed against a patient in a medical malpractice action in which a patient’s negligent conduct provides only the occasion for the medical attention, care, or treatment which is the basis for the action. We also hold that the additional issues raised by the defendant are without merit. We therefore affirm the trial court’s post-trial ruling that the defendant is 100% at fault and is responsible for the full amount of damages found by the jury. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Affirmed in Part; Reversed in Part; Jury Verdict Reinstated
 

Sally Qualls Mercer, et al., v. Vanderbilt University, Inc., et al. - Dissenting
M2000-00801-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Carol L. Soloman

By overruling Gray v. Ford Motor Co., 914 S.W.2d 464 (Tenn. 1996), a decision released only eight years ago, the majority disregards the principle of stare decisis and undermines the fairness goal of our prior comparative fault decisions. Therefore, I dissent from the majority’s decision in this case. In addition, like the Court of Appeals, I believe the trial court erred by excluding evidence of Larry T. Qualls prior alcohol-related conduct and testimony of two defense witnesses and by commenting upon the credibility of a defense witness. Given the cumulative effect of these errors, Vanderbilt is entitled in my view to a new trial.

Gary Johnson v. State of Tennessee
W2003-00220-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner pled guilty to one count of burglary and one count of theft of property between $1,000 and $10,000 on August 21, 2001. He was sentenced to twelve years for each offense to run concurrently to be served at sixty percent as a career offender. The petitioner filed a petition for post-conviction relief on April 16, 2002. The trial court denied the petition on January 13, 2003.  The petitioner appeals this denial alleging that he was afforded ineffective assistance of counsel and his plea was not knowingly, intelligently and voluntarily entered. We affirm the decision of the trial court.

Stella B. Todd v. Boulevard Terrace Rehabilitation and
M2003-01357-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Robert E. Corlew, III, Circuit Judge
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 of findings of fact and conclusions of law. The trial court found the claimant failed to give the statutory notice of injury and dismissed the suit. We affirm.

Emily P. Bowen v. Frito-Lay, Inc.,
M2002-02552-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Robert L. Jones, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee in this case sustained 2 separate work-related injuries and one back injury at home. She is now totally disabled and draws Social Security Disability benefits. The employee argues that the trial court erred: (1) in finding that the employee did not sustain a compensable back injury in the course and scope of her employment in March 1999; and (2) in dismissing her complaint against the Second Injury Fund. Additionally, the employer contends that the trial court erred when it held that the employee's February 1998 back injury that occurred while working for this employer was not barred by the statute of limitations. The panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Emily P. Bowen. Edward A. Hadley, Nashville, Tennessee, for the appellees, Frito-Lay, Inc., and RSKCo. Paul G. Summers, Attorney General; E. Blaine Sprouse, Assistant Attorney General; James G. Davis, for the appellee James Farmer, Director of Tennessee Department of Labor and Workforce Development, Workers' Compensation Division, Second Injury Fund. MEMORANDUM OPINION Ms. Emily P. Bowen was 5 years old at the time of trial, has a seventh-grade education, and has no special skills or training. She worked as a packer for Frito-Lay, Inc., from June 3, 198, until May 17, 1999. On February 4, 1998, Ms. Bowen was working on a wrapper line when she picked up a 35 pound roll of cellophane and immediately felt sharp pain in her back. Dr. Gregory Lanford, a neurosurgeon and her long-time treating physician, took her off work and treated her conservatively with medication and physical therapy. A myelogram revealed nerve root impingement and on May 19, 1998, Dr. Lanford performed a lumbar diskectomy and nerve root decompression at L5-S1. Dr. Lanford released her to return to light duty work in July of 1998. In November of 1998, he released Ms. Bowen to return to work full-time at Frito-Lay with a 25 pound lifting restriction. He assigned a 1% additional impairment rating for the February 1998 injury.1 Ms. Bowen continued taking medication. At her January 14, 1999 appointment, Dr. Lanford scheduled a follow-up appointment for April 15, 1999. In March of 1999, Ms. Bowen was on a temporary assignment packing cookies in tins and placing trays of cookie tins weighing approximately 18 pounds on a bakers' rack. She started having lower back and leg pain, right arm and shoulder pain caused by "leaning over the tray and reaching over the belt in that awkward [bent-over] position for so long." She reported this injury to her employer but continued to work. On April 15, 1999, Ms. Bowen went to see Dr. Lanford for her previously scheduled follow- up appointment for the 1998 surgery. His notes indicate that she had a new problem and "had re- injured her back" while lifting cookie trays at work. Dr. Lanford found diminished range of motion but x-rays were "unrevealing." He diagnosed low back strain but stated her main complaint was the shoulder pain and that she did not complain of radicular leg pain at this point. He prescribed physical therapy and scheduled a follow-up appointment for May 2, 1999. The physical therapist prescribed a TENS unit, heat therapy, and a back support for Ms. Bowen to wear while at work. Physical therapy was provided at the plant and Ms. Bowen did not miss any work because of this injury. 1While working for Frito-Lay, Ms. Bowen had a series of injuries for which she underwent 2 lumbar surgeries and 1 cervical spine surgery. In 1997 M s. Bowen and Frito-Lay reached a settlement agreement for these injuries. The settlement agreement does not assign percentages of disability but cites a physician's impairment rating of 1% for the lumbar spine and 15% for the cervical spine. M s. Bowen continued to work for Frito-Lay after the 1997 settlement and none of these earlier injuries is the subject of this litigation. -2-

Mamie Richburg v. Whirlpool Corporation
M2003-00364-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Robert E. Corlew, III, 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 section 5-6-225(e)(3) for hearing and reporting to the Supreme Court of the findings of fact and conclusions of law. The issues presented to the trial court were: (1) whether the plaintiff sustained an injury to her neck arising out of the course and scope of her employment on October 18, 2; (2) whether proper notice was given of her injury; and (3) whether defendant would be allowed a setoff for payment of unemployment compensation benefits against temporary total disability payments. As discussed below, we affirm the trial court in part and reverse in part. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court is Affirmed in part and Reversed in part. ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J., joined and JOHN K. BYERS, SR. J., not participating. David T. Hooper, Brentwood, Tennessee, for Appellant Whirlpool Corporation Dicken E. Kidwell, Murfreesboro, Tennessee for Appellee Mamie Richburg MEMORANDUM OPINION Employee, Mamie Richburg, initiated this civil action to recover workers' compensation benefits for an alleged work-related injury. Employer, Whirlpool Corporation, denied that employee suffered an injury arising out of and in the course and scope of her employment and averred the employee failed to give notice as required by law. Following a trial of this cause on October 3, 22, the trial court ordered permanent partial disability benefits based on forty percent to the body as a whole. Employer filed a motion to alter or amend the final judgment and made an oral motion to amend their pleadings to conform with the evidence. The motion sought the affirmative defense of setoff for payment of unemployment benefits received by employee during the time employee received temporary total benefits following her neck injury. The trial court granted the motion allowing setoff. The employer has appealed the trial court's award and employee appeals the trial court's allowance of a setoff.

Brian Durant v. Saturn Corporation
M2003-00566-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: The Hon. Chancellor Russ Heldman
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. 5-6-225(e)(3) to hear and report to the Supreme Court Findings of Fact and Conclusions of Law. Employee brought this action to recover workers' compensation benefits for injuries he sustained in an automobile accident on employer's premises after leaving the plant, but before arriving at the control gate to the Saturn complex. The trial court held that the injuries did not arise out of the employment and granted Saturn's Rule 41 motion to dismiss. We reverse the trial court and hold that the premises rule announced in Lollar v. Wal-Mart Stores, Inc., includes roads provided by the employer inside the access gate to the employer's industrial complex. We further hold that the injury arose out of the employment. We remand the case to the trial court for further proceedings consistent with our holdings. Tenn. Code Ann. Section 5-6-225(e) (1999); Appeal as of Right: Judgment of the Circuit Court is reversed and case is remanded. JOHN A. TURNBULL, Sp. J. in which FRANK DROWOTA C.J., and HOWELL N. PEOPLES, SP. J., joined. Larry R. Williams and A. Allen Smith, III, Nashville, Tennessee, for Appellant, Brian Durant. Thomas H. Peebles, IV, Tennessee, for Appellee, Saturn Corporation. Opinion This case requires us to interpret the "premises rule" laid down in Lollar v. Wal- Mart Stores, Inc., 767 S.W.2d 143 (Tenn. 1989) as extended by the Supreme Court in Copeland v. Leaf, Inc., 829 S.W.2d 14 (Tenn. 1992). To be compensable under our workers' compensation statute, an injury must be one "arising out of and in the course of employment." T.C.A. 5-6-12(a)(5) (1991). In Lollar, the Supreme Court examined the substantial body of case law governing workers' compensation liability when an employee is injured en route to or from work, and concluded that the previous set of guidelines as set down in Woods v. Warren, 548 S.W.2d 651 (Tenn. 1977) "had not proved workable" and had resulted in inequities. Lollar at p. 15. The court re-evaluated its previous adherence to the "unique minority rule" and instead adopted a premises liability standard employed by nearly all jurisdictions, see 1 Larson Workmen's Compensation Law 15.11 (1994). The Supreme Court held "that a worker who is on the employer's premises coming to or going from the actual work place is acting in the course of employment [and] that if the employer has provided a parking area for its employees, that parking area is part of the employer's premises regardless of whether the lot is also available to customers or the general public." 767 S.W.2d at 15. In Copeland, the Supreme Court extended the holding in Lollar and held "that employees who must cross a public way that bisects an employer's premises and who are injured on that public way while traveling a direct route between an employer's plant facility and parking lot are entitled to workers' compensation benefits." Copeland, 829 S.W.2d, at 144. The court in Copeland pointed out that the employer was responsible for creating the necessity for the employee to encounter the particular hazards of the trip between a non- contiguous parking lot and the working plant itself. Accordingly, the Supreme Court felt that an extension of the "premises rule" announced in Lollar was warranted. Id. Facts and Procedural Background Saturn maintains an industrial complex in Maury County where the corporation assembles Saturn motor vehicles. Saturn built and maintains roads in the complex leading from the entrance gate to the work plant. Saturn had posted a thirty- five mile speed limit on Ephlin Parkway as a safety regulation. On December 5, 2, at approximately 2: a.m., Brian Durant was leaving work from the power train plant, one of three main plant locations in the Saturn complex. Although Saturn had constructed other roads over which Durant could have traveled to reach the main Saturn gate and the public highway (U.S. 31), he chose to go his normal shortest route along Ephlin Parkway, one of the main traffic arteries within the complex. Durant, who had worked at Saturn for more than eight years, was traveling at what he -1-

John T. Heflin v. State of Tennessee
M2003-01032-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge L. Craig Johnson

On March 11, 1998, the petitioner, John T. Heflin, was convicted of first degree murder and sentenced to life imprisonment. On appeal this Court affirmed the judgment of conviction and the sentence. See, State v. Heflin, 15 S.W.3d 519 (Tenn. Crim. App. 2001). The petitioner subsequently sought post-conviction relief alleging that his trial attorney was ineffective in failing to object to the testimony of a state witness. The trial court concluded that the failure to object to this witness' testimony did not amount to the ineffective assistance of counsel. After a review of the record and the applicable authorities we conclude that the petitioner received the effective assistance of counsel at trial and therefore the judgment of the post-conviction court is AFFIRMED.

State of Tennessee v. Terry Byington
E2003-02814-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Phyllis H. Miller

A Sullivan County jury convicted the defendant, Terry Byington, of driving under the influence (DUI), fourth offense, and driving on a revoked license. The trial court ordered the defendant to serve an effective four-year sentence in confinement as a Range II multiple offender. On appeal, the defendant contends: (1) the evidence is insufficient to support his DUI conviction; (2) the arresting officer improperly presented expert testimony regarding field sobriety tests; (3) the trial court erred in ruling that the state could question the defendant regarding a prior perjury conviction more than ten years old; (4) the trial judge erred in refusing to recuse herself; and (5) his sentence is excessive. We affirm the judgments of the trial court.

State of Tennessee v. Richard Lafayette Sumner
E2003-00570-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Richard Lafayette Sumner, appeals as of right from his convictions by a jury in the Cocke County Circuit Court for two counts of first degree premeditated murder, one count of first degree felony murder, and one count of aggravated arson. The defendant was sentenced to life imprisonment with the possibility of parole for each murder and twenty-five years for the aggravated arson, to be served concurrently in the Department of Correction. He contends that the evidence is insufficient to support the jury's rejection of his insanity defense. We hold that the evidence is sufficient to convict the defendant of first degree murder. We also hold, though, that the convictions for the premeditated and felony murders in counts one and three should be merged pursuant to the Double Jeopardy Clause. We affirm the convictions, but vacate the judgments as to counts one and three and remand the case for the trial court to enter a judgment reflecting a merger of those two counts.

State of Tennessee v. Anthony Crowe - Dissenting
W2003-00800-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

I respectfully disagree with the majority opinion’s conclusion that the defendant’s motion to withdraw his plea was properly denied. I believe that a sufficient factual basis for the defendant’s plea is lacking and that the plea was the result of a mistaken belief regarding criminal liability, such that manifest injustice permits the plea to be withdrawn.

State of Tennessee Department of Children's Services v. Pamela Atkison, et al.
W2003-02109-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert W. Newell

This case involves the termination of the parental rights of Mother and Father over Child. Only Mother appeals the Juvenile Court’s decision. Specifically, the Juvenile Court found clear and convincing evidence to terminate Mother’s parental rights on the basis of abandonment, persistent conditions, and noncompliance with the permanency plan. In addition, Mother appeals the trial court’s denial of her motion to transfer the case and have the issue presented to a jury. Finally, Mother asserts the trial court judge erred when he did not recuse himself. For the following reasons, we affirm the decision of the trial court.
 

Wayne Jerrolds v. Robert D. Kelley and wife, Mitsy Kelley v. Eddie K. Whitlow, Trustee for the Hardin County Bank
W2003-00739-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge C. Creed McGinley

This cases involves an action for declaratory judgment regarding an easement for the benefit of a landlocked parcel. The lower court found that an easement does exist and that the owners of the servient parcel are not entitled to monetary damages. On appeal, the owners of the servient parcel maintain that the lower court demonstrated bias in its comments from the bench and, further, that it erred in failing to award damages. For the following reasons, we affirm the ruling of the trial court.
 

State of Tennessee, Department of Children's Services v. Sandra Lilly, in the Matter of K.M.
W2003-02156-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Rachel J. Anthony

This case arises from the termination of parental rights of Mother and Father. Only Mother has appealed the decision of the trial court, terminating her parental rights on the grounds that (1) she abandoned Child by failing to visit, (2) she abandoned Child by failing to provide more than token support, and (3) the conditions which led to Child’s removal still persist. Mother appeals arguing that the State of Tennessee Department of Children’s Services failed to carry its burden of proof for these grounds. In addition, Mother argues that the Department of Children’s Services failed to prove that such termination of parental rights is in the best interest of Child. Finally, Mother argues the trial court committed prejudicial error when it allowed the rebuttal testimony of a witness in violation of the sequestration rule. For the following reasons, we affirm the decision of the trial court.

State of Tennessee v. Anthony Crowe
W2003-00800-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jon Kerry Blackwood

The defendant, Anthony Crowe, appeals as of right the McNairy County Circuit Court’s denial of his motion to withdraw his guilty plea to facilitation of first degree murder, for which he is serving a sentence of eighteen years in the Department of Correction. He also complains that the length of his sentence is excessive and should be modified. We conclude that the defendant has failed to establish that the trial court abused its discretion in denying the motion to withdraw the guilty plea. Additionally, we find no error in the sentence imposed by the trial court. Accordingly, the judgment of the trial court is affirmed.

Cynthia Bratton v. Michael Bratton
E2002-00432-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor Thomas R. Frierson, II

We granted permission to appeal in this divorce proceeding to determine whether postnuptial agreements are contrary to public policy and if not, whether the postnuptial agreement entered into by the parties in this case is valid and enforceable. We hold that postnuptial agreements are not contrary to public policy so long as there is consideration for the agreement, it is knowledgeably entered into, and there is no evidence of fraud, coercion or duress. However, the agreement between the parties in this case is invalid because it lacks adequate consideration. We also granted the husband’s application for permission to appeal to determine whether the trial court erred in awarding alimony in futuro instead of rehabilitative alimony. We hold that the trial court properly considered all of the relevant statutory factors and that its award of alimony does not amount to an abuse of discretion. Therefore, the judgment of the trial court is affirmed.

Cynthia Bratton v. Michael Bratton - Concurring/Dissenting
E2002-00432-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Thomas R. Frierson, II

JANICE M. HOLDER, J., concurring in part and dissenting in part. I concur in the majority’s conclusion that postnuptial agreements are not contrary to public policy. I respectfully dissent, however, from that portion of the majority’s opinion concluding that the agreement at issue in the present case was not supported by adequate consideration.

State of Tennessee v. Marco Polo Patten
M2003-00760-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. O. Bond

The Defendant, Marco Polo Patten, was convicted by a jury of aggravated sexual battery, a Class B felony. After a sentencing hearing, the trial court imposed a sentence of ten years in the Department of Correction. In this direct appeal, the Defendant raises the following issues: 1) whether the trial court erred by allowing evidence of prior bad acts by the Defendant; 2) whether the evidence is legally sufficient to support the jury's verdict; 3) whether the prosecutor made improper statements during his opening and closing statements; 4) whether cumulative errors prevented a fair trial; 5) whether the trial court imposed an excessive sentence. We affirm the judgment of the trial court.

State of Tennessee v. Raymond Myers
M2003-01099-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge John A. Turnbull

The Defendant, Raymond Douglas Myers, Sr., was found guilty by a jury of three counts of first degree murder, two counts of felony murder, one count of aggravated arson, and one count of conspiracy to commit murder. The trial court merged the convictions for felony murder and conspiracy to commit murder into the three first degree murder convictions. After a sentencing hearing, the trial court imposed consecutive sentences of life without the possibility of parole for each murder conviction, and a consecutive twenty-four year sentence for the aggravated arson conviction. In this direct appeal, the Defendant argues that the evidence is insufficient to support his convictions, that Tennessee's first degree murder sentencing statute is unconstitutional, and that the trial judge improperly instructed the jury regarding the State's burden of proof. We affirm the judgments of the trial court.

State of Tennessee, Department of Children's Services v. Julie Ann Taylor and Brian K. Taylor, in the matter of S.A.T. and B.K.T.
M2003-01680-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James Y. Ross

This case involves the termination of Mother’s and Father’s parental rights to their children, though only Mother appeals the decision of the Juvenile Court. After conducting a hearing, the lower court found that there was clear and convincing evidence to terminate Mother’s parental rights on the bases of persistent conditions, noncompliance with the permanency plan, and abandonment. On appeal, Mother challenges each of the three grounds given for termination. For the following reasons, we affirm the ruling of the trial court.

State of Tennessee v. John A. Lee
M2003-01801-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter

The Defendant, John A. Lee, was convicted after a bench trial of one count of child abuse of a child under six years old, a Class D felony. The Defendant was subsequently sentenced to serve two years in the Department of Correction. The sole issue raised in this direct appeal is the sufficiency of the evidence. We affirm the judgment of the trial court.

Jimmie Lipford, et al., v. First Family Financial Services, Inc., et al.
W2003-01208-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jon Kerry Blackwood

The trial court excluded parol evidence and awarded Defendant summary judgment. We reverse.
 

Lloyd Earl Williams v. State of Tennessee
W2003-02348-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Lee Moore Jr.

The Appellant, Lloyd Earl Williams, appeals the summary dismissal of his application for writ of habeas corpus. On appeal, Williams argues that: (1) his six drug convictions are void because he was tried and sentenced in absentia and (2) his class B felony sentences are illegal because the indictments do not specify that the amount of cocaine sold or possessed was 0.5 grams or more. Finding these issues without merit, the judgment of the trial court is affirmed.

Child Bride Music, Inc v. Jackson, et al.
M2002-02789-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Assignee appeals the judgment of the trial court holding it to be bound to a reclamation of rights provision in the contract between its assignor and a grantor of copyright interests. We affirm the judgment of the trial court.