Ralph Laverne Gholston v. Brown Chain Link Fence
M2002-02038-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Jeffrey F. Stewart, Chancellor
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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the evidence preponderates against the trial court's finding of permanent and total disability and (2) the trial court erred by ordering the non-commuted benefits to be paid over a shortened period of time. As discussed below, the panel finds no reversible error in the record, but modifies the judgment with respect to the second issue, there being no objection to it. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, C. J., and JAMES L. WEATHERFORD, SR. J., joined. Randolph A. Veazey, Glasgow & Veazey, Nashville, Tennessee, for the appellants, Brown Chain Link Fence Construction Co., Inc. and Westfield Companies Edwin Z. Kelly, Jr., Kelly & Kelly, Jasper, Tennessee, for the appellee, Ralph Laverne Gholston Paul G. Summers, Attorney General and Reporter, and E. Blaine Sprouse, Assistant Attorney General, Nashville, Tennessee, for the appellee, Second Injury Fund MEMORANDUM OPINION The employee or claimant, Mr. Gholston, initiated this civil action to recover workers' compensation benefits for an injury by accident arising out of his employment. His amended complaint named the employer, Brown Chain Link Fence Construction Co., Inc., the employer's insurer, Westfield, and the Second Injury Fund as defendants. After a trial, the trial court found the employee to be permanently and totally disabled and apportioned the award between the employer and the Second Injury Fund. The employer and its insurer have appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Richard Hughey v.Metro Gov' t Nashville and Davidson County
M2002-02240-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Richard Hughey, a former Metropolitan Nashville police officer, appeals the action of the Chancery Court of Davidson County in affirming the adverse decision of the Metropolitan Civil Service Commission, which had rejected his application for police department employment. We affirm the action of the Chancellor.

Mark Gore v. Department of Correction
M2002-02640-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Ellen Hobbs Lyle
Mark B. Gore, an inmate in the Department of Corrections, appeals the action of the Chancery Court of Davidson County in granting a T.R.C.P. rule 12.02(6) motion to dismiss his Petition for a Writ of Certiorari. We affirm the action of the trial court.

Elizabeth Oliver v. Marc Oliver
M2002-02880-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a father's effort to obtain primary physical custody of his now twelve-year-old daughter. Approximately three months after the parties' divorce, the father filed a petition in the Circuit Court for Davidson County seeking to hold the mother in criminal contempt for interfering with his visitation and for alienating their daughter. He later amended his petition to seek primary physical custody. Following a bench trial, the trial court held the mother in contempt but declined to change custody from the mother to the father. The father has appealed. We have determined that the trial court did not err by denying the father's petition to change custody.

Sierra Summerall v. Department of Correction
M2002-02033-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal arises from a prisoner disciplinary proceeding at the West Tennessee State Penitentiary. After a disciplinary board punished him for possession of marijuana, the prisoner filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County asserting that the Department of Correction had deprived him of due process by substantially departing from its Uniform Disciplinary Policies. The trial court dismissed the petition because it was not timely filed. The prisoner has appealed. We affirm the trial court.

Jennifer Skerrett v. The Association for Guidance
M2002-00218-COA-R3-JV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves a paternal grandmother's efforts to obtain permanent custody of her grandson. After the child's mother surrendered him to a licensed child-placing agency, the grandmother intervened in the proceeding commenced in the Davidson County Juvenile Court to terminate her son's parental rights. Following a bench trial, the trial court terminated the father's parental rights and denied the grandmother's request for custody. While the grandmother does not contest the termination of her son's parental rights, she asserts on this appeal that the juvenile court erred by awarding custody of the child to the child-placing agency rather than to her. We have determined that, under the facts of this case, the grandmother lacked standing to intervene in the proceeding to terminate her son's parental rights. Therefore, we affirm the dismissal of her custody petition.

State of Tennessee v. Demond Gardner
W2002-00607-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. C. Mclin

The defendant, Demond Gardner, appeals as of right from his conviction by a jury in the Shelby County Criminal Court of first degree, premeditated murder. He received a sentence of life imprisonment with the possibility of parole. He contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erroneously ruled that the state could question him about the significance of his tattoo, (3) the trial court erred in admitting inflammatory and prejudicial photographs of the victim, and (4) the trial court erred in allowing improper and prejudicial argument by the prosecutor. We affirm the trial court=s judgment of conviction.

Gary Wallace v. State of Tennessee
W2002-01832-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Appellant, Gary Wallace, seeks review of the post-conviction court’s dismissal of his petition for post-conviction relief, pursuant to the Tennessee Post-Conviction DNA Analysis Act of 2001 and the court’s refusal to permit him to reopen his 1994 petition for post-conviction relief. After review, the judgment of the trial court is affirmed in both respects.

State of Tennessee v. Leslie Darrell Debord
E2001-02808-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lillie Ann Sells

The appellant, Leslie Darrell Debord, pled guilty in the Cumberland County Criminal Court to two counts theft of property over one thousand dollars ($1000), Class D felonies, and three counts of theft of property over ten thousand dollars ($10,000), Class C felonies. The trial court sentenced the appellant to an effective sentence of eight years incarceration in the Tennessee Department of Correction. The trial court suspended the appellant's sentence, ordering the appellant to serve 104 days in the Cumberland County Jail on consecutive weekends and the remainder in a community corrections program. Pursuant to the plea agreement, the appellant reserved the right to appeal certified questions of law challenging the trial court's denial of his motion to suppress. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Frankie Lee Woodard
M2001-02840-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John H. Gasaway, III

The appellant, Frankie Lee Woodard, was indicted on October 29, 1999, by the Robertson County Grand Jury on one count of theft of property over $500. The appellant was found guilty as charged and sentenced to four years in the Tennessee Department of Correction. The appellant now appeals contending that the evidence was not sufficient to support his conviction for theft of property over five hundred dollars and that the trial court improperly instructed the jury regarding the value of the stolen item. After a review of the record before this Court we find these issues have no merit and therefore affirm the judgment of the trial court.

Kathy Parker v. Bobby Parker, Jr.
M2001-01453-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: J. B. Cox
The trial court granted the parties a divorce, and awarded them joint custody of the three children of their marriage, with the mother to exercise primary custody. The court's order included a detailed visitation schedule, which did not mention Mother's Day. After the children spent their first post-divorce Mother's Day with the father, the mother moved the court to be granted Mother's Day visitation. The court granted the motion, and assessed attorney fees against the father. The father appeals the award of attorney fees. We affirm the trial court.

Synthia M. Hopkins v. Victor L. Hopkins
M2002-02233-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol A. Catalano

Jeff Landowski v. Marla Landowski (Collings)
W2002-01689-COA-R3-CV
Authoring Judge: Judge David R. Farmer

Jeff Landowski v. Marla Landowski (Collings)
W2002-01689-COA-R3-CV
Authoring Judge: Judge David R. Farmer

Johann Wolmarans vs. Lifestyle Furnishings
E2002-01783-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
Johann Roshe Wolmarans sues Lifestyle Furnishings, a/k/a Universal Furniture Limited, Inc., for an injury he received on its premises. The complaint as amended seeks damages under the theory of premises liability and also under the Worker's Compensation Statute. The Trial Court found that the Plaintiff was an independent contractor and dismissed his worker's compensation claim. Thereafter, a jury trial was held as to the premises liability claims and the jury found that the injury received by the Plaintiff was due entirely to his own fault. The Plaintiff appeals, raising a host of issues which we find are without merit and affirm the judgment of the Trial Court.

Shirley K. Hensley v. England/Corsair Upholstery
E2002-01763-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Hon. Billy Joe White, Chancellor
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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded 5 percent permanent partial disability to the body as a whole. The employer has appealed insisting the expert medical testimony is not sufficient to support the award. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed. THAYER, SP. J., in which ANDERSON, J., and, BYERS, SR., J., joined. J. Steven Collins, of Knoxville, Tennessee, for Appellants, England/Corsair Upholstery Manufacturing Company, Inc., and Lumbermen's Underwriting Alliance. Edwin A. Anderson, of Knoxville, Tennessee, for Appellee, Shirley K. Hensley. MEMORANDUM OPINION The trial court awarded the employee, Shirley K. Hensley, 5 percent permanent partial disability as a result of sustaining an occupational disease. The employer and insurance carrier have appealed insisting the evidence is not sufficient to support the award. Facts The employee had been working as a seamstress or sewing operator for about thirty years. At the time of the trial, she was fifty-five years of age and had completed the ninth grade in school. In August 1993 she started working for the defendant furniture manufacturing company. She testified she worked with fabric material most of the time and that in handling fabric, her hands became very dry. She and other sewing operators kept lotion for use on their dry hands. She said that about one year prior to stopping work in November 1998, she began to work with leather. Her hands started swelling and cracking. It got so bad that they would bleed. She stated the green dye would actually rub off on her hands and she tried wrapping her hands with gauze and masking tape. Sometime later, she testified her "feet broke open." She worked with leather for about a year before going to the doctor. She eventually saw Dr. Ellis who treated her for several years. He recommended she see Dr. Alexander, a dermatologist. She stated she went to see him and his treatment was the same as Dr. Ellis and more expensive so she quit going to Dr. Alexander and returned for treatment with Dr. Ellis. After being off from work for about six months, she was terminated. The employee testified she had tried to find work with Wal-Mart as a greeter but when they saw the condition of her hands and asked what had caused the problem, Wal-Mart officials advised her they did not have a job available. She said her hands and feet have healed to some extent but she has not found any employment. Dr. Roy C. Ellis, a family physician, testified by deposition, and said he first saw Ms. Hensley on August 22, 1998 and she had severe hand dermatitis; that he prescribed several medications; she returned to work on September 8; she came back to see him on September 28 showing signs of severe rash and allergic dermatitis which he felt was definitely due to the fabric, either leather or vinyl, or both. He stated that over a period of time when she was off work, she would get better and when she returned to work, she got worse. He opined her "work conditions led up to and caused the allergic dermatitis." The doctor stated the medical impairment would fall into class three in the range of 25 to 54 percent and he gave her a 5 percent impairment. Dr. Jay Hammett, a family practice physician testifying by deposition, performed an independent medical examination on October 8, 1999 and examined the records of several other doctors. He learned she was also being treated for a thyroid condition and hypertension and thought her problems could be related to her medications for these problems. He said he thought the opinion of Dr. Ellis on causation was speculation since a skin biopsy or patch test had not been conducted. He was of the opinion she could resume her sewing work. Also, if her work conditions did cause her problems, he felt her impairment would be in the class two range of 1 to 24 percent and he fixed her impairment rating at 2 percent. Defendant's plant manager and company nurse both testified Ms. Hensley told them during July 1998 her problem was not work-related. However, these conversations were prior to the August 1998 visit to Dr. Ellis. The plant nurse admitted that during November 1998 she advised her doctor had said her condition was work-related. The nurse also testified no other employee had complained of the same problem. -2-

State of Tennessee v. Michael E. Bikrev
M2001-02910-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Defendant was charged with and convicted of burglary. The trial court sentenced him to three years' incarceration. In this direct appeal, the Defendant argues (1) that the trial court erred by denying his motion for judgment of acquittal and (2) that the State did not establish a proper chain of custody concerning the stolen property in this case. Having reviewed the record, we conclude that legally sufficient evidence was presented at the Defendant's trial to support his conviction and thus that the trial court did not err by denying the Defendant's motion for judgment of acquittal. We also conclude that a proper chain of evidence was established for the recovered property in this case and thus that the trial court did not abuse its discretion by admitting the property into evidence. We therefore affirm the judgment of the trial court.

David Lynn McClure v. State of Tennessee
M2001-02907-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, David Lynn McClure, was indicted on March 28, 1994 for one count aggravated sexual battery and two counts of rape of a child. He was convicted by a jury of aggravated sexual battery, rape of a child and attempt to commit the rape of a child. He received an effective sentence of 30 years as a Range I offender. The petitioner appealed his convictions and sentence, and they were affirmed. See State v. David Lynn McClure, No. 01C01-9505-CR-00145, 1997 WL 211254 (Tenn. Crim. App at Nashville, Apr. 30, 1997). The petitioner filed a pro se petition for post-conviction relief on October 14, 1999. Following an evidentiary hearing counsel was appointed and an amended petition was filed. This petition was denied on October 31, 2001. The petitioner then filed a notice of appeal on November 15, 2001. In this appeal the petitioner raises the issue of whether the post-conviction court correctly dismissed his petition for post-conviction relief concluding that he received effective assistance of counsel. After a review of the record we find that petitioner has failed to carry his burden of showing that the evidence preponderates against the findings of the post-conviction court. Accordingly, the judgment of the lower court is affirmed.

Richard Lynn Norton v. State of Tennessee
M2002-00789-CCA-R3-CO
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, Richard Lynn Norton, was convicted in 1989 of aggravated assault and assault. He received an effective sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed for habeas corpus relief, contending that the indictment charging him with aggravated assault was defective and therefore his conviction for aggravated assault is void. The trial court denied the petition for habeas corpus relief and the petitioner appealed to this court. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. James McClennon
M2002-00153-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant was convicted of theft of property over $10,000, felony evading arrest with risk of death or injury, and felony reckless endangerment. The trial court merged the reckless endangerment conviction with the evading arrest conviction, and sentenced the defendant to fifteen years as a persistent offender for the theft conviction and twelve years as a career offender for the felony evading arrest conviction, the sentences to be served consecutively. On appeal, he presents the following claims: (1) the evidence was insufficient to support his convictions for theft over $10,000 and felony evading arrest; (2) the trial court erred in excluding his exculpatory statement, denying his request for a mistrial, and failing to instruct the jury on the lesser-included offenses of unauthorized use of a vehicle and reckless driving. Following our review, we conclude that the trial court, in its instructions as to theft over $10,000, should have instructed the jury as to the Class A misdemeanor, unauthorized use of a motor vehicle. Accordingly, we reverse the conviction for theft over $10,000 and remand for a new trial. The conviction for felony evading arrest with risk of death or injury is affirmed.

Mario Valencia, Next of Kin and Heir at Law v. Freeland & Lemm Construction Company
W2000-01700-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Karen R. Williams

The plaintiff, as next friend of Francisco Valencia, filed two causes of action against Valencia's employer, the defendant, Freeland and Lemm Construction Company. The first is an action in tort alleging that the employer acted with "substantial certainty" in causing Valencia's death. The other action is a claim for benefits under the Workers' Compensation Law. The trial court dismissed the tort claims. On appeal, the Court of Appeals affirmed the trial court's ruling, holding that in the absence of proof that the employer acted with the "actual intent" to injure Valencia, the plaintiff's exclusive remedy lay within the provisions of the workers' compensation statute. We granted review in order to determine whether the judicially-created exception to the exclusive remedy requirement of workers' compensation law, which requires "actual intent," should be broadly interpreted to include an employer's conduct that is "substantially certain" to cause injury or death. Under the exception as currently construed, the plaintiff cannot sustain a tort action against the employer unless he can prove the employer acted with "actual intent." Therefore, in the absence of an allegation of "actual intent," the plaintiff is limited to his workers' compensation remedies. It is this result that the plaintiff urges us to change. We must decline to interpret the exception as the plaintiff urges. Accordingly, the provisions of the workers' compensation statute are the exclusive remedy for employees to obtain relief from employers for injuries occurring in the course and scope of employment, unless "actual intent" to injure has been established.

State of Tennessee v. Jeffrey L. Marcum
W2000-02698-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

We granted the State permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether fellatio requires actual penetration. The defendant was indicted and convicted for rape of a child, aggravated sexual battery and incest. At the close of his trial on these indictments, the defendant requested an instruction on attempted rape of a child, which the trial court denied. On appeal to the Court of Criminal Appeals, the defendant contended that the victim's testimony supported an attempt instruction because a jury could interpret it to be evidence that the defendant did not actually engage in fellatio with the victim, thereby proving that he committed attempted rape and not rape. The appellate court agreed and held that the trial court's failure to instruct on attempted rape was reversible error. We find that fellatio does not require actual intrusion into the victim's mouth, and accordingly, we hold that the evidence did not support an attempt instruction. Therefore, we reinstate the defendant's conviction for rape of a child.

Health Cost Controls v. Ronald Gifford
W2001-02267-SC-R11-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: W. Michael Maloan
We granted this appeal to decide whether the Court of Appeals correctly held that the appellee, Health Cost Controls, Inc., was entitled to reimbursement for medical expenses on the basis that the appellant, Ronald Gifford, failed to establish that he had not been fully compensated, i.e., "made whole" for his damages. The trial court found that the appellant's insurance policy denied coverage for expenses arising from an injury for which a third party was responsible and granted summary judgment to Health Cost Controls. Although the Court of Appeals initially affirmed the trial court's judgment, this Court remanded for further consideration under York v. Sevier County Ambulance Authority, 8 S.W.3d 616 (Tenn. 1999), which had held that an insured must be made whole before an insurer is entitled to reimbursement. On remand, the Court of Appeals concluded that York was not applicable because the appellant failed to establish that he had not been made whole and again affirmed the trial court's grant of summary judgment to the appellee. After reviewing the record, however, we conclude that our decision in York requires that the appellant Gifford be given an opportunity to establish that he was not made whole and that if he establishes that he was not "made whole," then the appellee, Health Cost Controls, is not entitled to reimbursement. Accordingly, we reverse the Court of Appeals' judgment and remand to the trial court for further proceedings.

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Trial Court Judge: Donald H. Allen

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Trial Court Judge: Donald H. Allen