Royal & Sunalliance v. John H. Seay
M2001-02877-WC-R3-CV
Authoring Judge: William H. Inman, 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 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 found that the employee sustained an 8 percent vocational disability to his left leg. The employer concedes that Mr. Seay has a malfunctioning leg, but that the award is excessive. We affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which ADOLPHO A. BIRCH, JR., J., and , Joe C. Loser, Sp. J., joined. Diana C. Benson and Larry G. Trail, Murfreesboro, Tennessee, for the appellant, Royal & Sunalliance. William J. Butler, Lafayette, Tennessee, for the appellee, John H. Seay. MEMORANDUM OPINION I. Mr. Seay is fifty-six years old and a veteran employee of Nissan. He sustained an undisputed, job-related injury to his left knee which was exacerbated by continuous activity, and diagnosed as a complex tear of the lateral meniscus which was surgically repaired to the extent possible by Dr. E. Ray Lowery, an orthopedic surgeon. In the course of time Mr. Seay returned to work after being released to do so by Dr. Lowery. He testified that his knee was painful, with burning and swelling, which hindered his job duties. After thirty days following his return to work he requested early retirement because he could no longer perform his duties satisfactorily. At the time of trial, Mr. Seay continued to use a cane and was unable to walk one mile. He testified that it was necessary to rest his knee two hours each day. II. Dr. Lowery opined that Mr. Seay had a 1 percent impairment to his leg, attributable 3 percent to the meniscus tear and 7 percent to arthritis. He declined to express an opinion as to whether Mr. Seay's degenerative arthritis was attributable to his job duties. Mr. Seay was referred to Dr. Robert Landsberg, an orthopedic surgeon, for an independent examination. Dr. Landsberg's examination was apparently thorough and in compliance with the AMA Guides. He testified that Mr. Seay walked with a limp, used a cane, that his left thigh was atrophying, (a common problem with knee injuries), that he had a reduced range of motion, with tenderness and swelling. He diagnosed a post-lateral meniscectomy with post- traumatic arthritis, all attributable to Mr. Seay's work at Nissan, and assessed his lower extremity impairment at 17 percent to 18 percent, with permanent restrictions such as no standing more than twenty minutes at a time, no working for more than twenty minutes, and recommended a sedentary job only. III. The trial judge assessed Mr. Seay's impairment to be 8 percent to his left leg. The employer appeals, insisting that the evidence does not support a finding of 8 percent permanent disability to the left lower extremity most of which must be attributed to pre-existing arthritis. Our review is de novo on the record accompanied by the presumption that the judgment is correct unless contrary to the preponderance of the evidence. Rule 13(d) Tenn. R. App. P. It is well settled that deference must be accorded to the trial judge as to the issue of the credibility of Mr. Seay, his wife, and vocational experts who testified concerning employment opportunities.1 See, Elmore v. Travelers Ins. Co., 824 S.W.2d 541 (Tenn. 1992). It is not disputed, as we have noted, that Mr. Seay sustained a compensable injury which resulted in permanent impairment; the sole issue is, how much? An award need not be supported by the absolute certainty of an expert, because expert opinion is generally uncertain and speculative. Kellerman v. Food Lion, Inc., 929 S.W.2d 333 (Tenn. 1996). The aggravation of a pre-existing condition, like arthritis, is compensable if it "advances the severity of the pre-existing condition." Cunningham v. Goodyear Tire & Rubber Co., 811 S.W.2d 888 (Tenn. 1991). Courts are required by the law in this jurisdiction to consider all pertinent factors, including lay and expert testimony, the employees age, education,2 skills and 1 One of these vocational experts, testifying for Mr. Seay, opined that he was totally and perm anen tly vocationally disabled. 2 Mr. Seay graduated high school, but he is barely literate notwithstanding. -2-

Howard R. Sullins, Jr. v. Winn's Precision, Inc., et al.
M2001-02625-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: C. K. Smith, 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. This is a carpal tunnel syndrome complaint involving the plaintiff's right arm. He had previously suffered a ruptured biceps tendon involving his right arm, and returned to work after successful surgery. At the time of trial he was still employed and had not been treated for carpal tunnel syndrome for eighteen months. The trial judge found that the plaintiff had a vocational disability of 5 percent to his right arm. We affirm.

Department of Children's Services vs. F.E.B.
E2001-00942-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Carey E. Garrett
This appeal from the Knox County Juvenile Court questions whether the Juvenile Court erred in terminating the parental rights of the Appellant, F.E B., with respect to his child, R.B., upon petition of the Appellee, State of Tennessee Department of Children's Services. We affirm the judgment of the Juvenile Court and remand for collection of costs.

William Davis vs. Karen Davis
E2002-01404-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William M. Dender
In divorce action the Trial Court ordered husband to pay alimony and ordered division of marital property. The Judgment is affirmed as modified.

Sandra Elmore vs. Greg Cruz
E2001-03136-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jackie Schulten
In this case the Appellant/Defendant, City of Chattanooga, appeals the judgment of the Circuit Court for Hamilton County awarding the Appellee/Plaintiff, Sandra Yvonne Elmore, compensatory damages for injuries sustained as a result of her arrest and imprisonment by the Chattanooga Police Department. We vacate the judgment of the Trial Court and remand.

Hellen Wilson vs. CSX Transportation
E2002-00291-COA-R9-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Neil Thomas, III
This interlocutory appeal raises the question of the admissibility of the testimony of three expert witnesses which the Plaintiff, Hellen M. Wilson, sought to present at trial. The Trial Court excluded the expert testimony of Dr. William J. Nassetta and certified pursuant to T.R.A.P. Rule 9 the following question for this Court: "whether the testimony of the expert witness, William J. Nassetta, M.D., as reflected in [his] attached affidavit,. . .is admissible under the doctrine of the Tennessee Supreme Court decision in McDaniel v. CSX Transportation, Inc." The Trial Court also granted permission to CSX Transportation (CSXT) to appeal its ruling admitting the testimony of two other expert witnesses offered by the Plaintiff. We hold that the testimony of all three expert witnesses is admissible under the principles enunciated in McDaniel.

TZE-Pong "Raymond" Ku vs. State
E2002-01076-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Tze-Pong "Raymond" Ku ("Plaintiff") is a student at the East Tennessee State University College of Medicine ("College"). After completing his first two years of study, Plaintiff was required to take the USMLE Step 1 examination. He took this examination and failed. Thereafter, the College removed Plaintiff from his third year clerkships and eventually created a list of requirements he had to meet in order to be allowed to resume his classes. After successfully suing the College in federal court based on a procedural due process violation, Plaintiff brought the present lawsuit for damages against the State of Tennessee claiming breach of written contract, to wit: his letter of acceptance to the College and the College's student handbook. The Claims Commission concluded these documents did not constitute a written contract and dismissed the lawsuit for lack of subject matter jurisdiction. Plaintiff appeals, and we affirm.

Tennessee Sports Complex vs. Lenoir City Beer Board
E2001-02481-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
The Trial Court revoked appellant's permit to sell beer in Lenoir City. On appeal, we affirm.

Jimmy Ray Dougherty, Jr. vs. Kaye Michelle Hodges Olson
E2002-00087-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: C. Van Deacon
Custody of minor child was ordered changed from mother to father by the trial court. We affirm.

Jack & Ruth Parnell vs. Delta Airlines
E2002-00589-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Neil Thomas, III
The Trial Court granted defendants summary judgment by finding defendants' conduct did not constitute outrageous conduct. We affirm.

Norma Pendolal v. Shirley Butler
M2002-00131-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Russell Heldman
This is an undue influence and fraud case. The father executed a will leaving his personal and real property to one daughter, with the remainder of his estate to be divided among all five of his children. The daughter moved from Chicago to Tennessee to care for the father. The father added the daughter's name to his checking account and bought a mobile home in which he and the daughter lived. The daughter utilized money from the joint checking account for her personal benefit. Later, the father executed a power of attorney in the daughter's favor. The daughter then transferred one of the father's certificates of deposit to herself. When the father died, no funds remained to be divided among the five siblings. The father's other four children filed suit against the daughter, alleging undue influence. The trial court referred the case to a special master, who found there was no confidential relationship prior to execution of the power of attorney. The special master found, however, that a confidential relationship existed after the execution of the power of attorney. The trial court found that the daughter rebutted the presumption of undue influence and invalidity of the transaction that took place after execution of the power of attorney. The trial court then concurred in the special master's findings. The plaintiffs appeal. We affirm as to the transactions prior to execution of the power of attorney. We reverse as to the transaction after execution of the power of attorney, concluding that the presumption of the invalidity of that transaction was not rebutted by clear and convincing evidence of the fairness of the transaction.

In re: Estate of Ralph I. Cammack, Deceased
M1999-02382-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor John W. Rollins

This is a dispute between the deceased testator's second wife and the two children of his first marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died, the estate was to go equally to the testator's children. In conjunction with the wills, the spouses executed an agreement that they would not change their wills even after the death of the other. After the testator's death, the wife began dissipating the estate, selling the family home, and giving her own child the testator's expensive grandfather clock. In an effort to preserve the estate, the testator's children commenced the underlying action, seeking to establish a resulting trust. After the trial court granted the wife's motion for summary judgment, the testator's children lodged this appeal. Because testator's will gave the wife his estate in fee simple, she inherited the real property as tenant by entirety, and there is no clear and convincing evidence that the testator intended her merely to hold the property in trust for his children, we must affirm.

State of Tennessee v. Eric Bernard Chism
W2001-01287-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert A. Page

A Madison County jury convicted the defendant, Eric Bernard Chism, of first-degree murder, especially aggravated kidnapping, aggravated rape, and aggravated sexual battery in connection with the abduction and homicide of Beatrice Sue Westbrooks. The defendant received an effective sentence of life plus 25 years. On appeal, the defendant argues: (1) his right to a speedy trial was violated; (2) the trial court erroneously severed his case from that of his co-defendant; (3) the evidence is insufficient to support his convictions; (4) the trial court erroneously admitted unfairly prejudicial and inflammatory photographs; (5) the trial court improperly ruled that his prior narcotics conviction could be used for impeachment should he elect to testify; (6) a new trial should have been granted based on newly discovered evidence, but, at any rate, the hearing on the motion for new trial should have been continued until the results of additional forensic testing were available; and (7) the trial court erred in imposing consecutive sentencing. After a thorough review of the record, we affirm the judgments and sentencing of the trial court.

State of Tennessee v. Johnny Owens and Sarah Owens
W2001-01397-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge L. Terry Lafferty

The defendants, Johnny Owens and Sarah Owens, who are husband and wife, were convicted of aggravated child abuse by a Haywood County Circuit Court jury. Johnny Owens was convicted on one count only, and Sarah Owens was convicted on five counts. Because Johnny Owens' motion for a new trial raised only issues of the sufficiency of the evidence, we review only that issue in his appeal. Sarah Owens raises evidentiary issues and claims that the trial court erred in failing to instruct the jury on the "missing witness" rule, in conditioning the defendants' release from custody during trial upon Ms. Owens' withdrawal of her motion to sequester the jury, and in imposing an excessive sentence. We affirm all convictions and sentences; however, we order Sarah Owens' sentences to be served concurrently.

State of Tennessee v. Antonius Harris
W2001-02617-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge L. Terry Lafferty
A Gibson County jury convicted the defendant of two counts of especially aggravated kidnapping, one count of attempted second degree murder, two counts of aggravated assault, and one count of felony reckless endangerment. The trial court ordered him to serve an effective sentence of thirty-one years. On appeal, the defendant argues: (1) the trial court should have dismissed the superseding indictment; (2) there was insufficient evidence to support all of his convictions except for one aggravated assault conviction; (3) the trial court should have instructed the jury on self-defense; (4) the trial court should have instructed the jury on facilitation on all charged offenses and attempted voluntary manslaughter as a lesser-included offense of attempted first degree murder; and (5) his sentences were excessive. We set aside one sentence for aggravated assault because it was merged into the conviction for attempted second degree murder, but otherwise affirm the judgments of the trial court.

State of Tennessee v. Antonius Harris - Concurring
W2001-02617-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge L. Terry Lafferty
I concur with the majority opinion, save one aspect. I disagree with its implication that Rule 8(a), Tenn. R. Crim. P., has no bearing on superseding indictments. Rule 8(a) mandates that offenses arising from the same conduct or criminal episode be joined in the same indictment, if the offenses are known to the prosecutor at the time of indictment. The Committee Comment states: The Commission wishes to make clear that section (a) is meant to stop the practice by some prosecuting attorneys of “saving back” one or more charges arising from the same conduct or from the same criminal episode. Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury.

State of Tennessee v. Edward Coleman and Sean Williams
W2001-01021-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

A Shelby County jury convicted the defendants, Edward Coleman and Sean Williams, of premeditated murder, felony murder, especially aggravated kidnapping, and aggravated kidnapping. The trial court merged the two murder convictions and sentenced the defendants to life. The trial court merged the kidnapping convictions and sentenced Coleman and Williams to twenty-two years and eighteen years, respectively, to be served consecutively to the life sentence. In this appeal of right, both defendants raise the following issues: (1) whether the evidence was sufficient to support the convictions; (2) whether the trial court erred in denying the defendants' motion to sever; (3) whether the state failed to provide the defendants with timely discovery; and (4) whether the trial court erred in permitting testimony that Williams shot a witness in this case on a prior occasion. In addition, Coleman raises the following issues: (1) whether the trial court erred in permitting testimony regarding the loss of Coleman's leg, allegedly caused by the victim; and (2) whether the state knowingly presented perjured and conflicting testimony. Williams also raises the following issues: (1) whether the trial court erred in admitting photographs of the victim's body; and (2) whether the state during closing argument violated the Bruton rule by referring to Coleman's incriminating statement regarding Williams. After reviewing the record, we affirm the convictions for premeditated first degree murder but reverse and dismiss the other charges based upon insufficiency of the evidence.

State of Tennessee v. James Spurling
E2001-00601-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Carroll L. Ross
The defendant, James Spurling, was convicted by a jury of the offenses of attempted first degree murder and assault with a deadly weapon. The trial court merged the assault conviction into the attempted murder conviction and sentenced the defendant to twenty-three-years incarceration in the state penitentiary. In this appeal the defendant raises three issues: (1) whether there is sufficient evidence that the defendant premeditated the attempted murder; (2) whether the trial court erred in admitting into evidence certain photographs of the victim; and (3) whether the trial court erred in sentencing the defendant. After a careful review of the evidence and the applicable law, we find no reversible error and affirm the judgment of the trial court.

State of Tennessee v. Edward Jackson Thorpe
E2001-00556-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Edward Jackson Thorpe, was convicted by a jury of the offense of aggravated vehicular homicide and leaving the scene of an accident involving death. He received sentences of twenty-two year's incarceration and two year's incarceration, respectively. In this appeal he maintains that the evidence is insufficient to support the verdict. After a careful review of the record and the applicable law we must disagree and affirm the judgment of the trial court.

Oscar Little. et al., v. Samuel Watson, et al.
M2001-00230-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge James E. Walton

Samuel and Marguerite Watson appeal the final judgment of the trial court which found that a transaction between the Watsons and the Littles involving the purchase of a house created a resulting trust. The trial court divested out of the Watsons and vested in the Littles all interest in the house after the Littles obtained new financing for the house and paid off the previous mortgage in the Watsons' name and repaid the down payment with interest. We affirm the decision of the trial court.

Nations Rent of Tennessee, Inc., v. Mel Lange, et al., Forklifts Unlimited, LLC, et al., v. David Q. Wright, et al., Southern Wood Treatment Co., Inc. v. David Q. Wright, et al.
M2001-02368-COA-R3-CV
Authoring Judge: Special Judge Ellen Hobbs Lyle
Trial Court Judge: Chancellor Robert E. Corlew, III

Vendors of rental equipment filed suit to collect unpaid invoices from the landowner after the contractor abandoned the job. The trial court granted recovery based upon the Mechanics’ and Materialmen’s Lien Statute and quantum meruit. We reverse for insufficient proof on the correct measure of damages. Tenn. R. App. P. 3 as of Right; Judgment of the Chancery Court Reversed and Remanded.
 

Harper-Wittbrodt Automotive Group, LLC.,, v. Sam Teague et al.
M2001-02812-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Robert E. Burch

This is an appeal from an order of summary judgment enforcing an option to purchase clause in a lease for commercial property. The trial court awarded summary judgment to the plaintiff, finding it had exercised its option under the contract. We reverse summary judgment, finding a genuine issue of material fact as to the purchase price of the property.

William Hamer, et al., v. Robert C. Harris, et al.
M2002-00220-COA-R3-CV
Authoring Judge: Special Judge Ellen Hobbs Lyle
Trial Court Judge: Chancellor Allan W. Wallace

Homeowners sued a builder for defective construction. The trial court awarded damages for breach and attorney's fees under the Tennessee Consumer Protection Act. We reverse the award of attorney's fees based upon no proof of deceptive, misleading or unfair conduct by the builder.

Jerry James Hayes v. State of Tennessee
W2001-00058-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley

The Appellant, Jerry James Hayes, appeals as of right from the judgment of the Carroll County Circuit Court denying his petition for post-conviction relief. On appeal, the Appellant argues that he received ineffective assistance of counsel. After review of the record, dismissal of the petition is affirmed.

State of Tennessee v. Carlos Haynes
W2002-00315-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roger A. Page

The Defendant, Carlos Haynes, pled guilty to possession of marijuana with the intent to sell, a Class E felony, and possession of drug paraphernalia, a Class A misdemeanor. As part of his plea agreement, he expressly reserved with the consent of the trial court and the State the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The certified question of law concerns the validity of a search warrant. We affirm the judgment of the trial court.