Robert Warner v. Barney Potts d/b/a Potts Roofing and Realm National Insurance Company
M2003-02494-WC-R3-CV
Authoring Judge: Senior Judge Jerry Scott
Trial Court Judge: Chancellor Robert E. Corlew

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining whether the appellant was an employee or an independent contractor, the trial court evaluated the factors listed in Tenn. Code Ann. § 50-6-102(10) distinguishing between employees and independent contractors and considered the evidence to be inconclusive. The trial court based its determination of independent contractor status on a Form I-18, Election of Non-Coverage by Sub-Contractor, filed by the appellate almost two years prior to the accident. The appellant contends that the trial court erred by determining he was an independent contractor. For the reasons set forth below, we reverse the holding of the trial court and remand for a determination of degree of disability.

Margie Pillers v. Josten's Printing & Publishing and Travelers Insurance Company
M2003-02919-WC-R3-CV
Authoring Judge: Senior Judge Jerry Scott
Trial Court Judge: Chancellor Carol Ann Catalano

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the injured employee insists the award of twenty-five percent vocational disability to the body as a whole, based on a ten percent permanent medical impairment rating offered by the treating physician, is inadequate.  The employee contends that the trial court erred in setting the impairment rating at ten percent and that the evidence preponderates for a finding of twenty-five percent medical impairment rating, subject to a multiplier of two and one-half. We hold that the evidence does not preponderate against the trial court's findings as to the extent of anatomical and vocational disability. Accordingly, the judgment of the trial court is affirmed.

Wanda Ely v. Deroyal Industries, Inc., and Dina Tobin, Director of the Division of Workers' Compensation, Tennessee Department of Labor, Second Injury Fund
E2004-00865-WC-R3-CV
Authoring Judge: Special Judge Howell N. Peoples
Trial Court Judge: Judge John D. McAfee

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.  The trial court found the employee failed to prove her claims of occupational disease or aggravation of pre-existing condition. We affirm.

State of Tennessee v. Lyle Van Ulzen and Billy J. Coffelt
M2003-02066-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendants, inmates at Riverbend Penitentiary, successfully temporarily escaped from custody while being transported to a court appearance. At trial, Defendant Van Ulzen was convicted of two counts of aggravated robbery (Class B felony), two counts of aggravated assault (Class C felony), four counts of false imprisonment (misdemeanor), one count of theft (misdemeanor), and pled guilty to one count of felony escape (Class E felony). Defendant Coffelt was convicted of one count of aggravated assault (Class C felony), three counts of theft (misdemeanor), four counts of false imprisonment (misdemeanor), and one count of felony escape (Class E felony). On appeal, Defendant Van Ulzen appeals his convictions and sentence. Defendant Coffelt appeals aspects of his convictions. Upon review of Defendant Van Ulzen's appeal, we reverse and dismiss one count of aggravated assault as violative of double jeopardy. All other convictions and judgments as to both defendants are affirmed. We remand for correction of judgments as to Defendant Coffelt.

Dorothy Tucker v. Sierra Builders, et al. - Dissenting
M2003-02372-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Clara W. Byrd

The majority’s analysis of the Consumer Protection Act is just excellent, however, I respectfully disagree with the majority’s opinion that All American did not violate the Act in its representations made to this plaintiff. I agree with the majority’s detailed history of the TCPA and that it is much broader in scope than common-law fraud, that it must be construed liberally to protect consumers, and that the plaintiff must prove an “unfair” or “deceptive” act by the defendant. I also agree that “the essence of deception is misleading consumers by a merchant’s statements, silence, or actions.” I disagree with the majority’s conclusion, however, that All American did not act deceptively in its dealings with Ms. Tucker, and I believe that the majority opinion overlooks certain key facts in this regard. The majority neither accords the Trial Court the presumption of correctness in its fact finding as required by Rule 13(d), nor does it defer to the Trial Court on the issue of the credibility of the witnesses.¹

Dorothy Tucker v. Sierra Builders, et al.
M2003-02372-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Clara W. Byrd

This appeal involves a dispute stemming from the shoddy construction of a modular house. The property owner filed suit in the Circuit Court for Wilson County against the contractor who constructed the house and the manufacturer of the house modules. The trial court granted a default judgment against the contractor and, following a bench trial, awarded the homeowner a $49,506.94 judgment against the manufacturer. The manufacturer has appealed. We have determined that the trial court erred when it held that the manufacturer engaged in unfair or deceptive trade practices in violation of the Tennessee Consumer Protection Act and that the manufacturer was vicariously liable for the negligence of the contractor.

State of Tennessee v. Joseph Vermeal
M2004-00046-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry B. Stanley, Jr.

The appellant, Joseph Vermeal, was convicted by a jury in the Warren County Circuit Court of aggravated sexual battery and was sentenced to nine years incarceration in the Tennessee Department of Correction. On appeal, the appellant alleges that the evidence was insufficient to support his conviction, and he contends that the trial court erred in refusing to permit his expert witness to testify. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

William T. Terrell and Martha M. Terrell v. United Van Lines, Inc., Kwick-Way Transportation Company, and Vanliner Insurance Co.
E2004-00407-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Daryl R. Fansler

The Trial Court entered Judgment for plaintiffs for damages, but refused to permit plaintiffs to amend the complaint to claim defendants violated the Consumer Protection Act, and disallowed plaintiffs’ Rule 11, Tenn. R. Civ. P. Motion for Sanctions. On appeal, we affirm.

William T. Terrell and Martha M. Terrell vs. United Van Lines, Inc., Kwick-Way Transportation Company, and Vanliner Insurance Co. - Concurring
E2004-00407-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

I agree with the result reached by the majority. With respect to the motion to amend, I believe the trial court should have entered an order allowing the amendment; after which it could have entered its order dismissing the plaintiffs’ claim. I believe this is the better practice under Tenn. R. Civ. P. 15. However, since the trial court addressed the merits of the complaint, as if it had been amended, any error in refusing to formally allow the amendment is harmless in nature. See Tenn. R. App. P. 36 (b).

State of Tennessee v. Leon James Anderson
M2004-00965-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Timothy L. Easter

The appellant, Leon James Anderson, was indicted by the Williamson County Grand Jury for driving under the influence ("DUI"), speeding, driving with a revoked license, and fourth offense DUI. The appellant was convicted by a jury on the first three counts, and waived his right to a jury for the fourth offense DUI charge. The trial court found the appellant guilty of fourth offense DUI. The appellant was sentenced by the trial court to two (2) years for the driving under the influence fourth offense, thirty days for speeding, and six months for driving on a revoked license, all to be served concurrently. After the denial of a motion for new trial, this appeal ensued. On appeal, the appellant challenges the sufficiency of the evidence and contends his sentence is excessive. Because the evidence is sufficient to support the convictions and the sentence is not excessive, we affirm the judgment of the trial court. However, we remand the matter to the trial court for the limited purpose of correcting errors in some of the judgments.

In Re: W.B. IV
M2004-00999-COA-R3-PT
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Alfred L. Nations

In a single proceeding, the juvenile court terminated the parental rights of a mother to her three children and the parental rights of the father of one of those children, ruling that they had abandoned the children. The mother and the father filed separate appeals, which we have consolidated for decision. We reverse because the proof at trial did not rise to the level required to establish abandonment as defined by applicable statutes.

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.