Cynthia Long vs. City of Maryville E2001-00908-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Upon remand from this Court, the Trial Court entered Judgment for defendant in this slip and fall case. On appeal, we reverse.
Blount
Court of Appeals
State ex rel. Margaret Holtsinger vs. Jack Elrod E2001-00257-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: William E. Lantrip
These parties were divorced in May 1996. Custody of their children was awarded to Wife. The oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was awarded as the Guidelines direct. Father filed a petition to modify the judgment by eliminating the support requirement for Catherine, who reached her majority. The Chancellor held that the duty of support of the afflicted child was a continuing one. We affirm.
Anderson
Court of Appeals
John Warfield, et ux vs. Carlos Lowe, et al E2001-01042-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James B. Scott, Jr.
Plaintiff sought to establish insurance coverage for his injuries under his employer's policy. The Trial Judge declared no coverage. On appeal, we affirm.
Anderson
Court of Appeals
Thomas Stubblefield vs. Monique Stubblefield E2001-01433-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William R. Brewer
Husband appeals the Trial Court's allocation of the parties' marital estate in this divorce action. We affirm.
Blount
Court of Appeals
Boyd's Creek Enterprisesl vs. Sevier County E2001-01975-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Telford E. Forgerty, Jr.
These beer permit cases were consolidated for trial, with a common issue: whether the proposed sale location was located within 2000 feet of a "public gathering place," and if so, whether the restriction was waived, owing to a discriminatory practice.
The Defendant, Corey L. Milliken, pled guilty to two counts of first degree premeditated murder and one count of aggravated robbery. His agreed sentence was two concurrent life sentences for the murders and a consecutive twelve year term for the aggravated robbery, for an effective sentence of life plus twelve years. The Defendant timely filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his guilty plea was not entered knowingly and voluntarily. After a hearing the trial court denied relief and the Defendant appealed as of right. Finding no error in the trial court's ruling on the Defendant's petition, we affirm the judgment of the trial court.
Davidson
Court of Criminal Appeals
Johnny Jenkins v. Kemper Insurance Co. E2001-00154-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Jr., 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 to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained an 8 percent permanent partial disability to his right leg as a result of his knee injury. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Clint Woodfin, Knoxville, Tennessee, for the appellant, Kemper Insurance Company. Bruce D. Fox, Clinton, Tennessee, for the appellee, Johnny Jenkins. MEMORANDUM OPINION The plaintiff, age 39 at the time of trial, has a high school diploma and a work history as a skilled construction laborer. He has done electrical work, but has no formal training or certification as an electrician. The plaintiff was injured on October 24, 1998, while working for Solutions to Environmental Problems, the defendant's insured. The plaintiff was sealing drain lines with concrete at Center Hill dam when he an another worker attempted to move a large rock. While moving the rock the plaintiff felt a pop in his right knee followed by a "warm" sensation. By the next day, the plaintiff could not walk and sought medical treatment. Eventually he required several reconstructive knee surgeries and physical therapy; he has not been able to return to work since the injury. Medical Evidence Dr. Clifford Posman, an orthopedic surgeon initially treated the plaintiff. Physical therapy and other conservative treatment failed to improve the plaintiff's condition, so on April 6, 1999, Dr. Posman performed surgery on the plaintiff's right knee. When the plaintiff continued to experience pain, Dr. Posman referred him to Dr. Michael MacKay, another orthopedic surgeon in the same practice group. Dr. MacKay ordered a follow-up MRI, which revealed a torn meniscus in the plaintiff's right knee. On September 8, 1999, Dr. MacKay performed surgery to repair the tear. The plaintiff later underwent a third surgery as well as a second round of physical therapy before being placed at maximum medical improvement on March 28, 2. Dr. MacKay recommended a cane as needed and gave the plaintiff a knee brace, which the plaintiff testified he uses daily. Dr. MacKay testified the plaintiff could not return to his previous employment in part because he could not climb ladders. Before his deposition, Dr. MacKay assessed a 17 percent impairment based on the plaintiff's knee injury. However, during cross-examination while responding to questions from the defendant's counsel, Dr. MacKay testified 1 percent might be more appropriate. The trial court found the plaintiff had sustained 8 percent disability to his right leg as a result of the knee injury. We affirm the judgment of the trial court. Discussion Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The defendant presents two issues in this appeal. First, the defendant argues the trial court erred in failing to consider the 1 percent impairment rating discussed during Dr. MacKay's deposition. We find no error with respect to this issue and resolve the question in favor of the plaintiff. Dr. MacKayassessed the plaintiff's 17 percent impairment rating using Table 36 of the fourth edition of the AMA Guidelines. While cross-examining Dr. MacKay, the defendant's counsel quoted from the text preceding Table 36 and questioned Dr. MacKay about the table vis-_-vis the 17 percent impairment rating. Dr. MacKay agreed that 1 percent might be more appropriate. The defendant's second argument is that the trial court erred by failing to fully consider the plaintiff's age, education, work experience, skills and training. The defendant's contention is -2-
The defendant, Timothy L. Robertson, was indicted on two counts of unlawful possession of a controlled substance with intent to sell; one count of felony possession of a weapon; and one count of driving on a revoked or suspended license. Following the trial court's denial of his motion to suppress, he pled guilty to one count of possession of more than .5 grams of cocaine with the intent to resell, a Class B felony, and one count of felony possession of a weapon, a Class E felony. In accordance with the terms of his plea bargain agreement, the remaining counts of the indictment were dismissed. Pursuant to Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, the defendant reserved the right to appeal as a dispositive question of law the issue of whether his custodial arrest and the subsequent search of his vehicle violated the Fourth Amendment of the United States Constitution, Article I, Section 7 of the Tennessee Constitution, and Tennessee Code Annotated Section 40-7-118(b)(1)(c). We conclude that the officers were required to make a custodial arrest of the defendant to prevent his continued violation of the driver's license law, and that the subsequent search of his vehicle was valid as incident to that arrest. Accordingly, we affirm the judgment of the trial court.
The defendant, Chauncey E. Gray, appeals as of right from his convictions by a jury in the Chester County Circuit Court of forgery, a Class E felony, and theft of property valued at $500 or less, a Class A misdemeanor. The trial court sentenced him as a Range II, multiple offender to a four-year sentence for the forgery to be served in the Department of Correction, imposed a $1,500 fine, and ordered $400 in restitution. It imposed a sentence of eleven months, twenty-nine days at seventy-five percent for the theft to be served concurrently and a $1,250 fine. The defendant contends that his effective four-year sentence is excessive and that he should have received a sentencing alternative to confinement. We affirm the sentences imposed by the trial court.
This appeal involves the custody of a four-year-old girl. After slightly more than two years of marriage, the mother filed a divorce petition in the Chancery Court for Montgomery County requesting custody of the parties’ only child. Following a bench trial, the trial court declared the parties divorced and awarded custody to the mother. The husband asserts on this appeal that he is comparatively more fit than the mother to have custody. We agree and, therefore, reverse the trial court’s award of custody to the mother.
The petitioner, James Thomas Page, appeals as of right from the Chester County Circuit Court's denial of his petition for post-conviction relief. The petitioner pled guilty to second degree murder, a Class A felony, and received the agreed, forty-year sentence as a 100% violent offender. He contends that he received the ineffective assistance of counsel and that he did not understand what was happening at the guilty plea hearing. We affirm the trial court's denial of the petition.
Chester
Court of Criminal Appeals
Billy L. Seiver v. Plumbmaster, Inc., M2000-00514-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Ellen Hobbs Lyle, 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 of findings of fact and conclusions of law. In this case, the employer and its insurer contend the claim is barred by Tenn. Code Ann. _ 5-6-23, a one-year statute of limitation. The employee contends the award of permanent partial disability benefits based on 25 percent to the body as a whole is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR., SP. J., joined. Kenneth M. Switzer, Nashville, Tennessee, for the appellants, Plumbmaster, Inc. and Cigna Insurance Company. Joe M. Haynes and Russell E. Freeman, Goodlettesville, Tennessee, for the appellee, Billy L. Seiver. MEMORANDUM OPINION The employee or claimant, Seiver, age 65 and a high school graduate with experience in sales, was involved in a work-related car wreck on October 16, 1995, but did not file this civil action until May 7, 1997. The approved physician, Dr. Jack Miller, told the employer's insurer his condition was not related to the car wreck, which the insurer's representative told the claimant. The trial court found, based on the testimony of the claimant, which the trial court accredited, that the claimant did not know his back injury was work related until July 1997, when he learned it from Dr. Vaughan Allen. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). An action by an employee to recover benefits for an accidental injury, other than an occupational disease, must be commenced within one year after the occurrence of the injury. Tenn. Code Ann. _ 5-6-224(1). However, the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. It is the date on which the employee's disability manifests itself to a person of reasonable diligence - not the date of accident - which triggers the running of the statute of limitations for an accidental injury. See Hibner v. St. Paul Mercury Ins. Co., 619 S.W.2d 19 (Tenn. 1981) and its progeny. The appellants argue that the Hibner rule is inapplicable because the claimant suspected his injury was work related and had sought the advice of counsel within two months after the occurrence of the injury. It is settled law in this state that the causal connection required for a worker's compensation claim to be compensable may only be established by competent expert medical opinion. The only competent expert medical opinion the claimant and his attorney had until July 1997 was the opinion of Dr. Miller that the injury was not work related. The trial court, applying the reasonable care and diligence rule and accrediting the testimony of the claimant, found the beginning date for the running of the statute of limitation to be July 1997, when Dr. Allen informed the claimant his injury was work related. The preponderance of the evidence is not otherwise. We also hold that the retention of counsel does not trigger the running of the statute of limitation. Moreover, we find nothing in the law which would require an injured worker to initiate an action for benefits within one year from the time the injured worker suspects that an injury is work related. The issue is accordingly resolved in favor of the claimant. The extent of an injured worker's permanent disability is a question of fact based on numerous factors, including the employee's age, skills and training, education, capacity to work, local job opportunities and the extent of the worker's medical or clinical impairment. Tenn. Code Ann. _ 5-6-241(a)(1). From a consideration of those factors, to the extent they were established by the proof, we are not persuaded the evidence preponderates against the trial court's award of permanent partial disability benefits based on 25 percent to the body as a whole. ___________________________________ JOE C. LOSER, JR. -2-
Davidson
Workers Compensation Panel
Lynette Sangster v. Mtd Products, Inc. W2000-03019-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: George R. Ellis, 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 contends the evidence preponderates against the trial court's finding that the employee is permanently disabled. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and W. MICHAEL MALOAN, SP. J., joined. Jeffrey P. Boyd, Jackson, Tennessee, for the appellant, MTD Products, Inc. Sherry M. Percival, Jackson, Tennessee, for the appellee, Lynette Sangster MEMORANDUM OPINION The employee or claimant, Lynette Sangster, is 45 years old and a high school graduate who has worked for the employer, MTD, for almost 2 years. MTD assembles yard and garden tractors. On February 15, 1999, the claimant was sitting at her desk when a co-worker accidentally drove a tractor into the back of her chair, pinning her to her desk. She was immediately taken to an emergency room, where she received first aid for a hematoma and was released. When the hematoma did not resolve itself, she was referred to an orthopedic surgeon, Dr. David Johnson. Dr. Johnson treated her conservatively at first but, when the hematoma, which Dr. Johnson defined as a collection of blood, did not resolve, he treated it surgically. The claimant has returned to work but continues to have complaints of debilitating pain and stiffness. In his deposition, Dr. Johnson opined that the claimant would not be permanently impaired. Her attorney referred her to Dr. Joseph Boals for examination and evaluation. Dr. Boals saw her on January 4, 2, at which time she was still having symptoms. Dr. Boals, who also testified by deposition, opined that she would retain a permanent medical impairment of 5 percent to the whole body, using AMA guidelines. The trial court awarded, inter alia, permanent partial disability benefits based on two and one- half times that medical impairment rating. 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). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The appellant argues there is no competent expert medical evidence of permanency, as required by Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 458 (Tenn. 1988), because the AMA guidelines do not provide a table for calculating Ms. Sangster's permanent impairment. The deposition of Dr. Boals is clear that, in his opinion, the claimant is permanently impaired, whether the guidelines provide a table or not. In such a case, a trial court may award permanent disability benefits if there is supporting lay proof, for a medical or anatomic impairment rating is not always indispensable to a trial court's finding of a permanent vocational impairment. Hill v. Royal Ins. Co., 937 S.W.2d 873, 876 (Tenn. 1996). It is equally clear from the lay testimony that the claimant is restricted in her ability to work and earn an income. Moreover, as the claimant argues, it is within the discretion of the trial judge to conclude that the opinion of certain experts should be accepted over that of other experts and that it contains the more probable explanation. Johnson v. Midwesco, Inc., 81 S.W.2d 84, 86 (Tenn. 199). Upon further review, the decision of the trial court stands. Costs are taxed to the appellant. ___________________________________ JOE C. LOSER, JR. -2-
A Sumner County jury convicted the Defendant, Michael Joseph Arbuckle, of one count of driving under the influence, one count of driving under the influence, per se, and one count of driving under the influence, second offense. Following a sentencing hearing, the trial court merged the convictions and sentenced the Defendant to eleven months and twenty-nine days, with all but sixty days suspended. In this appeal, the Defendant contends that the trial court erred in (1) denying his motion to suppress the results of a blood alcohol test, (2) admitting the blood alcohol test results despite incomplete evidence of the chain of custody, (3) admitting the blood alcohol test results despite a lack of relevance, and (4) finding that sufficient evidence existed for a reasonable jury to find the Defendant guilty. We affirm the judgment of the trial court.
Appellant, Dr. Alexander C. Wells, was a professor at Tennessee State University ("TSU"). He was relieved of his teaching duties in 1992 and was asked to remove his property from the office and laboratory space he occupied at TSU. He moved some of his belongings in 1995. His remaining belongings were boxed and moved to the campus warehouse in 1996 because the space had been reassigned. When he retrieved his belongings in 1997, he found several items missing. Appellant then brought a claim in the Tennessee Claims Commission asking the State of Tennessee to return his property or, in the alternative, give him monetary compensation for the lost items. The Commission held that TSU had not been negligent in the care, custody and control of appellant's property. Therefore, the State was not liable for the missing property. We affirm the decision of the Commission.
Pursuant to the wife's motion under Rule 60, Tenn. R. Civ. P., the trial court amended the division of the husband's Navy pension contained in an agreed order of divorce. We reverse the trial court's judgment.
Davidson
Court of Appeals
State of Tennessee v. Melvin Waters M2000-03224-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier
The defendant appeals from his convictions for facilitation of aggravated robbery, aggravated assault, resisting arrest and criminal impersonation. The only issue raised by the defendant is whether the evidence was sufficient to support his conviction for aggravated assault. Based on our review of the evidence, we conclude that the co-defendant's conduct amounted to aggravated assault and that the defendant, as a party to the offense, was criminally responsible for that conduct. The judgments of the trial court are affirmed.
We accepted this extraordinary appeal, see Tenn. R. App. P. 10, to review certain pre-hearing actions of the Davidson County Criminal Court in this post-conviction case. Our grant of review extends to these issues: (1) whether a "next friend" may file a post-conviction petition on behalf of an incompetent prisoner; (2) if so, may the post-conviction court, sua sponte, order a mental evaluation of the prisoner or conduct other inquiries into the matter to determine whether the "next friend" petition was properly filed on the prisoner's behalf; and (3) whether the court below properly denied the petitioner's motion for recusal. We conclude that we improvidently granted extraordinary review in part, but we otherwise affirm the rulings of the lower court and remand for further proceedings.
In this suit wherein the Plaintiff, Thomas a. Smythe, seeks damages against the Defendant, Donald Cowan, for willfully interfering with contractual relations between Mr. Smythe and Phil Jones, the Trial Court granted summary judgment because in his opinion the Statute of Limitations barred the claim asserted. We affirm.
This is an unemployment compensation case. Petitioner, Loretta Trull, appeals from the order of the chancery court dismissing her petition for certiorari and affirming the decision of the Board of Review that disallowed her claim for unemployment compensation benefits.
In this wrongful death action, Plaintiff-Appellant Mary Kindred (Plaintiff), on her own behalf and as next of kin of Marcus Briggs, appeals the trial court’s judgment entered in favor of Defendants-Appellees Board of Education of Memphis City Schools, Willie Anderson, and Raybon Hawkins (Defendants).
This is an action by the appellant, Cultra Landscaping Supply Company (Cultra), seeking to recover the balance allegedly due on an open account. Cultra’s complaint, as amended, was filed against the Director of Highways, Department of Transportation, W. L. Sharpe Contracting Company, Inc. (Sharpe) and Charles Hill, individually and d/b/a C. H. Hill Landscape and 2The Director of Highways was named as a defendant pursuant to T.C.A. § 54-5-124 (civil actions against contractors by claimants). Cultra’s complaint states that it “seeks no remedies” against Sharpe, but acts to put the latter “on notice” of said claim having been filed with the Department of Transportation. Prior to trial, a summary judgment was entered in favor of Sharpe. The order granting summary judgment provided that the State of Tennessee and the Department of Transportation were to retain certain funds to satisfy Cultra’s claim in the event it proved meritorious at trial, in accordance with T.C.A. § 54-5-123. After trial, an agreed order was entered with this Court dismissing the Department of Transportation, Director of Highways as a party. 2 Excavating (Hill). For purposes of this appeal, however, the only other party before us is Hill, the appellee.2 A bench trial resulted in a judgment for Hill. Cultra appeals on the sole basis that the evidence presented at trial preponderates against the trial court’s findings. For reasons hereinafter stated, we affirm.
This is a suit for damages against an insurance company for the alleged breach of a lawyer’s professional liability insurance policy. Plaintiff, Glenn McColpin, appeals from the judgment of the chancery court for the defendant, North Atlantic Casualty & Surety Insurance 2 Company, Inc. (hereinafter, “North Atlantic”).
This is a Rule 9 appeal from a judgment denying the defendants’ motions for summary judgment. The issue is whether an insurance agent has the apparent authority to waive the conditions for issuance of a policy and the limitations on his authority as contained in the application for the policy. We hold that the agent has no such authority and therefore grant the motions for summary judgment.
