Willa Jean Gaskill v. Steven Wayne Gaskill
01A01-9512-CH-00559
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge John H. Gasaway, III

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.

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-

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-

Michael Daniel Fry v. Yuriko Shinoda Fry
M2000-02969-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Muriel Robinson

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.

State of Tennessee v. Michael Joseph Arbuckle
M2000-02885-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jane W. Wheatcraft

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.

Alexander C. Wells v. State of Tennessee
M2001-00144-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell

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.

Jesse C. Minor by and through counsel, Hal Hardin v. State of Tennessee
M2001-00545-CCA-R10-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

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.

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.

Thomas A. Smythe v. Phil Jones, et al .
M2000-02062-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge Russell Heldman

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.

Cultra Landscaping Supply Company, v. Director of HIghways, Department of Transportation and W.L. Sharpe Contracting Company, Inc. and Charles Hill, Individually and D/B/A C.H. Hill Landscape and Excavating
02A01-9512-CV-00275
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

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.

Mary Kindred, On Her Own Behalf, And as Next of Kin of Marcus Briggs, v. The Board of Education of Memphis City Schools, et al.
02A01-9512-CV-00280
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert A. Lanier

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).

Loretta Trull, v. Margaret Culpepper, Commissioner of Tennessee Department of Employment Security, and Kerr Plastic Products, Manpower Temp Svcs., et al.
02A01-9603-CH-00041
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge George R. Ellis

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.

Flora Mae Melton v. Glen Houston Melton
2001-00128-COA-R3-CV
Trial Court Judge: J. Russ Heldman

Austin Powder Co., et al., v. Walter Thompson
03A01-9607-CV-00229
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Judge W. Dale Young

The Defendant appeals a judgment entered by the Blount County Circuit Court awarding the Plaintiffs discretionary costs including attorney fees. This appeal arises from an earlier action (second lawsuit) seeking specific performance of a settlement agreement resolving the original lawsuit filed by the Defendant.

Glenn T. McColpin, v. North Atlantic Casualty & Surety Insurance Company, Inc.
03A01-9602-CH-00067
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor R. Vann Owens

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”).

Bobby R. Reed, v. National Foundation Life Insurance Company and Mark Bradshaw
03A01-9603-CV-00081
Authoring Judge: Senior Judge William H. Inman

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.

Heck Van Tran v. State of Tennessee - Concurring/Dissenting
W2000-00739-SC-R11-PD
Authoring Judge: Justice William M. Barker and Justice Janice M. Holder
Trial Court Judge: John P. Colton, Jr.

With its decision today, a majority of this Court has effectively permitted a defendant, who was sentenced to death in 1989 for the brutal execution of a 74-year-old grandmother, an opportunity to escape the ultimate punishment for his actions solely because he has managed to obtain a lower score on a revised I.Q. test than he was previously able to do. Before today, the Constitution of this State has never been held to provide blanket capital immunity to a class of persons based only on the fact of low intellectual ability and deficits in adaptive behavior. Instead, the Constitution has barred such executions only when the defendant’s mental condition displaces the following capacities: (1) the cognitive capacity to appreciate that certain action will lead to the death of others; (2) the moral capacity to appreciate the wrongfulness of murder; or (3) the volitional capacity to behave in a lawful manner.

Heck Van Tran v. State of Tennessee
W2000-00739-SC-R11-PD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.

We granted this appeal to determine whether the trial court and the Court of CriminalAppeals erred by denying the petitioner’s motion to reopen his post-conviction petition. In hismotion, the petitioner asserted that new evidence establishes that he is mentally retarded and,therefore, ineligible for the death penalty under Tenn. Code Ann. § 39-13-203, which prohibits theexecutionof the mentally retarded. The petitioner also argued on appeal that the Eighth Amendmentto the United States Constitution and article I, § 16 of the Tennessee Constitution prohibit the execution of mentally retarded individuals.

Mike G. Pauley, v. Madison County, Madison County Penal Farm, David Woolfork, Madison County Sheriff, Penal Farm Superintendent, Captain Jackson, et al.
02A01-9607-CH-00161
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

Plaintiff, Mike G. Pauley, an inmate at the Madison County Penal Farm (Penal Farm), appeals from an order of the trial court dismissing his pro se complaint against the defendants, 1 Plaintiff filed suit against Madison County, Madison County Penal Farm, David Woolfork, the Madison County Sheriff and Penal Farm Superintendent, Captain Jackson, the Penal Farm’s Head Controller and Acting Warden, Sergeant Jered, the first shift sergeant, Sergeant Evans, the third shift sergeant, Officer Steven Horner, and Officer Cleo King in their official and individual capacities. 2 4which include Madison County, the Penal Farm, and several of the Penal Farm’s personnel.1

Gary Bernard Sanders, #76973, v. Jimmie L. Jones - Concurring
02A01-9610-CV-00261
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Joseph H. Walker

Plaintiff, Gary Bernard Sanders, an inmate in the custody of the Tennessee Department of Correction (TDOC) at the Cold Creek Correctional Facility, appeals from an order of the trial court dismissing his complaint against the defendant, Jimmie L. Jones, a correctional officer at  the facility.¹

E.L. (Eldred) Reid, v. Jason Petty
02A01-9611-CV-00269
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Joe G. Riley. Jr.

Eldred L. Reid (Plaintiff) sued Jason Petty (Defendant) for “pain and suffering with mental stress” alleged to have resulted from the defendant’s failure to timely respond to Plaintiff’s request for pain medication. Summary judgment was entered in favor of Defendant on the grounds that the trial court lacked jurisdiction and that the defendant was immune pursuant to T.C.A. § 9-8- 307(h).

Lawrence Woodward Hamilton, v. Brenda K. Smith Hamilton
02A01-9601-CV-00009
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

In this divorce action, the Plaintiff, Lawrence Woodward Hamilton, filed his petition 2 for divorce on July 20, 1993. The Defendant, Brenda Kay Smith Hamilton, filed a countercomplaint seeking a divorce on the grounds of inappropriate marital conduct. The trial court granted the Defendant’s request for a divorce on the grounds of inappropriate marital conduct. The trial court awarded the parties’ marital residence as well as household furnishings to the Defendant. The Plaintiff was ordered to pay all outstanding marital debts other than the first and second mortgage on the marital residence, all expenses incurred by the Defendant as a result of this action including the Defendant’s attorney fees and $2,200.00 per month in permanent alimony. The trial court awarded the Defendant onehalf of the Plaintiff’s retirement proceeds and ordered the Plaintiff to maintain the Defendant on his health insurance policy for three years. The trial court further ordered the Plaintiff to maintain a $50,000.00 life insurance policy naming the Defendant as the irrevocable beneficiary. The Plaintiff has appealed the judgment of the trial court arguing that the trial court erred in awarding the Defendant permanent alimony and attorney fees. For the reasons stated hereafter, we affirm the judgment of the trial court.

State of Tennessee, Elton Donald Bowers, A/K/A Rashid Qawwi
02C01-9509-CC-00282
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge Franklin Murchison

The defendant, Elton Donald Bowers, also known as Rashid Qawwi, was convicted of aggravated robbery and possession of a weapon with the intent to employ in the commission of the robbery. Tenn. Code Ann. § 39-13-402 and Tenn. Code Ann. § 39-17-307. The trial court ordered the weapons conviction merged with the aggravated robbery, classified the defendant as a career offender, and imposed a thirty-year sentence.

State of Tennessee, v. Michael Anthony Pike
02C01-9509-CC-00261
Authoring Judge: Judge William M. Barker
Trial Court Judge: Judge Julian P. Guinn

The Appellant, Michael Anthony Pike, appeals as of right his sentences for simple possession of marijuana, possession of marijuana with intent to sell, and possession of drug paraphernalia. He argues on appeal that the trial judge erred by not placing him in community corrections or, in the alternative, by not giving him the minimum statutory sentences. After a careful review of the record on appeal, we affirm the trial court’s judgment.

Tommy Wayne Simpson v. State of Tennessee
E2000-02993-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Eugene Eblen

Defendant appeals from the dismissal of his petition for writ of habeas corpus. We conclude that the State of Tennessee never surrendered jurisdiction over defendant and that defendant's sentence did not expire. We accordingly affirm the judgment from the trial court.