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State vs. Gabriel Clark
W2000-02595-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Roy B. Morgan, Jr.
The appellant, Gabriel Antonio Clark, was convicted by a Madison County jury for one count of felony murder and one count of aggravated robbery. Clark was sentenced to life imprisonment for the murder conviction and, following a sentencing hearing, received a twelve-year sentence for aggravated robbery. The sentences were ordered to be served consecutively. On appeal, Clark raises the following issues for our review: (1) Whether the evidence presented at trial is sufficient to support his convictions; and (2) whether the trial court erred by failing to exclude or redact a portion of Clark's statement to police which he contends was highly prejudicial and in violation of Tenn. R. Evid. 403. After review, we find no reversible error and affirm the judgment of the trial court.

Dorothy Marable v. Key Industries, Inc.
01S01-9709-CH-00209
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Robert E. Burch,
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer, Key, and its insurer, Travelers, insist the chancellor erred in (1) awarding benefits as a percentage to the body as a whole, (2) making an award in excess of six times the highest medical impairment rating and (3) awarding benefits based on one hundred percent to the body as a whole. As discussed below, the panel has concluded the award should be modified down to one based on forty-eight percent to the body as a whole. Our 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. section 5-6-225(e)(2). Conclusions of law are subject to de novo review on appeal without any presumption of correctness. Spencer v. Towson Moving and Storage, Inc., 922 S.W.2d 58 (Tenn. 1996). The employee or claimant, Marable, was 62 years old at the time of the trial. She has less than a high school education. She worked in Key's shirt factory for 23 years, sewing stays in collars of dress shirts. She has suffered three separate work related injuries, all three of which are the subject of this litigation. (1) The employer and its insurer contend first that because the claimant has three separate injuries to three separate scheduled members, or to two separate scheduled members if the arms are considered together, the claimant's injury should somehow be considered a scheduled injury and recovery limited to a percentage of weeks provided in the statutory schedule. From a consideration of the authorities cited and others, we respectfully disagree. Where a worker's only injury is to a scheduled member, he may receive only the amount of compensation provided by the schedule for his permanent disability. Genesco, Inc. v. Creamer, 584 S.W.2d 191 (Tenn. 1979). This claimant has three separate injuries to three separate members, all of them scheduled separately. If an employee suffers permanent partial disability to two members listed together as a scheduled injury, it is proper to compute the period of disability according to the schedule. Queen v. New York Underwriters Ins. Co., 222 Tenn. 235, 435 S.W.2d 122 (1968). While both arms are listed together as a scheduled injury, we find no listing in the schedule for both arms and a foot. See Tenn Code Ann. section 5-6-27(3)(A)(II). In all other cases of permanent partial disability, benefits are payable according to the percentage of disability to the body as a whole, which is valued at four hundred weeks; Tenn. Code Ann. section 5-6-27(3)(F); Kerr v. Magic Chef, 793 S.W.2d 927 (Tenn. 199); and an injury to three or more members of the body, whether or not any of the members is included in the schedule, is not a scheduled injury and, in such case, benefits are allowable to the body as 2

Henry A. Sherrill v. Pulaski Rubber Company
01S01-9802-CH-00035
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Jim T. Hamilton,
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 judge found the plaintiff was permanently disabled and awarded a lump sum judgment of $81,953.2 on November 3, 1997. The defendant says the record does not support the finding that the lump sum award is proper because the record fails to show that the lump sum award is in the plaintiff's best interest or that he can wisely manage the lump sum payment. We remand this case to the trial court for further proceedings. The record in this case is sparse on the issue of a lump sum payment. The plaintiff testified he wished to pay off his mortgage and invest any remaining portion of the award. On appeal, the plaintiff's brief presents a mathematical computation showing how much the plaintiff would save if he payed off his mortgage. This was not presented at trial. The trial court made no finding of whether a lump sum award was in the plaintiff's best interest. This brings the case in line with the case of Huddleston v. Hartford Accident & Indem. Co., 858 S.W.2d 315 (Tenn. 1993), where an issue of a lump sum award was raised. The Supreme Court said in that case: "W hat is missing from the trial court's order, as well as from the record, is a determination that full commutation under these circumstances is in the injured worker's best interest, as required by T.C.A. _ 5-6-229(a), as amended (199)." Id. at 318. In Huddleston, the Supreme Court remanded the case to the trial court for further proceedings to determine what amount, if any, should be commuted and to determine if the plaintiff could manage the commuted amount. Further, the Supreme Court noted that the trial judge may well consider, if a finding of a lump sum is made, how to insure that the sum will be applied in the manner the plaintiff asserts it would be used. We remand this case to the trial court for such proceedings as are necessary consistent with this opinion. 2

State vs. Robert Goss/Carl Hale
02C01-9610-CC-00367
Trial Court Judge: Joseph H. Walker, III

State vs. Walter Johnson
02C01-9801-CR-00007

Deborah H. Steele v. Superior Home Health Care of Chattanooga, Inc., and David Twombley - Concurring
03A01-9709-CH-00395
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor R. Vann Owens

The plaintiff, Deborah H. Steele (“Steele”), brought this action against her former employer, Superior Home Health Care of Chattanooga, Inc. (“Superior”), and her former supervisor, David Twombley (“Twombley”)1, alleging that she was the victim of, among other things, sexual  harassment, outrageous conduct, and the intentional infliction of emotional distress. After various other claims were dismissed by the trial court², the case proceeded to trial before a jury on Steele’s claim of sexual harassment against both Superior and Twombley under the Tennessee Human Rights Act, T.C.A. § 4-21-101, et seq. (“THRA”), and her claim of outrageous conduct and intentional infliction of emotional distress, against Twombley alone. The jury found in favor of Steele on all of the remaining theories of recovery and awarded her $1.2 million in compensatory  damages and $60,000 in punitive damages. The trial court also awarded Steele attorney’s fees and costs against both defendants. After Steele  accepted a remittitur that eliminated the punitive damages award and reduced the compensatory damages award to $850,000, both Superior and Twombley appealed, raising in substance the following issues for our consideration:

1. Did the trial court err in allowing inadmissible hearsay testimony from witnesses who did not have first-hand knowledge of the events in question?

2. Did Steele’s counsel make improper and prejudicial statements during closing argument, thus warranting a new trial?

3. Is there material evidence in the record to support the jury’s verdict?

4. Did the trial court err in submitting to the jury Steele’s cause of action against Twombley under the THRA?5. Did the trial court err in giving the jury an inaccurate charge, thereby prejudicing its verdict against Twombley?

6. Did the trial court err in not suggesting a further remittitur of the jury’s verdict?

7. Did the trial court err in awarding attorney’s fees against Twombley under the THRA?

State vs. Michael Holmes
02C01-9802-CC-00048

State vs. Paschal Hyde
01C01-9701-CR-00024

State of Tennessee v. Kevin Burns
02S01-9708-CR-00073
Authoring Judge: Chief Justice Riley Anderson
Trial Court Judge: Judge Joseph B. Brown, Jr.

The defendant, Kevin Burns, was convicted of two counts of felony murder and two counts of attempted felony murder. The jury imposed the death penalty for one of the felony murder convictions after finding that evidence of an aggravating factor -- that the defendant knowingly created a great risk of death to two or more persons other than the victim murdered -- outweighed the evidence of mitigating factors beyond a reasonable doubt. The jury imposed a life sentence for the other felony murder conviction.

Brenda J. Crowder, M.D., v. Brent D. Laing, M.D. and John D. Green, M.D., David Dobyns, First Medical Group and Healthcare Consultants, Inc., et al.
03A01-9801-CH-00083
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lewis W. May, Jr.

We granted the Rule 9, T.R.A.P., application of the appellant, Brent D. Laing, M.D. (“Laing”), in order to review the propriety of the trial court’s denial of Laing’s motion to amend his answer filed in litigation instituted against him and others by the appellee, Brenda J. Crowder, M.D. (“Crowder”). In the same order, we consolidated that interlocutory appeal with the appeal of Laing’s separate suit against Crowder, which latter appeal is before us as of right. See Rule 3(a), T.R.A.P. The claims asserted by Laing in the second suit are identical to those in the counterclaim which Laing attempted to pursue, albeit unsuccessfully, in the earlier litigation. We reverse the trial court’s denial of Laing’s motion to amend in the first suit. We dismiss, as moot, the appeal of Laing’s subsequent suit against Crowder.

Gary Wayne Robertson v. Lori Vanhooser Robertson - Concurring
03A01-9711-CV-00511
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

This is a divorce case. The trial court granted Lori Vanhooser Robertson (“Wife”) a divorce on the ground set forth at T.C.A. § 36-4-101(3)1; awarded the parties joint custody of their 16-year-old son; ordered Gary Wayne Robertson (“Husband”) to pay Wife child support of $387 per month plus 21% of part of Husband’s future increases in net income; awarded Wife rehabilitative alimony of $250 per month for 12 months, beginning with the month of October, 1997; divided the parties’ property and debts; denied Wife’s request for attorney’s fees; and made other decrees not relevant to a resolution of the issues now before us. Wife appealed, raising issues that present the following questions for our review.

Cathy P. McManamay v. Charles T. McManamay
01A01-9802-CH-00081
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Chancellor Carol A. Catalano

In this divorce case, the defendant husband has appealed from a decree awarding the plaintiff a divorce on grounds of irreconcilable differences and dividing the marital estate. The husband has presented the issues in the following form:
1. The Trial Court rushed the trial, making it difficult for the defendant/appellant to fully present his case.
2. The Trial Court erred by awarding the plaintiff/appellee an interest in the defendant/appellant’s
separate property.
3. The Trial Court erred in refusing to make any division in marital property that was held solely in the plaintiff/appellee’s name.
4. The Trial Court erred in awarding the divorce to the plaintiff/appellee despite overwhelming grounds in favor of the defendant/appellant.

Lucy L. Bond v. Belle Meade Fund Partners, L.P., et al. - Concurring
01A01-9802-CV-00059
Authoring Judge: Judge Henry F. Todd
Trial Court Judge: Judge Thomas W. Brothers

The plaintiff sued for injury suffered when she stepped into a hole in the asphalt surface of a parking lot provided for customers of Kroger Company. Kroger was dismissed by nonsuit, and the remaining defendants were dismissed by summary judgment. Plaintiff appealed and presented the following issue:

I. Whether a genuine issue of material fact has been raised by the plaintiff/appellant, so as to warrant this cause to be tried on its merits.

Si J. Williams v. Mary C. Williams
01A01-9709-CV-00522
Authoring Judge: Judge William C. Koch, Jr.

I concur with the results of this opinion. However, I am filing this separate opinion to clarify my understanding of the significance of the portion of the decision dealing with the need of the parties’ daughter for continuing support past her eighteenth birthday.

Si J. Williams, v. Mary C. Williams
01A01-9709-CV-00522
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Muriel Robinson

In this divorce case, Mary C. Williams, hereafter “wife” has appealed from the judgment of the Trial Court awarding her a divorce from Si J. Williams, hereafter “husband,” custody, child support, alimony, insurance, fees and division of property.

Si J. Williams, v. Mary C. Williams - Concurring
01A01-9709-CV-00522
Authoring Judge: Judge William C. Koch, Jr.

I concur with the results of this opinion. However, I am filing this separate
opinion to clarify my understanding of the significance of the portion of the decision
dealing with the need of the parties’ daughter for continuing support past her
eighteenth birthday.

State of Tennessee v. Kenneth EugeneTroutman
03S01-9705-CC-00049
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Arden L. Hill

While this case has ultimately been decided on a waiver issue, we granted this appeal to take the opportunity to address two very important issues of statutory construction in misdemeanor sentencing. The general issues may be framed as whether Tenn. Code Ann. § 40-35-209 and Tenn. Code Ann. § 40- 35-210 apply to misdemeanor sentencing. Specifically, the issues have been stated as: (1) whether a trial judge must state on the record, pursuant to Tenn. Code Ann. § 40-35-210(f), what enhancement or mitigating factors were employed in setting the sentence length in a DUI case; (2) whether a trial court must make specific findings on the record, pursuant to Tenn. Code Ann § 40-35-209(c), when fixing the percentage of a sentence to be served in incarceration under the misdemeanor sentencing statute; and (3) whether the appellate court erred in remanding this case for re-sentencing. We hold that §§ 40-35-209, - 210(f) are inapplicable to DUI sentencing and that the defendant's sentences should be affirmed.

Dan W. Wilkins v. Dodson, Parker, Shipley, Behm and Seaborg et al.
01A01-9707-CV-00299
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donald P. Harris

This is a legal malpractice case. The malpractice action arose out of a lender liability lawsuit that was dismissed by the trial court because it had not been filed within the limitations period. Dismissal of the underlying lawsuit was affirmed on appeal by the Middle Section of this Court. Wilkins v. Third National Bank in Nashville, 884 S.W.2d 758 (Tenn. App. 1994), cert. denied, (Sept. 26, 1994). While not in the record before us, the facts of the underlying lawsuit contained in the aforementioned decision of the Middle Section will be helpful in understanding the facts of this appeal.

Lanny McCormack, individually and as partner of McCormack Farms v. Zollie McCormack
01A01-9707-CH-00341
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor William B. Cain

Plaintiff Lanny McCormack appeals the final judgment entered by the trial court in this dissolution of partnership case. In its final judgment, the trial court ordered Defendant/Appellee Zollie McCormack to pay Lanny McCormack $137,453 for all of the latter’s right, title, and interest in the McCormack Farms partnership. On appeal, Lanny McCormack has raised only one issue for this court’s review: whether the trial court, which previously had adopted a special master’s report, erred when it ruled that Lanny’s interest in the partnership would be resolved in a manner which was not one of three options set forth in the special master’s report. We affirm the trial court’s judgment.

Eddie Cook, et al., v. Archie Glen Edwards, and wife Martha Sue Edwards
01A01-9712-CH-00705
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Donald P. Harris

The Hickman County Road Superintendent filed a declaratory judgment action to ascertain if an old cemetery road across the defendants’ property was a public road. The Chancery Court of Hickman County ruled that the road was not a public road but that the defendants’ property was subject to an easement created in a deed in their chain of title. Since the court granted relief that no one had sought, to individuals not parties to the action, we reverse.

Yong Mun Chong Meadows v. Tommy C. Meadows
01A01-9801-CH-00054
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge James E. Walton

The trial court granted the parties a divorce, divided the marital property, and awarded the wife permanent alimony. On appeal, the husband contends that the court should have adjusted the property settlement to take the wife’s post-separation dissipation of marital assets into account, and that it should have placed some limitations on the alimony award. We agree, and we modify the decree to incorporate the necessary changes.

Otha Smith, v. Marjorie Smith
01A01-9802-CH-00068
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Jim T. Hamilton

Following an in camera proceeding, the trial court declared the parties divorced, and awarded the real property at issue to the husband. The wife filed a Motion to Alter and Amend, which resulted in a new hearing, and a new decree whereby the real property was equally divided between the parties. The husband claimed on appeal that the trial court erred in re-opening the case after his initial decree. We affirm the trial court, but we amend its final order to make sure there is no doubt that the parties have been legally divorced.

Otha Smith, v. Marjorie Smith
01A01-9802-CH-00068
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Jim T. Hamilton

Following an in camera proceeding, the trial court declared the parties divorced, and awarded the real property at issue to the husband. The wife filed a Motion to Alter and Amend, which resulted in a new hearing, and a new decree whereby the real property was equally divided between the parties. The husband claimed on appeal that the trial court erred in re-opening the case after his initial decree. We affirm the trial court, but we amend its final order to make sure there is no doubt that the parties have been legally divorced.

State of Tennessee vs. Terry Dean Sneed
03C01-9702-CR-00076
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Arden L. Hill

The Defendant, Terry Dean Sneed, appeals as of right from a Unicoi County jury verdict convicting him of aggravated robbery, aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated rape.1 The trial court sentenced him to a total of one hundred and twenty-four ye ars; while the sentences for the rape convictions qualify as Range II, multiple offender, the other sentences are Range III, persistent offender. The Defendant appeals his
conviction. We affirm the judgment of the trial court.