Kerry Garland v. Jim Bonner and d/b/a EZA Aqua Glass Pools; Ken Hopkins and Pam Hopkins v. Jim Bonner and d/b/a EZA Aqua Glass Pools - Concurring
01A01-9710-CV-00570
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge William B. Cain

This is an appeal of two cases consolidated for trial. Both cases originated in the General Sessions Court of Maury County, Tennessee and are styled as follows:

Ken Hopkins and wife Pam Hopkins,
Plaintiffs,
vs.
Jim Bonner, Individually and d/b/a
EZA Aquaglass Pools,
Defendant.
___________________________________
Kerry Garland,
Plaintiff,
vs.
Jim Bonner, individually and d/b/a
EZA Aquaglass Pools,
Defendant.

State of Tennessee vs. Bonnie Stillwell
03C01-9610-CC-00366
Authoring Judge: Judge William M. Barker
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The appellant, Bonnie Stillwell, appeals as of right the Blount County Circuit Court’s order to revoke her probation. She contends that the trial court’s order was improper in light of her efforts to comply with the terms of probation. After a review of the record, we affirm the judgment of the trial court.

Rovene Lowe, v. Winnie Sue Sanders Cannon and husband, Robert Cannon
02A01-9707-CH-00147
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor John Walton West

This is a suit to establish a resulting trust and to recover for the breach thereof. Plaintiff/Appellee Rovene Lowe (Lowe) brought suit alleging a resulting trust and seeking damages arising from an alleged breach by Defendants/Appellants Winnie Sue Sanders Cannon  (Mrs. Cannon) and Robert Cannon (Mr. Cannon).  Charles Sanders died in 1990. The trial court found that Lowe had proven the existence of a resulting trust and that the Cannons had breached the trust. Consequently, the trial court awarded Lowe $15,840 in damages. The Cannons appeal.

State of Tennessee vs. James Ray Bartlett
01C01-9509-CC-00302
Authoring Judge: Judge Gary R. Wade
Trial Court Judge: Judge W. Charles Lee

The defendant, James Ray Bartlett, was indicted for DUI, driving on a revoked license, five counts of reckless driving, resisting arrest, evading arrest and reckless endangerment. At the close of the state's proof, the trial court granted the defendant's motion for acquittal as to the charge of resisting arrest. The jury rendered guilty verdicts as to the remaining counts. After setting aside the conviction for reckless endangerment, the trial court sentenced the defendant to ten months for the DUI; four months and fifteen days for driving on a revoked license; five months for the reckless driving convictions, all of which were merged as one offense; and ten months for evading arrest. The transcript of the trial indicates sentences were ordered to be served consecutively for an effective sentence of twenty-nine months fifteen days with the minimum service at seventy-five percent. The judgment form indicates concurrent sentencing for all new convictions. The trial court revoked the defendant's community corrections sentence for prior convictions; these new  sentences were ordered to be served consecutively to the prior offenses according to the judgment form.

State of Tennessee vs. Mark Maybrey
01C01-9703-CC-00117
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. S. Daniel

The Rutherford County grand jury returned indictments charging the defendant, Mark F. Maybrey, with three (3) counts of telephone harassment. The defendant applied for pretrial diversion, which was denied by the District Attorney General. Defendant filed a petition for writ of certiorari in the Rutherford County Circuit Court, seeking to overturn the District Attorney’s denial of diversion. After a hearing, the trial court found that the District Attorney had not abused his discretion. Pursuant to Tenn. R. App. P. 9, defendant brings this interlocutory appeal, claiming the trial court erred in finding that the District Attorney General had not abused his discretion in denying diversion. We find no error; therefore, the judgment of the trial court is AFFIRMED.

State of Tennessee vs. Jesse C. Gudger, III
03C01-9703-CC-00107
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Jessee C. Gudger, III, appeals as of right from his conviction by a jury in the Sullivan County Circuit Court for robbery, a Class C felony. The defendant was sentenced as a Range I, standard offender to five years in the custody of the Department of Correction. The trial court ordered the defendant to serve his sentence consecutively to a sentence imposed in an unrelated case. The defendant contends that:

(1) the evidence is insufficient to support the conviction;
(2) the trial court erred by denying his motion to suppress a statement given to the police;
(3) the trial court erred by denying his special request to instruct the jury on voluntary intoxication; and
(4) the trial court erred by sentencing him to five years in the Department of Correction.

We disagree and affirm the trial court’s judgment of conviction.

Jacqueline S. Whiteside, v. Jerry Whiteside
03A01-9707-CV-00272
Authoring Judge: Senior Judge William H. Williams
Trial Court Judge: Judge Samuel H. Payne

This appeal is from the action by the trial court on a contempt citation by the Appellant, hereinafter “Wife,” and a Petition to Modify the original Divorce Decree and a motion under Rule 60, Tenn. R. Civ. P., brought by the Appellee, hereinafter “Husband.”

Jacqueline S. (Weibel) Brewer v. Joseph William Weibel, III - Concurring
02A01-9703-CH-00067
Authoring Judge: Judge Hewitt Tomlin
Trial Court Judge: Chancellor Neal Small

This is a post-divorce child custody suit. Joseph Weibel III (“father”) filed a petition in the Chancery Court of Shelby County against Jacqueline Brewer (“mother”) seeking to have custody of the parties’ minor child, Joseph Weibel IV, (“Joey”) changed from mother to father. Mother had primary  physical custody of the parties’ child pursuant to a consent order calling for joint custody. Following a hearing, the chancellor awarded father sole custody, with mother having extensive visitation. The court also ordered father to pay mother’s attorney fees and expenses in connection with the litigation. Mother has raised two issues by this appeal. First, whether the evidence preponderates against the finding of the chancellor that it was in the best interest of the parties’ child to award custody to father. And  second, although father was directed to pay mother’s attorney fees and litigation expenses in connection with the trial below, mother as appellant herein raises the issue of whether the chancellor abused his discretion in directing father to pay mother’s attorney fees. For the reasons hereinafter stated, we affirm the award of custody to father and reverse the award of  attorney fees to mother.

Tipton County Department of Public Instruction, et al., v. Delashmit Electric Company, et al.
02A01-9704-CH-00084
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor John Hill Chisolm

This is a breach of contract case involving the enforcement of an arbitration clause. We find the arbitration clause applicable, reverse the judgment of the lower court, and remand the case for
arbitration.

In re: The Estate of Harold L. Jenkins, Hugh C. Carden and Donald W. Garis, as Co-Executors of the Harold L. Jenkins Estate, v. Joni L. Jenkins and Kathy L. Jenkins - Concurring
01A01-9709-CH-00500
Authoring Judge: Judge William C. Koch

I concur with the Court’s decision on the ground that the summaries of Harold L. Jenkins’s financial records indicate a lack of trustworthiness because of their method of compilation and their incompleteness.

Rebecca Fay Woods, Harry B. Woods, Jr. and Shirley Ann Woods, et. al. v. Harry B. Woods Plumbing Co., Inc., Harpeth Construction Co. and Travelers Insurance Co.
01S01-9606-CH-00124
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Irvin H. Gilcrease

We granted this workers' compensation appeal to address two issues: (1) whether the decedent's death arose out of and in the course of employment; and (2) whether the decedent was the initial aggressor; and if so, whether the aggressor doctrine precluded recovery. We find that the decedent's death arose out of and in the course of employment. As to the second issue, we hold the common law aggressor defense as it relates to workers' compensation claims under the Act is abolished in Tennessee and does not bar the decedent's recovery

Juanita Mitchell, Personal Representative of the Estate of Billy Mitchell v. Sam Cole, Jr., Substitute Trustee, Estate of Prudence Reynolds and Gerald W. Pickens, Administrator
02S01-9703-CH-00020
Authoring Judge: Justice Lyle Reid
Trial Court Judge: Special Chancellor Russell Fowler

This case presents for review the decision of the Court of Appeals that a debtor cannot collateraliy attack in state court an adjudication made in a Chapter 11 bankruptcy proceeding regarding the balance due on a deb owed by the debtor-bankrupt. The judgment of the Court of appeals is affirmed as modified.

Myra Jean McCorkle v. The County of Dyer Tennesseee
02A01-9701-CV-00020
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge J. Steven Stafford

This is a premises liability case under the Tennessee Governmental Tort Liability Act. The trial court granted summary judgment to the defendant governmental entity. We affirm.

Joseph Anthony Gannon and Gloria C. Gannon, et. al., v. Robert Koch and Deborah Koch, et. al.
01A01-9708-CH-00404
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Chancellor Alex W. Darnell

The defendants, Robert and Deborah Koch, have appealed from a non jury judgment that plaintiffs, Joseph and Gloria Gannon, have a private easement from their land across the land of
defendants for access to the public way.

Patty M. Richards v. O'Connor Management, Incorporated and Russ Hackett
01A01-9708-CV-00379
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff Patty M. Richards appeals the trial court’s order granting the motion for summary judgment filed by Defendants/Appellees O’Connor Management, Inc., and Russ Hackett.In entering summary judgment in favor of the Defendants, the trial court dismissed Richards’ claims for outrageous conduct and false imprisonment. We affirm in part, reverse in part, and remand for further proceedings.

Brian Keith Feather, v. Dolly Dekrafft Feather
01A01-9704-CH-00183
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Buddy D. Perry

This somewhat protracted litigation began in August 1993 when Brian Keith Feather (Husband) filed for divorce from Dolly deKrafft Feather (Wife). A divorce decree was entered by the chancery court in September 1994, which, inter alia, dissolved the fifteen year marriage of the parties and determined custody of their four minor children. Separate orders pertaining to the case were entered by the trial court in August and October, 1995, respectively. Both parties appealed therefrom, but this Court in April 1996, determined that the parties’ respective appeals were from a nonfinal judgment. Litigation thereafter continued due to the parties’ filings of various petitions for contempt, to rehear and to modify custody. After additional hearings, the trial court entered its final judgment in December 1996 from which both parties have appealed.1 The primary issues before us concern the trial court’s decisions regarding child custody and classification and division of the marital estate. For the reasons hereinafter stated, we affirm as modified.

James B. Oliver v. Harriet C. Upton, et. al.
01A01-9705-CH-00197
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Defendant Harriet C. Upton, now known as Harriet Cathey, appeals the trial court’s final judgment awarding Plaintiff/Appellee James B. Oliver the sum of $15,225.66, continuing in effect the lis pendens filed against the subject property pending Cathey’s satisfaction of the judgment, denying Cathey’s request for attorney’s fees, and assessing forty percent (40%) of the costs against Cathey. We affirm the judgment in part (with modifications), reverse in part, and remand for further proceedings.

Linda Lee Hollingsworth, v. James David Hollingsworth, Jr.
01A01-9706-CV-00252
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge Muriel Robinson

In this divorce case, the defendant-counter claimant husband has appealed from the judgment of the Trial Court dismissing the husband’s counterclaim; granting the wife a divorce on grounds of inappropriate marital conduct, $750 per month alimony until her death or remarriage, and $10,000.00 attorneys fees; and dividing the marital estate.

Pamela K. Cole v. Baptist Hospital of Cocke County, Inc.
03S01-9701-CV-00015
Authoring Judge: Special Judge Irvin H. Kilcrease, Jr.
Trial Court Judge: Hon. Ben W. Hooper, Ii,
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. _________________________________ Irvin H. Kilcrease, Jr., Special Judge CONCUR: ________________________________ John K. Byers, Senior Judge ________________________________ Adolpho A. Birch, Jr., Justice 2

Fannie B. Carter v. National Health Care Center, et al.
01S01-9704-CH-00093
Authoring Judge: Hamilton
Trial Court Judge: Hon. F. Lee Russell
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 of fact and conclusions of law. In this two-sided appeal, the plaintiff contends that the trial court erred in denying the recovery of incurred medical expenses; the defendant contends the trial court erred in granting the plaintiff temporary total benefits and permanent partial disability benefits. The focus of this dispute is plaintiff's employment application wherein, the defendant contends it was not correctly filled out by the plaintiff, and was materially misleading, and therefore the plaintiff is estopped from claiming benefits. In accordance with T.C.A. _ 56-225(e), the standard of review in this case is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings. It is the plaintiff's burden to show by the preponderance of the evidence that the evidence is otherwise in relation to the trial court's denial of medical benefits; likewise, it is the burden of the defendant to show that the court erred in granting the Plaintiff both temporary total benefits and permanent partial benefits. The panel concludes that the trial court's judgment approving temporary total benefits and permanent partial benefits was correct and should be affirmed. The panel, however, reverses the trial court in the denial of the medical benefits of two of plaintiff's treating physicians. Plaintiff, age 62 at the time of the trial and a divorced mother of six children has an eighth grade education and vocational training as a nurse's aide. Her first employment was domestic work in the homes of the other people and later in commercial pressing. Subsequently, the plaintiff worked for Genesco where she built and inspected shoes. During her employment with Genesco, plaintiff injured her neck and left her employment there. As a result of this injury at Genesco, plaintiff underwent surgery by Dr. Arthur Cushman for a ruptured disc. At the trial plaintiff testified that Genesco had told her she did not qualify for workman's compensation benefits. Later, however, plaintiff acknowledged that she hired an attorney and brought suit against Genesco for workman's compensation benefits. She was successful in obtaining benefits. 2

Christopher v. Sockwell
02S01-9705-CV-00047
Authoring Judge: Hewitt P. Tomlin, Jr., Senior Judge
Trial Court Judge: Hon. D'Army Bailey
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with T.C.A. _ 5-6-225(e)(3) for hearing and reporting of findings fact and conclusions of law. In this appeal, the employer, Witco Chemical Company and Witco Corporation ("defendant"), self insured, contends that the evidence preponderates against the trial court's award of eighty percent (8%) vocational disability to plaintiff, Alfred Edwards, computed at two and a half times the anatomical impairment rating of plaintiff's physician of thirty-two percent (32%). For the reasons set forth below, we affirm the judgment of the trial court as modified. Plaintiff, forty-nine years old at time of trial, had been an employee of defendant for 18 years. He had been performing the same job for defendant for almost 17 years. There is nothing in the record as to plaintiff's prior employment. Basically, plaintiff's job at defendant's plant entailed transferring hot oil from one processing vessel to another. As part of his normal routine, he was required to open and close several valves. Some valves operated by turning a round handle, others by pulling on sections of chain that would open and close a particular valve. In May, 1995, while in the process of transferring hot oil from one tank to another, hot oil bubbled up and splashed onto plaintiff's body. Plaintiff received severe burns on his arms, back, and abdomen, along with a small spot in front of his right ear. He required skin grafts to areas of his right arm and the right side of his stomach. The rest of his burns healed without requiring surgery. Plaintiff was treated by Dr. William Hickerson, a plastic surgeon, at the local burn center. Plaintiff was off work for approximately seven months. At the time of his deposition in November 1996, Dr. Hickerson testified that he was currently treating plaintiff for persistent healing problems and that in all likelihood plaintiff would need to undergo more

Deborah Ellis v. Nat'L. Union Ins. and Sue Ann Head
03S01-9705-CH-00051
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Earl H. Henley,
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's insurer and the Second Injury Fund contend the evidence preponderates against the trial court's finding that the employee's asthma is compensable; and the employer's insurer contends the condition is not permanent. As discussed below, the panel concludes the judgment should be affirmed. At the time of the trial, the employee or claimant, Debra Ellis, was 44 years old. She has a high school education and some office and computer training, but has never done office work. She began working for National Union's insured, F. L. Industries, in 1971. Before that, she had worked for short periods of time as a cashier in a grocery store, as a sewing machine operator and in a beauty shop. She has worked for the employer as a packer and loader of electrical connectors and outlets. She ran a machine called an autobagger in the employer's Focus department when she became disabled to work because of asthma. The claimant was in good health when she began working for the employer at the age of 19, except for some upper respiratory problems from allergies during the spring and fall of the year. Since then, she has had pneumonia three times and two back injuries. She has received prior workers' compensation awards totaling eighty-eight and one-half percent to the body as a whole, but had returned to work following those illnesses and injuries without any respiratory restrictions. On April 11, 199, the claimant developed facial redness and swelling at work. Her symptoms disappeared and she returned to work the next day, but her symptoms returned after she began working. When her symptoms worsened to the point where one of her eyes swelled nearly shut and she felt as if she were sunburned, she was referred by the company nurse to a doctor, who hospitalized her. 2

Steven Cobb v. Joseph Vinson, Chairman LCRCF Disciplinary Board, et al. - Separately Concurring
02A01-9707-CV-00144
Authoring Judge: Judge Holly Kirby Lillard

I agree with the majority’s analysis in this case. However, I concur separately to emphasize
that our review, under either the common law writ of certiorari or the statutory writ, should be
limited to hearing the petitioner’s claims regarding “the illegality of acts taken by the disciplinary
board.” Williams v. Tennessee Dept. of Correction, No. 02A01-9503-CV-00046 1995 WL 575142
(Tenn. App. Oct. 2 1995). Even if the requirements of a statutory writ of certiorari are met, our
review should not include the substance of the disciplinary proceeding, i.e. whether the petitioner
actually committed the acts with which he was charged.
 

State vs. Richard McKee
01C01-9606-CC-00278
Trial Court Judge: Leonard W. Martin

State vs. Elizabeth Ortiz
01C01-9607-CC-00284