John Poore vs. Sonya Poore
E2001-01250-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In this custody dispute, the Trial Court awarded custody of the children to the father who was not the biological parent of one of the children. We vacate the Judgment as to that child and remand with instructions to apply the correct analysis of the evidence as to the custody of the child.

Cathy Hall vs. City of Gatlinburg
E2001-01470-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Rex Henry Ogle
Cathy L. Hall ("Plaintiff"), was attending a convention at the convention center of the City of Gatlinburg ("Defendant"), when she fell and sustained physical injury. Plaintiff fell in one of two separate areas just mopped by Defendant's employee. After the parties submitted proof at trial, the Trial Court found Defendant negligent. The Trial Court allocated 80% fault to Defendant and 20% fault to Plaintiff. In addition to Plaintiff's compensatory damages, the Trial Court awarded damages for loss of consortium to Plaintiff's husband, Eddie Lee Hall ("Husband"). Defendant appeals, as do Plaintiff and Husband. We affirm.

Verna Jordan vs. Ronnie Jordan, et al
E2001-00005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jeffrey F. Stewart
This dispute involves a claimed oral trust regarding a portion of a 5.42 acre parcel of property ("Property"). Verna Jordan ("Plaintiff"), filed a Complaint against her son and daughter-in-law, Ronnie H. Jordan and Nancy Jordan ("Defendants"), claiming Defendants held a portion of the Property in trust for her benefit. Plaintiff alleged Defendants failed to give her a deed for a portion of the Property when Defendants, as trustees, should have conveyed the parcel under the terms of the oral trust. The Trial Court held an oral trust existed and ordered Defendants to give Plaintiff a deed for her portion of the Property. Defendants appeal. We affirm.

Billy Lattimer v. Dept of Correction
M2000-03126-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner filed a lawsuit against the Department of Correction and some of its employees, claiming that the employees had confiscated and destroyed his photo albums, and that their actions amounted to an unconstitutional deprivation of his due process rights. The trial court dismissed the suit without prejudice, ruling that the prisoner had only stated a claim for ordinary negligence against the State, and thus that the only forum available to him was the Tennessee Claims Commission. We reverse in part and affirm in part.

Daniel B. Taylor v. Donal Campbell
M2001-00479-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a dispute between a prisoner and the Department of Correction regarding the prisoner's sentence credits. After his request for a declaratory order was denied, the prisoner filed suit in the Chancery Court for Davidson County against the Commissioner of Correction and others seeking a declaration that the Department had miscalculated his sentence and had erroneously refused to classify him as a Range I especially mitigated offender. The trial court granted the Department's motion for summary judgment and dismissed the petition. We concur with the trial court's conclusion that the Department is entitled to a judgment as a matter of law and, accordingly, affirm the summary judgment.

Regina Ann Thompson v. Vivra Renal Care, Inc.
W2000-03017-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: William Michael Maloan, 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. Although the only issue at trial was the extent of the employee's permanent disability, the employer contends in this appeal the evidence preponderates against the trial court's findings as to causation and permanency. The panel has agreed to address the issues on appeal and, as discussed below, 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 ROBERT L. CHILDERS, SP. J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Vivra Renal Care, Inc. Mary Dee Allen, Cookeville, Tennessee, and George L. Morrison, III, Jackson, Tennessee, for the appellee, Regina Ann Thompson MEMORANDUM OPINION The employee or claimant, Regina Ann Thompson, is a licensed practical nurse. She began working for the employer, Vivra Renal Care around September 1995 in its dialysis clinic. She is also trained in the care of HIV positive and hepatitis patients. Approximately two years after beginning work for the employer, she was required to perform a treatment on an HIV positive, hepatitis infected patient. She followed the usual precautions of donning two pairs of gloves, two pairs of shoes, a coat and a cap, then began the treatment in a room secluded from other patients. After she removed the needle from the patient, the patient made an unexpected move and the claimant accidentally stuck herself in the thumb with the dirty needle. Although tests conducted soon after the accident reflected no evidence of infection, she received a notice from the Obion County Health Department that a letter from the Shelby County Health Department indicated that she was HIV positive. She later learned that the letter was intended for someone else with the same or similar name and that she was not infected. The tests had been conducted in Shelby County. She was given literature to read and advised of organizations available to her as her disease progressed. She became anxious about her condition and her family and other personal relationships suffered. Her attorney referred the claimant to Dr. Elias King Bond, a psychiatrist, who established both medical causation and permanency. The record contains no countervailing medical or lay proof. At the time of the trial the claimant was taking prescription antidepressant medication. She is now working for a different employer but becomes squeamish at the sight of blood and in the use of needles. The trial court awarded, inter alia, permanent partial disability benefits based on 15 percent to the body as a whole. 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 employer argues that the mental injuries are compensable only if they can be traced to an identifiable, stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, citing Batson v. Cigna Property and Cas. Co., 874 S.W.2d 566, 569 (Tenn. 1994). However, mental and nervous illnesses are also compensable when causally connected to a work-related accident. Gentry v. Dupont, 733 S.W.2d 71, 73 (Tenn. 1987). The employer argues that Dr. Bond's report does not establish permanency. From our independent examination of Dr. Bond's report, we disagree. For the above reasons and because the evidence fails to preponderate against the findings of the trial court, the judgment is affirmed. Costs are taxed to the appellant. -2-

David Prater v. Mayfield Dairy Farms, Inc.
E2000-03030-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Jerri S. Bryant, Chancellor
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 9 percent vocationally disabled. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Bert Bates, Cleveland, Tennessee for the appellant, David Prater. Kent T. Jones, Chattanooga, Tennessee for the appellee, Mayfield Dairy Farms, Inc. MEMORANDUM OPINION 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 plaintiff, age forty at the time of trial, is married with two minor children. He has a high school education and graduated from a two-year vocational program in auto mechanics. His work history consists of work in a service station, in a machine shop, as a local delivery truck driver and in a factory. The plaintiff began working for the defendant sometime in October of 1995. While employed with the defendant, the plaintiff also worked as a part-time police officer for the City of Niota and as a reserve officer for the McMinn County Sheriff's Department. On December 1, 1998, the plaintiff was nearing the end of his shift and was performing trash detail duties when he injured his back. The plaintiff was lifting 2 to 5 pounds of cardboard boxes at a time and placing them in a baler. He bent over to lift some boxes into the baler, experienced "excruciating pain" and blacked out. He was taken to the hospital by ambulance and kept overnight for treatment. An MRI revealed a ruptured disc, which was subsequently treated with surgery. After surgery, the plaintiff continued to experience disabling pain in his back and leg. Despite extensive treatment for his work-related injury, the plaintiff has not been able to return to work. A post-surgical MRI revealed inoperable scarring at the surgical site. A Functional Capacity Evaluation was performed on February 23, 1999; it showed the plaintiff capable of performing sedentary work. A later Functional Capacity Evaluation performed by the same examiner showed the plaintiff incapable of even sedentary work as defined by the United States Department of Labor. The trial court found the plaintiff suffered a work-related injury resulting in a medical impairment of 25 percent to the body as a whole and further found the plaintiff sustained a 9 percent permanent partial disability. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Medical Evidence Dr. Robert E. Finelli first saw the plaintiff on December 7, 1998, on referral from the physician who treated the plaintiff's work-related injury at the hospital. Dr. Finelli reviewed the plaintiff's MRI, which showed a very large extruded disc at the L-5, S-1 level on the left side. Dr. Finelli also noted the plaintiff had weakness and a positive straight leg raise. Surgery was recommended, and Dr. Finelli advised the plaintiff about the risk of pain syndrome as a post-surgical complication whenever weakness is present pre-operatively. On December 21, 1998, Dr. Finelli performed a laminectomy and removed a large free fragment of disc material that was compressing the nerve root on the plaintiff's left side. When the plaintiff's condition failed to improve after surgery, Dr. Finelli referred the plaintiff to a pain management specialist. Dr. Finelli referred the plaintiff for the February 23, 1999, Functional Capacity Evaluation, which showed the plaintiff capable of sedentary work; he then assigned the plaintiff a 12 percent whole body impairment rating. Dr. Finelli stated in his deposition testimony that he traditionally adopts the findings of the Functional Capacity Evaluation. Dr. Finelli last saw the plaintiff in March of 1999. He was no longer treating the plaintiff when the second Functional Capacity Evaluation, which showed the plaintiff incapable of even sedentary work, was performed. Dr. Finelli was made -2-

Firefly Industries, Inc. v. Rhonda Sexton
E2001-00132-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Conrad Troutman, Jr., Circuit Judge
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 court awarded the employee 25 percent disability to the body as a whole. The employee has appealed insisting the award is inadequate and should be much higher. The employer argues certain medical expenses were unauthorized and that the incident in question caused no vocational disability. Judgment of the trial court is affirmed as to the award of disability and modified as to the allowance of medical expenses. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Modified and Affirmed THAYER, SP. J., in which ANDERSON, J. and BYERS, SR. J., joined. Charles B. Sexton, Oneida, Tennessee, for the Appellant, Rhonda Sexton. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellee, Firefly Industries, Inc. OPINION In this case the trial court awarded the employee, Rhonda Sexton, 25 percent permanent partial disability to the body as a whole. Being dissatisfied with the amount of the award, the employee has appealed. Basic Facts The record indicates the employee was 49 years of age and lacked one and one- half credits in graduating from high school. She never obtained a G.E.D. certificate but has some vocational training in a basic computer course. She was a licensed cosmetologist and had 15 years experience in this type of work. She had some training and experience as an insurance sales agent and five years experience (part-time) as a school bus driver. During her employment career, she had 15 years experience in secretarial work. At the time in question, January 13, 1998, she was employed as a secretary with Firefly Industries, Inc., a company involved in metal fabrication. On this day she was asked to go down in the plant and work with a box of metal parts. She testified the box of parts weighed about 4-5 pounds and as she attempted to pull it off the table to move the box, she said the box started to fall and she felt a pop in her back with pain running down her buttock and left leg. She called for help and supervisor Gloria Adkins came over and assisted her. She told Adkins she had hurt herself but did not need medical treatment. On January 2, she decided she had better go see a doctor and went to Dr. D. Bruce Coffey, a family practice physician, who treated her with medicine and therapy and then after a period of time referred her to several other doctors. She eventually returned to work during March 1998 but only worked a light duty job for about 1 days. As to her physical condition prior to the incident in question, she told the court she had neck and shoulder pain that had been diagnosed as fibromyalgia; she suffered from endometriosis which caused some back pain; she had upper back pain for which she took pain medication; and she had suffered from depression. She also testified she had hurt her back at work during June 1997 while lifting but never mentioned the event to her employer. Medical records (Exhibit #3) from a doctor's clinic indicate chronic back pain dating back to late 1996. At the trial she stated she could not do housework or walk very far; that because of the pain she could not really do any type work and had not looked for work. She said she was very depressed and had gained 3-4 pounds since the accident. Gloria Adkins, a supervisor in the plant, testified that before the January 13 incident, she complained all the time about back pain and she quoted the employee as saying she hurt her back (1) at home scrubbing carport concrete, (2) at a family reunion, (3) vacuuming the office, and (4) moving stuff in the office. She said the box of metal parts weighed about 2-3 pounds and that the box did not start to fall but was still resting part on and part off the table when she took it from her. Adkins also testified that before the incident the employee said she was taking six different kinds of medicine for various problems. Lester S. Webster, Sr., part owner and president of the company, testified she told him shortly after the incident she had hurt her back but she did not need to see a doctor. The incident was not reported to the workers' compensation carrier as an injury. He stated the first he realized she was claiming any injury was when one of the doctors called his office several weeks thereafter. He said she had a lot of complaints about back pain before the incident and she said she was taking six different kinds of medicine. Mr. Webster also told the court that when she stopped working she -2-

Jerry L. Luster v. B. Campbell Smoot
M2000-02191-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Lee Russell
A prisoner filed a civil rights intimidation suit against a public defender who uttered a racial slur during a recess in the plaintiff's criminal trial. The trial court granted summary judgment to the public defender. We affirm.

Roger Thomas v. Gail Thomas
M2001-01226-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton

Roger Thomas v. Gail Thomas
M2001-01226-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton

Susan Whiton vs. Alan Whiton
E2003-01279-COA-RM-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II
Upon appeal to the Supreme Court, it reversed our determination that the guidelines promulgated with regard to child support were unconstitutional and remanded the case to this Court for reconsideration in light of the recently-released opinion in Gallaher v. Elam, S.W.3d 2003 WL 2010731 (Tenn. May 2, 2003).f

Susan Whiton vs. Alan Whiton
E2000-00467-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II

Bd. of Commissioners of Roane County vs. Joe Parker
E2001-00146-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Frank V. Williams, III
The Plaintiffs acquired a nine-acre tract of land zoned A-1, the General Agricultural District, which was the least restrictive zoning district in Roane County, and soon announced their intention to house a tiger thereon, a permissible use, which motivated the County to amend its Regional Zoning Ordinance by creating a new zoning district, A-2, with the permissible use declared to be the keeping thereon of exotic animals. Within three years the Plaintiffs had fifty or more exotic [Class I] animals on their nine-acre tract. They acquired three additional tracts which they requested be rezoned A-2 in order to expand their exotic animal sanctuary. Rezoning was refused and the Plaintiffs filed suit alleging the refusal was arbitrary and capricious; the County filed suit, seeking to enjoin the Plaintiffs from keeping more than one exotic animal

Dept.of Children's Svcs vs. LaShondra Whaley
E2001-00765-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: C. Van Deacon
This appeal from the Juvenile Court of Bradley County questions whether the Trial Court erred in terminating the parental rights of Ms. Whaley. We reverse the judgment of the Trial Court.

City of Knoxville vs. The Clinch Locust Garage
E2001-00297-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The Trial Court established the respective interests of owners and lessees in sums received in an Eminent Domain Case. On appeal, we affirm.

Leon Williams General Contractor, Inc. vs. Hugh Hyatt
E2001-00434-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Sharon J. Bell
In this consolidated appeal Leon Williams General Contractor, Inc., and Leon Williams, individually and d/b/a Old World Cabinets appeal orders denying their demands for arbitration. We reverse the order of the Chancery Court denying the demand for arbitration filed by Leon Williams General Contractor, Inc. and affirm the order of the Circuit Court denying the demand for arbitration filed by Leon Williams, individually and d/b/a Old World Cabinets.

Stan Mosley vs. Carrie Mosley
E2001-01006-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jean A. Stanley
In this divorce case, the husband appealed the classification and division of the parties' marital property and the basis for awarding child support. We affirm the Trial Court's Judgment, as modified.

Stuart Lowenkron vs. Laura Lowenkron
E2001-00957-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Thomas R. Frierson, II
The spousal support obligation of the appellant was suspended during his disability, but was ordered to resume when he returned to the practice of medicine. He disfavors the requirement that he must resume alimony payments when he returns to employment. Judgment affirmed.

Susan Whiton vs. Alan Whiton
E2000-00467-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben W. Hooper, II

Mary Henry vs. Obstertrics and Gynecology Consultants
E2001-01246-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman

Mary Henry vs. Obstertrics and Gynecology Consultants
E2001-01246-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman

State v. John R. Farner, Jr.
E1999-00491-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: R. Jerry Beck
The primary issue presented in this appeal is whether Tennessee law recognizes a co-perpetrator rule which bars the defendant's convictions for criminally negligent homicide on the basis that the victims were co-participants in the drag race. After fully and carefully considering the record in this case in light of the relevant authorities, we conclude that no rule of Tennessee law bars the defendant's convictions for criminally negligent homicide as a matter of law. We hold that causation in criminal cases generally is a question of fact for a properly instructed jury, that a victim's contributory negligence is not a complete defense but may be considered in determining whether or not the defendant's conduct was a proximate cause of death, and that a jury's determination of the causation issue will be reviewed on appeal under the familiar sufficiency of the evidence standard and not disturbed so long as the evidence is sufficient to support the jury's determination. Because the trial court in this case failed to provide the jury with an instruction on proximate causation, an essential element of the offense, and because the jury was erroneously provided an instruction as to criminal responsibility, a theory that the State now concedes is inapplicable, the defendant's convictions for criminally negligent homicide must be reversed.

Guy Wilson, et al. v. Thompson Const. Co., et al.
M2000-03200-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: C. L. Rogers
This is a suit by Guy Wilson and his wife Rhessa, owners of a building in Gallatin, Tennessee, against their general contractor in the construction of an addition to the building and against their electrical subcontractor. The complaint charges negligence in the use of a defective fiberglass ladder that broke as Guy Wilson was climbing on it to inspect the work. The trial court held that the general contractor, Thompson Construction Company, had breached no duty of care to Plaintiffs and that the electrical contractor, Gary R. Boyd, was an independent contractor for whose alleged negligence Thompson Construction Company was not vicariously liable. On such basis, the trial court granted summary judgment to Thompson Construction Company on all issues and, pursuant to Tennessee Rules of Civil Procedure 54.02, entered final judgment on all issues in favor of Thompson Construction Company. Plaintiffs appeal, and we affirm the trial court.

Anthony Myers, et al. v. Allen Bryan, III
M2000-03188-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Russell Heldman
This case originated as a suit against a subdivision developer, W. Allen Bryan, III, ("Bryan"), for fraud, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act, all predicated on the failure of a subdivision plat plan to reflect an existing drainage easement. Thereafter, Bryan filed a third-party complaint seeking indemnification from the surveyor who prepared the plat plan, Ragan-Smith, Associates, Inc. ("Ragan-Smith"), in the event Bryan was cast in judgment. On this Tenn. R. App. P. 54.02 appeal, we are presented with the issue of whether Bryan's cause of action for failure to reflect the drainage easement on the plat plan is barred by the four-year statute of repose for surveying errors. The court below granted Ragan-Smith summary judgment, finding that Bryan's claim is barred by the aforesaid statute of repose. Bryan appeals, arguing that Ragan-Smith is not entitled to summary judgment because, according to Bryan, the omission of the drainage easement is an engineering error, not a surveying error, and hence, so the argument goes, the subject claim is not barred by the four-year statute of repose for surveying errors. In the alternative, Bryan argues that even if the failure to reflect the drainage easement on the plat plan is a surveying error, his third-party complaint was timely filed. We affirm.