Kurt Seraphine v. Aqua Bath
M2000-02662-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Claudia C. Bonnyman
This is an appeal from the grant of Appellees' motion for summary judgment. Appellant, a former employee of Appellee company, brought various claims against the company, and the company's top executives. Against the company, Appellant sought damages and specific performance based on an alleged breach of a stock option agreement and damages for breach of the implied duty of good faith and fair dealing. Against the individual defendants, Appellant sued on claims of statutory and common law inducement to breach. Appellees counterclaimed for a declaratory judgment that Appellant had no option to purchase shares in the company because the option expired when his employment terminated. Summary judgment was granted on Appellees' declaratory judgment claim and Appellant's claims were dismissed. We reverse the trial court's holding that the stock option expired with termination of employment, but find Appellant has not demonstrated a breach of the stock option agreement or his right to any remedy thereunder. We affirm the trial court's grant of summary judgment on the breach of duty of good faith and intentional interference claims.

Thomas Roache vs. Justine Bourisaw
M2000-02651-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
This case involves a non-custodial parent's petition for change of custody. The original marital dissolution agreement granted the mother full custody of the child and the father alternate weekends and holidays and two weeks each summer. The mother later moved to Missouri, and the parties adjusted visitation accordingly. Later, the father filed and was granted a contempt motion due to the mother's failure to allow him to see the child. He subsequently filed a motion for change of custody which was also granted. The court found that the circumstances warranted the change of custody. The mother appeals. We affirm the trial court's change of custody.

Raymond Workman, et ux v. Wal-Mart Stores East, Inc.
M2001-00664-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: Robert L. Holloway
This is an appeal by Wal-Mart, Inc., from a jury verdict and a judgment totaling $30,000 in favor of Raymond D. Workman and Nola Ann Workman, for damages caused by a slip and fall Mr. Workman suffered at Wal-Mart's store. Wal-Mart, Inc. has appealed this judgment insisting that the trial court erred by not setting aside the jury verdict and directing a verdict in their favor, or not granting a new trial. For the reasons stated in this opinion, we affirm the trial court's decision and remand the case.

City of Lebanon vs. Raymond Harris
M1999-01025-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Clara W. Byrd
This case involves the zoning and sign ordinances of Lebanon, Tennessee. Mr. Harris had placed small outdoor insulated metal storage buildings at several properties within the city of Lebanon. The buildings had on the sides information advertising his company and a phone number to contact him for information to buy or rent one of these buildings. He was fined for violations of the City of Lebanon ordinance allowing only one principal building and its customary accessory buildings on a lot and for violation of the sign ordinance. The circuit court reversed the city court's fines and held that the buildings were not principal buildings and that they were not portable signs. For the reasons below, we affirm the circuit court's decision in part and reverse in part.

State of Tennessee v. Stephanie Renae Person
W2000-02859-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

A Madison County jury convicted the Defendant of misdemeanor theft of property, and the trial court sentenced her to eleven months and twenty-nine days of incarceration. The judgment of the trial court specified that the Defendant must serve seventy-five percent of the sentence prior to eligibility for work release, furlough, trusty status, and rehabilitative programs. The Defendant now appeals, challenging both the sufficiency of the evidence and the sentence that was imposed. Finding that the evidence was sufficient to support the conviction and that the sentence was properly imposed, we affirm the judgment of the trial court.

State of Tennessee v. Terry Jerome Thomas
E2001-00431-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Douglas A. Meyer

Following a trial, a Hamilton County jury convicted the defendant of rape, and the trial court sentenced him to ten years imprisonment. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction, and (2) his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Timothy Clark Newson
E2001-00974-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Timothy Clark Newson, appeals from his conviction for aggravated kidnapping, contesting the sufficiency of the evidence. We affirm the judgment of conviction.

Carrier of G.Ub.M K. Constru Ctors v. Bobb Y E. Stil Es v. Jim
E2000-01092-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: W. Dale Young, Circuit Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employee appeals an award of twenty percent permanent partial disability as inadequate. We modify the award. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Modified and Remanded. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. J. Bartlett Quinn, Chattanooga, Tennessee, for the Appellant Bobby E. Stiles E. Blaine Sprouse, Nashville, Tennessee, for the Appellee Jim Farmer, Director of Division of Worker's Compensation, Tennessee Department of Labor. MEMORANDUM OPINION 1 FACTS Plaintiff Argonaut Insurance Company (Argonaut) brought this declaratory judgment action against Defendant Bobby E. Stiles (Stiles) to determine its liability to Stiles under the Tennessee Workers' Compensation Act for a May 1998 injury. Argonaut is the workers' compensation insurer for G.UB.MK Constructors. Stiles then filed a counter-complaint against Argonaut and Jim Farmer, Director of the Division of Workers' Compensation, Tennessee Department of Labor (Second Injury Fund). Stiles was born January 1, 1941 and attended elementary school through the fifth grade. His work history consists of numerous positions as an unskilled manual laborer. In 198, Stiles was injured while working as a miner. Due to this injury, Stiles filed a workers' compensation action, which was settled with Stiles receiving an award of 9.9 percent disability to the body as a whole. On December 2, 1999, this case came to trial before the Circuit Court for Blount County. The trial consisted of the testimony of three witnesses, Stiles, Ms. Dorothy Edwards1, a vocational expert, and Lester F. Littell, III, M.D., Stiles' authorized treating physician, who testified by deposition. Stiles testified that besides the 198 and 1998 injuries, he also suffered a 1995 injury to his lower back which required surgery. He testified that although the 1995 injury was work-related, he did not notify Argonaut or G.UB.MK of this injury. In describing the effects of the 1998 injury, Stiles testified that he suffers from neck pain, headaches, and numbness in his right arm and hand. Additionally, Stiles testified that these symptoms were not present before the 1998 injury. As an example of his changed circumstance, Stiles testified that mowing his yard with the assistance of a riding lawn mower used to take him less than two hours but now takes all day. His daughters do his housework, and he takes his meals with his daughters or his brother, who lives nearby. He stated he has trouble driving long distances _ 2 to 3 miles. This testimony was uncontroverted. Ms. Edwards testified that due to his age, education, and physical restrictions, Stiles was 1 percent vocationally disabled with no access to the labor market. She also testified that Stiles has no transferable job skills. No other expert evidence was offered on the issue of vocational disability. Dr. Littell assessed Stiles as having a 15 percent medical disability to the body as a whole resulting from the 1998 injury. Dr. Littell also testified that Stiles has the following permanent medical restrictions: 1) Able to sit for only 15 minutes at a time; 2) Able to stand/walk for only 2 minutes at a time; 1 Incorrectly identified as "Ms. Morris" in the trial judge's memorandum of March 15, 2, though this error was corrected in the Judgment entered April 28, 2. 2

Martha Fritts v. Bradley Healthcare and
E2000-00822-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Lawrence Puckett, Circuit Court Judge
This Workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employer appeals and contends the trial court erred (1) in granting an award because the employee failed to establish causation by medical proof, and (2) in accepting the independent medical examiner's impairment rating. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Bradley County Circuit Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Fred C. Stantum, III, Nashville, Tennessee, for the Appellant Bradley Healthcare & Rehabilitation M. Drew Robinson, Cleveland, Tennessee, for the Appellee Martha Fritts 1 MEMORANDUM OPINION Facts Martha Fritts, a certified nursing assistant, began caring for elderly patients in 1985 and has worked for Bradley Healthcare and Rehabilitation since 199. She testified that she injured her right shoulder on April 3, 1998 while attempting to move a patient. She was treated by Dr. Alan Clifton Odom, who performed arthroscopic surgery upon her right shoulder on December 17, 1998. Dr. Odom testified that she has permanent restrictions on lifting patients and will need assistance with pushing, pulling and lifting patients. Because Dr. Odom does not do impairment ratings, she was referred to Dr. McKinley Snipes Lundy for assignment of a permanent impairment rating. Dr. Lundy assigned a 14 percent permanent impairment to the body as a whole. She returned to work at her pre- injury rate of pay, and continues to perform the pre-injury duties, except she now has help changing patients. Standard of Review 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 courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Discussion Bradley Healthcare and Rehabilitation contends that the proof failed to establish a causal connection to the employment. Causation and permanency of a work injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987). Causation in this case is established through the deposition of McKinley Snipes Lundy, M.D., who wrote: "It is my opinion, based on a reasonable degree of medical certainty, utilizing the AMA Guides to Evaluation of Permanent Impairment, 4th ed. (American Medical Association, Chicago, IL, 1993), that Martha Fritts has 24% permanent impairment to the right upper extremity (which equates to 14% whole person permanent impairment) as a direct result of injuries sustained while performing duties working for her employer on May 1, 1998." (Depo. of Dr. Lundy, Ex. 2) Bradley Healthcare also contends the trial court erred in accepting the independent medical examiner's (Dr. Lundy) impairment rating because the majority of the impairment was based on loss of range of motion measurements which were contradicted by the treating 2

Donald Mon Son v. United Parcel Services, Inc., and James
E2000-00593-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Daryl R. Fansler, 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 of findings of fact and conclusions of law. The employer appeals the trial court award of sixty percent permanent vocational disability benefits. We affirm.

Billy Richard Keith v. Cincinnati Insurance Company,
M2000-02955-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Larry Ross, 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. _ 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer-appellant contends (1) the award of permanent partial disability benefits based on 30 percent to the body as a whole and 20 percent to the leg violates Tenn. Code Ann. _50-6-207(3)(C) and (2) the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole is excessive. As discussed below, the panel has concluded the separate awards to a scheduled member and the body as a whole should be vacated and the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole affirmed.

State of Tennessee v. Linda G. Robison
M2000-00192-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge L. Craig Johnson

The defendant, Linda G. Robison, appeals from the revocation of her probation. She contends that her probation expired before the revocation warrant issued, thereby divesting the trial court of the power to revoke her probation. We affirm the judgment of the trial court.

State of Tennessee v. Evelyn Elissa Duckett
E2000-02273-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant was indicted for robbery and convicted of misdemeanor theft, for which she was sentenced to eleven months and twenty-nine days, and payment of restitution, with the defendant to serve thirty percent of the sentence. She timely appealed, arguing that the entire sentence should have been probated. Based upon our review, we affirm the judgment of the trial court.

Roshaun Colbert v. State of Tennessee
E2001-00426-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Roshaun Colbert, appeals the trial court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that he pled guilty because his attorney guaranteed him that he would be released from prison after serving only five years of his twenty-year effective sentence. We affirm the trial court's denial of the petition.

Joseph Hough v. State of Tennessee
E2000-02653-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James E. Beckner

The petitioner's first post-conviction petition was dismissed in 1996, the petitioner, apparently, having been released from custody before the hearing and not appearing at the hearing to testify. Back in custody, at some point, he filed in 2000 a motion to reopen his petition, which was denied. He then filed an untimely appeal from that dismissal and proceeded, on appeal, as if the motion had been granted and the issues were those raised in his 1996 petition. Based upon our review, we conclude that the appeal should be dismissed because it was untimely.

State of Tennessee v. Derrick Bryant
E2000-01835-CCA-MR3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James Edward Beckner

The defendant, Derrick Bryant, was convicted of first degree premeditated murder. See Tenn. Code Ann. § 39-13-202(a)(1). The jury sentenced him to life imprisonment with the possibility of parole.  In this appeal of right, the defendant asserts that the trial court erred by (1)  failing to suppress his confession; (2) denying his last requested continuance; (3) accepting transfer of the case from the juvenile court; and (4) excluding evidence of the victim's reputation for violence. The judgment of the trial court is affirmed.

State of Tennessee v. Charles L. Debuty
E2000-03039-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant pled guilty in the Blount County Circuit Court to four charges of theft and one charge of automobile burglary. The court sentenced him to an aggregate sentence of four years, with seven months in jail, and the balance to be served on intensive probation. In this appeal as of right, the defendant argues that the trial court imposed an excessive amount of incarceration. After careful review of the record, we affirm the defendant's sentence but remand for entry of a corrected judgment in No. C-12607.

State of Tennessee v. John T. Blacksmith
M2000-02294-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Frank G. Clement, Jr.

The defendant, John Blacksmith, appeals his Davidson County Criminal Court jury conviction of second-offense driving while under the influence of an intoxicant (DUI). He claims (1) that the evidence was insufficient to support the jury's conclusion that, while intoxicated, he was in physical control of an operable motor vehicle and (2) that the trial court erred in refusing to grant a mistrial when a state's witness introduced inadmissible evidence that besmirched the defendant's character. We discern no reversible error and affirm the trial court's judgment.

State of Tennessee v. Robert Earl Johnson
M2000-01647-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Robert Earl Johnson, was convicted of first-degree murder and sentenced to life in prison without the possibility of parole. In this appeal, Defendant argues insufficiency of the evidence, improper investigative procedures by the police, errors by the trial court regarding admissibility of evidence and jury instructions, improper comments by the prosecutor during closing argument, sentencing errors, and ineffective assistance of counsel. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Randall Lloyd Hill
M2000-01731-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert E. Burch

On July 18, 1997, the Defendant, Randall Lloyd Hill, was convicted of one count of incest. After a sentencing hearing, the trial court imposed a sentence of five years to be served in the Department of Correction. In this appeal as of right, the Defendant argues that (1) his incest conviction subjected him to double jeopardy, (2) he was convicted solely on uncorroborated accomplice testimony, (3) the trial court erred in allowing inappropriate opinion testimony from a child abuse investigator, and (4) the Defendant was prejudiced by the prosecutor's improper comments regarding the Defendant's decision not to testify. Because we conclude that the prosecutor improperly commented on the Defendant's election not to testify, we reverse the Defendant's conviction and remand the case for a new trial.

Pero's Steak and Spaghetti House and Louis Inn, v. Elizabeth Jean Hinkle Lee and First American National Bank and First Tennessee Bank National Association
E2001-00254-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Dale C. Workman

Plaintiffs action against First Tennessee Bank National Association (“Bank”) was held to be time-barred by the Trial Judge pursuant to Tenn. Code Ann. §47-3-118. Plaintiffs have appealed to this Court.

State of Tennessee v. Carl F. Neer
E2000-02791-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Carl F. Neer, pleaded guilty in the Anderson County Criminal Court to a fourth-offense possession of marijuana, a Schedule VI controlled substance, and attempted to appeal a certified question of law. Because we are constrained to conclude that he has not properly presented his certified question, we dismiss the appeal.

Theresa Ann Sapp Staples v. Richard Charles Staples
M2000-02838-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge C. L. Rogers

This is a post-judgment domestic relations case. The principal alleged issue is whether a non-custodial parent may be judicially coerced to exercise visitation privileges. The appealed Order is not imperative and the asserted issue is not a genuine one. Because the judgment is marginally ambiguous we modify it to incorporate a measure of fairness.

Chuck Robertson v. Melvin G. George, et al.
M2000-02661-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This lawsuit arises out of a real estate contract. The plaintiff, Chuck Robertson, a residential home builder, contracted to purchase sixteen (16) lots from the defendant, Melvin George. After the parties entered into the contract, the plaintiff discovered that the official flood plain designation had been adjusted to include nine (9) of the lots the plaintiff contracted to purchase and filed suit on the theories of intentional misrepresentation, negligent misrepresentation, mutual mistake, unjust enrichment, and violation of the Tennessee Consumer Protection Act. The defendants filed a counter-complaint for breach of contract. The parties filed cross-motions for summary judgment. The trial court dismissed the plaintiff's action holding that the mistake was a mistake of law. We affirm in part, reverse in part, and remand.

Brenda Jane (Thompson) Turnbo v. Joe LarryTurnbo
M2000-02415-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Stella L. Hargrove

A divorce judgment rendered June 5, 1992 required the appellant to pay, inter alia, the sum of $185,000 to his wife "as a fair and equitable division of the marital property." The appellant elected recalcitrance rather than compliance, and failed to pay. He was found in civil contempt in September 2000 and ordered to be confined until he purged himself of contempt. We affirm.