John Watson Little, et. al. and Leslie Earl Little, Executors for the Estate of Leslie H. Llittle, Deceased, . v. Michael Hogan, Jeff Payne et. al.
01A01-9707-CV-00291
Authoring Judge: Judge Henry F. Todd
Trial Court Judge: Judge Lee Russell

The captioned executors filed this suit to recover damages for the wrongful death of 88
year old Leslie H. Little, deceased, who lost his life in a motor vehicle collision at the
intersection of North Main Street and Colloredo Boulevard in Shelbyville, Bedford County,
Tennessee. Movement of traffic through the intersection was controlled by the multicolored
lights of an ordinary traffic control signal.
Several

George Stinson, Edward D. Lewis, and Gelsco of Tennessee, Inc., v. 138 Fifth Avenue South, et. al. and Metro Development and Housing Authority - Concurring
01A01-9702-CV-00060
Authoring Judge: Judge Ben H. Cantrell

I concur in the conclusion that paragraph 17 of the lease was not triggered by the sale from the lessors to MDHA. I am also of the opinion that the critical sentence beginning with “All damages awarded for such taking . . .” refers to a partial taking, because the damages are described later in the sentence as “compensation for diminution in value to the leasehold or to the fee of the property herein leased.” A taking of the whole would not diminish the value of the leasehold or the fee; it would extinguish the leasehold and the fee and replace them with a monetary award.

William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
Authoring Judge: Wil V. Doran, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

Dept. of Children's Svcs. vs. Pamela Cox, et al
M1999-01598-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This case presents two issues. The first is whether proper notice was given to the mother of a dependent and neglected child to meet due process requirements and allow adjudication of her right to visitation and of the goal of the permanency plan for the child. The second issue is whether the evidence preponderated against the trial court's decision to change the goal of the permanency plan to termination of parental rights and terminate the mother's visitation. We affirm the circuit court on both issues finding no due process violation and more than adequate evidence to support the trial court's decision.

James Dortch, Sr. vs. Evonne Dortch
M1999-02053-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a dispute over the division of a marital estate following a seventeen-year marriage. Both parties sought a divorce in the Circuit Court for Davidson County. During a short bench trial, they stipulated that each of them had grounds for divorce but contested the classification, valuation, and division of their separate and marital property. The trial court declared the parties divorced and undertook to divide their marital estate equally. Both parties are dissatisfied with the division of the marital estate. The husband asserts that the trial court made a significant mathematical error in calculating the amount required to equalize the division. For her part, the wife asserts that the trial court misclassified items of separate property as marital property. We have determined that the trial court properly determined that the parties should receive equal shares of the net marital estate. However, we also find that the trial court misclassified a number of items of the wife's separate property and erroneously calculated the amount to be awarded to the wife to equalize the division of the marital estate. Accordingly, we have corrected the errors and affirm the judgment as modified herein.

James Ray vs. Thomas Richards
M2000-01808-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Hamilton V. Gayden, Jr.
Plaintiff filed a complaint against Defendant for personal injuries resulting from an alleged assault which occurred on October 20, 1998. The jury found for Defendant. Plaintiff appeals raising two issues: (1) Whether the trial court committed reversible error by admitting evidence of Plaintiff's character, reputation, conduct, and criminal records, and (2) whether the trial court erred in allowing the neighbor's petition describing Plaintiff as a public nuisance into evidence. We affirm the trial court.

Connie McGahey vs. James Wilson
M2000-01931-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Upon divorce, the parties entered into an agreement that provided the parties would retain ownership as the marital residence as tenants in common, but could not sell the property without mutual consent. Mrs. McGahey now desires to partition the property over her former husband's objection. The special master found that the contract provision barring partition was unenforceable. The chancellor found the provision enforceable but only for a reasonable period of time (sixteen years). Mr. Wilson now appeals the trial court's judgment ordering partition by sale. Resolution of this appeal requires us to examine the effect of a contract barring partition between tenants in common when no time limitation or purpose for the restriction against sale was stated in the agreement. We hold the contract provision to be unenforceable.

Recognized Ground of Equity. Chambers v. City of Chattanooga, 71 S.W.3D 281, 284 (Tenn. Ct. App.
M2006-02424-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Mccoy

Harpeth Valley Utilities Dist. of Davidson and Williamson Counties, v. The Metropolitan Government of Nashville and Davidson County - Concurring
01A01-9711-CH-00686
Authoring Judge: Judge William C. Koch, Jr.

We concur with the results of the presiding judge’s opinion because we believe that the holding of Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956) controls the outcome of this case. The Harpeth Valley Utility District has been operating since 1959 under the aegis of the Utilities Law of 1937 [Tenn. Code Ann. §§ 7-82-101, -804 (1992 & Supp. 1997)] providing water and sewerage disposal services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) (Supp. 1997); First
Suburban Util. Dist. v. McCanless, 177 Tenn. 128, 132-34, 146 S.W.2d 948, 950 (1941). Unless specifically provided otherwise, a city’s zoning power does not extend to state government instrumentalities located within its borders. See Davidson County v. Harmon, 200 Tenn. at 583-84, 292 S.W.2d at 780-81.

William Ware, Virginia Ware, and Summer Ware, et. al. v. Michael C. Green, Commissioner, State of Tennessee Department of Safety
01A01-9604-CH-00170
Trial Court Judge: Chancellor Robert S. Brandt

This appeal involves the forfeiture under the Tennessee Drug Control Act of $4,710.75 in cash, twenty-two pistols, rifles and shotguns, a video camera, silver bars, and assorted gold and silver coins during a search of a residence in Waynesboro. The Commissioner of Safety ordered the currency and personal property forfeited despite the family’s contention that an initial search of their home and property without a warrant was illegal. The family filed a petition for judicial review in the Chancery Court for Davidson County. The trial court found the personal property was lawfully seized after the officers obtained a search warrant and affirmed the forfeiture order. The family perfected this appeal. We have determined that there is substantial and material evidence to support the commissioner’s decision.

Linda Sue Pinkard v. Findlay Industries, Inc.
M2000-01320-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. _ 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 insists (1) the trial court's finding of permanent partial impairment or disability is contrary to the preponderance of the evidence, (2) the trial court erred in denying the employer's request for the appointment of a neutral physician, and (3) the award of permanent partial disability benefits on the basis of 6 percent to the body as a whole is excessive. 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 General Sessions Court of Warren County Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Patrick A. Ruth, Nashville, Tennessee, for the appellant, Findlay Industries, Inc. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Linda Sue Pinkard. MEMORANDUM OPINION At the time of the trial on March 17, 2, the employee or claimant, Linda Sue Pinkard, was 36 years old with a ninth grade education and no special skills or training. She did have experience as a production worker and was employed by Findlay, a sewing factory, for more than ten years. On November 24, 1998, while lifting material onto a table at work, she felt a sudden pull in her back. Later that night she felt numbness in her legs and tingling in her toes. She was sent to Riverpark Hospital for emergency care and presented with a panel of possible treating physicians, from whom she chose Dr. Robert Dimick, a neurosurgeon, in Nashville. Dr. Dimick released her after providing conservative care. Thereafter, she saw Dr. John Thompson on the recommendation of her attorney. Dr. Dimick diagnosed low back pain and spasm, degenerative disc disease, a protruded disc and stenosis, with mild to moderate pressure on the nerve roots. The doctor conceded the injuries could have been caused or aggravated by trauma at work. Without measuring her loss of motion or sensation, Dr. Dimick estimated her permanent impairment rating at zero percent. Dr. Thompson, an orthopedic surgeon in Sparta, opined that the claimant's injuries were work-related. He estimated her permanent impairment at 17 percent to the whole body and restricted her from lifting more than 2 pounds occasionally, 1 pounds frequently or 5 pounds repetitively. He prescribed standing no more than 3 minutes at a time or more than 5 minutes of each hour, no more than occasional bending, stooping, kneeling and no squatting, climbing, crouching, crawling or twisting. Dr. S. M. Smith, an orthopedic surgeon in Jamestown, saw the claimant for an independent medical examination and evaluation in July 1999. Dr. Smith diagnosed a ruptured disc at L5-S1. He estimated the claimant's permanent impairment at 19 percent to the whole body and prescribed permanent restrictions. The claimant's own testimony, supported by other lay proof, was that she could not work within her restrictions. She was unable to continue in a janitorial service job that she had held before her injury at Findlay. She did return to work for Findlay at a lower paying job in the parts room, but is concerned whether she would be able to find any work if she lost her job. Upon the above summarized evidence, the trial court found the claimant's permanent medical impairment to be 15 percent to the body and awarded permanent partial disability benefits based on 6 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, 177 (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, 451 (Tenn. 1999). The appellant contends the trial judge should have rejected Dr. Smith's opinion because his examination was conducted in the claimant's attorney's office and because Dr. Smith's opinion is -2-

State of Tennessee v. Earnest Cunningham
W2000-00343-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Russell Lee Moore, Jr.

The defendant appeals, via certified question of law, the trial court's denial of his motion to suppress cocaine seized as a result of a warrantless search of the defendant's pockets. Because the officer made a lawful full custodial arrest of the defendant and searched the defendant incident to this lawful full custodial arrest, we affirm the trial court's denial of the defendant's motion to suppress.

State of Tennessee v. Kathleen Malley
W2000-01064-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Brown

The Defendant, Kathleen Malley, entered a guilty plea to theft of over $60,000, a Class B felony, in exchange for an agreed sentence of eight years incarceration. Following a sentencing hearing to determine the manner of service of that sentence, the Defendant was ordered to serve six months in jail followed by twelve years of probation. She was also ordered to pay $100,000 in restitution. In this appeal as of right, the Defendant argues that the trial court erred by refusing to grant her full probation. We find no error. Thus, we affirm the judgment of the trial court.

State of Tennessee v. Lisa Ann Avery
W2000-01741-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge C. Creed McGinley

The Defendant was indicted by the Carroll County Grand Jury for one count of introduction of drugs into a penal institution. The Defendant moved for pretrial diversion, but the request was denied by the District Attorney General. The Defendant filed a petition for writ of certiorari with the trial court to review the denial. The trial court denied the petition, finding that the District Attorney General did not abuse his discretion in denying the Defendant's request for pretrial diversion. The Defendant then pled guilty to one count of introduction of drugs into a penal institution and requested judicial diversion. The trial court denied judicial diversion and sentenced the Defendant as a Range I, standard offender to four years incarceration in the Tennessee Department of Correction, suspended after sixty days confinement. The Defendant now appeals, arguing that the trial court erred in denying her pretrial diversion, judicial diversion or full probation. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Douglas C. Carr
W2000-01775-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Arthur T. Bennett

The appellant, Douglas C. Carr, pled guilty in the Shelby County Criminal Court to one count of driving while an habitual motor vehicle offender. Pursuant to the plea agreement, the petitioner was sentenced as a standard Range I offender to eighteen months incarceration in the Shelby County Correction Center with the manner of service to be determined by the trial court. The trial court denied the appellant alternative sentencing, and, on appeal, the appellant raises the following issue for our review: whether the trial court erred in denying the appellant alternative sentencing. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

John Patterson v. The Phelan Company, Inc.
W1998-00598-SC-WCM-CV
Authoring Judge: Don R. Ash, Sp. J.
Trial Court Judge: George R. Ellis, Chancellor
The workers'compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff sustained a twenty-two and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his neck. The defendant claims the evidence does not support the finding. We affirm the judgment of the trial court.

State of Tennessee v. Anthony Perry
W1999-01370-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph B. Brown

The defendant appeals his convictions for first degree felony murder, especially aggravated kidnapping, and conspiracy to commit felony murder. After careful review, we conclude that the evidence is sufficient to support the defendant's convictions for first degree felony murder and especially aggravated kidnapping. Further, we hold that conspiracy to commit felony murder is not a recognizable offense in Tennessee. Therefore, we affirm the defendant's convictions for first degree felony murder and especially aggravated kidnapping. We reverse and dismiss the defendant's conviction for conspiracy to commit felony murder.

Ronald Donnell Moore v. State of Tennessee
W1999-02125-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Carolyn Wade Blackett

The petitioner was originally convicted by a Shelby County jury of first degree murder and received a sentence of life imprisonment. His conviction was affirmed on direct appeal. The petitioner filed a pro se post-conviction petition, counsel was appointed, and the petition was denied. In this appeal, the petitioner alleges that this matter should be remanded to the post-conviction court for a new hearing since he was unable to present his claim for relief. After a thorough review of the record, we conclude that the petitioner is entitled to a new post-conviction hearing.

State of Tennessee v. Marcus D. Polk
W2000-01057-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph B. Dailey

The petitioner, Marcus D. Polk, pled guilty in the Shelby County Criminal Court to criminal attempt to commit first degree murder, especially aggravated robbery, and first degree murder and received a total effective sentence of life imprisonment plus twenty years. Subsequently, the petitioner filed a petition for post-conviction relief alleging the ineffective assistance of his plea counsel, which petition was denied by the post-conviction court. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Ronald Shipley v. State of Tennessee
W2000-00434-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The petitioner was originally convicted by a Shelby County jury of rape of a child. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal as a matter of right, the petitioner contends that his trial counsel provided ineffective assistance of counsel. After a thorough review of the record, we conclude that the trial court correctly denied post-conviction relief.

State of Tennessee v. Christopher M. Flake
W2000-01131-CCA-MR3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Bernie Weinman

The defendant was indicted for attempted first degree murder. A Shelby County jury convicted the defendant of the lesser-included offense of attempted voluntary manslaughter, and the trial court sentenced him to four years imprisonment. In this appeal, the defendant alleges: (1) his insanity defense was established by clear and convincing evidence; (2) the trial court erroneously admitted statements made by the defendant and a weapon seized from his vehicle; (3) the trial court erroneously restricted the testimony of a psychiatrist by disallowing his statement that the defendant was committable if found not guilty by reason of insanity, while allowing him to testify that the defendant stated he believed he would be free to go home within 60 to 90 days if adjudicated not guilty by reason of insanity; (4) the trial court erroneously allowed the state to call a psychiatrist because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court improperly found that a psychiatrist was qualified to testify as an expert; and (6) the trial court erroneously refused the defendant's request to have the opening and rebuttal closing arguments.  After a through review of the record, we reverse the judgment of conviction, modify the judgment to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to Tenn. Code Ann. § 33-7-303.

State of Tennessee v. Laverne Long
W2000-02773-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Arthur T. Bennett

The Defendant, Laverne Long, entered a guilty plea to reckless homicide, a Class D felony, in exchange for a two year sentence as a Range I, standard offender. Following an evidentiary hearing on the Defendant's motion to suspend her sentence, the trial court denied alternative sentencing. The Defendant now appeals as of right from the denial of alternative sentencing. We find no error; thus, we affirm the judgment of the trial court.

Shirley Shelburne vs. Frontier Health, et al
E2000-02551-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas J. Seeley, Jr.
This is a negligence action that finds its genesis in the suicide of a county jail inmate. Prior to his death, the decedent had been evaluated by Richard Kirk, a member of a crisis response team operated by the defendant Woodridge Hospital, a facility owned and operated by the defendant Frontier Health. Kirk concluded the decedent did not suffer from any psychiatric illness and did not require further care or treatment. The widow of the decedent, Shirley A. Shelburne, individually and as the next friend of her son, Travis Lee Shelburne, sued Frontier Health on the basis of vicarious liability. In response to the defendant's third motion for summary judgment, the trial court dismissed the plaintiff's action. The plaintiff filed a motion to alter or amend the grant of summary judgment, which was denied. The plaintiff appeals, arguing (1) that this case should be remanded for the trial court to reconsider the evidence submitted in support of the plaintiff's motion to alter or amend in light of the Supreme Court's decision in Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000); (2) that Frontier Health is not entitled to summary judgment, which was granted on the basis of Kirk's alleged statutory immunity; and (3) that Frontier Health's third motion for summary judgment constitutes an improper "appeal" of the denial of its second summary judgment motion by a different trial judge. We affirm.

Peggy Lane, et al vs. Luella Spriggs, et al
E2001-00163-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
This case involves the validity of an unsigned warranty deed in the plaintiffs' chain of title. Following a bench trial, the court below reformed the deed to add the missing signature. The defendants appeal, arguing, among other things, that the unsigned deed is inoperative and cannot be reformed. We affirm.