Frank Donovan vs. National Bank
W2000-03064-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos
This is a breach of contract case. The defendant bank hired the plaintiff as a consultant to contact supermarkets about placing branch banks in their stores. In August 1988, the parties signed a written consulting contract which expired by its own terms in November 1988. In that contract, the plaintiff was to receive a salary plus $2,000 for each branch bank placed in a store as a result of his efforts. This contract expired, but the plaintiff continued to work for the bank for about ten years with no other written agreement. The plaintiff was never paid the $2,000-per-store bonus. In 1990, the plaintiff asked the bank to pay the $2,000-per-store bonus, and this request was ignored. The plaintiff's employment was terminated in 1998. In May 1999, the plaintiff sued the bank for breach of contract, claiming that they owed him the $2,000-per-store bonus under the original contract. The trial court granted the bank summary judgment based on the applicable statute of limitations. The plaintiff now appeals. We affirm, finding that the cause of action accrued, at the latest, in 1990 when the plaintiff requested the bonus and his request was ignored.

Gary Leon Cureton v. State of Tennessee
E2000-01638-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James E. Beckner

On May 21, 1999, Gary Leon Cureton, the Petitioner and Appellant, pled guilty in the Greene County Criminal Court to two counts of rape and two counts of sexual battery and waived his right to appeal. Following the guilty plea, the trial court sentenced the Petitioner to serve seventeen years incarceration. On May 25, 2000, the Greene County Court Clerk received a post-conviction petition from the incarcerated pro se Petitioner and stamped the document to indicate that it had been filed on that date. On June 2, 2000 the trial court issued a preliminary order dismissing the petition on the ground that it was not timely filed. On June 12, the trial court received a pro se motion to reconsider the dismissal of the petition, but the trial court denied the motion on June 19, 2000. On August 2, 2000, this Court ordered the trial court to address the Petitioner's request for the appointment of counsel, and the trial court subsequently appointed counsel to assist with the Petitioner's appeal. The Petitioner appeals the trial court's dismissal of his petition and subsequent denial of his motion to reconsider, arguing that he carried his burden of proving that the petition was timely filed. Because the Petitioner was never afforded an opportunity to prove that he timely filed his petition, we remand for a hearing to determine whether the Petitioner's petition was timely filed.

Billy George vs. Misty George Mullican
M2000-01106-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal arises from a child custody action. After divorce, Mother was awarded custody of Child. Father later filed a petition for contempt charging that Mother was denying him visitation. Mother denied these charges and counter-filed claiming that Father had failed to meet his support obligations. While these matters were pending, Mother filed a report with the Department of Children's Services that Father had sexually molested Child. Mother later admitted these charges to be false, and as a result, Father gained temporary custody of Child. Mother later filed this petition requesting the return of Child to her custody. The trial court refused, instead finding that Father was the more fit parent and awarding him permanent custody. Mother appealed this decision. We affirm.

Estate of Nan Francis vs. Karl Francis
M2000-01110-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Leonard W. Martin
This appeal involves a dispute between a widow and her stepson regarding the disposition of a jointly owned certificate of deposit. After her stepson liquidated the certificate of deposit and used the proceeds to obtain another certificate of deposit in his own name, the widow filed suit in the Chancery Court for Cheatham County seeking her share of the funds. The stepson filed a counterclaim, alleging that the widow had contributed to his father's death by failing to provide needed medical care and seeking reimbursement for his father's funeral expenses. The widow died while the suit was pending, and her estate was substituted as a party. After dismissing the stepson's wrongful death claim, the trial court determined that the widow's estate and her stepson should receive equal shares of the proceeds of the account remaining after the payment of a joint debt of the widow's husband and her stepson and that the widow's estate should reimburse the stepson for the expenses he incurred in connection with his father's funeral. On this appeal, the widow's estate asserts that the trial court erred by ordering that the funds in the account be used to repay the joint debt and by ordering it to reimburse the stepson for his father's funeral expenses. We have determined that the trial court properly distributed the proceeds of the deposit account. However, we have also determined that the trial court erred by directing the widow's estate to reimburse the stepson for his father's funeral expenses.

Virnie Fulks vs. J. Hulan Watson, et al
M1999-02800-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This declaratory judgment action was filed by a dissatisfied school system employee who was transferred from his position as Manager of Property, Plant, and Maintenance to the position of maintenance worker and ultimately was informed that he would not be rehired. The employee claimed these employment actions were improper because he was tenured and certified. He also sought additional compensation or compensatory time for extra hours he worked. The trial court determined that the employee was not tenured, could be transferred, and was entitled to only a limited amount of compensatory time. The court also found that the superintendent had authority not to renew the employment with proper notice, but that sufficient notice of nonrenewal had not been provided. We affirm.

Gwendolyn Henderson vs. Dept. Children Serv .
W1999-01940-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Kenneth A. Turner
This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the Appellant's parental rights to two of her children. Following a hearing, the Juvenile Court of Memphis and Shelby County entered an order terminating the Appellant's parental rights. The Appellant appeals the trial court's order terminating her parental rights. For the reasons stated herein, we affirm the trial court's decision.

In re: Estate of Fannie Mae Johnson
W2000-01510-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert S. Benham
This appeal arises from the trial court's finding that a bank account was part of Decedent's estate and not the property of Executrix. In 1987, Decedent added Executrix to a bank account. Decedent failed to mark the portion of the card signifying that the account was to have rights of survivorship. After Decedent died, Executrix conducted an accounting in which she did not include the account. Beneficiary contested the accounting arguing that account should be part of the estate. Executrix argued that the addition of her name to the account created a presumption that the account's right of survivorship was a gift inter vivos. The trial court found that no presumption existed and that the account was part of the estate. We affirm.

Alfred Bowling vs. Dobbs Bros.
W2000-01476-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
This appeal arises from the trial court's denial of a motion in limine. Employee was fired from his position at Company. At a pre-trial deposition, Manager testified on behalf of Company that Employee was terminated due to Manager's observation of Employee's lack of sales skills. Employee filed a motion seeking to bar testimony of other Company employees during the trial. These employees were to testify on Employee's lack of sales skills. Employee argued that this testimony would be inconsistent with Company's pre-trial deposition that Employee was terminated due to Manager's observation of his lack of sales skills. We affirm.

Jacqueline Patterson vs. Richard French
W2000-02668-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George R. Ellis
This is an attempt to collect child support arrearages. In a 1993 order, the father was ordered to pay current support as well as a lesser amount for an existing arrearage. The father failed to comply with this order. In 1999, the child reached majority. The State filed an action on the mother's behalf to set arrearage payments and hold the father in contempt. The trial court set the arrearage payments at an amount less than the total support the father had previously been ordered to pay. In addition, the trial court refused to consider the contempt petition because the child had reached majority. Finally, the court ordered the father to make payments through the clerk of the court rather than through the State disbursement unit. The State appeals all three decisions. We reverse, finding that the trial court was required to set the arrearage payments at the total amount of support previously ordered, that the child reaching majority is not a basis for refusing to consider the contempt petition, and that the father is required to make the payments through the State disbursement unit.

Barbara White vs. Dr. John Albritton
W2000-03068-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: James F. Russell
This appeal arises from a medical malpractice claim filed in the Circuit Court of Shelby County by the Appellant against the Appellees. On the first day of trial, the Appellant announced her intention to voluntarily nonsuit the case. The trial court entered an order of voluntary nonsuit. The Appellees filed a motion for discretionary costs. The trial court held that the motion was premature but would revisit the motion if the lawsuit was refiled. The Appellant refiled the lawsuit in the United States District Court for the Western District of Tennessee. The Appellees refiled the motion for discretionary costs in the Circuit Court of Shelby County. The circuit court granted the Appellees' motion for discretionary costs. The Appellant appeals from the grant of the Appellees' motion for discretionary costs by the Circuit Court of Shelby County. For the reasons stated herein, we affirm the trial court's decision.

State of Tennessee v. Christopher Lamont Kelso
E2000-01602-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Carroll L. Ross

The grand jury for Monroe County charged the defendant with one count of possession of cocaine with intent to resell and one count of felony evading arrest. The defendant went to trial, and the jury acquitted him of the narcotics offense but found him guilty of Class D evading arrest. The trial court sentenced the defendant as a Range II, multiple offender, to five years incarceration in the Department of Correction. In this direct appeal, the defendant challenges the sufficiency of the convicting evidence, the state's misuse of his post-arrest silence, the flight instruction given to the jury, and his classification as a Range II offender. Unpersuaded by the defendant's contentions, we affirm the trial court's judgment and sentence.

Brooks Varner v. David M. Marrs And Latitia M. Marrs
2000-01029-COA-R3-CV
Trial Court Judge: Floyd Peete, Jr.

Gary L. Holt, Sr. v. Ozburn-Hessey Moving Company and American Alternative Insurance Corporation
M1999-02563-WC-R3-CV
Authoring Judge: Lee Russell, Sp. J.
Trial Court Judge: Ellen Hobbs Lyle, 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 Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The Appellant appeals from the amount of the award of permanent partial disability benefits. After a complete review of the entire record, the briefs of the parties, and the applicable law, we affirm the award made by the trial court. Tenn. Code Ann. ' 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed LEE RUSSELL, SP. J., in which ADOLPHO A. BIRCH, J. and JAMES L. WEATHERFORD, SR.J., joined Jeffrey P. Boyd, Jackson Tennessee, for the appellant, Ozburn-Hessey Moving Company James R. Tomkins, Nashville, Tennessee, for the appellee, Gary L. Holt, Sr. MEMORANDUM OPINION This is an appeal by Defendant Ozburn-Hessey Moving Company (hereinafter referred to as "Ozburn-Hessey" or "the company") from an award of benefits made in favor of Gary L. Holt 1 ("Claimant") on a claim filed pursuant to the Tennessee Workers Compensation Act. The trial court held that the Claimant was an employee of Ozburn-Hessey and awarded the Claimant a forty percent permanent partial disability to the body as a whole as a result of an injury to the back which allegedly occurred on July 23, 1998. The sole issue on appeal is whether the trial judge erred in her holding that the Claimant was an employee of Ozburn-Hessey and not a mere independent contractor. We conclude that the evidence does not preponderate against the trial judge's finding that the Claimant was an employee.

State vs. Miles Mateyko
M1998-00275-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: W. Charles Lee
The defendant was charged and convicted of child abuse through neglect in violation of Tennessee Code Annotated section 39-15-401(a). The Court of Criminal Appeals reversed the conviction, finding that the State did not establish that the defendant's children suffered any actual, deleterious effect or harm from the neglect. However, the intermediate court found that the defendant was guilty of attempted child abuse through neglect, and it remanded the case for resentencing. The State requested permission to appeal to this Court, and we hold that section 39-15-401(a) does require proof of an actual, deleterious effect or harm to the child's health and welfare and that the mere risk of harm is insufficient to support a conviction. We also hold that in those cases in which no such actual, deleterious effect or harm is shown, a defendant may be convicted of attempted child abuse through neglect under Tennessee Code Annotated section 39-12-101, provided that the State is successful in making the required showing. Because the record in this case contains conflicting evidence as to the required intent necessary for the attempted crime, we remand this case to the Lincoln County Circuit Court for a new trial on the lesser-included offense of attempted child abuse through neglect. The judgment of the Court of Criminal Appeals is affirmed in part and reversed in part.

Travis Watt v. Lumbermens Mutual Casualty Ins. Co., et al.
W2000-00104-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joe C. Morris

Travis Watt v. Lumbermens Mutual Casualty Ins. Co., et al.
W2000-00104-SC-R3-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joe C. Morris

In matter of Hannah Parlow
W2000-01462-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
After paternity was established and Mother was granted custody of minor daughter, Father filed petition to change custody on the ground of material change of circumstances consisting of Mother's remarriage to an allegedly violent man, and Mother's intention to move with the child out of the state. The juvenile referee denied the petition and, upon a de novo trial before a special juvenile judge of the juvenile court, Father's petition was denied. Father has appealed. We affirm.

Robert Richardson vs. Deborah Richardson
W2000-02374-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier

Robert Richardson vs. Deborah Richardson
W2000-02374-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert A. Lanier

Cora Cantrell, et al vs. Knox County Bd of Ed. et al
E1999-01557-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Harold Wimberly
The issue in this appeal is whether non-certified, non-tenured teacher aides have under state law a reasonable expectation of continued employment beyond the term of their written contracts such that they are entitled to back pay and benefits beyond the expiration of their contract period. We conclude that teacher aides do not have a reasonable expectation of continued employment. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.

Charmaine West, et al vs. Media General Convergence, Inc., et al
M2001-00141-SC-R23-CQ
Authoring Judge: Justice Frank F. Drowota, III
Pursuant to Rule 23 of the Rules of the Supreme Court of Tennessee, this Court accepted certification of the following question from the United States District Court for the Eastern District of Tennessee:

Nancy Byrd v. Freshi Air Systems, Inc. (Formerly
E2000-00481-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: O. Duane Sloan, Circuit Judge
The trial court found the plaintiff sustained a permanent psychological or mental impairment as a result of a confrontation between her and a supervisor of the defendant. The trial judge found the plaintiff sustained a fifty percent permanent partial disability to the body as a whole as a result of the confrontation. The defendant says the evidence preponderates against the finding. We reverse the judgment of the trial court.

Annette L. Hanna, et al. v. Federated Insurance Company
M2000-01967-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James E. Walton, 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 to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff's husband was killed in the course and scope of his employment and ordered the amount to which his dependants were entitled should be paid in a lump sum. The court further ordered the money to be paid into the court and that the Clerk and Master invest the funds and pay the interest earned thereon to the widow for the benefit fo the deceased's minor children. The defendant says the death benefits cannot be paid in a lump sum and further says, even if lump sum payments is permissible, the plaintiff has failed to show she can manage the money. Further, the defendant says the trial court erroneously failed to commute the award to its present value. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA, III, J. and JOSEPH C. LOSER, JR., SP. J., joined. D. Brett Burrow and Delicia R. Bryant, Nashville, Tennessee, attorneys for the appellant, Federated Insurance Company. Mark A. Rassas and Julia P. North, Clarksville, Tennessee, for the appellees, Annette L. Hanna, widow of the decedent, Darren D. Hanna, and as Guardian for the minor children, Brett Hanna and Marian Hanna, and as Administratrix of the Estate of Darren D. Hanna. OPINION On September 2, 1999, Darren H. Hanna died as a result of a vehicle accident. There was no dispute that the accident occurred within the scope and course of the decedent's occupation with the defendant. Mr. Hanna was survived by his widow, Annette L. Hanna, who was born November 25, 1972, and two minor children, Marian Ruth Hanna, born September 17, 1994, and Brett Darren Hanna, born March 3, 1997. On November 5, 1999, the widow filed this case against the defendant. On June 15, 2, the widow was appointed guardian of the estate of the two minor children to receive any workers' compensation benefits, and also in that order the Clerk of the Chancery Court was authorized to receive the proceeds of any compensation benefits, invest them and pay the interest to Annette K, Hanna for the care and maintenance of the two minor children. On June 27, 2, the widow filed a sworn statement renouncing any benefits from the proceeds of any workers' compensation award conditional on the money being paid into the court and invested and distributed as subsequently ordered by the trial court. On June 3, 2, the trial judge ordered the defendant to pay a lump sum of $174,416. into the court less any credits for sums previously paid, and that the Clerk and Master have control of the funds for the purpose of investment and for payments of the interest earned thereon to the widow for the benefit of the minor children. Discussion Did the trial court have authority to order a lump sum payment_yes. In Jones v. General Accident Ins. Co., 856 S.W.2d 133 (Tenn. 1993), the court held "(i)n any event, we hold today that death benefits awarded under Tennessee Code Annotated. _ 5-6-21 can be commuted to a lump sum." In Clayton v. Cookeville Energy Inc., 824 S.W.2d 167 (Tenn. 1992), the court approved a lump sum settlement to the widow, and in Ponder v. Manchester Housing Authority, 87 S.W.2d 282 (Tenn. 1994) the court approved a lump sum payment to the widow and an arrangement for the minor children's share to be paid to the clerk, invested and the interest therefrom paid to the children. The arrangement in this case is similar to the arrangement in Ponder except in this case the widow will not receive a share of the proceeds.1 Perhaps a more substantial argument is made by the defendant on the premise that the evidence does not support a lump sum award because the widow has demonstrated an inability to wisely manage a lump sum award. 1 The defendant's argument that the widow might remarry is not important because the defendant would still be liable for two-thirds of the benefit because of the two remaining children. -2-

Did Not Meet The Criteria For Acceptance of Scientific Testimony In Mcdaniel v. Csx Transportation
M2000-00185-WC-R3-CV
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Don Ash, Chancellor
The plaintiff, Mary E. Miller, appeals the judgment of the Chancery Court of Tennessee for the 16th Judicial District at Murfreesboro, where the trial court found: (1) that Ms. Miller sustained an injury by accident arising out of and in the course and scope of her employment and awarded twenty percent (2%) permanent vocational or industrial disability to the right lower extremity; (2) that the testimony of Ms. Miller's expert witness on reflex sympathetic dystrophy (RSD) and fibromyalgia did not meet the criteria for acceptance of scientific testimony in McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn.1997), and therefore excluded his testimony; (3) that her condition of fibromyalgia and resulting psychiatric condition were not work-related and as such were not compensable; (4) that Ms. Miller was entitled to permanent medical care and treatment only for the injury to her right leg arising out of this work-related accident but not for fibromyalgia or any other conditions. Ms. Miller also raises some other procedural and evidentiary issues that will be addressed herein. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Arthur Ray White v. Maytag Cleveland Cooking
E2000-01451-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Jerri S. Bryant, Chancellor
The Second Injury Fund has appealed an award of total disability where the employer was ordered to pay 2 percent of the award and the Second Injury Fund was to pay the remaining 8 percent. Judgment of the trial court is affirmed.