Danny Bell v. Emerson Electric Company
W1999-00988-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: George R. Ellis, Chancellor
The trial court found the plaintiff sustained a seven and one-half percent permanent partial disability to the body as a whole as a result of an on-the-job injury to his left shoulder. The defendant says the evidence does not support the finding. We affirm the judgment of the trial court.

Donald L. Hughes v. Memphis Light, Gas & Water, et al.
W2000-01056-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Floyd Peete, Jr., Chancellor
The employer insists (1) the trial court erred in finding a causal connection between the injury and the employment and (2) the trial court violated Tenn. R. Civ. P. 52.2 by filing findings of fact and conclusions of law after entry of final judgment. The Second Injury Fund insists the award of permanent partial disability benefits based on 85 percent to the body as a whole is excessive. The employee insists that the Second Injury Fund lacks standing in this tribunal because it did not file a notice of appeal, that the award is inadequate and that the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed.

Jhy D. Johnson v. Lojac Materials, Inc.
M2000-01811-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to theSpecial 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 the award of permanent partial disability benefits based on 5 percent to the left hand is excessive. The employee contends the award is inadequate. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR. J., joined. James H. Tucker, Jr., Manier & Herod, Nashville, Tennessee, for the appellant, Lojac Materials, Inc. William E. Farmer, Lebanon, Tennessee, for the appellee, Jhy D. Johnson. MEMORANDUM OPINION The employee is 26 years old and a high school graduate with some experience as an unskilled laborer. While at work on June 1, 1999, the employee or claimant, Johnson, caught his hand in a machine, fracturing the third and fourth metacarpals. He underwent surgery and was released to return to work without any permanent restrictions on July 27, 1999. He did not return to Lojac, but did return to work. The surgeon assessed his permanent impairment at 2 percent to the hand. An independent medical examiner assessed his permanent impairment at 3 percent to the hand. The injured worker says he cannot do some things he did before the injury. Upon the above summarized evidence, the trial judge awarded permanent partial disability benefits based on 5 percent to the hand. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

Viki Parker v. WaUSAu Insurance Companies.
W2000-01517-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: George R. Ellis, Judge
After a detailed analysis of the evidence in the trial record, the trial court found the plaintiff sustained a 45 percent permanent partial disability to the right and left arms. However, the trial court denied the request for a lump sum. The defendant, Wausau Insurance Companies, appeals and presents one issue for appellate review: Whether the trial court's award of 45 percent permanent partial disability to each of the plaintiff's arms is excessive and not supported by a preponderance of the evidence? From our review of the entire record, the judgment of the trial court is affirmed for the reasons set forth below.

Muriel C. Warren v. Henry I. Siegel Co., Inc.,
W2000-01387-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Ron E. Harmon, Chancellor
The employer has appealed two issues from the trial court: (1) Whether the ten percent (1%) of the anatomical rating provided by Plaintiff's evaluating physician should have been assigned to Plaintiff's thumbs rather than to the arms; and (2) Whether the preponderance of the evidence supports the trial court's award of ninety percent (9%) permanent partial disability to the right arm and fifty percent (5%) permanent partial disability to the left arm. From our review of the record, we affirm the trial court's judgment.

State of Tennessee v. Dennis R. Jacks
E2000-00643-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The defendant appeals from the revocation of his probation, contesting the trial court's jurisdiction. We affirm the judgment of the trial court.

Murray E. Body v. Jim Lamarr
M2000-02111-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Arthur E. McClellan

Murray E. Body ("Plaintiff") filed this personal injury suit against the owner of a jet ski, Jim Lamarr ("Defendant"). Plaintiff sustained physical injuries while pulling ski ropes into his boat when Defendant's jet ski ran over Plaintiff's ski ropes. Plaintiff had a boating policy ("Policy") with Continental Insurance Company ("Continental") which had uninsured boater limits of $100,000. Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed Defendant's limits and that his Policy should be interpreted to provide coverage for accidents involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy's language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial Court treated Continental's motion as a Motion for Summary Judgment and granted the motion. Plaintiff was granted an interlocutory appeal. We affirm.

Leta Johnson v. Henry I. Siegel Co., Inc.,
W1999-00408-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: Julian Guinn, Judge
The appellant presents the following issues for review: Whether the evidence preponderates against the trial court's determination of permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

Don Stonecipher v. Estate of M.E. Gray, Jr., et al
M1998-00980-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert L. Jones

This is an appeal from a chancery court jury trial on a dispute arising from a contract to buy a wrecker and salvage yard business for 1.1 million dollars. The purchaser alleged that the seller fraudulently induced him to contract to buy the business because after the parties reached an agreement on the purchase, the seller took items contemplated to be included in the contract without the buyer's knowledge. On the other hand, the seller's estate asserted a breach of contract claim because the note's balloon payment was overdue. After a trial, the jury decided that the seller had concealed or withheld items that the parties contemplated to be part of the contract, that the seller made misrepresentations as to what was to be included in the contract, he knew the misrepresentations were false at the time made, and he intended the buyer to rely on the misrepresentations. The jury decided that, had the buyer known the items were missing, he would not have declined to enter into the purchase at all but, instead, would have negotiated a lower price. Therefore, the court entered a verdict dismissing the buyer's complaint for rescission, awarded him a set-off and entered judgment against him for the balance of the note plus interest minus the set-off. Costs were apportioned between the parties and each party was ordered to pay its own attorney's fees. Both parties appeal. For the reasons below, we affirm the judgment of the trial court in part, vacate in part, and remand.

State of Tennessee v. Edward Lorenzo Samuels
M1999-01821-SC-R11-CD
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Cheryl A. Blackburn

After revoking the defendant's community corrections sentence, the trial court increased the length of the defendant's sentence from six to eight years and ordered that the sentence be served consecutively to a sentence in an unrelated case. Although the Court of Criminal Appeals affirmed the trial court's judgment, we granted the defendant's application for permission to appeal and remanded the case to the Court of Criminal Appeals for consideration of our decision in State v. Taylor, 992 S.W.2d 941 (Tenn. 1999). The Court of Criminal Appeals again affirmed the trial court's judgment. After considering the record, we conclude that upon revoking the community corrections sentence, the trial court held a proper sentencing hearing and did not err either in increasing the length of the defendant's sentence or in ordering that the sentence be served consecutively. We therefore affirm the judgment of the Court of Criminal Appeals.

State of Tennessee v. Kai ("Guy") Nielsen and Betty Nielsen
E1998-00525-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Arden L. Hill

We granted this appeal to determine whether a superseding indictment issued after the statute of limitations has elapsed must allege that the prosecution was timely commenced within the statutory period. After the trial court refused to dismiss the indictment, the defendants were tried and convicted of theft of property over $10,000. The Court of Criminal Appeals affirmed the convictions. After reviewing the record and applicable authority, we conclude that the superseding indictment, which was issued after the statute of limitations had elapsed, did not have to allege facts showing that the prosecution was timely commenced with a prior presentment.

Freida Boyle v. The Procter & Gamble Manufacturing
W2000-00064-WC-R3-CV
Authoring Judge: C. Creed Mcginley, Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
The employer contends the trial court erred in determining that the employee's injury was causally connected to her employment and that the employee complied with statutory notice provision pursuant to Tenn. Code Ann. _ 55-6-21. It also contends that the award of 4% permanent partial disability to the body was excessive. As discussed below, the panel concludes that the judgment of the trial court should be affirmed.

State of Tennessee v. Robert Lee Pattee
M2000-00257-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, Robert Lee Pattee, appeals as of right following his conviction by a jury in the Sumner County Criminal Court for first degree murder. The trial court sentenced Defendant to life imprisonment in the Department of Correction. Defendant raises the following issues in this appeal: (1) whether the trial court erred by refusing to instruct the jury on the lesser-included offense of voluntary manslaughter; (2) whether the trial court erred when it determined Defendant’s suicide note was inadmissible at trial; and (3) whether the evidence of premeditation was sufficient to convict him of first degree murder. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Robert Lee Pattee - Concurring
M2000-00257-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Jane W. Wheatcraft

I concur in the result reached and most of the reasoning in the majority opinion. However, I believe that the evidence was sufficient to warrant the jury being instructed regarding voluntary manslaughter. I agree, though, that the failure to instruct the jury was harmless.

Vinson Taylor v. State of Tennessee
W2000-01991-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Moore

This is an appeal from the denial of post-conviction relief. Petitioner pled guilty to selling cocaine over 0.5 grams and received a sentence of eight years. He contends the trial court erred in denying his petition for post-conviction relief, alleging (1) ineffective assistance of trial counsel leading to his guilty plea, (2) an involuntary guilty plea, and (3) failure of trial counsel to perfect an appeal of the sentence. We affirm the post-conviction court with regard to the validity of the guilty plea; however, we grant a delayed appeal based upon trial counsel's failure to take any action regarding an appeal of the sentence.

Bobbie Hicks v. WaUSAu Insurance Companies,
W2000-01009-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the Second Injury Fund insists (1) the evidence preponderates against the trial court's finding that the employee suffered a compensable injury on January 14, 1997, (2) the trial court erred in admitting into evidence the testimony by deposition of a vocational expert and (3) the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled. As discussed below, the panel has concluded the judgment should be affirmed.

William David Holden v. Peterbilt Motors Company
M2000-00484-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
This workers' compensation appeal has been referred to theSpecial 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 contends the evidence preponderates against the trial court's finding that the employee's carpal tunnel syndrome was work related and that the award of permanent partial disability benefits based on 5 percent to the arm is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and JOHN K. BYERS, SR.. J., joined. Patrick A. Ruth, Ruth, Howard, Tate & Sowell, Nashville, Tennessee, for the appellant, Peterbilt Motors Company. William E. Farmer, Lebanon, Tennessee, for the appellee, William David Holden. MEMORANDUM OPINION The employee or claimant, Holden, is 48 with a high school education and one year of college with experience as a welder and in construction trades. He began working at Peterbilt in August 1983. On July 1, 1997, while using a pry bar to slide a truck on the line, his hand slipped and he hit his left hand against the truck. He felt immediate pain and numbness in the hand and arm. He chose Dr. John McInnis from a list of three provided by the employer. Dr. McInnis x-rayed and splinted the hand and returned the employee to one handed work, after diagnosing a fractured fifth metacarpal. The employee returned to work after an uneventful recovery, but has been unable to make production expectations, for which he was reprimanded, because of pain and numbness in the injured hand and arm. His testimony as to the effect of his injury on his ability to work is supported by the testimony of co-workers and by the testimony of Mrs. Holden. On November 5, 1998, he saw Dr. Richard Fishbein with complaints of pain in the injured hand. Dr. Fishbein attributed a 3 percent permanent impairment to the hand and an additional 5 percent to the left arm for carpal tunnel syndrome caused by the July 1, 1997 injury. Dr. McInnis testified that trauma could cause carpal tunnel syndrome, but estimated the employee's permanent impairment at 1 percent to the left hand only. Upon the above summarized evidence, the trial court found that both injuries, the fractured hand and the carpal tunnel syndrome, were work related and awarded permanent partial disability benefits based on 5 percent to the left arm. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The panel is not bound by the trial court's findings but conducts an independent examination of the evidence to determine where the preponderance of the evidence lies.

Allen Seratt v. Neo Products Corporation,
W1999-01246-WC-R3-CV
Authoring Judge: Henry D. Bell, Special Judge
Trial Court Judge: Hon. Joe C. Morris, Chancellor
The defendants Neo Products Corporation and State Auto Insurance Company appeal the judgment of the Chancery Court of Chester County awarding plaintiff permanent partial disability of ten (1%) percent to the body as a whole. For the reasons stated in the opinion we affirm the judgment.

First American Trust Co. v. Franklin-Murray Development Company, L.P.
M1998-00984-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Henry Denmark Bell

This appeal involves a post-judgment receivership proceeding commenced while the case was pending on appeal. The seller of a large tract of Brentwood property obtained a judgment against the defaulting purchaser in the Chancery Court for Williamson County. While the purchaser's appeal was pending, the seller proceeded to execute on its judgment and requested the trial court to appoint a receiver to protect the interests of the purchaser's creditors. After the trial court appointed a receiver, the purchaser's former law firm filed a claim with the receiver for over $100,000 in unpaid legal expenses. When the seller's judgment against the purchaser was satisfied outside of the receivership proceeding, the trial court granted the receiver's motion to dissolve the receivership without addressing the law firm's claim. The law firm asserts on this appeal that the trial court should not have closed the receivership until its claim was addressed. We have determined that the trial court lacked jurisdiction to establish the receivership and, therefore, that the receivership proceedings were null and void. Accordingly, the trial court did not err by declining to address the law firm's claim in the receivership proceeding.

Bobby R. George v. Building Materials Corp. of America, et al.
M1999-00449-SC-WCM-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Carol L. Soloman

In this workers' compensation case, the trial court awarded Bobby R. George 90% permanent partial disability for loss of hearing in both ears. Mr. George's employer, Building Materials Corporation of America d/b/a GAF Materials Corporation ("GAF"), filed a post-judgment motion for leave to amend its answer to allege a statute of limitations defense. The trial court denied the motion. The Special Workers' Compensation Appeals Panel ("the Panel") reversed the trial court's denial of the motion to amend the answer and remanded the case for further proceedings on the statute of limitations defense. The Panel also reduced the award to 50% permanent partial disability should the statute of limitations defense be unsuccessful on remand. We disagree with the Panel's recommendation and affirm the trial court's judgment in all respects.

Bowdoin Grayson Smith v. Ginger Lee Marenchin Smith
M2000-01094-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

This is the second appeal regarding the setting of the amount of the father's child support obligation for four children. In the earlier appeal, this court remanded for a determination of the father's actual net income and his corresponding child support obligation. On remand, the trial court in early 2000 based its award of prospective support on an average of father's income in 1992 through 1995 and established the father's back support based on that figure. We find that the prospective award should be set on the most current income figures, but that an average of the most recent years is appropriate. We also find that the amount of back child support should be computed using actual income for the intervening years. Because the record does not contain sufficient information regarding challenged deductions from gross income for the years now at issue, we remand for an evidentiary hearing on the father's income in the years since the divorce in 1996, and a redetermination of both prospective and back support. We affirm the denial of prejudgment interest.

Valerie Jean Spivey, et al., v. Sumner County, Tennessee, et al.
M2000-00771-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Arthur E. McLellan

Plaintiffs in this matter have alleged that their employment was terminated in violation of Tennessee's Public Protection Act, Tennessee Code Annotated section 51-1-304. The trial court ruled in favor of Defendants' Motion for Summary Judgment and dismissed this case in its entirety finding that all three Plaintiffs had failed to prove that their termination was based solely on "whistle blowing". We affirm the trial court's decision in this regard.

William Ronald Jordan v. State of Tennessee
M1999-01360-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jim T. Hamilton

The petitioner, William Ronald Jordan, was convicted by a jury in the Giles County Circuit Court of driving under the influence of an intoxicant ("DUI") and attempted robbery. The trial court sentenced Petitioner as a multiple Range II offender to six years for the attempted robbery conviction and to eleven months and twenty-nine days for the DUI conviction, with the sentences to be served concurrently. This court affirmed Petitioner's convictions on direct appeal, and Petitioner subsequently filed a pro se petition, with two amendments, for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court denied Petitioner relief. In this appeal, Petitioner asserts that he received ineffective assistance of counsel on the following grounds: (1) counsel failed to submit adequate evidence at the hearing on his motion to dismiss based upon denial of his right to a speedy trial; (2) counsel's advice to Petitioner not to testify at trial deprived him of a jury instruction on renunciation as a defense; and (3) counsel failed to object when the State filed an untimely motion for enhanced punishment under Tenn. R. Crim. P. 12.3. After a review of the record and applicable law, we affirm the post-conviction court's judgment.

Tammy Jewell Robertson v. Walter Scot Robertson
M1999-02103-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Thomas W. Graham

This appeal involves a dispute over the division of a marital estate following a marriage that lasted approximately two and one-half years. Both parties sought a divorce on the ground of inappropriate marital conduct in the Circuit Court for Franklin County. During a bench trial lasting two days, the parties stipulated that they both had grounds for divorce but hotly contested the classification, valuation, and division of their marital and separate property. The trial court declared the parties divorced and divided their property without clearly classifying or placing a value on it. On this appeal, the wife asserts that the trial court erred by considering the husband's contributions to the marital home as his separate property and that the net division of the marital estate was inequitable. Despite the ambiguity resulting from the trial court's failure to classify and value the parties' property, we have determined that the trial court's division of the martial estate was essentially equitable.

Paul David Crews, et al., v. Hooters Restaurant of Nashville, Inc., et al.
M1999-02813-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

This appeal involves two shootings during an attempted armed robbery of a restaurant, that left one man dead and one man wounded. The parents of the deceased victim and the wounded victim and his wife filed suit in the Circuit Court for Davidson County against the restaurant and the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable care to protect its patrons from foreseeable harm. The trial court granted the restaurant a summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court erred by granting the restaurant's summary judgment motion. We concur with the trial court's conclusion that the material facts are not in dispute and that the restaurant is entitled to a judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we affirm the trial court's order dismissing the claims against the restaurant.