State of Tennessee v. Christopher Kirkendall
W2003-02393-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Fred Axley

The appellant, Christopher Kirkendall, was convicted by a jury of aggravated robbery. Following a hearing, the trial court sentenced the appellant to twelve years incarceration in the Tennessee Department of Correction. The appellant now appeals, challenging the sufficiency of the evidence and the sentence imposed by the trial court. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court as modified.

State of Tennessee v. Christopher Kirkendall - Concurring
W2003-02393-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge W. Fred Axley

I agree that the evidence is sufficient to support the conviction and that, under the terms of the 1989 Sentencing Act, the trial court erred by applying enhancement factors (10), (11), and (17).  It is my view, however, that the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 2004), precludes the application of enhancement factor (21) in this case.

State of Tennessee v. Mario Merritt
W2003-02868-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

The appellant, Mario Merritt, was convicted by a jury in the Shelby County Criminal Court of especially aggravated robbery. Following a hearing, the trial court sentenced the appellant to twenty-five years in the Tennessee Department of Correction. The appellant now brings this appeal challenging the sufficiency of the evidence to support his conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

State of Tennessee v. Rosendo Reyna
W2004-00365-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Bernie Weinman

The Appellant, Rosendo Reyna, appeals his convictions for multiple felony drug offenses by a Shelby County jury. On appeal, Reyna raises the single issue of whether the evidence is sufficient to support his convictions. After review, we find the evidence sufficient. Accordingly, the judgments of conviction are affirmed. However, because the record reflects that the offenses were not properly merged, we remand for merger and entry of corrected judgments.

David Stupp, et al. v. Phillips Auto Body, LLC and First American Insurance Company, et al.
W2003-00825-SC-WCM-CV
Authoring Judge: Justice James F. Butler
Trial Court Judge: Chancellor Walter L. Evans

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 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court determined that the plaintiff sustained a 25% vocational impairment to the body as a whole. The defendant asserts that: 1) the plaintiff failed to carry his burden of proof of permanent injury; 2) the trial court erred in finding plaintiff had an operative disk lesion which necessitated surgery; 3) the trial court erred in not granting defendant's motion for additional facts or to amend judgement; and 4) the trial court erred in finding that Dr. Anthony Segal's charges were reasonable and necessary and in granting plaintiff's motion for discretionary costs. Plaintiff asserts that the trial court erred when it awarded plaintiff a 25% disability impairment to the body as a whole, urging that the award should have been higher. We agree with the position of the     plaintiff, and for the reasons set forth below, we modify the judgment of the trial court to award a forty-five percent (45%) vocational disability to the body as a whole.

State of Tennessee v. Jimmy Ray Dockery
E2004-00696-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Jimmy Ray Dockery, appeals the Sullivan County Criminal Court's decision to deny probation on his two-year sentence for attempt to fraudulently obtain a controlled substance. Based on our review of the record, we affirm the judgment.

Wilburn Lee Brown, Jr., v. State of Tennessee Department of Children's Services
E2004-01272-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Vernon Neal

This appeal involves allegations of sexual abuse brought against Wilburn Lee Brown, Jr., ("Petitioner") by his stepdaughter. After the allegations were investigated, DCS concluded there was substantial and material evidence to support the allegations and the report of abuse would be "validated" pursuant to Tenn. Comp. R. & Regs. 0250-7-9-.02. Because Petitioner was employed at a youth development center, he was notified that his employer would be informed that he was the indicated perpetrator in a "validated" report of child sexual abuse and that Petitioner was no longer allowed to have access to children. After exhausting his administrative appeals, Petitioner appealed to the Trial Court. The Trial Court concluded there was substantial and material evidence to support the allegations of abuse and affirmed. Petitioner appeals and we, likewise, affirm.

Gibraltar Taft Highway Limited Partnership v. The Town of Walden, et al.
E2003-02523-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howell N. Peoples

Gibraltar Taft Highway Limited Partnership, through its general partner, The Raines Group ("the plaintiff"), filed an application with the Town of Walden's Board of Aldermen ("the Board"), seeking a permit to build a townhouse project on property located within Walden. The Board denied the plaintiff's application. The plaintiff then filed a petition for writ of certiorari in the trial court. Following a hearing, that court upheld the decision of the Board, finding that the Board had not acted illegally, arbitrarily, or capriciously in rejecting the application. The plaintiff appeals, contending that the trial court erred in its determination. We affirm.

Alan Gardner v. Anesthesia & Pain Consultants, P.C.
E2003-03027-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Richard E. Ladd

This appeal arises from the decision of Anesthesia & Pain Consultants, P.C. ("A&PC") to terminate the employment of Dr. Alan Gardner. After A&PC fired Dr. Gardner, he brought this action alleging breach of employment contract, fraudulent and negligent misrepresentation, promissory estoppel, and promissory fraud. The trial court granted A&PC summary judgment on the misrepresentation claims. At the close of Dr. Gardner's proof at trial, the trial court granted A&PC a directed verdict on his claims of breach of contract and promissory estoppel. The jury returned a verdict in favor of A&PC on the promissory fraud claim. We affirm the judgment of the trial court in all respects.

Matthew Lawson, et al., v. Edgewater Hotels, Inc., et al.
E2003-03093-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

Matthew Lawson, by his mother and next friend, Shirley Lawson, and Ms. Lawson, individually (collectively "the plaintiffs") brought an action for negligence against Edgewater Hotels, Inc., and Stokely Hospitality Properties, Inc. (collectively "the defendants"), alleging that Matthew sustained injuries as a consequence of swimming in the indoor pool at the defendants' hotel. According to the plaintiffs, Matthew sustained these injuries (1) due to the excessive amount of chlorine in the pool water and/or (2) because the defendants failed to properly ventilate the indoor portion of the pool. The defendants moved for summary judgment. The trial court granted the motion as to both of the plaintiffs' theories. The plaintiffs appeal. We affirm the trial court's judgment with respect to the plaintiffs' allegation that the defendants' pool contained excessive levels of chlorine. However, we vacate the trial court's judgment with respect to the allegation that the defendants' indoor pool was not properly ventilated. We hold that the defendants failed to meet their burden on summary judgment with respect to this claim.

Jeffrey Scott West v. Sharon Ann West
E2004-00422-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Samuel H. Payne

Jeffrey Scott West (“Father”) filed a petition against his former wife, Sharon Ann West (“Mother”), seeking to modify the parties’ Permanent Parenting Plan, which plan had not required Mother to pay child support due to the fact she was unemployed. The trial court, finding that, since the entry of the parenting plan, Mother had had a two-year gross income of over $25,000, held that there had been a substantial and material change in circumstances justifying an order requiring that Mother pay child support of $290 per month. Mother appeals, arguing that the trial court erred in ordering her to pay child support and in the methodology used by the court in calculating child support. We affirm.

David Stupp, et al. v. Phillips Auto Body, Llc and First American Insurance Company, et al.
W2003-00825-SC-WCM-CV
Authoring Judge: James F. Butler, Sp. J.
Trial Court Judge: Walter L. Evans, 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 to the Supreme Court of findings of fact and conclusions of law. The trial court determined that the plaintiff sustained a 25% vocational impairment to the body as a whole. The defendant asserts that: 1) the plaintiff failed to carry his burden of proof of permanent injury; 2) the trial court erred in finding plaintiff had an operative disk lesion which necessitated surgery; 3) the trial court erred in not granting defendant's motion for additional facts or to amend judgement; and 4) the trial court erred in finding that Dr. Anthony Segal's charges were reasonable and necessary and in granting plaintiff's motion for discretionary costs. Plaintiff asserts that the trial court erred when it awarded plaintiff a 25% disability impairment to the body as a whole, urging that the award should have been higher. We agree with the position of the plaintiff, and for the reasons set forth below, we modify the judgment of the trial court to award a forty-five percent (45%) vocational disability to the body as a whole. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JAMES F. BUTLER, SP. J., in which JANICE M. HOLDER, J., and JAMES L. WEATHERFORD, SR. J., joined. Richard W. Vaughn, Jr., Milan Tennessee, for the appellants, Phillips Auto Body, LLC and First American Insurance Company. David G. Mills, Cordova, Tennessee, for the appellee, David Stupp. MEMORANDUM OPINION Plaintiff was, at time of trial, 38 years old, married with four children, and attended school to the 11th grade. Plaintiff was employed as an auto body frame technician at Phillips Auto Body, LLC. The company was owned by Mary and Lou Phillips who also worked there. Plaintiff's duties consisted of vehicle body and frame work. At the time of his injury he was working in the shop on a pickup truck. Plaintiff alleges that on July 1, 21, Plaintiff and a co-worker, Scott Taylor, were lifting the hood off of a pickup truck when Plaintiff sustained an injury to his neck. He notified Lou Phillips immediately. Plaintiff worked the remainder of the day on light duty. The next day Plaintiff still had pain and went to Baptist Minor Medical and then to Campbell Clinic. He was seen by Dr. Douglas Linville at the Campbell Clinic who sent him to physical therapy and prescribed medication. He returned to work the next day. On July 17th, 21, Plaintiff went to physical therapy and returned to work. A discussion ensued between Plaintiff and Mary Phillips because she thought he had been gone longer than she expected, and Plaintiff was terminated that day. Plaintiff continued his physical therapy after termination and was referred to Dr. Ashley Park, also at the Campbell Clinic. Dr. Park ordered an MRI and injected Plaintiff with two steroid blocks. He was then referred to Dr. John Brophy and ultimately retrieved his medical records from Campbell Clinic. His medical records contained a comment about a previous lawsuit and that the Plaintiff had been videotaped "popping wheelies" on a four-wheeler. Dr. Brophy reviewed the MRI and found cervical spondylosis, worse on the left at C5-6 and C6-7, without definite evidence of nerve root or spinal cord compression. Wanting to rule out nerve root compression, he ordered a myelogram/CT scan and later ordered a bilateral upper extremity EMG/nerve conduction study. After reviewing these studies, according to Plaintiff, Dr. Brophy told him that he did not hurt himself at work, that there was nothing wrong with him, and that he should go back to work immediately. Plaintiff thereafter sought the services of Dr. Anthony Segal, a neurosurgeon and provided him with his MRI for review. Dr. Segal ultimately performed surgery on the Plaintiff. After his recovery period, he went back to work for the same company which was under new ownership. At trial, Plaintiff was doing the same work that he was doing prior to his injury with the exception of the heavy lifting. Medical Evidence Dr. John Brophy initially saw the Plaintiff on March 11, 22. He reviewed the Plaintiff's MRI and opined that Plaintiff had cervical spondylosis, worse on the left at C- 5-6 and C-6-7, without definite evidence of nerve root or spinal cord compression. Based on Plaintiff's severity of pain, Dr. Brophy ordered a cervical myelogram/CT scan to rule out nerve root compression. His plan was that if the myelogram demonstrated evidence of nerve root compression, they would discuss surgery. If -2-

Ellen Hopson Bell v. William Hall Bell
E2002-02762-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

The matter now before us finds its genesis in a divorce action brought by Ellen Hopson Bell ("Wife") against her husband, William Hall Bell ("Husband"). In her complaint for divorce, Wife sought, inter alia, reasonable attorney's fees. She renewed her request for fees at the conclusion of the divorce trial. Without conducting a hearing, the trial court ordered Husband to pay Wife $5,000, representing one half of her reasonable legal expenses incurred in the divorce. Husband appealed. We subsequently vacated the trial court's judgment, remanding the matter to the trial court for a hearing on the issue of Wife's entitlement to a fee award. The trial court conducted a hearing and subsequently ordered Husband to pay Wife $5,250 as an allowance on her legal expenses. Husband appeals. We affirm and hold that Wife is entitled to her fees and expenses incurred on appeal.

Jeannette Cutrer Day Siniard v. Mark Alan Siniard
E2003-01960-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

In this post-divorce case, Jeannette Cutrer Day Siniard ("Mother") sought to modify the parties' residential schedule pertaining to their children. That schedule provided that Caroline Siniard and Wesley Siniard (collectively "the children") would alternate weeks between Mother's home and the home of their father, Mark Alan Siniard ("Father"). The trial court granted Mother's request in part by designating her as the primary residential parent of Caroline. In a subsequent order granting Mother child support, the trial court went further and designated Mother as the primary residential parent of both children. Father appeals, contending, among other things, that Mother failed to show a material change in circumstances warranting a modification of the residential schedule. We affirm.

State of Tennessee v. Donald W. Streck
E2003-01991-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ray L. Jenkins

The state appeals from the Knox County Criminal Court's order granting Donald W. Streck's motion to receive jail credits toward his Tennessee sentence for time that he spent in federal custody serving federal sentences. Because the lower court did not have jurisdiction to entertain the motion, we reverse.

State of Tennessee v. Jason D. Love
E2003-02777-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Jason D. Love, appeals the trial court's denial of alternative sentences. The defendant pled guilty to three counts of delivery of less than .5 grams of a Schedule II controlled substance, a Class C felony. Following a hearing, the trial court denied alternative sentencing and ordered the defendant to serve his sentences in confinement. After careful review, we affirm the trial court's denial of alternative sentencing.

Fred Simmons Trucking, Inc., v. United States Fidelity and Guaranty Company, and its successors in interest, Hartford Fire Insurance, Co.
E2003-02892-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Jacqueline E. Schulten

In this breach of contract action based on a policy of insurance, the Trial Court determined defendant had breached the contract and awarded compensatory damages, as well as punitive damages. On appeal, we reverse in part,  affirm in part, vacate and remand.

Mechelle R. Elosiebo v. State of Tennessee
E2003-02941-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

The Commissioner found defendant's physician breached the standard of care in the treatment of plaintiff, but refused to award damages. On appeal, we affirm Commissioner's finding of breach, but award damages and remand to enter Judgment.

Jerry Bales v. Dialysis Clinic, Inc.
E2003-03059-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Samuel H. Payne

Action alleged retaliatory discharge for filing workers compensation claim. Employer defended termination on grounds employee was unable to perform his job due to disability. The Trial Court granted defendant summary judgment. We affirm.

Latasha Whittington-Barrett v. Charles Sprinkle
E2004-00007-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor G. Richard Johnson

The Chancery Court transferred this action to Circuit Court and plaintiff has appealed the transfer. We affirm.

State of Tennessee v. Jody Lee Turner
E2004-00060-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.

Following his guilty plea to two counts of theft, the defendant, Jody Lee Turner, was sentenced in the Cumberland County Criminal Court to an effective four-year term to be served on probation, supervised by a community corrections program agency. A few weeks later, the court revoked the community placement and ordered the defendant to serve his four-year sentence in the Department of Correction. From that order, the defendant appeals. Upon review, we affirm the judgments below.

Tracy D. Simpson Kries, v. Tomothy Maurice Kries
E2004-00132-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Michael A. Davis

The Trial Court awarded child support from birth of the child to marriage of the parties, subsequent to their divorce. The father appealed. We affirm.

Rhonda Elaine Bolick v. Ronald Dale Bolick
E2004-00369-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Neil Thomas, III

Husband appeals property settlement award to wife in divorce action. On appeal, we affirm.

William Eugene Jessup v. Marcia J. Tague
E2002-02058-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Howell N. Peoples

In this dispute between attorney and client, a jury awarded the client damages against the attorney which award was approved by the Trial Court. On appeal, we affirm.

Susan Simmons, et al., v. State Farm General Insurance Company, et al.
W2003-02643-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

Homeowner’s insurance policyholders filed a complaint against an insurance carrier seeking benefits under policy and a declaratory judgment that policy language was ambiguous. Homeowners filed a motion seeking certification as a class action. The insurance carrier filed a motion for summary judgment, asserting that plaintiff Beckwith’s claim for benefits was time barred and plaintiff Simmons’s claim was non-justiciable. The insurance carrier filed separate motions to stay discovery and defer the class certification hearing until after the hearing on the motion for summary judgment, which the trial court granted. The trial court granted the insurance carrier summary judgment against all plaintiffs, thereby disposing of the class certification issue. Homeowners appeal from the order granting summary judgment. We affirm.