This is a wiretapping case. A husband and a wife were experiencing marital difficulties. During that time, the husband tape recorded a telephone conversation between his wife and her brother without the knowledge of either. When the brother found out, he filed a lawsuit against the husband, his brother-in-law, seeking damages under the civil damages provision of the Tennessee wiretapping statutes, Tenn. Code Ann. § 39-13-603. The trial court, sitting without a jury, held that the husband was liable to his brother-in-law, and awarded nominal compensatory damages, litigation expenses, and attorney’s fees. The husband and the brother-in-law both appeal that decision, arguing that the damage award was erroneous. We reverse the trial court’s award of damages, finding that the statute requires that, when a violation is established, the trial court must award either the actual damages or the statutory minimum penalty of $10,000, whichever is greater.
Shelby
Court of Appeals
Dale Pratt v. Averitt Express, Inc. E2002-00864-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Daryl Fansler, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The employer appeals the trial court's refusal to cap the employee's award at two and one-half times the employee's medical impairment as provided by Tenn. Code Ann. _ 5-6-241(a)(1). We modify the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Knox County Chancery Court is Modified. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JUSTICE, and JOHN K. BYERS, SR. J., joined. Andrew R. Tillman, LLP, Paine, Tarwater, Bickers and Tillman, Knoxville, Tennessee, for the Appellant, Averitt Express, Inc. Richard Baker, Baker, Gulley & Oldham, P.A., Knoxville, Tennessee, for the Appellee, Dale Pratt. MEMORANDUM OPINION Facts On October 27, 1999, Dale Pratt sustained a back injury in the course and scope of his employment with Averitt Express, Inc. ("Averitt"). His treating physician assigned a permanent medical impairment of seven percent to the body as a whole. At the time of the injury, Pratt was working as a truck driver and was paid $17.1 per hour for both regular and overtime hours he 1 worked. Following the injury, medical restrictions prevented his return to work as a truck driver. Averitt trained him to be a dispatcher and retained him at a salary of $725 for a 4-hour week, the equivalent of $18.12 per hour and paid him overtime at the rate of $9.6 per hour. Mr. Pratt continued to work approximately the same amount of overtime as he had worked before the injury. Pay records introduced at the trial established that because of the difference in overtime pay per hour, the actual average weekly compensation received by Mr. Pratt before the injury was greater than that received after he returned to work in the new position. The trial court held that Mr. Pratt had "not returned to the same wage because he was earning less on an average weekly basis than he did prior to the injury; that the two and a half times under 241 (did) not apply; and that he is entitled to a permanent and partial disability to the body as a whole at three and half times seven percent for a rating twenty-four and half percent to the body as a whole in this case." Standard of Review Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise Tenn. Code Ann. _ 5-6-225(e)(2); Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn. 2). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Conclusions of law are subject to de novo review with no presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997). Issue The issue is whether the trial court erred in failing to apply the statutory cap of two and one-half times the employee's medical impairment pursuant to Tenn. Code Ann. _ 5-6- 241(a)(1). Discussion At the time of the trial of this case, the Tennessee Supreme Court had decided the case of Wilkins v. Kellogg Co., 48 S.W.3d 148 (Tenn. 21) relating to an award of temporary partial disability and holding that the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) referred to the amount paid to an injured employee by an employer on an hourly basis. The Supreme Court, with two members dissenting, distinguished the term "wage" as used in Tenn. Code Ann. _ 5-6- 27(2) from the term "average weekly wage" used in other portions of the Worker's Compensation Act. In Wilkins, the Court noted that "average weekly wage" includes such compensation as overtime, bonuses and commissions. It held that the term "wage" as used in Tenn. Code Ann. _ 5-6-27(2) did not permit the inclusion of overtime in determining the amount of temporary partial benefits to be paid to an injured employee. Ms. Wilkins normally worked 6 hours each week and was paid at the rate of $21.52 per hour for 4 hours and a higher 2
A Tipton County jury convicted the defendant of the delivery of .5 grams or more of cocaine. On appeal, he argues: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in refusing to grant a mistrial after the prosecutor improperly questioned the defendant about prior drug sales; and (3) the trial court erroneously instructed the jury regarding his co-defendant's status as an accomplice. We conclude the trial court erred in refusing to grant a mistrial. Accordingly, we reverse the judgment of the trial court and remand the matter for a new trial.
A Lauderdale County grand jury indicted the defendants, Jerry Steven Cothran and Lee Theodore Smith, on one count of attempt to manufacture a controlled substance, two counts of possession of controlled substances, and one count of possession of drug paraphernalia. Cothran was also indicted on three counts of unlawful possession of a firearm. The trial court granted the defendants' motion to suppress evidence based upon an illegal search. On appeal, the state contends the trial court erred in granting the defendants' motion to suppress. Upon review of the record and the applicable law, we reverse the judgment of the trial court.
Lauderdale
Court of Criminal Appeals
Mark Pirtle Chevrolet v. Celebration Nissan M2002-00554-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: J. B. Cox
This case involved claims and counter-claims for breach of contract on the sale of an automobile dealership. After a hearing, the trial court awarded the plaintiffs damages for most of their claims. Since the defendants did not file a timely notice of appeal, we cannot consider arguments about the court's Final Order. However, the plaintiff filed a Rule 60 motion to clarify one paragraph of the Final Order. The trial court granted the motion, and modified the order to specify that the defendant was to pay the plaintiff $49,000 for certain cars that had been the subjects of a dispute. The defendant appealed the trial court's action. We affirm.
Bedford
Court of Appeals
James Pylant v. Karen Spivey M2002-00602-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Robert L. Holloway
This appeal involves a dispute over the extent of a father's obligation, under a provision in a property settlement agreement, to pay for his daughter's college education. The daughter chose to attend an expensive private college. The trial court found that father should pay tuition equivalent to the cost of an out-of-state public university. Both parties appealed. We affirm the trial court's decision that the father is obligated to pay reasonable costs, but vacate the judgment because there is insufficient proof of such costs.
Giles
Court of Appeals
Gail Allen v. Saturn Corp. M2002-01238-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
Appellants, Gail and Larry Allen, sustained injuries when a tent collapsed during a thunderstorm at a Homecoming at the Saturn Corporation in Spring Hill. They brought suit for their injuries caused by negligence in maintenance and construction of the tent. They dismissed or settled their claims with all Defendants except Saturn Corporation. Saturn filed a Motion for Summary Judgment arguing that Appellants were unable to establish a prima facie case of the Appellee's negligence. The trial court granted Appellee's Motion for Summary Judgment. We affirm the decision of the trial court.
Maury
Court of Appeals
XI Properties v. Racetrac Petroleum M2001-00977-COA-R3-CV
Authoring Judge: Judge Marietta M. Shipley
Plaintiffs, XI Properties Inc. et al., purchased land from the defendant, RaceTrac, adjacent to RaceTrac Petroleum in 1992. Seven years later, XI Properties, while attempting to develop the property, learned RaceTrac had inadvertently conveyed to them portions of RaceTrac parking, curbs and light posts. Plaintiffs proposed to remove the unnatural slope created by the parking lot, but defendants were concerned about their rights and responsibilities. Plaintiffs filed a declaratory judgment. Defendants filed a Motion for Summary Judgment. We reverse the trial court=s grant of summary judgment to XI Properties as to adverse possession by RaceTrac. We remand the issue to the trial court to determine if Racetrac can establish possession of the property. Further we affirm the finding that XI Properties owes no duty to RaceTrac for lateral support, so long as it does not act negligently.
Putnam
Court of Appeals
Stephen Morgan v. Paula Morgan M2002-00793-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
Husband and Wife were declared divorced on the basis of stipulated grounds. Wife appeals the classification and division of the property. We affirm the decision of the trial court.
Robertson
Court of Appeals
Cathy Lovett v. John Kelley M2002-01078-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jim T. Hamilton
A woman whose car was struck by another vehicle brought suit against the driver of a van involved in the accident as well as the driver's employer, claiming the collision aggravated her pre-existing back injury. The defendants did not dispute liability, but claimed that the plaintiff's injury was relatively minor. After a hearing, the trial court entered a $100,000 judgment against the defendants. We reverse, because we believe the trial court's award included damages for injuries that were not proximately caused by the defendant's actions.
Maury
Court of Appeals
Sherry Ellen Carwile v. Compass Group, USA, Inc., W2001-03163-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: William Michael Maloan, Chancellor
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 the trial court erred in admitting, over objection, certain medical expenses allegedly incurred by the plaintiff. As discussed below, the panel has concluded that proof that the expenses allowed were reasonable and necessary was not required where the employer failed to provide medical care as required by Tenn. Code Ann. _ 5-6-24(a)(4)(A). Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Ronald L. Harper and R. Scott Harper, Memphis, Tennessee, for the appellant, Compass Group, USA, Inc., d/b/a Canteen Vending Services Jay E. DeGroot, Jackson, Tennessee, for the appellee, Sherry Ellen Carwile MEMORANDUM OPINION This civil action was initiated by the employee or claimant, Ms. Carwile, to recover workers' compensation benefits, including reasonably necessary medical expenses, for a work related injury. At the conclusion of the trial, the trial court ordered, among other things, that the claimant recover any outstanding medical expenses incurred, pursuant to Tenn. Code Ann._ 5-6- 24. The employer, Compass Group, USA, has appealed. 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) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.
Obion
Workers Compensation Panel
Rosie Fuller v. Wal-Mart Stores, Inc., W2002-00745-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Joe C. Morris, Chancellor
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. The trial judge found the plaintiff had suffered a 9 percent disability to her body as a whole as a result of an injury to her legs and back. The award was apportioned at 75 percent to the employer and 15 percent to the Second Injury Fund because the plaintiff had a previous injury to her leg which amounted to a 25 percent permanent partial disability, which was paid by Wal-Mart. We modify and affirm the judgment. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified and Remanded JOHN K. BYERS, SR. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, attorney for appellant, Wal-Mart Stores, Inc. David Hardee, Jackson, Tennessee, attorney for appellee, Rosie Fuller. Paul G. Summer, Attorney General and Reporter; E. Blaine Sprouse, Assistant Attorney General, for the appellee, State of Tennessee. MEMORANDUM OPINION In 1997, the plaintiff developed tarsal tunnel syndrome in her right leg. She was placed in a brace to support her right leg. In September of 1999, the plaintiff started having pain in her left leg. Dr. Wormbrod placed a brace on the left leg as well. Further, the plaintiff began to experience back pain. The plaintiff fell on July 4, 2, while at work and represented she injured both legs and her back. The plaintiff continued to work for the defendant throughout the time of her leg problem and was still working at the time of trial. The defendant assigned her to work at a light-duty job which accommodated the medical restrictions set by physicians. A supervisor testified that plaintiff was a good employee and there was no plan to discharge her. The plaintiff received two raises after her disability and is making more than she was prior to her injuries. Medical Evidence Dr. James Warmbrod, an orthopedic surgeon, was the plaintiff's treating physician. He described the tarsal tunnel syndrome condition the plaintiff suffered and was of the opinion this could be caused by her long hours of standing on concrete in her job. He placed restrictions on long periods of standing, weight lifting, etc., and recommended that she do only sedentary jobs. Dr. Warmbrod did not fix any medical impairment rating, nor did he testify as to a date of maximum medical improvement. He testified the plaintiff might require surgery in the future. He was, however, reluctant to do surgery for various reasons. He was of the opinion the back pain the plaintiff suffered was because her gait was altered as a result of wearing the braces. Dr. Riley Jones, an orthopedic surgeon, filed a C-32 form, basically stating the plaintiff's problems were not related to her work and gave no impairment rating. Dr. Robert Barnett, an orthopedic surgeon, evaluated the plaintiff and confirmed Dr. Warmbrod's opinion of the injuries. Dr. Barnett found the plaintiff had sustained a 44 percent whole body disability. This included a 5 percent rating because of back pain, 15 percent for the left leg problem and 3 percent for the previous injury to the plaintiff's right leg. There is no medical evidence in the record to show the plaintiff sustained any injury to her right leg which would be compensable as a result of the fall of July 4, 2. Findings at Trial The trial judge found the case involved injury to both legs and also to the plaintiff's back. He found the plaintiff had to alter her gait since she began wearing a brace on her right leg in 1999. He found the injury at work on July 4, 2, aggravated her three prior injuries. The trial court found the plaintiff reached maximum medical improvement on June 2, 2, the date Dr. Wormbrod placed work restrictions on her. The trial judge found the plaintiff had sustained a 9 percent whole body disability as a result of the injury and because of the previous disability, which was 25 percent to the body as a whole. The trial court concluded that the defendant must pay 75 percent or 36 weeks of the award and the -2-
The defendant, Sherry L. Williams, pleaded guilty to 20 forgery charges and three charges of criminal impersonation, with a recommended effective sentence of seven years. The plea agreement provided that the trial court would determine the manner of service of the sentence. After a sentencing hearing, the trial court denied any form of alternative sentencing and ordered incarceration in the Department of Correction. From this determination, the defendant appeals. Finding no error, we affirm the judgment of the trial court.
Sullivan
Court of Criminal Appeals
James Glover vs. Tetyana Glover E2002-01690-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Kindall T. Lawson
The trial court entered a judgment granting the complaint for annulment filed by James Eugene Glover ("Husband"). Within 30 days of the entry of the judgment, Tetyana Glover ("Wife") filed a motion seeking to set aside the judgment. She claims that she did not have prior notice that the complaint was to be considered on June 19, 2002, the date on which the record reflects this case was heard. The trial court, finding that it lacked jurisdiction to consider Wife's motion, denied her request to set aside the judgment. Wife appeals. We vacate the trial court's order refusing to consider Wife's motion and remand this matter to the trial court for consideration of the motion.
Hamblen
Court of Appeals
Messer Griesheim dba MG Industries vs. Cryotech E2002-01728-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Wheeler A. Rosenbalm
This appeal from the Knox County Circuit Court questions whether the Trial Court erred in granting a summary judgment in favor of the Appellee/Defendant, Eastman Chemical Company, with respect to various claims connected with the purchase and sale of contaminated carbon dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc., d/b/a MG Industries. We affirm in part, vacate in part and remand.
Knox
Court of Appeals
Messer Griesheim dba MG Industries vs. Cryotech E2002-01728-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Wheeler A. Rosenbalm
This appeal from the Knox County Circuit Court questions whether the Trial Court erred in granting a summary judgment in favor of the Appellee/Defendant, Eastman Chemical Company, with respect to various claims connected with the purchase and sale of contaminated carbon dioxide by the Appellant/Plaintiff, Messer Griesheim Industries, Inc., d/b/a MG Industries. We affirm in part, vacate in part and remand.
Knox
Court of Appeals
Shamery Blair vs. West Town Mall E2002-02005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Knox
Court of Appeals
Shamery Blair vs. West Town Mall E2002-02005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Knox
Court of Appeals
Shamery Blair vs. West Town Mall E2002-02005-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Knox
Court of Appeals
Anne Strickland vs. Daniel Cartwright E2002-02176-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Anne Strickland ("Plaintiff") approached Daniel Cartwright ("Defendant") about the possible purchase of Defendant's restaurant. Unable to come up with the full purchase price of $1.5 million, Plaintiff made an initial payment of $170,000 and began leasing the restaurant with monthly rental payments of $7,000. No written agreement ever was finalized between the parties. Plaintiff vacated the premises after six months allegedly due to the poor condition of the building and the amount of repairs that were needed. Plaintiff filed suit seeking a return of the $170,000, claiming this money was intended by the parties to be a down payment on the purchase of the restaurant, an event which never occurred. Defendant claimed the parties had agreed to a nonrefundable initial payment of $250,000 to allow Plaintiff the privilege of being able to walk in and take over a fully staffed and operational restaurant. Since Plaintiff paid only $170,000 toward the initial $250,000 payment, Defendant filed a counterclaim for the remaining $80,000. After a trial, the Trial Court awarded Plaintiff a judgment in the amount of $138,000. Both parties appeal. We affirm.
Blount
Court of Appeals
Adrian Scaife vs.Chantelle Roberson E2002-02666-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Howell N. Peoples
John D. Knowles, Jr. ("Deceased") died intestate in December of 2000. A Petition for Intestate Administration ("Petition") filed in April of 2001, listed Adrian Scaife ("Plaintiff") as one of Deceased's daughters. This Petition never was granted. Several months later, an Amended Petition for Intestate Administration ("Amended Petition") was filed. The Amended Petition listed Plaintiff as an heir, but did not state Plaintiff's relationship to the Deceased. A. Chantelle Roberson ("Defendant") sought to be appointed administratrix of the Deceased's estate (the "Estate") and signed the Amended Petition. The Amended Petition was granted and Defendant was named administratrix of the Estate in June of 2001. The Notice to Creditors for the Estate was published in June and July of 2001. Notice to Creditor letters were sent to all known creditors and any persons having claims, or believed to have claims, against the Estate. Plaintiff received a copy of the Letters of Administration and a Notice to Creditor letter informing her that in order to inherit from the Deceased, she would need to establish paternity within the four month time period allowed to creditors for filing claims. Plaintiff took no steps to establish paternity within the four month period. In February of 2002, Plaintiff sued seeking to prohibit Defendant from denying Plaintiff is a child of the Deceased. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm.
The defendant, John Paul Hassler, appeals from the Cumberland County Criminal Court's revoking his probation that was ordered for his sentences for selling cocaine. He contends that the trial court abused its discretion in revoking his probation and ordering him to serve the remainder of his sentences in confinement. We affirm the judgment of the trial court.
The defendant pled guilty to one count of vehicular homicide and three counts of reckless aggravated assault following an automobile accident in which a mother was killed and her three young children were injured. The trial court imposed an effective four-year sentence in the Department of Correction. The defendant appeals the trial court's denial of alternative sentencing. We affirm the judgments of the trial court.
The petitioner, Benjamin Blackwell, was convicted of second degree murder and, on direct appeal, this court affirmed his conviction. Subsequently, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. The post-conviction court dismissed the petition and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.
The appellant, Angela Caprice Parchman, was convicted by a jury in the Obion County Circuit Court of the sale of .5 grams or more of crack cocaine, a Class B felony. The trial court sentenced the appellant as a Range II multiple offender to twelve years incarceration in the Tennessee Department of Correction. On appeal, the appellant argues that the evidence was insufficient to support her conviction and that her trial counsel was ineffective. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.
