Richard W. Beckwith-Adams v. State of Tennessee
M1999-00041-WC-R3-CV
Authoring Judge: Per Curiam
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by appellant, for which execution may issue if necessary.

Anita Chapman v. E-Z Serve Petroleum Marketing
M1999-00441-WC-R3-CV
Authoring Judge: Honorable Clara Byrd, Judge
Trial Court Judge: Wilson
Hamilton V. Gayden, Jr., Special Judge

Yvonne McCann, et al., v. Glen Hatchett, et al.
W1998-00808-SC-WCM-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor D. J. Alissandratos

In this workers’ compensation case the sole issue is whether the death of a traveling employee by
drowning is compensable as arising out of and in the course of employment. The trial court granted summary judgment to the employer. We granted the employer’s motion for review filed pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(1999) and have determined that the employee’s death may have arisen out of and in the course of the employment. It results that the trial court’s grant of summary judgment to the employer is error, and the cause is remanded.

Phyllis Schwartz v. Lookout Mountain Caverns, Inc., et al.
E1999-01142-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

Following entry of judgment on a jury verdict, the Trial Court granted Defendants a new trial based upon allegations in the affidavit of one of the jurors. Plaintiff was granted interlocutory appeal limited to whether or not the Trial Court erred in granting Defendants’ Motion For New Trial based
on the information contained in the juror’s affidavit submitted by Defendants in support of their Motion For New Trial. Because the affidavit does not fall under any of the three exceptions to exclusion of juror testimony found in T.R.E. 606(b), the Trial Court erred in accepting the affidavit
into evidence on the issue of a new trial. No other evidence supported Defendants’ motion for new trial. Because no admissible evidence was properly before the Court, the Order for new trial is reversed and this lawsuit remanded for enforcement of the judgment previously entered on the verdict of the jury. 

Ellen Patty Seiber v. Town of Oliver Springs
E1999-01228-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Russell E. Simmons, Jr.

The plaintiff, a mid-level executive of the Town of Oliver Springs, “borrowed” various sums of money from a citizen of the Town over a three-year period which she repaid with sexual favors. When this activity came to light she was fired by the Mayor and City Administrator. Her suit, claiming breach of contract and discriminatory employment practices, was dismissed on motion for summary judgment. This appeal resulted. We affirm the judgment of the Trial Court. Tenn. R. App. P. 3 Appeal as of right; Judgment of the Circuit Court Affirmed
 

Ellen Patty Seiber v. Town of Oliver Springs - Concurring
E1999-01228-COA-R3-CV
Authoring Judge: Judge Hershel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Judge Franks.
The majority affirms the Trial Judge’s summary dismissal of plaintiff’s action, and
I concur in the affirmance of the dismissal on the basis that plaintiff was either estopped or has
waived her right to maintain this action.

Katrinka A. Stalsworth, and Jim Stalsworth, v. Robert A Grummons, M.D.
M1999-00047-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas Goodall

The sole issue presented in this appeal is whether the trial court properly awarded as discretionary costs fees of the defendant’s expert witnesses who did not testify because the plaintiffs voluntarily dismissed their lawsuit on the day of trial before any proof was taken. The fees in question were charged by the defendant’s medical experts for reserving time in their schedules to testify, thereby precluding any other income-producing professional activities. The award of discretionary costs is affirmed.

State of Tennessee v. Monica L. Madden, a/k/a Shana Valeshia Goodwin, a/k/a Monica Wright
M1999-00176-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

Pursuant to a plea bargain agreement, the defendant pled guilty in Davidson County Criminal Court to two counts of assault and one count of accessory after the fact. She received an effective sentence of two years. The defendant appeals the trial court’s order that her sentence be served in the workhouse rather than in some alternative form, asserting that the trial court erred in considering her arrests while on bond as indications of her unsuitability for alternative sentencing; in making its determination based solely on her arrests while on bond; and in failing to consider her participation in a counseling program. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. William Joseph Taylor
M1999-00218-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: Judge J. O. Bond

The defendant was initially tried and convicted in Rutherford County for the crime of rape of a child. On appeal, this Court found that the defendant’s trial counsel was ineffective and remanded the case for a new trial. After remand, the defendant was indicted in Wilson County. The Wilson County Criminal Court found that the double jeopardy clauses of the United States Constitution and the Tennessee Constitution prohibited the State from prosecuting the defendant and dismissed the indictment. The State appealed the dismissal. We reverse the decision of the trial court and remand for a trial.

State of Tennessee v. Antonio Brewster
M1999-00989-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant was convicted in the Criminal Court, Davidson County, Wyatt, Randall J., of felony murder in the perpetration of a robbery, attempted aggravated robbery, aggravated robbery, and two counts of attempted first-degree murder. The defendant appealed. The Court of Criminal Appeals, Smith J., held that: (1) the trial court did not err in denying the defendant’s motion to suppress his statement; (2) there was sufficient evidence that the defendant murdered a bystander in the perpetration of a robbery to support conviction for felony murder; and (3) the defendant was not denied the effective assistance of counsel at trial.

Affirmed.

Madge KirkhamFell v. Gloria Rambo
M1999-01039-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Lee Russell

This appeal involves a dispute over the proceeds of the sale of a family farm by a life tenant with an unlimited power of disposition. Following the life tenant’s death, the remaindermen named in the life tenant’s husband’s will filed suit in the Chancery Court for Marshall County against the executrix of the life tenant’s estate, the estate itself, and the beneficiaries named in the life tenant’s will asserting that the life tenant lacked capacity to sell the farm, that the executrix had unduly influenced the life tenant to sell the farm, and that the executrix had tortiously interfered with their inheritance from the life tenant’s husband. The trial court, sitting without a jury, found no lack of capacity or undue influence but determined that the remaindermen have an interest in the proceeds of the sale of the farm. The trial court also awarded attorney’s fees to the lawyer the remaindermen had discharged earlier in the proceeding. The life tenant’s estate and her executrix now appeal the conclusion that the remaindermen named in her husband’s will have an interest in the proceeds of the sale; while the remaindermen appeal from the dismissal of their lack of capacity, undue influence, and intentional interference with inheritance claims and the award of fees to their former lawyer. We have determined that the trial court correctly concluded that the life tenant was capable of selling the farm, that her executrix did not unduly influence her decision, and that the remaindermen’s former attorney was entitled to payment. We have also determined that the life tenant’s sale of the farm terminated the remaindermen’s interest as a matter of law. Accordingly, we reverse the judgment awarding the remaindermen $269,420.89 and remand the case to the trial court for further proceedings.
 

JGT Corporation v. E. Harwell Andrews, et al.
M1999-01395-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This appeal arises from a dispute over whether a commercial lease was renewed. After lessors notified lessee that the lease had not been renewed, lessee filed for declaratory judgment on the issue of whether renewal notice was given timely, asserting an alternative ground of equitable relief from performance under the “special circumstances” doctrine. Lessors asserted the equitable maxim of unclean hands, averring that lessee created false evidence to attempt to establish timely compliance with the lease renewal requirement. Both sides moved for summary judgment, and the Chancellor entered judgment for lessee based upon the finding of “special circumstances” to excuse untimely performance by lessee, noting that issues of material fact exist as to timely notice. On this appeal, lessors allege error by the Chancellor’s award of equitable relief without resolving the unclean hands issue, along with error in the finding of “special circumstances,” and error in denying lessors’ counterclaim for breach of the implied duty of good faith and fair dealing. Because resolution of the issue of whether or not renewal notice was given timely is both necessary and dispostive of all other issues raised in this lawsuit, the order of the Chancellor awarding summary judgment to lessee is reversed, and this lawsuit remanded for trial.

State of Tennessee v. Timothy Williams
W1999-01193-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Carolyn Wade Blackett

In this appeal of right from the Shelby County Criminal Court, the defendant contends that his de novo appeal from a judgment of the General Sessions Court was erroneously dismissed at a status hearing. Because the Criminal Court Clerk failed to provide notice of the status hearing to defendant's counsel of record, the judgment of dismissal is reversed and the cause is remanded to the trial court for a hearing.

Don Smith v. Keyport Self-Storage, et al.
W1998-00810-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge D'Army Bailey

This is a negligent supervision lawsuit. The plaintiff rented a unit from the defendants' selfstorage facility. An employee of the self-storage facility stole the plaintiff's property and disappeared. The plaintiff sued the storage facility and its owners, alleging negligent supervision of the dishonest employee. A jury found in favor of the plaintiff and awarded compensatory damages. The defendants appeal. We reverse, finding that the plaintiff submitted insufficient evidence to support a finding of negligent supervision.
 

Custom Interiors & Supply Company, v. Inn-Way, Inc.
W1999-02191-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Julian P. Guinn

This appeal arises from a dispute over whether Defendant Robert Shropshire personally guaranteed the debts of Defendant Inn-Way, Inc., to Plaintiff Custom Interiors & Supply Company, Inc. Custom Interiors sued Inn-Way to recover the sum of $54,537.30 for orders placed by Inn-Way after October 1996. Custom Interiors also sued Inn-Way’s president and owner, Robert Shropshire, contending that Shropshire had personally guaranteed Inn-Way’s debts to Custom Interiors. After Inn-Way filed for bankruptcy protection, Custom Interiors proceeded to trial against Shropshire. The trial court entered a judgment finding that Custom Interiors had failed to carry its burden of proof and that Shropshire was not a personal guarantor of Inn-Way’s debts to Custom Interiors. We affirm the trial court’s judgment based upon our conclusion that the evidence does not preponderate against these findings. 

Coldwell Banker-Hoffman Burke and Donna Sliney, et al., v. Kra Holdings, et al.
W1999-02721-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

Plaintiff, a licensed affiliate real estate broker, sued to collect a commission for locating a particular property for a prospective buyer. When the sellers refused to sell the property, the prospective buyer abandoned efforts to obtain the property. About six weeks later, the prospective buyer contacted one of the sellers and was able to negotiate with all of the sellers for purchase of the property and ultimately consummated the purchase for a higher sale price than originally contemplated. Plaintiff alleges that she had an oral agreement for $150,000.00 commission, or, alternatively, that she was acting as a facilitator and entitled to a commission for her services as such. From the trial court’s order granting summary judgment to defendant, plaintiff has appealed. Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Chancery Court affirmed
 

John Pitner v. Fayette County, Tennessee
W1999-01217-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Wil V. Doran

This appeal results from the trial court’s dismissal of Plaintiff John Pitner’s cause of action against Defendant Fayette County, Tennessee (“County”) pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. The trial court ruled that Mr. Pitner, the former Director of Planning and Development for the County, failed to prove that the County was contractually obligated to pay overtime to him and that Mr. Pitner further failed to prove damages. We affirm on the basis that Mr. Pitner failed to prove the existence of a contract. Rule 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
 

State of Tennessee v. Montrell Perry
W1999-01419-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Carolyn Wade Blackett

The appellant entered guilty pleas to two counts of sale of cocaine, Class C felonies, and was sentenced to four years confinement in the Department of Correction. The appellant argues, in this direct appeal, that the trial court erred in ordering total confinement. The record supports denial of an alternative sentence. The judgment is affirmed.

State of Tennessee vs. Daryl Robinson
W1999-01386-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Daryl McKinley Robinson, appeals from the trial court’s revocation of his  probationary sentence and order that he serve his effective 14-year, 11-month, 29-day sentence in the Department of Correction. In this appeal, he complains that the trial court erred in failing to make findings regarding whether his failure to pay fines and costs was willful or a result of lack of bona fide efforts to acquire the resources to pay. He further complains that the trial court erred in ordering him to serve his sentence in incarceration, rather than the Community Corrections program. Upon review, we find no abuse of discretion warranting a reversal of the court’s order and therefore affirm.

James Reed, et al., v. Jamie Hamilton, et ux.
W1999-00440-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor W. Michael Maloan

This appeal arises from a dispute between neighboring landowners regarding whether there is an easement across the real property of Defendants Jamie and Bonnie Hamilton for the benefit of Plaintiffs Hulon O. Warlick, III, James Reed, and Wayne Matthews. Mr. Warlick filed a complaint and Mr. Reed and Mr. Matthews filed a similar complaint against the Hamiltons asking the trial court to declare the existence of such an easement. The court issued a number of orders in the Warlick and Reed/Matthews matters enjoining the Hamiltons from interfering with the easement and from obstructing or preventing Mr. Warlick, Mr. Reed, or Mr. Matthews from accessing their properties. The Hamiltons nevertheless performed a number of acts in violation of these orders. Consequently, the trial court found the Hamiltons in civil contempt and assessed sanctions and damages against them in the amount of $25,156.80, which is equal to the attorney’s fees incurred by Mr. Warlick, Mr. Reed, and Mr. Matthews. On appeal, the Hamiltons argue that the trial court was without authority to assess attorney’s fees against them. We hold that, under the circumstances of the case at bar, the trial court had the authority to assess attorney’s fees against the Hamiltons pursuant to section 29-9-105 of the Tennessee Code Annotated. We therefore affirm the ruling of the trial court.
 

Sean N. Geiger v. Percy Pitzer, et al.
W1999-01776-COA-R3-CD
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jon Kerry Blackwood

An inmate presently in custody in the Whiteville Correctional Facility sued the warden and the CEO and Chairman of Corrections Corporation of America in a pleading styled Petition for Writ of Habeas Corpus. He seeks release from that facility contending that the State of Wisconsin Department of Corrections (DOC) released him when it surrendered him to a facility outside the borders of the State of Wisconsin for incarceration. The trial court dismissed the cause of action and we affirm.
 

Washshukru Al-Jabbar A'La. v. Christine Bradley, et al.
E1999-01291-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Russell E. Simmons, Jr.

Plaintiff, an inmate in Brushy Mountain State Penitentiary, appeals the Trial Court’s dismissal of his civil suit for damages allegedly incurred as a result of the “capricious, arbitrary and unjust” operation of the Inmate Grievance Procedure, for “malfeasance”, and for “civil rights intimidation.” The Trial Court found that (1) the doctrine of res judicata prevents Plaintiff’s suit on one of his alleged claims because judgment has been entered in the United States District Court for the Eastern District of Tennessee on that claim; (2) all of Plaintiff’s allegations are conclusory except for that one claim already resolved, and, therefore, do not state a claim upon which relief can be granted; (3) with respect to Plaintiff’s procedural due process claim, Plaintiff does not have a liberty interest in the Tennessee Department of Correction grievance policy, and, therefore, that allegation fails to state a claim upon which relief can be granted. Plaintiff’s Statement of Issues in this appeal alleges abuse of discretion by the Trial Court “by dismissing his civil rights claims” and cites Tenn. Code Ann. §§ 4-21-701, 4-21-702 and 4-21-801. Construing Plaintiff’s pro se appeal liberally, we deem it as challenging all three bases upon which the Trial Court dismissed his Complaint. For the reasons herein stated, we affirm the Judgment of the Trial Court.

Christine Berkley, Individually and on behalf of all persons similarly situated, etc. v. H&R Block Eastern Tax Services, Inc.
E1999-00379-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This is an interlocutory appeal from the Trial Judge’s refusal to enforce an arbitration agreement
entered by the parties. Defendant has appealed. We reverse and remand with instructions to enforce the arbitration agreement. Tenn. R. App. P.3 Interlocutory Appeal by Permission from the Trial Court; Judgment of the Circuit Court Reversed.
 

Rebecca J. Amell, By Next of Kin Marvin H. Amell v. Liberty Mutual Insurance Co.
03S01-9905-CV-00056
Authoring Judge: Peoples, H.N., Sp. J.
Trial Court Judge: Hon. Rex Henry Ogle
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. Liberty Mutual Insurance Co. (hereafter "Liberty Mutual") appeals an award of workers' compensation death benefits to the surviving spouse of an employee killed in the course and scope of her employment. The trial court, acting on a motion for summary judgment, made an award of $77,196 to be paid at the rate of $144.75 per week to the surviving spouse, who was the only dependent of the employee. Liberty Mutual contends that the maximum award to the surviving spouse with no other dependents is limited to $57,9 (4 weeks x $144.75). We affirm the judgment of the trial court. Appeal from a summary judgment order in a workers' compensation case is not controlled by the standard of review provided by T.C.A. _ 5-6-225, but by Rule 56, T.R.C.P. Downen v. Allstate Ins. Co., 811 S..W.2d 523 (Tenn.1991). Where, as in this case, the facts are not in dispute, "the question on appeal is one of law, and our scope of review is de novo with no presumption of correctness accompanying" the trial court's conclusions. Union Carbide Corp. v Huddleston, 854 S.W. 2d 87, 91 (Tenn. 1993); Smith v. Norris, 218 Tenn. 329, 43 S.W.2d 37 (1966). On March 27, 1998, Rebecca J. Amell sustained fatal injuries in the course and scope of her employment with Arrow Factory Store in Pigeon Forge, Tennessee. She was survived by Marvin H. Amell, her spouse. Her average weekly wage was $289.49 generating a workers' compensation rate of $192.99. The maximum weekly benefit on March 27, 1998, as defined by T.C.A. _ 5-6-12(7)(a), was $492. Liberty Mutual asserts that T.C.A. _ 5-6-21(e)(1) limits the benefits payable to a surviving spouse with no dependent child to one-half of the employee's average weekly wage for 4 weeks. It cites Spencer v. Towson Moving & Storage, Inc., 922 S.W.2d 58 (Tenn. 1996) as limiting the benefits to 4 weeks, and Schultz v. Majik Market, a Div. of 2

Rebecca J. Amell, By Next of Kin Marvin H. Amell v. Liberty Mutual Insurance Co.
03S01-9905-CV-00056
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Hon. Rex Henry Ogle
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. Liberty Mutual Insurance Co. (hereafter "Liberty Mutual") appeals an award of workers' compensation death benefits to the surviving spouse of an employee killed in the course and scope of her employment. The trial court, acting on a motion for summary judgment, made an award of $77,196 to be paid at the rate of $144.75 per week to the surviving spouse, who was the only dependent of the employee. Liberty Mutual contends that the maximum award to the surviving spouse with no other dependents is limited to $57,9 (4 weeks x $144.75). We affirm the judgment of the trial court. Appeal from a summary judgment order in a workers' compensation case is not controlled by the standard of review provided by T.C.A. _ 5-6-225, but by Rule 56, T.R.C.P. Downen v. Allstate Ins. Co., 811 S..W.2d 523 (Tenn.1991). Where, as in this case, the facts are not in dispute, "the question on appeal is one of law, and our scope of review is de novo with no presumption of correctness accompanying" the trial court's conclusions. Union Carbide Corp. v Huddleston, 854 S.W. 2d 87, 91 (Tenn. 1993); Smith v. Norris, 218 Tenn. 329, 43 S.W.2d 37 (1966). On March 27, 1998, Rebecca J. Amell sustained fatal injuries in the course and scope of her employment with Arrow Factory Store in Pigeon Forge, Tennessee. She was survived by Marvin H. Amell, her spouse. Her average weekly wage was $289.49 generating a workers' compensation rate of $192.99. The maximum weekly benefit on March 27, 1998, as defined by T.C.A. _ 5-6-12(7)(a), was $492. Liberty Mutual asserts that T.C.A. _ 5-6-21(e)(1) limits the benefits payable to a surviving spouse with no dependent child to one-half of the employee's average weekly wage for 4 weeks. It cites Spencer v. Towson Moving & Storage, Inc., 922 S.W.2d 58 (Tenn. 1996) as limiting the benefits to 4 weeks, and Schultz v. Majik Market, a Div. of 2