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| Cathy Hall vs. City of Gatlinburg
E2001-01470-COA-R3-CV
Cathy L. Hall ("Plaintiff"), was attending a convention at the convention center of the City of Gatlinburg ("Defendant"), when she fell and sustained physical injury. Plaintiff fell in one of two separate areas just mopped by Defendant's employee. After the parties submitted proof at trial, the Trial Court found Defendant negligent. The Trial Court allocated 80% fault to Defendant and 20% fault to Plaintiff. In addition to Plaintiff's compensatory damages, the Trial Court awarded damages for loss of consortium to Plaintiff's husband, Eddie Lee Hall ("Husband"). Defendant appeals, as do Plaintiff and Husband. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Rex Henry Ogle |
Sevier County | Court of Appeals | 12/12/01 | |
| Verna Jordan vs. Ronnie Jordan, et al
E2001-00005-COA-R3-CV
This dispute involves a claimed oral trust regarding a portion of a 5.42 acre parcel of property ("Property"). Verna Jordan ("Plaintiff"), filed a Complaint against her son and daughter-in-law, Ronnie H. Jordan and Nancy Jordan ("Defendants"), claiming Defendants held a portion of the Property in trust for her benefit. Plaintiff alleged Defendants failed to give her a deed for a portion of the Property when Defendants, as trustees, should have conveyed the parcel under the terms of the oral trust. The Trial Court held an oral trust existed and ordered Defendants to give Plaintiff a deed for her portion of the Property. Defendants appeal. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Jeffrey F. Stewart |
Rhea County | Court of Appeals | 12/12/01 | |
| Curtis Daniels vs. Mary Daniels
E2001-00605-COA-R3-CV
This appeal from the Circuit Court of Rhea County questions whether the Trial Court erred in failing to award Ms. Daniel any portion of Mr. Daniel's retirement benefits, whether the Trial Court erred in dividing the marital estate, and whether the Trial Court erred in failing to award Ms. Daniels rehabilitative alimony. We affirm the judgment of the Trial Court in part and reverse in part.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Thomas W. Graham |
Rhea County | Court of Appeals | 12/12/01 | |
| In Re: Estate of Hillary R. Sanders
E2001-00946-COA-R9-CV
In this appeal from the Claiborne County Chancery Court the Appellants, Conda Sanders, Bratcher Lee Sanders, John Sanders, Linda Blazier, Bettie Gray, Kathryne Brock and Vonna Beason, contest the Trial Court's finding that the valid and controlling will of Hillary Sanders is the will executed by him on June 22, 1992. The Appellants contend that the joint will executed by Hillary Sanders and Fairobelle Sanders on September 8, 1974, is an irrevocable contract and, therefore, it, not the will of June 22, 1992, is the valid and controlling will of Hillary Sanders. We affirm the order of the Trial Court and remand with directions.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Conrad E. Troutman, Jr. |
Claiborne County | Court of Appeals | 12/12/01 | |
| Brenda L. Lee v. Hippodrome Oldsmobile, Inc., Robert E. McAdams, Steve Jackson
01A01-9705-CV-00202
This appeal results from an employer’s recruitment and subsequent termination of an at-will employee after only two weeks of work. The employee filed suit in the Circuit Court for Davidson County alleging breach of an implied employment contract, promissory fraud, and outrageous conduct. The trial court granted the employer’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted, and the employee appealed. We vacate the order of dismissal because we have decided that the complaint states a claim for promissory fraud, albeit barely.
Authoring Judge: Judge William M. Koch, Jr.
Originating Judge:Judge Barbara N. Haynes |
Davidson County | Court of Appeals | 12/12/01 | |
| John Poore vs. Sonya Poore
E2001-01250-COA-R3-CV
In this custody dispute, the Trial Court awarded custody of the children to the father who was not the biological parent of one of the children. We vacate the Judgment as to that child and remand with instructions to apply the correct analysis of the evidence as to the custody of the child.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Thomas R. Frierson, II |
Hamblen County | Court of Appeals | 12/12/01 | |
| Susan Cooper vs. Kent Cooper
E2001-00716-COA-R3-CV
This appeal from the Chancery Court of Hamilton County questions whether the Trial Court erred in increasing Ms. Cooper's alimony award. Additionally, it questions whether the Trial Court erred in awarding attorney's fees to Ms. Cooper and in refusing to dismiss her Answer and Counter-Complaint. We affirm the decision of the Trial Court in part and reverse in part and remand.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:W. Frank Brown, III |
Hamilton County | Court of Appeals | 12/12/01 | |
| Phillip Coldwell v. Hartford Casualty Ins. Co.
E2000-02950-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff had sustained an accidental injury and awarded the plaintiff the replacement cost of his prosthetic foot. We reverse the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Reversed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Lynn C. Peterson, Knoxville, Tennessee, for the appellant, Hartford Casualty Insurance Co. Jana Durham Terry, Morristown, Tennessee, for the appellee, Phillip Coldwell. MEMORANDUM OPINION 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); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). Questions of law are reviewed de novo without a presumption of correctness. Peace v. Easy Trucking Co., 38 S.W.3d 526 (Tenn. 21). Facts The plaintiff, who was injured in a 1979 motorcycle accident, has an above the knee prosthesis. On December 28, 1998, the plaintiff was working for the defendant's insured. He had just dismounted a tow motor and taken a step when he heard a popping, breaking sound and the flex foot section of his prosthesis broke. The plaintiff had to leave before his shift ended in order to seek a replacement prosthetic foot, but he was able to return to work the next day. He suffered no injury to any other part of his prosthetic leg or to his body and suffered no pain when the prosthesis broke. Mr. Terry Parsons of Morristown Orthotics and Prosthetics testified that he examined the flex foot and found no visible signs of wear and tear in the foot. Mr. Parsons also testified that in May of 1998, he had recommended the entire above the knee prosthesis be replaced. He testified his recommendation was based on Medicare guidelines regarding the anticipated life of a prosthetic device as well as the fact that the plaintiff had been experiencing problems with the hydraulic knee. Mr. Parsons also stated the normal life of a prosthesis varies from person to person. The prosthesis at issue in this case was fitted on February 9, 1994, as a replacement for the original, post-accident prosthesis. The plaintiff's health insurance denied the May 1998 claim for the cost of a replacement prosthesis. The trial court found the plaintiff had sustained an accidental injury and awarded the plaintiff the replacement cost of the prosthetic flex foot system. We reverse the judgment of the trial court. Discussion The defendant argues that Tennessee's workers' compensation law does not permit recovery of the replacement cost of the plaintiff's prosthetic foot. In order to be eligible for workers' compensation benefits, an employee must suffer "an injury by accident arising out of and in the course of employment which causes either disablement or death." TENN. CODE ANN. _ 5-6-12. Injury includes whatever lesion or change in any part of the system that produces harm or pain or a lessened facility of the natural use of any bodily activity or capability. Fink v. Caudle, 856 S.W.2d 952 (Tenn. 1993). Tennessee case law traditionally follows the premise that some bodily harm resulting from a physical cause must be proven before the "injury" requirement is satisfied. See T. Reynolds, Tennessee Workers' Comp. Prac. and Proc., (4th ed.) _8-1. The question of whether a plaintiff may recover the replacement cost of an artificial member when the accident that damaged the artificial member does not also cause physical injury is one of first impression in this jurisdiction. Generally, in the absence of an express statutory provision that allows compensation for injuries to artificial limbs or members,1 such injuries are not compensable. 9 Couch on Insurance 1 Jurisdictions with such statutes include: Alaska Stat. _23.3.395(17); Cal. Lab. Code _328; _287.2(3); Ind. Rev . Stat.; KRS 342 .1 1(1 ); R.S. M o. (19 99) ; Miss. Code Ann. _ 71 .3-3 (2 ); N.C . Gen . Stat. _97 -2-(6); N.D. -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:John K. Wilson, Judge |
Knox County | Workers Compensation Panel | 12/12/01 | |
| Amy Arnold vs. Kevin Arnold
E2001-00527-COA-R3-CV
In this divorce action, husband has appealed the amount of child support awarded, the custody award, and the alimony and attorney's fees awarded to wife. On appeal, we affirm the Trial Court.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Thomas R. Frierson, II |
Hamblen County | Court of Appeals | 12/12/01 | |
| Susan Whiton vs. Alan Whiton
E2003-01279-COA-RM-CV
Upon appeal to the Supreme Court, it reversed our determination that the guidelines promulgated with regard to child support were unconstitutional and remanded the case to this Court for reconsideration in light of the recently-released opinion in Gallaher v. Elam, S.W.3d 2003 WL 2010731 (Tenn. May 2, 2003).f
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Ben W. Hooper, II |
Sevier County | Court of Appeals | 12/11/01 | |
| Dept.of Children's Svcs vs. LaShondra Whaley
E2001-00765-COA-R3-CV
This appeal from the Juvenile Court of Bradley County questions whether the Trial Court erred in terminating the parental rights of Ms. Whaley. We reverse the judgment of the Trial Court.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:C. Van Deacon |
Bradley County | Court of Appeals | 12/11/01 | |
| Bd. of Commissioners of Roane County vs. Joe Parker
E2001-00146-COA-R3-CV
The Plaintiffs acquired a nine-acre tract of land zoned A-1, the General Agricultural District, which was the least restrictive zoning district in Roane County, and soon announced their intention to house a tiger thereon, a permissible use, which motivated the County to amend its Regional Zoning Ordinance by creating a new zoning district, A-2, with the permissible use declared to be the keeping thereon of exotic animals. Within three years the Plaintiffs had fifty or more exotic [Class I] animals on their nine-acre tract. They acquired three additional tracts which they requested be rezoned A-2 in order to expand their exotic animal sanctuary. Rezoning was refused and the Plaintiffs filed suit alleging the refusal was arbitrary and capricious; the County filed suit, seeking to enjoin the Plaintiffs from keeping more than one exotic animal
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Frank V. Williams, III |
Roane County | Court of Appeals | 12/11/01 | |
| State v. John R. Farner, Jr.
E1999-00491-SC-R11-CD
The primary issue presented in this appeal is whether Tennessee law recognizes a co-perpetrator rule which bars the defendant's convictions for criminally negligent homicide on the basis that the victims were co-participants in the drag race. After fully and carefully considering the record in this case in light of the relevant authorities, we conclude that no rule of Tennessee law bars the defendant's convictions for criminally negligent homicide as a matter of law. We hold that causation in criminal cases generally is a question of fact for a properly instructed jury, that a victim's contributory negligence is not a complete defense but may be considered in determining whether or not the defendant's conduct was a proximate cause of death, and that a jury's determination of the causation issue will be reviewed on appeal under the familiar sufficiency of the evidence standard and not disturbed so long as the evidence is sufficient to support the jury's determination. Because the trial court in this case failed to provide the jury with an instruction on proximate causation, an essential element of the offense, and because the jury was erroneously provided an instruction as to criminal responsibility, a theory that the State now concedes is inapplicable, the defendant's convictions for criminally negligent homicide must be reversed.
Authoring Judge: Justice Frank F. Drowota, III
Originating Judge:R. Jerry Beck |
Sullivan County | Supreme Court | 12/11/01 | |
| Daniel B. Taylor v. Donal Campbell
M2001-00479-COA-R3-CV
This appeal involves a dispute between a prisoner and the Department of Correction regarding the prisoner's sentence credits. After his request for a declaratory order was denied, the prisoner filed suit in the Chancery Court for Davidson County against the Commissioner of Correction and others seeking a declaration that the Department had miscalculated his sentence and had erroneously refused to classify him as a Range I especially mitigated offender. The trial court granted the Department's motion for summary judgment and dismissed the petition. We concur with the trial court's conclusion that the Department is entitled to a judgment as a matter of law and, accordingly, affirm the summary judgment.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Irvin H. Kilcrease, Jr. |
Davidson County | Court of Appeals | 12/11/01 | |
| City of Knoxville vs. The Clinch Locust Garage
E2001-00297-COA-R3-CV
The Trial Court established the respective interests of owners and lessees in sums received in an Eminent Domain Case. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 12/11/01 | |
| David Prater v. Mayfield Dairy Farms, Inc.
E2000-03030-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court found the plaintiff 9 percent vocationally disabled. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Bert Bates, Cleveland, Tennessee for the appellant, David Prater. Kent T. Jones, Chattanooga, Tennessee for the appellee, Mayfield Dairy Farms, Inc. MEMORANDUM OPINION 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); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The plaintiff, age forty at the time of trial, is married with two minor children. He has a high school education and graduated from a two-year vocational program in auto mechanics. His work history consists of work in a service station, in a machine shop, as a local delivery truck driver and in a factory. The plaintiff began working for the defendant sometime in October of 1995. While employed with the defendant, the plaintiff also worked as a part-time police officer for the City of Niota and as a reserve officer for the McMinn County Sheriff's Department. On December 1, 1998, the plaintiff was nearing the end of his shift and was performing trash detail duties when he injured his back. The plaintiff was lifting 2 to 5 pounds of cardboard boxes at a time and placing them in a baler. He bent over to lift some boxes into the baler, experienced "excruciating pain" and blacked out. He was taken to the hospital by ambulance and kept overnight for treatment. An MRI revealed a ruptured disc, which was subsequently treated with surgery. After surgery, the plaintiff continued to experience disabling pain in his back and leg. Despite extensive treatment for his work-related injury, the plaintiff has not been able to return to work. A post-surgical MRI revealed inoperable scarring at the surgical site. A Functional Capacity Evaluation was performed on February 23, 1999; it showed the plaintiff capable of performing sedentary work. A later Functional Capacity Evaluation performed by the same examiner showed the plaintiff incapable of even sedentary work as defined by the United States Department of Labor. The trial court found the plaintiff suffered a work-related injury resulting in a medical impairment of 25 percent to the body as a whole and further found the plaintiff sustained a 9 percent permanent partial disability. We affirm the judgment of the trial court but find the preponderance of the evidence indicates the plaintiff is entitled to a award of permanent total disability. We modify the judgment accordingly. Medical Evidence Dr. Robert E. Finelli first saw the plaintiff on December 7, 1998, on referral from the physician who treated the plaintiff's work-related injury at the hospital. Dr. Finelli reviewed the plaintiff's MRI, which showed a very large extruded disc at the L-5, S-1 level on the left side. Dr. Finelli also noted the plaintiff had weakness and a positive straight leg raise. Surgery was recommended, and Dr. Finelli advised the plaintiff about the risk of pain syndrome as a post-surgical complication whenever weakness is present pre-operatively. On December 21, 1998, Dr. Finelli performed a laminectomy and removed a large free fragment of disc material that was compressing the nerve root on the plaintiff's left side. When the plaintiff's condition failed to improve after surgery, Dr. Finelli referred the plaintiff to a pain management specialist. Dr. Finelli referred the plaintiff for the February 23, 1999, Functional Capacity Evaluation, which showed the plaintiff capable of sedentary work; he then assigned the plaintiff a 12 percent whole body impairment rating. Dr. Finelli stated in his deposition testimony that he traditionally adopts the findings of the Functional Capacity Evaluation. Dr. Finelli last saw the plaintiff in March of 1999. He was no longer treating the plaintiff when the second Functional Capacity Evaluation, which showed the plaintiff incapable of even sedentary work, was performed. Dr. Finelli was made -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:Jerri S. Bryant, Chancellor |
Knox County | Workers Compensation Panel | 12/11/01 | |
| Stan Mosley vs. Carrie Mosley
E2001-01006-COA-R3-CV
In this divorce case, the husband appealed the classification and division of the parties' marital property and the basis for awarding child support. We affirm the Trial Court's Judgment, as modified.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Jean A. Stanley |
Washington County | Court of Appeals | 12/11/01 | |
| Billy Lattimer v. Dept of Correction
M2000-03126-COA-R3-CV
A prisoner filed a lawsuit against the Department of Correction and some of its employees, claiming that the employees had confiscated and destroyed his photo albums, and that their actions amounted to an unconstitutional deprivation of his due process rights. The trial court dismissed the suit without prejudice, ruling that the prisoner had only stated a claim for ordinary negligence against the State, and thus that the only forum available to him was the Tennessee Claims Commission. We reverse in part and affirm in part.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 12/11/01 | |
| Mary Henry vs. Obstertrics and Gynecology Consultants
E2001-01246-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 12/11/01 | |
| Susan Whiton vs. Alan Whiton
E2000-00467-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Ben W. Hooper, II |
Sevier County | Court of Appeals | 12/11/01 | |
| Roger Thomas v. Gail Thomas
M2001-01226-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Jim T. Hamilton |
Giles County | Court of Appeals | 12/11/01 | |
| Leon Williams General Contractor, Inc. vs. Hugh Hyatt
E2001-00434-COA-R3-CV
In this consolidated appeal Leon Williams General Contractor, Inc., and Leon Williams, individually and d/b/a Old World Cabinets appeal orders denying their demands for arbitration. We reverse the order of the Chancery Court denying the demand for arbitration filed by Leon Williams General Contractor, Inc. and affirm the order of the Circuit Court denying the demand for arbitration filed by Leon Williams, individually and d/b/a Old World Cabinets.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Sharon J. Bell |
Knox County | Court of Appeals | 12/11/01 | |
| Mary Henry vs. Obstertrics and Gynecology Consultants
E2001-01246-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 12/11/01 | |
| Jerry L. Luster v. B. Campbell Smoot
M2000-02191-COA-R3-CV
A prisoner filed a civil rights intimidation suit against a public defender who uttered a racial slur during a recess in the plaintiff's criminal trial. The trial court granted summary judgment to the public defender. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Lee Russell |
Coffee County | Court of Appeals | 12/11/01 | |
| Susan Whiton vs. Alan Whiton
E2000-00467-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Ben W. Hooper, II |
Sevier County | Court of Appeals | 12/11/01 |