APPELLATE COURT OPINIONS

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Helen S. Rogers v. Thomas E. Watts, Jr., - Concurring

01A01-9603-CV-00120

This appeal involves another chapter in a lingering, acrimonious dispute between two Nashville lawyers stemming from a failed settlement of a case in federal court. After one of the lawyers abandoned his third-party complaint against the other lawyer for fraudulent misrepresentation, the other lawyer filed a malicious prosecution action in the Circuit Court for Davidson County. When the trial court dismissed the complaint on the ground that it was premature, the prevailing lawyer sought Tenn. R. Civ. P. 11 sanctions against the lawyer whose malicious prosecution claim had been dismissed. The trial court declined to grant sanctions, and the lawyer seeking sanctions has appealed. We have determined that the record supports the trial court’s decision not to award sanctions and, therefore, affirm the trial court’s decision.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Judge Thomas W. Brothers
Davidson County Court of Appeals 07/01/98
James F. Cook, Jr., D/B/A Cook Properties, v. Consolidated Stores Corp., Belz Investco, L.P., Urco, Inc., Union Realty Co. LTD., and South Plaza Co.

01A01-9605-CH-00245

This appeal involves a dispute over a real estate commission on four retail properties in Memphis. After a former client leased these properties, a real estate broker filed suit in the Chancery Court for Davidson County seeking a commission from its former client and the lessors of the four properties. The trial court granted the former client’s motion for summary judgment and, following a bench trial, dismissed the broker’s claims against the four lessors. On this appeal, the broker asserts that the trial court erred by granting his former client’s summary judgment motion and that the evidence preponderates against the trial court’s dismissal of his claims against the four lessors. We have determined that the trial court properly granted the summary judgment motion and that the evidence does not preponderate against the trial court’s judgment in favor of the four lessors.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Chancellor Robert S. Brandt
Davidson County Court of Appeals 07/01/98
State of Tennessee on relation of Ervin Smith and Ervin Smith Individually, v. L. B. Franklin and Alex Richmond, Cit of Carthage, Tennessee, a municipal corporation, Mayor David Bowman

01A01-9710-CH-00546

The plaintiff, Ervin Smith, has appealed from the judgment of the Trial Court as to his rights in regard to an alleged public right-of-way on property adjoining plaintiff’s land.

 

Authoring Judge: Presiding Judge Henry F. Todd
Originating Judge:Chancellor C. K. Smith
Smith County Court of Appeals 07/01/98
In re: Jason Ryan Stephens, Pamela Renee Stephens, v. James Callaway

01A01-9801-JV-00043

This appeal involves a biological father's obligation to support his thirteen year old son.

Authoring Judge: Judge William B. Cain
Originating Judge:Judge David Loughry
Rutherford County Court of Appeals 07/01/98
State of Tennessee vs. Ronnie L. Ingram

02C01-9707-CR-00260

The defendant was indicted, charged, and convicted of burglary and sentenced as a career offender to twelve years imprisonment. In this appeal as of right, the defendant argues the evidence was insufficient to support a conviction for burglary since the State failed to prove intent to commit theft. Finding no merit in the defendant’s argument, we affirm.

Authoring Judge: Judge John H. Peay
Originating Judge:Judge Joseph B. Dailey
Shelby County Court of Criminal Appeals 07/01/98
Thomas Huggins v. Royal Insurance Company

01S01-9708-CH-00178
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:William S. Russell
Davidson County Workers Compensation Panel 07/01/98
William Michael Anderton v. Evelyn Adele Morgan Anderton

01A01-9701-CH-00013

Mr. Anderton has filed a Tenn. R. App. P. 39 petition for rehearing and a Tenn. R. App. P. 14 motion to consider post-judgment facts with regard to his actual gross income in 1996 and 1997. Ms. Anderton has filed a response to these motions. We have determined that Mr. Anderton’s motions should be granted.

Authoring Judge: Presiding Judge Henry F. Todd
Williamson County Court of Appeals 07/01/98
David K. Wachtel, Jr., v. Western Sizzlin Corporation, F/K/A Franchisee Acquisition Cororation, v. David K. Wachtel, Jr. and Restaurant Management Services, Inc.

01A01-9708-CH-00396

This breach of contract case is before us on a Rule 54.02, Tenn. R. Civ. Proc. appeal. The only question for our decision is whether the trial court erred in granting the defendant’s motion for partial summary judgment on the plaintiff’s claim for certain consequential damages arising from the defendant’s breach of contract. We reverse the trial court.

Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Chancellor Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 07/01/98
Boiler Supply Company, Inc., v. Lunn Real Estate Investments

01A01-9605-CH-00246

This appeal involves a dispute over the interpretation of a provision allocating the responsibility for paying legal expenses in the event of a default or breach of two leases. The lessee filed suit against the lessor in the Chancery Court for Davidson County seeking a declaration that the leases had expired and requesting its attorney’s fees in accordance with the provisions of the lease agreements. The trial court granted the lessee’s motion for summary judgment and declared that the leases had expired but denied the lessee’s claim for legal expenses. The lessee has appealed. We have determined that the trial court correctly interpreted the lease agreements and, therefore, affirm the summary judgment.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Chancellor Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 07/01/98
W. Hudson Connery, Jr., et al., v. Columbia/HCA Healthcare Corporation, et al.

01A01-9709-CH-00529
Authoring Judge: Justice William C. Koch, Jr.
Originating Judge:Chancellor Irvin H. Kilcrease, Jr.
Davidson County Supreme Court 07/01/98
Henry Collier vs. Methodist Hosp., et al

02A01-9607-CV-00165

Originating Judge:Dick Jerman, Jr.
Haywood County Court of Appeals 06/30/98
Shelley Sackett v. Hal Roseman

M2002-00587-COA-R9-CV
This interlocutory appeal was brought to determine whether the trial court properly exercised subject matter jurisdiction pursuant to the Uniform Child Custody Joint Enforcement Act (UCCJEA).
Authoring Judge: Judge William B. Cain
Originating Judge:Muriel Robinson
Davidson County Court of Appeals 06/30/98
State vs. Elroy Kahanek

01C01-9707-CC-00298

Originating Judge:Donald P. Harris
Williamson County Court of Criminal Appeals 06/30/98
State vs. Dominic Amari

01C01-9703-CR-00077
Davidson County Court of Criminal Appeals 06/30/98
Guadalupe Mendez vs. State

01C01-9703-CC-00076

Originating Judge:James E. Walton
Montgomery County Court of Criminal Appeals 06/30/98
02A01-9707-CH-00157

02A01-9707-CH-00157

Originating Judge:W. Michael Maloan
Obion County Court of Appeals 06/30/98
State vs. Kestner

03C01-9611-CR-00390
Washington County Court of Criminal Appeals 06/30/98
State vs. Tanner

03C01-9703-CR-00101
Sullivan County Court of Criminal Appeals 06/30/98
01C01-9702-CR-

01C01-9702-CR-
Davidson County Court of Criminal Appeals 06/30/98
Bradson Mercantile vs. Joseph Crabtree

02A01-9710-CV-00272
Shelby County Court of Appeals 06/30/98
King vs. King

03A01-9710-CH-00441
Court of Appeals 06/29/98
Dianna Skelton v. Robert Shaw Controls

01S01-9710-CC-00229
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 court awarded Dianna Skelton ["employee"] workers' compensation benefits based on one-hundred percent permanent, total disability. Robertshaw Controls Company ["employer"] appeals, challenging the extent of employee's disability, the admissibility of the opinion of a clinical psychologist as to permanency of employee's disability, and the failure of the trial court to apply the multiplier caps set forth in T.C.A. _ 5-6-241(a)(1). For the reasons herein stated, we modify the award to find 6 percent permanent vocational disability and, as modified, affirm the judgment of the trial court. I Mrs. Skelton had been employed as a factory laborer at Robertshaw for six years when, on September 4, 1992, she sustained a work-related injury to her lower back while lifting parts weighing about 3 pounds and placing them in an overhead bin. She timely reported the injury to Robertshaw and saw Dr. Bowden Smith, an approved physician, for treatment. Dr. Smith gave her epidural steroid blocks and heat treatments and took her off work for 2-1/2 weeks, then ordered lighter work in the Transition Room from September 22, 1992 until October 6, 1992, when she was released to return to full work. She continued to experience back pain, complained to Robertshaw, and then saw another approved physician, Dr. Larry Laughlin, who ordered X-rays and prescribed physical therapy. She continued to complain of pain. On November 2, 1992, she saw Dr. Robert Weiss, neurosurgeon, also an approved 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. J. O. Bond,
Smith County Workers Compensation Panel 06/29/98
Connatser vs. Connatser

03A01-9801-CV-00005
Court of Appeals 06/29/98
James Ed Linkous, Jr. v. Federated Rural Electric

01S01-9709-CH-00191
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant, Reliance Insurance Company, insists (1) the chancellor erred in applying the successive or "last injurious injury" rule and (2) the award of permanent partial disability benefits is excessive. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, Linkous, is in his late thirties with a high school education, a few junior college courses, apprenticeship training as a journeyman lineman and twenty years' experience as a lineman. On September 13, 1993, he fell from a bucket truck and was injured. After conservative treatment and work hardening, he returned to work in April of 1994 with no permanent medical impairment or restrictions. He performed the same duties as before the accident, until July of 1994, when he suffered a second injury at work. The second injury was surgically treated and the claimant has again returned to his same duties, but with restrictions and a permanent impairment rating. The primary dispute before the trial court was whether disability and medical benefits should be the responsibility of the insurer at the time of the first or second injury, a factual dispute. The trial judge invoked the successive injury rule, long recognized in Tennessee, and sometimes referred to as the last injurious injury rule. Because both issues involve questions of fact, our 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. section 5-6-225(e)(3). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review. Humphrey v. David Witherspoon, Inc., 734 S.W.2d 315 (Tenn. 1987). As to the first issue, Reliance Insurance Company, the insurer in July of 1994 argues that it should not be subjected to liability because the July 1994 injury was merely an onset of increased pain resulting from the first injury, citing Cunningham v. Goodyear Tire and Rubber Co., 811 S.W.2d 888 (Tenn. 1991) as authority. In that case, the trial court found that plaintiff's condition was due to a general arthritic condition predating his employment at Goodyear Tire and Rubber Company and that, although his employment may have aggravated his preexisting condition by increasing his pain, there was no connecting industrial injury or accident that might be considered the triggering incident producing an acceleration of his condition. That finding was supported by expert medical evidence. The medical proof in the present case is quite different. The doctor who 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jeffrey F. Stewart,
Marion County Workers Compensation Panel 06/29/98
Sammy Moore v. A. O. Smith

02S01-9709-CH-00082
Authoring Judge: J. Steven Stafford, Special Judge
Originating Judge:Hon. George R. Ellis,
Moore County Workers Compensation Panel 06/29/98