| State ex rel. Margaret Holtsinger vs. Jack Elrod
E2001-00257-COA-R3-CV
These parties were divorced in May 1996. Custody of their children was awarded to Wife. The oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was awarded as the Guidelines direct. Father filed a petition to modify the judgment by eliminating the support requirement for Catherine, who reached her majority. The Chancellor held that the duty of support of the afflicted child was a continuing one. We affirm.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:William E. Lantrip |
Anderson County | Court of Appeals | 12/10/01 | |
| 2001-00729-COA-R3-CV
2001-00729-COA-R3-CV
Originating Judge:W. Dale Young |
Blount County | Court of Appeals | 12/10/01 | |
| Jo Anne Hofmeister v. John Hofmeister
M2000-00363-COA-R3-CV
A series of post-divorce petitions resulted in a hearing on July 22, 1999 in which no witnesses were called nor any sworn testimony offered. Based on the petitions, the answers, and the statements of counsel, the court modified the final decree of divorce with respect to the husband's obligations to pay the wife's medical insurance premiums, medical expenses, and life insurance premiums. The court also denied the wife's petition for post-judgment interest on a payment to the wife that had been ordered in the final decree. The wife appeals on the grounds that (1) there were no pleadings or proof justifying the amendments and (2) the court erred in not granting her petitions. We affirm the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 12/10/01 | |
| Anthony Myers, et al. v. Allen Bryan, III
M2000-03188-COA-R3-CV
This case originated as a suit against a subdivision developer, W. Allen Bryan, III, ("Bryan"), for fraud, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act, all predicated on the failure of a subdivision plat plan to reflect an existing drainage easement. Thereafter, Bryan filed a third-party complaint seeking indemnification from the surveyor who prepared the plat plan, Ragan-Smith, Associates, Inc. ("Ragan-Smith"), in the event Bryan was cast in judgment. On this Tenn. R. App. P. 54.02 appeal, we are presented with the issue of whether Bryan's cause of action for failure to reflect the drainage easement on the plat plan is barred by the four-year statute of repose for surveying errors. The court below granted Ragan-Smith summary judgment, finding that Bryan's claim is barred by the aforesaid statute of repose. Bryan appeals, arguing that Ragan-Smith is not entitled to summary judgment because, according to Bryan, the omission of the drainage easement is an engineering error, not a surveying error, and hence, so the argument goes, the subject claim is not barred by the four-year statute of repose for surveying errors. In the alternative, Bryan argues that even if the failure to reflect the drainage easement on the plat plan is a surveying error, his third-party complaint was timely filed. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Russell Heldman |
Williamson County | Court of Appeals | 12/10/01 | |
| In re: Estate of M.L. Wakefield, Deceased
M1998-00921-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Frank G. Clement, Jr. |
Davidson County | Court of Appeals | 12/10/01 | |
| Boyd's Creek Enterprisesl vs. Sevier County
E2001-01975-COA-R3-CV
These beer permit cases were consolidated for trial, with a common issue: whether the proposed sale location was located within 2000 feet of a "public gathering place," and if so, whether the restriction was waived, owing to a discriminatory practice.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Telford E. Forgerty, Jr. |
Sevier County | Court of Appeals | 12/10/01 | |
| Forrest Cate Motor v. Dealer Computer Services
M2001-01577-COA-R3-CV
Plaintiff appeals a declaratory judgment wherein the trial judge held that the mandatory arbitration provisions in the contract between the parties controlled and declared accordingly. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Buddy D. Perry |
Sequatchie County | Court of Appeals | 12/10/01 | |
| John Warfield, et ux vs. Carlos Lowe, et al
E2001-01042-COA-R3-CV
Plaintiff sought to establish insurance coverage for his injuries under his employer's policy. The Trial Judge declared no coverage. On appeal, we affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:James B. Scott, Jr. |
Anderson County | Court of Appeals | 12/10/01 | |
| Vandal Doss v. Tennessee Farmers Mutual Ins. Co.
M2000-01971-COA-R3-CV
This is an appeal from the Judgment of the Chancellor for Sumner County, Tennessee, dismissing Vondal Doss's Complaint against Tennessee Farmers Mutual Insurance Company, alleging breach of contract for failure to make payment for medical expenses pursuant to the medical payment coverage contained in two insurance policies and the Defendant's Counter-Complaint for subrogation. Doss had suffered a personal injury as a result of an auto accident which occurred on April 8, 1993 involving a third-party tort-feasor. Plaintiff/Appellant filed a Motion to Appeal on August 2, 2000. The Judgment of the Chancellor is affirmed on all counts. Doss's claim for additional post-settlement medical payments is denied as a result of the execution of the Release and Order of Compromise and Settlement which extinguished Tennessee Farmers' subrogation rights. Tennessee Farmers' claim for reimbursement is denied. Costs of this Appeal are assessed to the Appellant.
Authoring Judge: Judge Don R. Ash
Originating Judge:E. Gray |
Sumner County | Court of Appeals | 12/10/01 | |
| Cynthia Long vs. City of Maryville
E2001-00908-COA-R3-CV
Upon remand from this Court, the Trial Court entered Judgment for defendant in this slip and fall case. On appeal, we reverse.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:W. Dale Young |
Blount County | Court of Appeals | 12/10/01 | |
| Janet Harper, et al. v. Keith Churn, et al.
M2000-02353-COA-R3-CV
This is a personal injury case arising from a vehicular collision. The plaintiffs, the Harpers, and the defendants, Mr. Churn and Mr. Beard, along with several others, were traveling together in a rented vehicle at the time of the collision. Mr. Churn was the driver of the vehicle; Mr. Beard was the pastor of the parties' church. At trial, the Harpers asserted that Mr. Churn was negligent in his operation of the vehicle. Additionally, the Harpers claimed that Mr. Beard was vicariously liable for their injuries, or in the alternative, that Mr. Beard was liable under the theory of negligent entrustment. The trial court granted Mr. Beard's motion for a directed verdict, and the jury found in favor of Mr. Churn. The Harpers appeal both decisions. We affirm the judgment of the trial court.
Authoring Judge: Judge David R. Farmer
Originating Judge:Hamilton V. Gayden, Jr. |
Davidson County | Court of Appeals | 12/10/01 | |
| People's Bank of Elk Valley, v. American Bankers Financial Services, Inc., et al.
01A01-9506-CV-00260
Plaintiff, People's Bank of Elk Valley ("People's Bank"), appeals from the trial court's order granting summary judgment to defendant, American Banker's Financial Services, Inc. ("American") and dismissing People's Bank's complaint.
Authoring Judge: Judge Samuel L. Lewis
Originating Judge:Judge Lee Russell |
Lincoln County | Court of Appeals | 12/10/01 | |
| Cheryl Ann Cupples, v. Luther Wayne Cupples
02A01-9408-CH-00193
This divorce action involves dissolution of the 25 year marriage between Appellant, Cheryl Ann Cupples ("Wife"), and Appellee, Luther Wayne Cupples ("Husband"). Wife filed for divorce in September 1992, citing irreconcilable differences and inappropriate marital conduct. Husband counterclaimed for divorce alleging inappropriate marital conduct. Both parties sought custody of their minor son, Jonathan, age 10 at the time of trial.1 On appeal, Wife cites as error the trial court's award of an absolute divorce and custody of the child to Husband, its failure to award her alimony and its division of the marital estate. For reasons hereinafter expressed, we affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:Chancellor Joe C. Morris |
Chester County | Court of Appeals | 12/10/01 | |
| State of Tennessee v. Jared M. Barnes
E2001-00325-CCA-R3-CD
The defendant, Jared M. Barnes, was convicted upon his guilty plea for vehicular homicide by recklessness, a Class C felony. The trial court sentenced him as a Range I, standard offender to five years, with ten months, day for day, to be served in the county jail and the remainder of the sentence to be served on probation. In addition, the trial court suspended the defendant's driving privileges for five years and ordered that he complete five hundred hours of community service. The defendant appeals his sentence, contending that the trial court erred in denying him judicial diversion or full probation. We affirm the trial court's denial of judicial diversion and full probation, but hold that the order that the defendant serve his ten-month incarceration day for day does not preclude use of applicable conduct credits.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Richard R. Vance |
Sevier County | Court of Criminal Appeals | 12/10/01 | |
| American Child Care, Inc. v. Dept. of Human Services, et al.
M2000-01790-COA-R3-CV
This appeal arises from the trial court's denial of appellant American Child Care, Inc.'s, request for attorney's fees resulting from an administrative action in which appellant's license was suspended and later reinstated. The trial court later granted appellee summary judgment on all issues, including attorney's fees. We reverse the trial court's decision denying the appellant's application and remand to the trial court to set a reasonable fee for the appellant.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/10/01 | |
| Guy Wilson, et al. v. Thompson Const. Co., et al.
M2000-03200-COA-R3-CV
This is a suit by Guy Wilson and his wife Rhessa, owners of a building in Gallatin, Tennessee, against their general contractor in the construction of an addition to the building and against their electrical subcontractor. The complaint charges negligence in the use of a defective fiberglass ladder that broke as Guy Wilson was climbing on it to inspect the work. The trial court held that the general contractor, Thompson Construction Company, had breached no duty of care to Plaintiffs and that the electrical contractor, Gary R. Boyd, was an independent contractor for whose alleged negligence Thompson Construction Company was not vicariously liable. On such basis, the trial court granted summary judgment to Thompson Construction Company on all issues and, pursuant to Tennessee Rules of Civil Procedure 54.02, entered final judgment on all issues in favor of Thompson Construction Company. Plaintiffs appeal, and we affirm the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:C. L. Rogers |
Sumner County | Court of Appeals | 12/10/01 | |
| Thomas Stubblefield vs. Monique Stubblefield
E2001-01433-COA-R3-CV
Husband appeals the Trial Court's allocation of the parties' marital estate in this divorce action. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:William R. Brewer |
Blount County | Court of Appeals | 12/10/01 | |
| John Jaco v. Department of Health Bureau of Medicaid
01-A-01-9507-CH-00285
This appeal involved judicial review of an administrative decision regarding the denial of petitioner’s application for benefits for care at a nursing home facility. The chancellor granted the motion to dismiss of the Department of Health, Bureau of Medicaid (?respondents” or by name) on the ground that the trial court did not have subject matter jurisdiction due to the failure of petitioner1 to cause a summons to be properly issued and served on the Department within the sixty (60) day time limit specified in T.C.A. § 4-5-322(b)(1). The sole issue presented for review by this court is whether the chancellor erred in dismissing petitioner’s suit for judicial review for lack of subject matter jurisdiction. We find no error and affirm.
Authoring Judge: Judge Hewitt P. Tomlin
Originating Judge:Chancellor Robert S. Brandt |
Davidson County | Court of Appeals | 12/10/01 | |
| Charles Hardy, et al. v. Robert Miller, et al.
M1998-00940-COA-R3-CV
This appeal involves a dispute among members of a joint venture regarding their rights under suretyship agreements each member signed to guarantee a loan to the joint venture. After the joint venture defaulted, the bank looked to the members of the joint venture for payment of the debt. After three members of the joint venture paid the bank more than their prorated share of the debt, they filed suit in the Chancery Court for Davidson County against a former member, seeking contribution for the amount they had paid in excess of their prorated share. The former member counterclaimed, seeking to recover the payments he had made to the bank on the joint venture's debt. Following a bench trial, the trial court concluded that the members were co-sureties, awarded the three members a $150,145.10 judgment against the former member, and denied the former member's counterclaim. The former member appealed, arguing that his former co-venturers lost their right to contribution when they expelled him from the joint venture and that he is entitled to be reimbursed for the payments he made to the bank on the joint venture's debt. We have determined that each member of the joint venture agreed to be severally liable to the bank for the joint venture's debt and, therefore, that the members were not entitled to contribution from the former member. We have also concluded that the trial court correctly dismissed the former member's counterclaim.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Carol L. Mccoy |
Davidson County | Court of Appeals | 12/10/01 | |
| William Patrick Varley, Jr., v. Pamela Dawn Varley
01A01-9511-CV-00498
This is a divorce action wherein the appellant, Pamela Dawn Varley (Wife), appeals from the final decree which awarded a divorce and sole custody of the parties’ three minor children to Appellee, William Patrick Varley, Jr. (Husband). The children are Bridget Marie, born December 14, 1988, William Patrick Varley, III, born January 23, 1991 and Sadie Ellen Varley, whose date of birth is June 30, 1992. The decree also fails to award Wife alimony.
Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Muriel Robinson |
Davidson County | Court of Appeals | 12/10/01 | |
| State of Tennessee v. Chauncey E. Gray
W2001-00285-CCA-R3-CD
The defendant, Chauncey E. Gray, appeals as of right from his convictions by a jury in the Chester County Circuit Court of forgery, a Class E felony, and theft of property valued at $500 or less, a Class A misdemeanor. The trial court sentenced him as a Range II, multiple offender to a four-year sentence for the forgery to be served in the Department of Correction, imposed a $1,500 fine, and ordered $400 in restitution. It imposed a sentence of eleven months, twenty-nine days at seventy-five percent for the theft to be served concurrently and a $1,250 fine. The defendant contends that his effective four-year sentence is excessive and that he should have received a sentencing alternative to confinement. We affirm the sentences imposed by the trial court.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Roy B. Morgan, Jr. |
Chester County | Court of Criminal Appeals | 12/07/01 | |
| State of Tennessee v. Cory L. Milliken
M2001-00344-CCA-R3-PC
The Defendant, Corey L. Milliken, pled guilty to two counts of first degree premeditated murder and one count of aggravated robbery. His agreed sentence was two concurrent life sentences for the murders and a consecutive twelve year term for the aggravated robbery, for an effective sentence of life plus twelve years. The Defendant timely filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that his guilty plea was not entered knowingly and voluntarily. After a hearing the trial court denied relief and the Defendant appealed as of right. Finding no error in the trial court's ruling on the Defendant's petition, we affirm the judgment of the trial court.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Steve R. Dozier |
Davidson County | Court of Criminal Appeals | 12/07/01 | |
| Johnny Jenkins v. Kemper Insurance Co.
E2001-00154-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 sustained an 8 percent permanent partial disability to his right leg as a result of his knee injury. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court is Affirmed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, J. and ROGER E. THAYER, SP. J., joined. Clint Woodfin, Knoxville, Tennessee, for the appellant, Kemper Insurance Company. Bruce D. Fox, Clinton, Tennessee, for the appellee, Johnny Jenkins. MEMORANDUM OPINION The plaintiff, age 39 at the time of trial, has a high school diploma and a work history as a skilled construction laborer. He has done electrical work, but has no formal training or certification as an electrician. The plaintiff was injured on October 24, 1998, while working for Solutions to Environmental Problems, the defendant's insured. The plaintiff was sealing drain lines with concrete at Center Hill dam when he an another worker attempted to move a large rock. While moving the rock the plaintiff felt a pop in his right knee followed by a "warm" sensation. By the next day, the plaintiff could not walk and sought medical treatment. Eventually he required several reconstructive knee surgeries and physical therapy; he has not been able to return to work since the injury. Medical Evidence Dr. Clifford Posman, an orthopedic surgeon initially treated the plaintiff. Physical therapy and other conservative treatment failed to improve the plaintiff's condition, so on April 6, 1999, Dr. Posman performed surgery on the plaintiff's right knee. When the plaintiff continued to experience pain, Dr. Posman referred him to Dr. Michael MacKay, another orthopedic surgeon in the same practice group. Dr. MacKay ordered a follow-up MRI, which revealed a torn meniscus in the plaintiff's right knee. On September 8, 1999, Dr. MacKay performed surgery to repair the tear. The plaintiff later underwent a third surgery as well as a second round of physical therapy before being placed at maximum medical improvement on March 28, 2. Dr. MacKay recommended a cane as needed and gave the plaintiff a knee brace, which the plaintiff testified he uses daily. Dr. MacKay testified the plaintiff could not return to his previous employment in part because he could not climb ladders. Before his deposition, Dr. MacKay assessed a 17 percent impairment based on the plaintiff's knee injury. However, during cross-examination while responding to questions from the defendant's counsel, Dr. MacKay testified 1 percent might be more appropriate. The trial court found the plaintiff had sustained 8 percent disability to his right leg as a result of the knee injury. We affirm the judgment of the trial court. Discussion 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 defendant presents two issues in this appeal. First, the defendant argues the trial court erred in failing to consider the 1 percent impairment rating discussed during Dr. MacKay's deposition. We find no error with respect to this issue and resolve the question in favor of the plaintiff. Dr. MacKayassessed the plaintiff's 17 percent impairment rating using Table 36 of the fourth edition of the AMA Guidelines. While cross-examining Dr. MacKay, the defendant's counsel quoted from the text preceding Table 36 and questioned Dr. MacKay about the table vis-_-vis the 17 percent impairment rating. Dr. MacKay agreed that 1 percent might be more appropriate. The defendant's second argument is that the trial court erred by failing to fully consider the plaintiff's age, education, work experience, skills and training. The defendant's contention is -2-
Authoring Judge: John K. Byers, Sr. J.
Originating Judge:James B. Scott, Jr., Judge |
Knox County | Workers Compensation Panel | 12/07/01 | |
| State of Tennessee v. Timothy L. Robertson
M2000-01235-CCA-R3-CD
The defendant, Timothy L. Robertson, was indicted on two counts of unlawful possession of a controlled substance with intent to sell; one count of felony possession of a weapon; and one count of driving on a revoked or suspended license. Following the trial court's denial of his motion to suppress, he pled guilty to one count of possession of more than .5 grams of cocaine with the intent to resell, a Class B felony, and one count of felony possession of a weapon, a Class E felony. In accordance with the terms of his plea bargain agreement, the remaining counts of the indictment were dismissed. Pursuant to Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, the defendant reserved the right to appeal as a dispositive question of law the issue of whether his custodial arrest and the subsequent search of his vehicle violated the Fourth Amendment of the United States Constitution, Article I, Section 7 of the Tennessee Constitution, and Tennessee Code Annotated Section 40-7-118(b)(1)(c). We conclude that the officers were required to make a custodial arrest of the defendant to prevent his continued violation of the driver's license law, and that the subsequent search of his vehicle was valid as incident to that arrest. Accordingly, we affirm the judgment of the trial court.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge J. Randall Wyatt, Jr. |
Davidson County | Court of Criminal Appeals | 12/07/01 | |
| Willa Jean Gaskill v. Steven Wayne Gaskill
01A01-9512-CH-00559
This appeal involves the custody of a four-year-old girl. After slightly more than two years of marriage, the mother filed a divorce petition in the Chancery Court for Montgomery County requesting custody of the parties’ only child. Following a bench trial, the trial court declared the parties divorced and awarded custody to the mother. The husband asserts on this appeal that he is comparatively more fit than the mother to have custody. We agree and, therefore, reverse the trial court’s award of custody to the mother.
Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Judge John H. Gasaway, III |
Montgomery County | Court of Appeals | 12/07/01 |
