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| Eileen Dunloy v. Brian Dunloy
M2000-03103-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Lee Russell |
Marshall County | Court of Appeals | 10/11/01 | |
| Eileen Dunloy v. Brian Dunloy
M2000-03103-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Lee Russell |
Marshall County | Court of Appeals | 10/11/01 | |
| M2001-00095-COA-R3-CV
M2001-00095-COA-R3-CV
Authoring Judge: Judge William B. Cain
Originating Judge:Frank G. Clement, Jr. |
Davidson County | Court of Appeals | 10/11/01 | |
| Charles Moore v. Clyde Green
M2000-03203-COA-R3-CV
This appeal involves a dispute concerning the estate of Nellie K. Ellis. The plaintiffs, Charles W. Moore, Linda Moore Maggart (Executrix of the estate of Herschel Moore, deceased), Ray Swing, Juantia Swing Sircy, Jeane S. Pennington, and James E. Swing, contested the decision to admit the will to probate. Their position is that the will is invalid because of a train of circumstances which shows the will was (1) not properly executed, (2) the testator lacked sufficient mental capacity, or (3) the beneficiary exercised undue influence over the testator. The trial court granted the defendant Clyde Green summary judgment, holding that the will was properly executed and that the plaintiffs did not adequately prove undue influence or lack of mental capacity. We affirm the trial court's decision.
Authoring Judge: Judge John J. Maddux, Jr.
Originating Judge:Frank G. Clement, Jr. |
Davidson County | Court of Appeals | 10/11/01 | |
| State of Tennessee v. Jerry W. Jordan
M1999-00813-CCA-R3-CD
The Defendant, Jerry W. Jordan, was convicted of second degree murder in the Criminal Court of Davidson County. After a sentencing hearing, the trial court sentenced the Defendant as a Range I offender to twenty-two years of imprisonment. In his appeal as of right pursuant to Rule 3(b) of the Tennessee Rules of Appellate Procedure, the Defendant argues that (1) the evidence presented at trial was insufficient to support a verdict of guilt beyond a reasonable doubt, (2) the Defendant’s Due Process and Equal Protection rights were violated when the State excluded four African-American jurors, (3) the trial court erred in failing to instruct the jury as to reckless homicide as a lesser-included offense, and (4) the trial court erred in sentencing the Defendant to twenty-two years. We reverse the Defendant’s second degree murder conviction due to the trial court’s failure to instruct the jury regarding reckless homicide as a lesser-included offense to first degree murder.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 10/11/01 | |
| James E. Gunter v. U.C.H.R.A. and Kristi A. Poore
M1999-01591-COA-R3-CV
In this appeal, the appellant, Mr. Gunter, filed a claim for personal injury and property damages against a local governmental entity in general sessions court. The governmental entity orally moved to dismiss citing the Tennessee Governmental Tort Liability Act, which grants exclusive jurisdiction over these cases to the circuit court. The general sessions court denied the motion and transferred the case to circuit court, and that court dismissed the action based on the statute of limitations. Mr. Gunter now appeals the dismissal of his case by the circuit court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Conrad E. Troutman, Jr. |
Fentress County | Court of Appeals | 10/11/01 | |
| State of Tennessee v. Jerry W. Jordan - Concurring and Dissenting
M1999-00813-CCA-R3-CD
I agree with the majority opinion in all respects except for the failure to charge the lesser included offense. Although I agree with the majority’s conclusion that the failure to charge reckless homicide was error, I would find the failure to charge the lesser offense harmless beyond a reasonable doubt.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Seth W. Norman |
Davidson County | Court of Criminal Appeals | 10/11/01 | |
| City of Lebanon vs. Raymond Harris
M1999-01025-COA-R3-CV
This case involves the zoning and sign ordinances of Lebanon, Tennessee. Mr. Harris had placed small outdoor insulated metal storage buildings at several properties within the city of Lebanon. The buildings had on the sides information advertising his company and a phone number to contact him for information to buy or rent one of these buildings. He was fined for violations of the City of Lebanon ordinance allowing only one principal building and its customary accessory buildings on a lot and for violation of the sign ordinance. The circuit court reversed the city court's fines and held that the buildings were not principal buildings and that they were not portable signs. For the reasons below, we affirm the circuit court's decision in part and reverse in part.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Clara W. Byrd |
Wilson County | Court of Appeals | 10/10/01 | |
| Oliver Randolph, et al vs. Coffee County Beer Bd.
M2001-00077-COA-R3-CV
This is an appeal by the Coffee County Beer Board from a decision of the Coffee County Circuit Court ordering the Beer Board to issue permits to Oliver Randolph and Susan Nichols. The trial court concluded that the Coffee County Beer Board regulation prohibiting the issuance of a beer permit to an applicant within two thousand feet of a school or church was void because of discriminatory application of this regulation. The County has appealed this decision insisting that it had uniformly enforced its distance rule including a grandfather provision which authorized the reissuance of permits to nonconforming locations who had enjoyed such a privilege prior to the readoption of the county resolution in 1980. For the reasons stated in this opinion, we affirm the trial court's decision and remand the case.
Authoring Judge: Judge J. S. Steve Daniel
Originating Judge:John W. Rollins |
Coffee County | Court of Appeals | 10/10/01 | |
| Raymond Workman, et ux v. Wal-Mart Stores East, Inc.
M2001-00664-COA-R3-CV
This is an appeal by Wal-Mart, Inc., from a jury verdict and a judgment totaling $30,000 in favor of Raymond D. Workman and Nola Ann Workman, for damages caused by a slip and fall Mr. Workman suffered at Wal-Mart's store. Wal-Mart, Inc. has appealed this judgment insisting that the trial court erred by not setting aside the jury verdict and directing a verdict in their favor, or not granting a new trial. For the reasons stated in this opinion, we affirm the trial court's decision and remand the case.
Authoring Judge: Judge J. S. Steve Daniel
Originating Judge:Robert L. Holloway |
Maury County | Court of Appeals | 10/10/01 | |
| Rene Mercer, et al vs. HCA Health Services of TN, Inc.
M2000-02785-COA-R3-CV
A widow claimed that her husband's suicide was caused by the negligence of the defendant hospital and the defendant psychiatrist in releasing him prematurely from involuntary commitment. The trial court granted summary judgment to the defendants, finding that the hospital was obligated to release the patient when ordered to do so by the psychiatrist, and that the psychiatrist was entitled to absolute immunity for actions undertaken under the involuntary commitment statutes. We reverse the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Barbara N. Haynes |
Davidson County | Court of Appeals | 10/10/01 | |
| Thomas Roache vs. Justine Bourisaw
M2000-02651-COA-R3-CV
This case involves a non-custodial parent's petition for change of custody. The original marital dissolution agreement granted the mother full custody of the child and the father alternate weekends and holidays and two weeks each summer. The mother later moved to Missouri, and the parties adjusted visitation accordingly. Later, the father filed and was granted a contempt motion due to the mother's failure to allow him to see the child. He subsequently filed a motion for change of custody which was also granted. The court found that the circumstances warranted the change of custody. The mother appeals. We affirm the trial court's change of custody.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Carol A. Catalano |
Montgomery County | Court of Appeals | 10/10/01 | |
| BellSouth Publishing v. Ruth Johnson, Commissioner of Revenue
M2000-03091-COA-R3-CV
The State Commissioner of Revenue imposed a use tax on the cost price of telephone directories produced in Alabama and distributed in Tennessee by BellSouth Advertising and Publishing Company ("BAPCO"). BAPCO claimed a credit for sales taxes it paid in Alabama when it purchased the photocompositions used to print the directories. The Chancery Court of Davidson County granted summary judgment to the Commissioner. We affirm the lower court's decision because BAPCO did not show that it was entitled to the credit and the Tennessee use tax in this case does not violate the Commerce Clause of the United States Constitution.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Claudia C. Bonnyman |
Davidson County | Court of Appeals | 10/10/01 | |
| Thomas Harrison, et al. v. Earl Laursen, et al.
M2001-00073-COA-R3-CV
This appeal involves pre-judgment interest on unpaid attorney's fees. The defendants owed the law firm attorney's fees alleged to be in the amount of $16,544.52 that accrued between November 1990 to April 1993. In 1996, the parties orally agreed to a lesser payment of $7,000.00 in settlement of the larger debt. The defendants paid $1,500.00 but failed to pay the remaining balance owed. The trial court ordered Defendants to pay pre-judgment interest on the unpaid fees and Defendants appeal. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Robert L. Jones |
Giles County | Court of Appeals | 10/10/01 | |
| Kenneth Varney v. Heather Roemer
M2000-03234-COA-R3-CV
This is a post-divorce custody case in which Father alleged a change of circumstances due to step-father disciplining the two minor children in an inappropriate manner, Mother not being able to provide a stable and consistent home and school environment, the children experiencing emotional problems while in Mother's home, and Mother voluntarily relinquishing custody. The trial court found that Father failed to demonstrate a change of circumstances warranting change of custody. Although the two children had been living with Father, the court refused to change the initial award of custody to Mother. We find that the evidence preponderates against the trial court's determination regarding changes in circumstances and that, by focusing on one alleged incident of inappropriate discipline, the court failed to consider other circumstances relevant to the inquiry.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Arthur E. Mcclellan |
Sumner County | Court of Appeals | 10/10/01 | |
| State of Tennessee v. Timothy Clark Newson
E2001-00974-CCA-R3-CD
The defendant, Timothy Clark Newson, appeals from his conviction for aggravated kidnapping, contesting the sufficiency of the evidence. We affirm the judgment of conviction.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Douglas A. Meyer |
Hamilton County | Court of Criminal Appeals | 10/10/01 | |
| John T. King v. Anne B. Pope, Commissioner of The Tennessee
M2000-02127-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 10/10/01 | |
| Kurt Seraphine v. Aqua Bath
M2000-02662-COA-R3-CV
This is an appeal from the grant of Appellees' motion for summary judgment. Appellant, a former employee of Appellee company, brought various claims against the company, and the company's top executives. Against the company, Appellant sought damages and specific performance based on an alleged breach of a stock option agreement and damages for breach of the implied duty of good faith and fair dealing. Against the individual defendants, Appellant sued on claims of statutory and common law inducement to breach. Appellees counterclaimed for a declaratory judgment that Appellant had no option to purchase shares in the company because the option expired when his employment terminated. Summary judgment was granted on Appellees' declaratory judgment claim and Appellant's claims were dismissed. We reverse the trial court's holding that the stock option expired with termination of employment, but find Appellant has not demonstrated a breach of the stock option agreement or his right to any remedy thereunder. We affirm the trial court's grant of summary judgment on the breach of duty of good faith and intentional interference claims.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Claudia C. Bonnyman |
Davidson County | Court of Appeals | 10/10/01 | |
| State of Tennessee v. Stephanie Renae Person
W2000-02859-CCA-R3-CD
A Madison County jury convicted the Defendant of misdemeanor theft of property, and the trial court sentenced her to eleven months and twenty-nine days of incarceration. The judgment of the trial court specified that the Defendant must serve seventy-five percent of the sentence prior to eligibility for work release, furlough, trusty status, and rehabilitative programs. The Defendant now appeals, challenging both the sufficiency of the evidence and the sentence that was imposed. Finding that the evidence was sufficient to support the conviction and that the sentence was properly imposed, we affirm the judgment of the trial court.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Donald H. Allen |
Madison County | Court of Criminal Appeals | 10/10/01 | |
| State of Tennessee v. David M. Black
M2000-02935-COA-R3-CD
Originating Judge:Clara W. Byrd |
Sumner County | Court of Appeals | 10/10/01 | |
| State of Tennessee v. Terry Jerome Thomas
E2001-00431-CCA-R3-CD
Following a trial, a Hamilton County jury convicted the defendant of rape, and the trial court sentenced him to ten years imprisonment. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain his conviction, and (2) his sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Joe G. Riley
Originating Judge:Judge Douglas A. Meyer |
Hamilton County | Court of Criminal Appeals | 10/10/01 | |
| State v. David Black
M2000-02935-COA-R3-CV
The State has petitioned this court to rehear its decision in this case. The state also requested, and was twice granted, additional time to supplement or correct the appellate record to include an amended judgment reflecting the details of Mr. Black's 1997 conviction and sentencing. The State has now filed this amended judgment properly certified by the trial court which heard Mr. Black's petition for restoration of citizenship. The amended judgment was introduced at the hearing on the restoration petition but was not included in the record in the appeal. Because the trial judge has certified that the amended judgment was introduced and considered in the hearing, we grant the State's motion to supplement the record.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Clara W. Byrd |
Sumner County | Court of Appeals | 10/10/01 | |
| Billy Richard Keith v. Cincinnati Insurance Company,
M2000-02955-WC-R3-CV
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer-appellant contends (1) the award of permanent partial disability benefits based on 30 percent to the body as a whole and 20 percent to the leg violates Tenn. Code Ann. _50-6-207(3)(C) and (2) the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole is excessive. As discussed below, the panel has concluded the separate awards to a scheduled member and the body as a whole should be vacated and the conditional award of permanent partial disability benefits based on 40 percent to the body as a whole affirmed.
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:Larry Ross, Judge |
Warren County | Workers Compensation Panel | 10/09/01 | |
| State of Tennessee v. Evelyn Elissa Duckett
E2000-02273-CCA-R3-CD
The defendant was indicted for robbery and convicted of misdemeanor theft, for which she was sentenced to eleven months and twenty-nine days, and payment of restitution, with the defendant to serve thirty percent of the sentence. She timely appealed, arguing that the entire sentence should have been probated. Based upon our review, we affirm the judgment of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge D. Kelly Thomas, Jr. |
Blount County | Court of Criminal Appeals | 10/09/01 | |
| Martha Fritts v. Bradley Healthcare and
E2000-00822-WC-R3-CV
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 and contends the trial court erred (1) in granting an award because the employee failed to establish causation by medical proof, and (2) in accepting the independent medical examiner's impairment rating. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Bradley County Circuit Court is Affirmed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Fred C. Stantum, III, Nashville, Tennessee, for the Appellant Bradley Healthcare & Rehabilitation M. Drew Robinson, Cleveland, Tennessee, for the Appellee Martha Fritts 1 MEMORANDUM OPINION Facts Martha Fritts, a certified nursing assistant, began caring for elderly patients in 1985 and has worked for Bradley Healthcare and Rehabilitation since 199. She testified that she injured her right shoulder on April 3, 1998 while attempting to move a patient. She was treated by Dr. Alan Clifton Odom, who performed arthroscopic surgery upon her right shoulder on December 17, 1998. Dr. Odom testified that she has permanent restrictions on lifting patients and will need assistance with pushing, pulling and lifting patients. Because Dr. Odom does not do impairment ratings, she was referred to Dr. McKinley Snipes Lundy for assignment of a permanent impairment rating. Dr. Lundy assigned a 14 percent permanent impairment to the body as a whole. She returned to work at her pre- injury rate of pay, and continues to perform the pre-injury duties, except she now has help changing patients. 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). 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 courts in workers' compensation cases. Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 456 (Tenn. 1988). Discussion Bradley Healthcare and Rehabilitation contends that the proof failed to establish a causal connection to the employment. Causation and permanency of a work injury must be shown in most cases by expert medical evidence. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987). Causation in this case is established through the deposition of McKinley Snipes Lundy, M.D., who wrote: "It is my opinion, based on a reasonable degree of medical certainty, utilizing the AMA Guides to Evaluation of Permanent Impairment, 4th ed. (American Medical Association, Chicago, IL, 1993), that Martha Fritts has 24% permanent impairment to the right upper extremity (which equates to 14% whole person permanent impairment) as a direct result of injuries sustained while performing duties working for her employer on May 1, 1998." (Depo. of Dr. Lundy, Ex. 2) Bradley Healthcare also contends the trial court erred in accepting the independent medical examiner's (Dr. Lundy) impairment rating because the majority of the impairment was based on loss of range of motion measurements which were contradicted by the treating 2
Authoring Judge: Howell N. Peoples, Special Judge
Originating Judge:Lawrence Puckett, Circuit Court Judge |
Knox County | Workers Compensation Panel | 10/09/01 |