APPELLATE COURT OPINIONS

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State vs. Michael Walton

01C01-9509-CR-00290

Originating Judge:Seth W. Norman
Davidson County Court of Criminal Appeals 11/12/97
Jewell Maness vs. Estate of Acie Maness

02A01-9611-CH-00270

Originating Judge:Joe C. Morris
Henderson County Court of Appeals 11/12/97
Terry Phelps vs. State

01C01-9610-CC-00451

Originating Judge:W. Charles Lee
Lincoln County Court of Criminal Appeals 11/12/97
State vs. Orlando Hobson

01C01-9612-CC-00527

Originating Judge:Jim T. Hamilton
Maury County Court of Criminal Appeals 11/10/97
Margaret Williamson v. Clarksville Memorial Hospital

01S01-9703-CV-00066
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 judge found that the plaintiff had a 1 percent anatomical impairment which, extrapolated by the multiplier of 2.5, resulted in a permanent partial disability of 25 percent and awarded benefits accordingly. The employer appeals, insisting that there is no basis for a finding of an anatomical impairment of 1 percent.1 The thrust of the Hospital's argument is directed to the alleged discrediting of Dr. Fishbein's testimony by the Chancellor.2 It is conceded that the plaintiff, a nurse, sustained a neck and shoulder injury on July 8, 1993 while lifting a patient at the defendant Hospital. She was initially seen by Dr. Douglas Porter, an orthopedist of Clarksville, who referred her to Dr. G. B. Lanford, a neurosurgeon, whom we assume practices in Nashville.3 Dr. Lanford testified that the plaintiff had some disc bulging and spondylosis, but no nerve root compression and no operative problems. Because of continuing arm and back pain Dr. Lanford assessed her anatomical impairment at 5 percent. Dr. Richard E. Fishbein, orthopedist, practicing in Antioch, testified that at the request of plaintiff's counsel he examined the plaintiff on July 7, 1994. Before that time he had been furnished with copies of Dr. Porter's and Dr. Lanford's evaluations, and had reviewed the x-ray and myelogram reports. He referred to Dr. Porter's report that the plaintiff had suffered an acute herniation of a disc; he found exquisite tenderness over the para cervical muscles, weakness of grip strength, "and basically I noted that she had a herniated disc as noted, and that her history and physical findings were consistent with it." Dr. Fishbein opined that she had a 1 The record consists only of the depositions of Dr. Lanford and Dr. Fishbein, and the memorandum of the Chancellor. 2 As observed by a different Panel on another occasion, the plaintiff, in this Montgomery County case, travelled a long distance in employing Dr. Fishbein, overlooking many dozens of orthopedic specialists in the process. 3 Neither his deposition nor his CV reveal this information.
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. James E. Walton,
Williamson County Workers Compensation Panel 11/10/97
Mary A. Clark v. Micropore, Inc. & Berwind Industries Management

01S01-9703-CH-00062
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. This complaint was filed April 17, 1995, alleging that the plaintiff had been employed at Porelon since 1974 and that in 1993 she began to develop pain in her right shoulder and arm which was evidence of a gradually developing compensable injury. Micropore, Inc. (formerly Porelon) filed its answer on June 7, 1995, alleging that it was sold on May 6, 1994 with a resulting change in workers' compensation insurers. It denied having notice of any claimed injury and affirmatively alleged that it is not liable for "any benefits due plaintiff which accrued on or after May 6, 1994." The plaintiff amended her complaint on June 21, 1995 and joined Berwind Industries Management Company as a defendant. She alleged that in 1993 and until May 1994 the manufacturing plant known as Porelon, where she worked and developed the gradual injury, was owned by Johnson Worldwide Associates, Inc. ["JWA"], which sold the plant to Berwind in May 1994. The plant continued to operate under the name of Micropore, Inc., allegedly a subsidiary of Berwind. Micropore, Inc. answered the amended complaint, acknowledging the sale of the plant by JWA to Berwind in May 1994. It again denied that, although the plaintiff was regularly employed by Porelon for 2 years and was so employed May 1994, when the change in ownership occurred, the plaintiff had developed a gradually occurring injury as alleged. It admitted that on November 3, 1993, the plaintiff reported to management that she had been diagnosed with fibromyosis, but that she did not relate that the condition was work related. Berwind answered the amended complaint on July 26, 1995, asserting that the plaintiff was last employed on March 6, 1995, and that it was not liable for benefits under the gradual occurring rule. The Chancellor ruled that the plaintiff's injuries were gradual "and manifested themselves in May 1993, but they did not progress to the point of making the plaintiff unable to work until March 3, 1995, and therefore March 3, 1995, under Tennessee 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Vernon Neal,
Putnam County Workers Compensation Panel 11/10/97
Evans & Arnold vs. Board of Paroles, et. al.

01S01-9610-CH-00210
Davidson County Supreme Court 11/10/97
John Shultz v. City of Lawrenceburg, et al .

01S01-9701-CV-00017
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. In this appeal, the employer, City of Lawrenceburg, contends (1) the evidence preponderates against the trial court's finding of a compensable injury by accident arising out of and in the course of employment, (2) the evidence preponderates against the trial court's finding that the employee's compensation rate is $38.8, (3) the evidence preponderates against the trial court's award of temporary total disability benefits from August 5, 1994 through October of 1995 and (4) the trial court erred in commuting permanent partial disability benefits to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed. The employee or claimant, John Schultz, was forty-nine years old at the time of the injury. He has an eighth grade education and a GED. He has worked as a heavy equipment operator since 1968. On January 21, 1994, while working for the employer, he injured his neck and back while operating a backhoe as a jackhammer on frozen ground. He injured his left shoulder again on August 5, 1994 while working for the employer and running out of a hole filling with water. He attempted to work the next day before going to a doctor's appointment, then was totally disabled until October 18, 1995, when he reached maximum medical improvement. The claimant was treated or evaluated by a number of physicians and assigned permanent impairment ratings of from six to ten percent from the injuries which the physicians related to the work he was performing. He continues to have neck and shoulder problems. The record contains conflicting documentary evidence as to the employee's average weekly wage, but the employer had actually paid benefits of $38.8 from the August injury until the date of maximum medical improvement, for his temporary total disability. The trial court awarded no additional temporary total disability benefits, but did award the claimant's reasonable and necessary medical expenses and permanent partial disability benefits based on thirty-two percent to the body as a whole, payable in a lump sum. The claim against the Second Injury Fund was dismissed. Appellate 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)(2). 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Jim T. Hamilton,
Lawrence County Workers Compensation Panel 11/10/97
01C01-9510-CR-00347

01C01-9510-CR-00347

Originating Judge:Jerry Scott
Court of Criminal Appeals 11/10/97
Jimmy R. Turner v. Travelers Insurance

01S01-9610-CV-00203
Authoring Judge: William S. Russell, Retired Judge
Originating Judge:Hon.
Sequatchie County Workers Compensation Panel 11/10/97
Hunter vs. Brown

03S01-9607-CV-00070
Supreme Court 11/10/97
J. C. Mcdowell v. United Technologies/Carrier Corp.

01S01-9703-CH-00045
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. This complaint in Chancery was filed November 9, 1995 seeking benefits for a back injury which the plaintiff alleged he suffered on March 14, 1995 while attempting to move a heavy tank. The employer defendant answered in course, alleging that the plaintiff had a degenerative back condition of many years duration and denying the plaintiff suffered a compensable injury as alleged or that it had notice of any injury. The trial judge referred the case to the Clerk and Master pursuant to RULE 53, TENN. R. CIV. P.1 A judgment was entered finding that the plaintiff sustained a compensable injury on March 14, 1995 resulting in a 3 percent permanent partial disability to his whole body, and benef its were awarded accordingly. The defendant appeals and presents the issue of whether the evidence preponderates against the finding of a compensable injury. We hold that it does not for reasons hereafter recited, and therefore affirm the judgment. The plaintiff is 52 years old and has been employed at Carrier since 1972. He had three prior back surgeries in 1975, 1976, and 1985. On March 14, 1995, while working on a chiller tank, he twisted his body, and, as he stated, "I hurt myself." He did not report for work the following day, but on March 16, 1995, he went with a shop steward to see Joel Holt, the Safety Director. He testified that he reported to Holt that he had injured his back and requested some time off. He saw his family physician who said the pain was not work related. In course, he was referred to Dr. George Lien, a neurosurgeon who performed surgery on May 7, 1995. The plaintiff returned to work on August 23, 1995 with restrictions. 1A Spec ial Maste r may b e appo inted in any ca se, and his/her du ties ma y be particula rized. W e ass um e the Clerk and M aste r was appo inted as S pec ial Ma ster to hear and r epo rt the t estim ony, with recommendation, but there is no Appointing Order in the record. There are two relevant documents in the record. The first such is a Finding of Fact signed by the trial judge. The second is an Order reciting that "the cause came on to be heard before the Honorable Charles D. Haston, Judge., etc. who referred the matter to J. Richard McGregor, Special Master. Thereafter, the court . . . filed a finding of fact . . . which is incorporated herein . . ." This Order [i.e. Judgment] is signed, not by the trial judge, but by J. Richard McGregor. "In the absence of the Judge, J. Richard Mc Gregor, sitting as Chancellor pro tem ." So far as the record reveals the Spe cial Master filed no repo rt, and the trial judge thus made findings o f fact without hearing any proof. The anomaly continues: the Special Master, as Judge Pro Tem, also entered the final judgment, thereby approbating his prior action. The parties make no issue of this `unusual' procedure, and we therefore treat the case as one heard in compliance with RULE 53.4. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Charles D. Haston,
Warren County Workers Compensation Panel 11/10/97
Patrick v. Kelfalla,

01C01-9608-CR-00357

Originating Judge:Seth W. Norman
Davidson County Court of Criminal Appeals 11/10/97
James C. Tomlinson and Charles F. McKelvey, v. Edna J. Kelley and Jeanette M. Coke

01A01-9608-CV-00378

This appeal involves a controversy surrounding the appointment of a local city official. The mayor and the city manager of the City of Berry Hill filed a defamation action in the Circuit Court for Davidson County against two city residents who publicly questioned the circumstances surrounding the interim appointment of a member of the Board of Commissioners. The trial court granted the residents’ motion for summary judgment and dismissed the city officials’ complaint. On this appeal, the city officials assert that the trial court should not have granted the summary judgment because the record contains evidence that the residents knew or should have known that their critical statements made to a local newspaper were false. We affirm the trial court.

Authoring Judge: Judge William C. Koch, Jr.
Originating Judge:Judge Barbara N. Haynes
Davidson County Court of Appeals 11/07/97
International Supply Co., Inc. v. The Warner Group LTD - Concurring

01-A-01-9705-CH-00235

This appeal involves a question of personal jurisdiction over a nonresident corporation. The Chancery Court of Sumner County dismissed the complaint. We affirm.

Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Judge Tom E. Gray
Sumner County Court of Appeals 11/07/97
Vera Maureen Higgs v. Gayle Lynn Higgs

01A01-9702-CV-00057

Each of the captioned parties filed a notice of appeal from a judgment of the Trial Court
awarding to the plaintiff-wife a divorce on grounds of adultery and inappropriate marital
conduct.

Authoring Judge: Presiding Judge Henry F. Todd
Originating Judge:Judge Donald P. Harris
Williamson County Court of Appeals 11/07/97
Franklin Thomas Burns v. Bernice A. Burns - Concurring

01-A-01-9705-CH-00218

This is an appeal by respondent/appellant, Bernice A. Burns (“Wife”), from the order of the trial court granting Wife and petitioner/appellee, Franklin Thomas Burns (“Husband”), a divorce, dividing the marital property, and granting temporary alimony. Wife complains the court erred when it divided the parties’ property and awarded Wife $400.00 alimony per month for six months. The facts out of which this matter arose are as follows.

Authoring Judge: Judge Walter W. Bussart
Originating Judge:Chancellor Alex W. Darnell
Montgomery County Court of Appeals 11/07/97
Maxine Nelson v. The Pacesetter Corporation

01A01-9703-CH-00141

This is a suit for damages for an alleged retaliatory discharge brought pursuant to Tenn. Code Ann. § 50-1-304. As winnowed, the plaintiff alleges that she was discharged because she refused to participate in gambling activities which were illegal under Tenn. Code Ann. § 39-17-501.

Authoring Judge: Senior Judge William H. Inman
Originating Judge:Chancellor Ellen Hobbs Lyle
Davidson County Court of Appeals 11/07/97
State of Tennessee vs. Dorothy Sheldon - Concurring

01C01-9604-CC-00151

I concur in the result reached by the majority. I write separately however because I have reached the conclusion that venue is proper in this case through a somewhat different rationale than that expressed in the majority opinion.

Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Leonard W. Martin
Dickson County Court of Criminal Appeals 11/06/97
State of Tennessee vs. Dorothy Sheldon

01C01-9604-CC-00151

The appellant, Dorothy Sheldon, was convicted by a jury of forgery. She was sentenced as a Range III, persistent offender to four years incarceration. She appeals raising the following issues for our review: 1. Whether the evidence is sufficient to support her conviction; 2. Whether the evidence is sufficient to establish venue in Dickson County; and 3. Whether the manner of service of her sentence is proper. Upon review, we affirm the trial court’s judgment of conviction and sentence.

Authoring Judge: Judge Paul G. Summers
Originating Judge:Judge Leonard W. Martin
Dickson County Court of Criminal Appeals 11/06/97
State of Tennessee vs. Dorothy Sheldon - Dissenting

01C01-9604-CC-00151

The majority concludes that venue was proper in Dickson County. I respectfully disagree. In finding venue in Dickson County, the majority, relying upon Girdley v. State, 29 S.W.2d 255 (Tenn. 1930), employs an agency theory to establish the appellant's constructive presence in Dickson County. I am unable to agree with the majority's rational for two reasons. First, in Girdley, the defendant was charged with the offense of uttering or attempting to pass a forged check. Had the appellant in this case been charged with uttering or passing a forged writing, I would agree that venue would have been proper in Dickson County. See Tenn. Code Ann. § 39-14-114(b)(1)(D). However, as reflected by the indictment, the State chose to indict the appellant in Dickson County for forgery. Tenn. Code Ann. § 39-14-114(b)(1)(A).

Authoring Judge: Judge David G. Hayes
Originating Judge:Judge Leonard W. Martin
Dickson County Court of Criminal Appeals 11/06/97
Herbert Carson Branum, v. City of Maynardville, Paul Bowman, Bill P. Graves, Russell Gillenwater, Len Padgett, and H.E. Richardson

03A01-9604-CH-00127

Plaintiff Herbert Carson Branum appeals dismissal of his suit against the City of Maynardville and its Commissioners, seeing reinstatement to his position as Water Commissioner and damages for his wrongful discharge, both compensatory and exemplary. He also seeks an order enjoining the Defendants "from any further ultra vires acts against the Plaintiff" based upon his contention that they had violated certain of our State Statutes.

Authoring Judge: Presiding Judge Houston M. Goddard
Originating Judge:Chancellor Billy Joe White
Union County Court of Appeals 11/06/97
State of Tennessee vs. Andrew R. Ewing

02C01-9604-CR-00119

The appellant, Andrew R. Ewing, and his co-defendant, Derrick C. Brooks, were tried jointly by a jury for first degree murder. Ewing and Brooks were found guilty of felony murder for committing a murder during the perpetration of an aggravated burglary. Both men were sentenced to life in prison. Because Derrick C. Brooks’ appeal has been severed from Andrew R. Ewing’s appeal, we will address only the issues presented by Andrew Ewing in this opinion.

Authoring Judge: Judge Paul G. Summers
Originating Judge:Judge W. Fred Axley
Shelby County Court of Criminal Appeals 11/05/97
City of Memphis v. The Civil Service Commission of the City of Memphis and Stanley Shotwell

02A01-9512-CH-00289

This case involves a chancery court review of a decision by a civil service commission. The
commission had ordered the reinstatement of a police officer. The chancery court reversed the
commission’s decision, upholding the termination of the officer’s employment. We affirm the
decision of the chancery court.

Authoring Judge: Judge Holly Kirby Lillard
Shelby County Court of Appeals 11/04/97
Paul Farnsworth, A/K/A Ronnie Bradfield, v. Richard Kenya, et al.

02A01-9707-CV-00145

The plaintiff, Paul Farnsworth a/k/a Ronnie Bradfield, sued defendants Richard Kenya,1 Stephen Dotson and two John Doe defendants. The complaint alleges that Plaintiff is an inmate at the Lake County Regional Correctional Facility (LCRCF), Richard Kenyon is identified as an employee and Stephen Dotson as the associate warden at LCRCF. The complaint alleges that Plaintiff was given permission to marry while incarcerated, wedding plans were formulated but, within less than 24 hours prior to the wedding, he was advised that the wedding was cancelled.

Authoring Judge: Judge David R. Farmer
Lake County Court of Appeals 11/04/97