APPELLATE COURT OPINIONS

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03C01-9601-CC-00037

03C01-9601-CC-00037

Originating Judge:Arden L. Hill
Carter County Court of Criminal Appeals 02/12/97
Separately Upon The Presence of The Error First Recognized In State v. Middlebrooks,

01C01-9512-CC-00415

Originating Judge:James L. Weatherford
Maury County Court of Criminal Appeals 02/12/97
Johnny Glenn Hilliard v. Misty Lynn Hilliard and Terry Minton - Concurring

02A01-9609-CH-00230

Johnny Glenn Hilliard (Father) appeals from the order of the trial court granting visitation rights to his son’s maternal grandmother. Father and Misty Lynn Hilliard (now Schrems) (Mother) married in 1992. Alexander Glenn Hilliard (Alex) was born in May 1993. The parents divorced in January, 1995 and temporary custody1 was awarded to Terry Minton, the maternal grandmother. At that time, Mother was living with her mother, Terry Minton. Mother currently resides in Florida with her present husband.

Authoring Judge: Judge David R. Farmer
Originating Judge:Chancellor William Michael Maloan
Weakley County Court of Appeals 02/12/97
01C01-9511-CR-00367

01C01-9511-CR-00367
Davidson County Court of Criminal Appeals 02/12/97
I Concurred With The Majority In Arnold Carter v. State, No. 03C01-9509-Cc-

01C01-9604-CR-00158
Davidson County Court of Criminal Appeals 02/12/97
James P. Mitchell, v. James Davenport, Commissioner of the Departmentof Employment Security of the State of Tennessee, Noma Outdoor Products, Inc.

02A01-9510-CH-00230

In this unemployment compensation case, James Mitchell (“Mitchell”) filed a claim 2 for unemployment compensation with the Tennessee Department of Employment Security (“TDES”). TDES approved Mitchell’s claim, and Mitchell’s employer, NOMA Outdoor Products, Inc. (“NOMA”), appealed TDES’ claim approval. On appeal, the Appeals Tribunal ruled that Mitchell was not eligible for unemployment benefits pursuant to T.C.A. § 50-7-303(a)(2) due to work-connected misconduct and declared that the $1,190.00 in unemployment benefits that Mitchell had previously received was an overpayment. Mitchell thereafter requested that TDES waive his $1,190.00 overpayment pursuant to T.C.A. § 50-7-303(d)(2). The Appeals Tribunal denied Mitchell’s request for a waiver of the overpayment, and Mitchell appealed the decision of the Appeals Tribunal to the Board of Review. The Board of Review adopted the findings of fact and decision of the Appeals Tribunal and denied Mitchell’s request for a waiver of the overpayment. Mitchell thereafter filed a petition to rehear which was denied by the Board of Review. Pursuant to T.C.A. § 50-7-304(i), Mitchell filed a petition for certiorari in chancery court seeking judicial review of the Board’s decision. The chancery court dismissed Mitchell’s petition for certiorari and affirmed the decision of the Board of Review, denying Mitchell’s request for a waiver of the overpayment. Mitchell appeals from the order of the chancery court arguing that the chancery court erred in admitting additional evidence and erred in not vacating or setting aside the decision of the Board of Review. For the reasons stated hereafter, we affirm the judgment of the chancery court.
 

Authoring Judge: Judge Alan E. Highers
Originating Judge:Chancellor Joe C. Morris
Madison County Court of Appeals 02/12/97
03C01-9601-CC-00023

03C01-9601-CC-00023
Cumberland County Court of Criminal Appeals 02/11/97
03C01-9404-CR-00157

03C01-9404-CR-00157

Originating Judge:James B. Scott, Jr.
Anderson County Court of Criminal Appeals 02/11/97
03C01-9508-CC-00250

03C01-9508-CC-00250

Originating Judge:Arden L. Hill
Unicoi County Court of Criminal Appeals 02/11/97
03C01-9511-CC-00343

03C01-9511-CC-00343

Originating Judge:Buddy D. Perry
Rhea County Court of Criminal Appeals 02/11/97
Carmella Mccadams v. Henry County Board of Education

02S01-9606-CV-00055
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 issue in this appeal is whether the evidence preponderates against the trial court's award of permanent disability benefits for a claimed back injury. This tribunal has concluded the judgment should be reversed for insufficient evidence of permanency. Because we do not reach a second issue, involving the method by which the employee's average weekly wage is determined, that issue is pretermitted. At the time of the trial, the employee or claimant, McCadams, was thirty-six years old, with a twelfth grade education and 8 hours of training in cosmetology. Her work history includes sewing shoes at Brown Shoe, sewing clothes at HIS, baby sitting at home, cleaning houses, working at a florist and working in the cafeteria at Henry County High School. She began working for the employer, Henry County Board of Education, in March of 1993, as a substitute cook. On November 18th of the same year, while standing on a ladder to reach vents she was cleaning, she lost then quickly regained her balance. When she did, she felt pain in her neck and back. She did not fall. She finished working that day and, except for the following day when she worked only three hours and twenty-five minutes, worked regularly until December 6th of the same year. She has voluntarily quit working. On December 3rd and 13th, she sought treatment from Dr. Walter Griffey for pain in her back and neck and a funny feeling in both feet. In January of 1994, she sought treatment from Dr. Carl W. Huff, who diagnosed neck pain without objective findings, back pain without objective findings and symptom magnification syndrome. Dr. Huff prescribed return to work without limitations and with no permanent impairment. She has been also seen by three neurosurgeons, none of whom found evidence of injury, other than preexisting degenerative disc disease. One of them described the claimant as a malingerer. Her husband called the doctor a quack. The claimant was finally referred to a Dr. Mark Crawford, whose specialty and qualifications are not in the record. Dr. Crawford wrote, " (B)ased on the AMA Guidelines to the Evaluation of Permanent Impairment, 4th Edition and based on moderate degenerative disc disease of L4 and L5 with residuals, she would have an impairment of 8% of the whole person. This degenerative disc disease was an asymptomatic pre-existing condition brought into disabling reality by her work related injury." None of the other medical experts assigned any permanent impairment. 2
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. Julian P. Guinn,
Henry County Workers Compensation Panel 02/10/97
Alma J. Milam v. Mci Telecommunications Corp., et al

02S01-9604-CH-00040
This case is before the Court upon the entire record, including the order of referral to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum Opinion setting forth its findings of fact and conclusions of law, which are incorporated herein by reference.
Authoring Judge: Per Curiam
Originating Judge:Hon. D. J. Alissandratos,
Shelby County Workers Compensation Panel 02/10/97
Jessie James Jones, Jr. v. Cigna Insurance Companies

02S01-9601-CH-00041
This workers' compensation app eal has been referred to the Special W ork ers ' C om pe ns atio n A pp ea ls P an el of the Su pre m e C ou rt in acc ord an ce with Te nn . Co de An n. _ 5 -6- 22 5(e )(3 ) fo r he arin g a nd rep orting of find ings of fa ct an d co nc lusio ns of law . The p lainti ff, Je ss e J am es Jo ne s J r., u nd erw en t co m pe ns ab le lumbar disc h ern iatio n a nd surgery for which he entered into a settlement agre em ent w ith his em ployer for p aym en t of permanent partial disa bility be ne fits of 4 % to the bo dy as a w ho le in September, 19, 1992. On May 18, 1992, Plaintiff was injured in a second industrial accident and suffered a second lumbar disc herniatio n for which he underwent a sec on d lam inec tom y. The plaintiff recovered a judgment for the second injury against Cigna Insurance Company in which he was aw ard ed fur the r w ork ers ' co m pe ns atio n b enefits based on the find ing that he suffered 55% perm ane nt partial disab ility to the bo dy as a whole. On Se pte m be r 2 , 19 95 , C ign a file d a m otio n fo r re du ctio n o f aw ard pursuant to Tenn. Code Ann. _ 56-6-231 seeking a reduction of the pe rm an en t disa bility aw ard for the sec on d inju ry. Th e T rial Co urt denied Cigna's motion for reduction of award and this appeal results. In its on ly issue, Cigna says that evidence preponderates against the Tr ial C ou rt's d en ial o f its m otio n to te rm ina te its ob liga tion for payment of p erm an en t disa bility be ne fits as of N ov em be r 7, 1 99 5. 2
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge:Honora Ble Joe C.
Madison County Workers Compensation Panel 02/10/97
State of Tennessee v. Thomas D. Smith

01C01-9904-CC-00146

Originating Judge:Robert W. Wedemeyer
Robertson County Court of Criminal Appeals 02/10/97
Jonthan Hyler v. Charles Traughber, Chairman Tennessee Board of Paroles, et al.

01A01-9610-CH-00482

The captioned petitioner has appealed from the judgment of the Trial Court dismissing his petition for certiorari from the action of the Board of Paroles denying hisapplication for parole from the custody of the Department of Correction.

Authoring Judge: Presiding Judge Henry F. Todd
Originating Judge:Chancellor Irvin H. Kilcrease, Jr.
Davidson County Court of Appeals 02/07/97
Tina R. Guffey vs. Wenco of Shelbyville, Inc., d/b/a Wendy's Restaurant - Concurring

01A01-9609-CV-00400

This is a “slip and fall case” in which the jury awarded $173,250, and the defendant appealed.

Authoring Judge: Judge Henry F. Todd
Originating Judge:Judge Lee Russell
Bedford County Court of Appeals 02/07/97
Michael Kindall v. Jim H. Rose - Concurring

01A01-9610-CH-00495

The captioned petitioner, an inmate of an institution operated by a private contractor for the Tennessee Department of Correction, has appealed from the summary dismissal of his petition for certiorari for review of disciplinary actions of the defendants.

Authoring Judge: Judge Henry F. Todd
Originating Judge:Judge Jim T. Hamilton
Wayne County Court of Appeals 02/07/97
Joe Larry Turnbo vs. Brenda Jane (Thompson) Turnbo

01A01-9307-CH-00314

The defendant/appellee has filed a respectful petition to rehear. It appears that a rehearing is appropriate, and same is hereby granted.

Authoring Judge: Presiding Judge Henry F. Todd
Court of Appeals 02/07/97
Erma Hardesty and Jim Hardesty, v. Service Merchandise Company, Inc.

02A01-9510-CV-00235

The majority holds that the plaintiff cannot establish constructive notice. I am constrained to agree. However, I invite our Supreme Court to revisit this area of law.

Authoring Judge: Judge Paul G. Summers
Court of Appeals 02/05/97
Mohammad Al-Haddad v. Walter Ritter and Wife, Helma Ritter

01A01-9608-CV-00369

Pursuant to Rule 11, Tenn. R. Civ. P., the trial court sanctioned the appellants and their attorneys. The appellants argue on appeal that they cannot be sanctioned under Rule 11 because they did not sign the offending pleading and that the facts do not establish a violation of the rule. We hold that a party may be sanctioned under Rule 11 without actually signing the pleadings, but we find that the facts of this case do not justify a Rule 11 sanction and that the proof fails to show any expenses incurred as a result of the alleged violation. Therefore we reverse the judgment against the appellants for sanctions.

Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Judge Donald P. Harris
Williamson County Court of Appeals 02/05/97
Roscoe W. Fields, Sr., v. Bobby Ray McGee and Lillian Bean

03A01-9609-CV-00296

Mr. Fields says that Joe Torrence, the Circuit Court Clerk of Davidson County, charged him an excessive fee for a certified copy of a traffic citation, for which he attempted to seek redress in General Sessions Court of Knox County. He says that the Judge of the Knox County General Sessions Court and the Clerk thereof refused to allow him to file his warrant, whereupon he attempted to file it in Davidson County, and was rebuffed; he thereupon attempted to file a redressing action in the Davidson Chancery Court, and was again rebuffed. He returned to Knox County, and filed this pro se action for damages against Judge McGee and Clerk Bean, asserting that they violated his civil rights under 42 U. S. C. §1983, by refusing to allow him to file the action against Clerk Torrence. The trial judge directed a verdict for the defendants at the close of the plaintiff’s case, holding that he had failed to make out a prima facie case.

Authoring Judge: Senior Judge William H. Inman
Knox County Court of Appeals 02/05/97
Aetna Insurance Company and Church of God of Prophecy, v. Little Giant Mfg. Co., Inc. and Edwin L. Wiegand Division of Emerson Electric Company

03A01-9601-CV-00024

This complaint was filed by the Church of God of Prophecy against the Little Giant Mfg. Co. and Kick-Shaw, Inc., alleging that its property was destroyed by fire caused by a defective water heater manufactured by Little Giant and sold to the plaintiff by Kick-Shaw, Inc. Various defenses were interposed by the defendants, none of which is relevant to the issue before us. Thereafter, the complaint was repeatedly amended; new parties came and went; and, in its present posture, the plaintiffs are Aetna Insurance Company and Church of God of Prophecy and the defendants are Little Giant Mfg. Co., Inc. and Emerson Electric Company.


Originating Judge:Senior Judge William H. Inman
Court of Appeals 02/05/97
Richard E. Perry, and wife, Tamelia Perry, v. Terry Flatford and wife, Teresa Flatford, Brenda Dye, Gordon White, Remax Preferred Properties, Inc., David Snelson, Beverly V. McMahan, Crossroads Realty, et al.

03A01-9609-CH-00305

This is an action for damages allegedly sustained by the plaintiffs as a result  of misrepresentations made to them in their purchase of a residence.

Authoring Judge: Senior Judge William H. Inman
Union County Court of Appeals 02/05/97
Barbara Gatlin, v. State of Tennessee, Department of Human Services, In the Matter of Felicia Gatlin, a child under the age of 18

01A01-9607-JV-00311

The Juvenile Court of Davidson County terminated Barbara Gatlin’s parental rights respecting her ten year old daughter, Felicia. Because we find that the record does not contain clear and convincing evidence of abandonment, we reverse.

Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Judge Andrew J. Shookhoff
Davidson County Court of Appeals 02/05/97
Amanda Carol Croslin and Phyllis Croslin Baker, v. Danny Keith Croslin, wife Betty Jean Croslin and Stanley Gardner Haskins

01A01-9607-CV-00297

This is an adoption case. Petitioners, Amanda Croslin and Phyllis Croslin Baker, the adoptive child’s mother and maternal grandmother respectively, filed a petition to set aside the adoption of the child, Danna Elisabeth Croslin, by the maternal grandfather, Danny Keith Croslin, and his wife, Betty Jean Croslin. Also named as a defendant in the petition is Stanley Gardner Haskins, the adoptive child’s natural father. From the order of the trial court nullifying and setting aside the adoption, Danny Keith Croslin has appealed. Mr. Haskins did not file any pleading in the trial court and is not a party to this appeal.

Authoring Judge: Presiding Judge W. Frank Crawford
Originating Judge:Judge John A. Turnbull
Smith County Court of Appeals 02/05/97