Kevin Demers v. Walter Whittenburg - Concurring
M2003-00184-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge John H. Gasaway, III

While I concur with the decision to affirm the trial court’s dismissal of Mr. Demers’s claims in this case, I write separately to point out that the outcome may very well have been different had we employed the standard customarily used to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss. However, by using affidavits to oppose the motion to dismiss, Mr. Demers has succeeded in converting the Tenn. R. Civ. P. 12.02(6) motion to a motion for summary  Thus, rather than reviewing Mr. Demers’s amended complaint to determine whether it states claims upon which relief can be granted, we need only determine whether, based on the undisputed facts, the defendants have demonstrated that they are entitled to a judgment as a matter of law.

Cheryl O'Brien v. Rheem Manufacturing Company
M2003-00530-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge John H. Gasaway, III

In this appeal an unsuccessful plaintiff seeks review of a jury verdict approved by the trial court, in favor of the defendant manufacturer. We affirm.

Dana Friedenstab, et al., v. Martha Short - Dissenting
M2003-00603-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donald P. Harris

The majority has determined that summary judgment was proper because the plaintiff failed to establish that the defendant owed her a duty and that the plaintiff was responsible for no less that 50% of her own injuries. I respectfully disagree.

Dana Friedenstab v. Martha Short
M2003-00603-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Donald P. Harris

The plaintiffs bring this appeal from the trial court’s summary judgment in favor of the defendant. We affirm.

State of Tennessee, et al., v. Jamie Burnette, et al.
M2003-01742-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Charles F. Crawford

This appeal involves the juvenile court's termination of parental rights to two children, A.L.B. (d.o.b. 10/25/96), and B.L.B. (d.o.b. 12/01/98). Appellant argues that the trial court's findings regarding abandonment of the children, persistent conditions, and the children's best interests are unsupported by clear and convincing evidence. We affirm the trial court.

John McVoy v. Mary Ann Parks
M2003-01841-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves an order of protection. After several public confrontations with his former girlfriend, the petitioner sought an order of protection from the Chancery Court for Sumner County. The trial court granted the order of protection, and the former girlfriend appealed to this court. Because the evidence does not preponderate against the trial court's decision, we affirm.

State of Tennessee v. Anthony Carter
E2003-02172-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Anthony Lebron Carter, appeals the revocation of his probation. We affirm the judgment of the trial court.

Matthew Moates v. State of Tennessee
E2003-01926-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Matthew L. Moates, appeals the Monroe County Criminal Court's denial of his petition for post-conviction relief from his conviction for aggravated robbery and resulting sixteen-year sentence. He claims (1) that he received the ineffective assistance of counsel because his attorney failed to call witnesses to testify at trial about the length of his hair at the time of the robbery, (2) that the state improperly struck an African-American juror from the jury, (3) that he is entitled to a new trial because he was not present during a conference in which the state and his trial attorney discussed the African-American juror's dismissal, and (4) that a state witness improperly communicated with a juror during his trial. We affirm the trial court's denial of the petition.

Carla Lynn Downing v. Joseph Wade Downing
W2003-00561-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

This is an appeal from the trial court’s order, which increases Appellant/Father’s child support obligation to an amount consistent with the Tennessee Child Support Guidelines. Appellant contends that the trial court erred in failing to consider his extensive visitation with the child in declining to deviate downward from the guidelines. We affirm.

Author R. Turner v. State of Tennessee
W2003-02889-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Nancy C. Miller-Herron, Commissioner

This case involves a claim for negligence brought by Appellant, an inmate in the custody of the Tennessee Department of Correction. Appellant filed a claim with the Tennessee Division of Claims Administration, which was subsequently transferred to the Tennessee Claims Commission. The Commission determined the claim was time barred, and Appellant appealed this decision to this Court. We reverse and remand for further proceedings.
 

State of Tennessee v. Timerell Nelson
W2003-01474-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

The Appellant, Timerell Nelson, appeals the verdict of a Shelby County jury finding him guilty of first degree felony murder. On appeal, Nelson raises the single issue of whether the evidence is sufficient to support his conviction. After review, we find the evidence to be more than sufficient. Accordingly, the judgment of conviction is affirmed.

State of Tennessee v. Darrell Sanderlin
W2003-01546-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Darrell Sanderlin, appeals from the sentencing decision of the Haywood County Circuit Court. Sanderlin pled guilty to one count of child abuse of his six-year-old son, a class D felony. Pursuant to a negotiated plea agreement, he was sentenced as a Range I, standard offender, with the length and manner of service to be determined by the trial court. Following a sentencing hearing, the trial court imposed a sentence of four years incarceration. On appeal, Sanderlin argues that the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, the sentencing decision is affirmed.

Sharon D. Keller v. National Healthcare Corporation
2003-01527-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: W. Frank Brown III, Chancellor
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 the employee 42 percent permanent partial disability as a result of a rotator cuff tear injury. The employer contends the evidence preponderates against the award. Other issues relate to the award of temporary total benefits, proper notice and the statute of limitations. The judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Paul Campbell III, Chattanooga, Tennessee, for Appellant, National Healthcare Corporation. John Mark Griffin, Chattanooga, Tennessee, for Appellee, Sharon D. Keller. MEMORANDUM OPINION The employer, National Healthcare Corporation, has appealed from the trial court's action in awarding the employee, Sharon D. Keller, 42 percent permanent partial disability to the body as a whole. Factual Background The employee, a fifty-one year old high school graduate, was working as a medical receptionist during March 19991 when she testified she injured her right shoulder while moving a box of medical records. She described the incident as causing a "stabbing horrible pain" in her shoulder. She said she immediately told office Manager Tina Cline, who was also working in the general area. Ms. Cline admitted being told of the incident and said she told Ms. Keller to not do anymore lifting. She stated she did not fill out an accident report but probably should have. When pressed by counsel as to why she did not fill out a report, she responded that the office was in the process of closing, records were being packed and sent to another location, and it was just a chaotic time and she just never got around to doing it. She also testified that her supervisor, Janet Avery, was aware of Ms. Keller having hurt her shoulder while working. Ms. Cline left this employment during May 1999. The employee sought medical treatment from Dr. Lester F. Littell, a physician she had been seeing for other problems. An MRI report indicated she had a right rotator cuff tear and surgery was performed on May 2, 1999. After recovering from surgery, she worked on a part- time basis for Dr. Littell from August 1, 2 until December 2, when he relocated his practice. She also worked some for a Dr. Driskin, who took over Dr. Littell's practice. Since then and up to the time of the trial, she has worked as a sitter for different patients. Witness Janet Avery testified she was the regional contract account manager for the employer and that her first knowledge of a work-related injury was not until August 1999 when she talked with Ms. Keller by phone. Dr. Lester F. Littell, an orthopedic surgeon, was the only medical witness and testified by deposition. He stated Ms. Keller had been under his care for some period of time and that he had operated on both of her knees due to a congenital condition. He repaired the rotator cuff tear on her right shoulder during May 1999 and felt by history she had sustained the injury while lifting or moving the box of medical records. He was of the opinion she had a 7 percent medical impairment to the body as a whole and said her recovery period would be from three to six months. His records were filed as an exhibit to his deposition and they indicated she reached maximum medical improvement during November 1999. Other statements in the records indicated she was totally disabled from April 13, 1999 to August 27, 1999. Restrictions on reaching and lifting were imposed. Issues on Appeal The employer has raised a number of questions on appeal which we find narrows down to the following issues. The employer contends (1) the employee failed to give proper notice of the injury, (2) the statute of limitations had run on the claim, (3) the court was in error in awarding temporary total disability payments, and (4) the evidence preponderates against the award of 42 1 The time of the incident was in dispute. The employee originally stated the incident happened during February 1999 but later amended the complaint to allege the injury occurred during mid-March 1999. -2-

Clifford Michael Johnson v. Nissan North America, Inc.
M2003-01165-COA-R10-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge J.S. Steve Daniel

Former employee of Nissan North America, Inc. filed this action against Nissan alleging retaliatory discharge following his filing of a workers' compensation claim. A discovery dispute ensued wherein Nissan objected claiming the requests were not relevant and that it would violate the Americans with Disabilities Act if it provided the discovery. The trial court modified the discovery and ordered Nissan to: 1) list every employee terminated between August 2000 and January 2002 and the reason for the termination; 2) identify which of these employees filed workers' compensation claims or received workers' compensation benefits within one year preceding their respective termination; and 3) identify each employee that Nissan or its agents either conducted surveillance on or requested that surveillance be conducted on between August 2000 and January 2002. We reverse, finding that the plaintiff failed to make a compelling showing of relevance and failed to establish that the value of the discovery sought, which pertained to information contained in the personnel and medical records of current and former employees of Nissan, outweighed the privacy interests of those individuals who were not parties to this action.

Estate of Lisa Duncan, by and through Edward Human, Personal Representative v. State of Tennessee
M2003-01105-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: W.R. Baker, Commissioner

This case involves the death of a passenger who was involved in a high speed police chase. The Tennessee Claims Commission granted summary judgment to the State and passenger's personal representative appealed, primarily on the ground that the Claims Commission erred in granting summary judgment prior to an opportunity to take the discovery deposition of the involved highway patrolman. We affirm.

State of Tennessee v. Herbert Russell Johnson, Alias
E2003-02580-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant, Herbert Russell Johnson, appeals the revocation of his probation, arguing that the trial court erred in failing to consider further alternatives to incarceration before revoking his probation and ordering the reinstatement of his original sentence. Because the record reveals there was substantial evidence in support of the trial court's decision, we affirm the judgment of the trial court.

State of Tennessee v. Brian Keith Jackson
E2003-00606-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, Brian Keith Jackson, was found guilty by a jury of second degree murder. In this direct appeal, he argues (1) that the trial court erred by refusing to play a pornographic video tape for the jury after it was admitted into evidence, and (2) that the evidence is legally insufficient to sustain his conviction. Although the trial court did err by not playing the video in front of the jury, the error was harmless. Furthermore, because the evidence is sufficient to sustain the defendant's conviction, we affirm the judgment of the trial court.

State of Tennessee v. Daniel Wade Wilson
E2003-02070-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Daniel Wade Wilson, appeals as of right from his convictions by a jury in the Sullivan County Criminal Court for first degree felony murder and especially aggravated robbery, a Class A felony. The trial court sentenced the defendant to consecutive sentences of life in prison for the first degree felony murder conviction and twenty-three years for the especially aggravated robbery conviction. He contends that the evidence is insufficient to convict him of felony murder or especially aggravated robbery and that the trial court erred by ordering consecutive sentences. We affirm the judgments of the trial court.

Randall C. Hagy v. Commisssioner, Tennessee Department of Labor and Workforce Development and Tennessee Distribution, Inc.
E2003-01685-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John S. McLellan, III

Employee was discharged from employment for refusing to follow orders. The Commissioner denied employee unemployment benefits, and employee appealed to the Court which affirmed the ruling of the Commissioner. On appeal to this Court, we affirm.

Dr. Kenneth F. Freels, v. Joseph C. Taylor & Associates, Inc. and Howard G. Hogan, Successor Receiver for Joseph C. Taylor & Associates, Inc.
E2003-01788-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Daryl R. Fansler

Plaintiffs sought recovery of cashier's check on theory of bailment or resulting or constructive trust. From an adverse Judgment by the Chancellor, plaintiffs appealed. We affirm.

Jerry Rogers v. David Stanley Davis and Vanetta Davis
E2003-01240-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Jerri S. Bryant

The trial court awarded plaintiff judgment for rents on property occupied by defendants, but refused judgment for defendants for improvements made by them to plaintiff's property. On appeal, we reverse and award defendants judgment for improvements made to the property and modify plaintiff's judgment for the rental value of land.

Sedley Alley v. State of Tennessee
W2004-01204-CCA-R3-PD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Otis Higgs, Jr.

In 1985, Petitioner, Sedley Alley, was convicted of the crimes of aggravated rape, kidnapping, and first degree murder. The jury fixed his punishment at death for first degree murder and the trial court imposed consecutive forty-year sentences for kidnapping and aggravated rape. Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition, and Petitioner Alley timely appealed. This Court expedited review of this matter. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.

State of Tennessee v. Ronald Killebrew
W2003-02008-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The Appellant, Ronald Killebrew, was convicted of being a felon in possession of a handgun, a class E felony, following a jury trial. The trial court sentenced Killebrew, as a Range II multiple offender, to three years and six months in the Shelby County Workhouse. On appeal, Killebrew raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction.

Patricia M. Bryant v. Baptist Health System Home Care of
E2003-00432-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Harold Wimberly, Judge
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 the employee 22.5 percent permanent partial disability. The employer contends the award was excessive and the trial court was in error in dismissing its counterclaim seeking expenses and penalties under the Workers' Compensation Fraud Act as the employee testified falsely in a discovery deposition. Judgment does not dispose of the counterclaim and is merely interlocutory and not subject to interim appeal. Appeal dismissed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Appeal Dismissed and Case Remanded ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Reuben N. Pelot IV, Knoxville, Tennessee, for the appellant, Baptist Health System Home Care of East Tennessee. J. Anthony Farmer, Knoxville, Tennessee, for the appellee, Patricia M. Bryant. MEMORANDUM OPINION The employer, Baptist Health System Home Care of East Tennessee, has appealed from the trial court's action in awarding the employee, Patricia M. Bryant, 22.5 percent permanent partial disability and also in dismissing its counterclaim where the hospital sought expenses, damages and penalties pursuant to the provisions of the Workers' Compensation Fraud Act, Tenn. Code Ann. _ 56-47-11, et. seq. The basis of the counterclaim is the undisputed evidence the employee testified falsely during the course of a discovery deposition about whether she had worked after leaving the hospital's employment. While the record on appeal is sufficient to review the trial court's action concerning the 22.5 percent award of permanent disability, we are unable to reach the issue with regard to the counterclaim. The record certified to this Court does not contain any order or final judgment stating or directing that the counterclaim was dismissed. We have searched the record several times in the hope of finding an order reflecting this action and the trial court's reasoning why the counterclaim was dismissed. Such document is not present in the technical record. The final judgment recites the case came on to be heard on the "Complaint, responsive pleadings, counter- claim," etc., but the judgment then only adjudicates the claim for workers' compensation benefits and does not contain any language disposing of the counterclaim. When an appellant or any party seeks review of issues before an appellate court, the party must prepare a record which conveys a fair and complete account of what transpired in the trial court. If the record is incomplete, the appellate court is precluded from considering the issue raised. In re Adoption of E.N.R., 42 S.W.3d 26 (Tenn. 21); Word v. Word, 937 S.W.2d 931 (Tenn. Ct. App. 1996). Under the state of the record, the trial court has not disposed of all claims or issues and under Rule 54, Tenn. R. Civ. P., the judgment in the present case is merely interlocutory, subject to revision and not subject to interim appeal. Fagg v. Hutch Mfg. Co., 755 S.W.2d 446 (Tenn. 1988). While interlocutory orders may be appealed by permission of the trial and appellate courts under certain circumstances, no application has been filed pursuant to Rule 9, Tenn. R. App. P. For these reasons the appeal in the present case is hereby dismissed and the case is remanded to the trial court for further consideration. Costs of the appeal are taxed to the appellant, Baptist Health System Home Care of East Tennessee. ___________________________________ ROGER E. THAYER, SPECIAL JUDGE -2-

Michael L. Collins v. Advent Electric d/b/a Encompass
E2003-01072-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: O. Duane Slone, Circuit Judge
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 the employee 7 percent permanent partial disability. The insurance carrier contends the trial court was in error in finding (1) proper notice of injury had been given, (2) the action was timely filed and not barred by the one year statute of limitations, and (3) the expert medical testimony was sufficient to establish causation of injury. Judgment is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed ROGER E. THAYER, SP. J., in which WILLIAM M. BARKER, J., and H. DAVID CATE, SP. J., joined. Linda J. Hamilton Mowles, Knoxville, Tennessee, for Appellant, Insurance Company Of The State Of Pennsylvania. James M. Davis, Morristown, Tennessee, for Appellee, Michael L. Collins. MEMORANDUM OPINION The insurance carrier, Insurance Company Of The State Of Pennsylvania, has appealed from the trial court's action in awarding the employee, Michael L. Collins, 7 percent permanent partial disability to the body as a whole. Factual Background Employee Collins, a forty-eight-year-old high school graduate with vocational training, was employed as an electrician by Advent Electric Company1 during November 1999 when he sustained an injury as a result of falling from a ladder at the Nova Corporation job site. He stated he was pulling electrical wires when the ladder twisted causing him to fall to the concrete floor where he struck his head and shoulder. He testified he immediately felt a burning sensation in the back of his neck and he cut his back by striking the corner of a metal transformer. The incident happened near the end of the workday and he said he did not think he was seriously hurt. Several days later, his supervisor, Rick McIntosh, came to the job site to pick up some materials and he stated he told McIntosh that he had fallen from the ladder. He said the supervisor then asked if he had gone to see a doctor and he replied he did not think it was necessary. After several months, he began to experience problems with his arm becoming numb and shoulder pain and he finally went to see his family doctor, Dr. Kenneth Hill. He told the doctor he thought he was having some bursitis problems and he was later given cortisone injections. After some period of time while under Dr. Hill's care, it was decided that the employee should have an MRI examination. When he went to have the MRI exam, he was in so much pain he could not lay down long enough to take the examination. It was then rescheduled and Dr. Hill gave him a shot immediately before going for the MRI exam. The result of the test was positive and Dr. Hill referred the employee to Dr. Robert E. Finelli, a neurosurgeon. Dr. Finelli saw him for the first time during May 21 and told him he had a serious injury which would require two surgical procedures. The employee then notified his employer of the doctor's diagnosis and recommendations and requested that he be allowed to file a workers' compensation claim. Advent Electric Company declined to treat the matter as a workers' compensation claim since the employee's supervisor denied being aware of the injury and also because of the elapse of time since the incident allegedly happened. Dr. Finelli operated on the employee during May 21; this suit was instituted on July 2, 21 and the employee was terminated from employment because of his physical condition on August 27, 21. During the next month of September, a second surgical procedure was performed. As to his condition at the time of the trial, he told the trial court the first surgery eliminated a great deal of his pain and the second surgery also helped his condition but he was still having a lot of problems. He stated he was still having pain in his right shoulder and his neck and he felt it was moving on to his left side; that he could not sleep well and still had some numbness down his right arm into his fingers; that sometimes his hand would "go dead". Since leaving employment with Advent Electric he said he had worked at some odd jobs here and there and was employed at the time of the trial with Precision Electric Company but his employer was not aware of his physical problems and he would have to stop working as soon as he was called on to do electrician work. 1 Advent Electric Company d/b/a Encompass Electrical Technologies of East Tennessee, Inc., was originally a party defendant but plaintiff took a voluntary nonsuit before trial after his employer filed a voluntary petition in bankruptcy. -2-