Opinions

City of Brentwood v.Metro Zoning Appeals
M2002-00514-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves the efforts of the City of Brentwood to stop the construction of a billboard located in Davidson County. After Nashville's zoning administrator granted a building permit for the billboard, the City of Brentwood appealed to the Metropolitan Board of Zoning Appeals. When the Board affirmed the building permit, the City of Brentwood and four neighboring property owners filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board's decision. The trial court granted the motions to dismiss filed by the Board and the owner of the billboard on the ground that the City of Brentwood and the individual property owners lacked standing. We have determined that the trial court erred by determining that the City of Brentwood and its public officials lacked standing to seek judicial review of the Board's decision.

State vs. Stanley Blackwood
W1999-01221-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: John Franklin Murchison
A Madison County Grand Jury indicted the defendant, Stanley Blackwood, for one count of first-degree murder, three counts of attempted first-degree murder, five counts of aggravated assault, two counts of reckless endangerment and one count of aggravated burglary. Following a trial, a jury convicted the defendant on all counts, and the trial court imposed an effective sentence of life plus twenty-two (22) years incarceration. On appeal, the defendant contends (1) that the evidence was insufficient to sustain all of the convictions; (2) that the trial court erroneously instructed the jury; (3) that the trial court erroneously refused to admit results of a polygraph examination; (4) that the trial court should have merged two counts of aggravated assault with two counts of attempted first-degree murder; and (5) that the defendant's sentence was excessive. After a thorough review of the record, we affirm the judgment of the trial court.

Harold Russom vs. Philip McClore
W1999-02215-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: D'Army Bailey

State vs. Floyd Perry
W1999-01715-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: William B. Acree
The defendant and appellant, Floyd Lee Perry, Jr., was indicted by an Obion County Grand Jury for first-degree murder, first-degree murder in the perpetration of a robbery, and especially aggravated robbery. Following a jury trial, the defendant was convicted of first-degree murder in the perpetration of a robbery, especially aggravated robbery, and second-degree murder (as a lesser included offense of first-degree murder). The trial court merged the second-degree murder conviction into the first-degree felony murder conviction and, following a sentencing hearing, sentenced the defendant to life imprisonment for felony murder and twenty-three (23) years for especially aggravated robbery. The court ordered the sentences to be served concurrently. On appeal, the appellant claims (1) that the evidence was insufficient to support his convictions, and (2) that the trial court erred by allowing the state to introduce prejudicial autopsy photographs in evidence. After a thorough review of the record, we affirm the judgment of the trial court.

Mack Brown vs. Dwight W. Ogle, et al
E1999-02513-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Dale Young

Crestin Burke, et vs. James Monty Burke, et al
E1999-02481-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White

Judy F. Barnett v. Nn Ball & Roller, Inc. and Wasau Insurance Companies
03S01-9811-CH-00133
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Thomas J. Seeley, Jr.,
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 appeal has been perfected by the employee, Judy F. Barnett, from the action of the trial court in awarding her 65% permanent partial disability to the body as a whole. On appeal the employee insists the award of disability is not sufficient and that her disability should be fixed at 1%. Mrs. Barnett was 43 years of age and is a high school graduate. She had taken a drafting course but never used it. She said she had also taken a basic computer concepts course and a typing course. Her prior work experience was in a sewing factory and a grocery store. She began work for defendant, NN Ball & Roller, Inc., in 1984 and at the time in question, she was employed as an inspector of steel bearings. In 199-91 she testified she had an allergy reaction after being out in the sun (not work- related) for some period of time and it had been diagnosed as photodermatitis. The inspector position required her to examine steel bearings on an assembly line passing in front of her. She said that prior to this inspection, the production process involved cleaning the bearings with kerosene in order to cut off grease and that after a ball wash, the bearings were dipped in pack oil. She said that as the process operated there was a strong odor which settled in her hair and clothing. She testified she began having problems in 1993 and that it continued throughout her employment. Her problems were shortness of breath, swollen eyes, sores in her nose, ears peeling, earaches, upset stomach and headaches. She worked until June 2, 1997 and stopped working on her doctor's advise. During the course of her employment, the employer attempted to accommodate her medical problems by improving the ventilation, changing her job and other efforts which did not greatly improve her condition and she was eventually terminated on January 8, 1998 because the company could not comply with her medical restrictions. Causation of injury is not an issue. Material Safety Data Sheets were introduced into evidence. The manufacturer of the pack oil warned it could cause 2

David D. Cox v. State of Tennessee
W2007-01591-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Joseph H. Walker, III

Lamar C. Pell, v. The City of Chattanooga, et al.
E1999-01712-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

Plaintiff’s residential property in Hamilton County was sold for delinquent property taxes after default judgment was entered against Plaintiff, the property owner. Plaintiff brought suit against the subsequent tax sale purchaser, and others, to set aside the default judgment and sale, asserting process had not been served properly on him in the delinquent tax suit. The Trial Court found that certified mail return receipts signed by Plaintiff’s wife were sufficient proof of service under T.R.C.P. 4.04(10) and T.C.A. § 67-5-2415(e)(1), and granted summary judgment to the tax sale purchaser of the property and the other Defendants. Plaintiff argues on appeal that he was not served properly with process, first arguing that he was not served at all and then arguing that the statutory service procedure relied upon by the Trial Court violates due process. The judgment of the Trial Court is affirmed. 

Komatsu America Hamilton County International Company and Travelers Property Casualty v. Mark A. Cash
03S01-9905-CV-00051
Authoring Judge: H. David Cate, Special Judg
Trial Court Judge: Hon. L. Marie Williams,
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 defendant employee, Mark A. Cash, appeals the judgment of the trial court and asserts as error the following: (1) the failure to award any permanent disability, (2) the assessment of court costs against the defendant, (3) the failure to award the defendant his costs to prosecute the action, (4) the granting of the motion in limine, (5) the failure to give the defendant the presumption of T.C.A. _ 5-6-116 and (6) the plaintiff's defense should be disallowed because of the provision of T.C.A. _ 5-6-25(d)(1). We conclude that all of the foregoing are without merit and affirm the judgment of the trial court. The defendant was born March 26, 1964. He graduated from high school and completed a welding class. His work history consists of working for the Marion County Sheriff's Department; Tennol, a gasohol plant; Concrete Emporium; Chattanooga Corporation; and the plaintiff employer, Komatsu America International Company where he went to work on a regular, rather than a temporary, basis in November 1989. His work over the years has been primarily as a welder. The defendant began to have problems with his left shoulder area in 1992 or 1993. Prior to March 15, 1998, the date of the incident at work, the defendant had been examined and treated for his left shoulder problems by several doctors. On August 18, 1997, he had left shoulder surgery, consisting of an anterior inferior acromioplasty, which was a decompression of the AC joint resection and an inspection of his rotator cuff. His post operative diagnosis was stage II impingement, AC joint arthrosis. He continued to have left shoulder area problem and underwent another surgical procedure on December 1, 1997, which released his levator scapula and curetted the medial border of the scapula. His postoperative diagnosis was chronic levator scapulae syndrome. None of the defendant's shoulder problems at this point were work related. 2

Yvonne McCann, et al., v. Glen Hatchett, et al.
W1998-00808-SC-WCM-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor D. J. Alissandratos

In this workers’ compensation case the sole issue is whether the death of a traveling employee by
drowning is compensable as arising out of and in the course of employment. The trial court granted summary judgment to the employer. We granted the employer’s motion for review filed pursuant to Tenn. Code Ann. § 50-6-225(e)(5)(1999) and have determined that the employee’s death may have arisen out of and in the course of the employment. It results that the trial court’s grant of summary judgment to the employer is error, and the cause is remanded.

Phyllis Schwartz v. Lookout Mountain Caverns, Inc., et al.
E1999-01142-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

Following entry of judgment on a jury verdict, the Trial Court granted Defendants a new trial based upon allegations in the affidavit of one of the jurors. Plaintiff was granted interlocutory appeal limited to whether or not the Trial Court erred in granting Defendants’ Motion For New Trial based
on the information contained in the juror’s affidavit submitted by Defendants in support of their Motion For New Trial. Because the affidavit does not fall under any of the three exceptions to exclusion of juror testimony found in T.R.E. 606(b), the Trial Court erred in accepting the affidavit
into evidence on the issue of a new trial. No other evidence supported Defendants’ motion for new trial. Because no admissible evidence was properly before the Court, the Order for new trial is reversed and this lawsuit remanded for enforcement of the judgment previously entered on the verdict of the jury. 

Ellen Patty Seiber v. Town of Oliver Springs
E1999-01228-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Russell E. Simmons, Jr.

The plaintiff, a mid-level executive of the Town of Oliver Springs, “borrowed” various sums of money from a citizen of the Town over a three-year period which she repaid with sexual favors. When this activity came to light she was fired by the Mayor and City Administrator. Her suit, claiming breach of contract and discriminatory employment practices, was dismissed on motion for summary judgment. This appeal resulted. We affirm the judgment of the Trial Court. Tenn. R. App. P. 3 Appeal as of right; Judgment of the Circuit Court Affirmed
 

Ellen Patty Seiber v. Town of Oliver Springs - Concurring
E1999-01228-COA-R3-CV
Authoring Judge: Judge Hershel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Judge Franks.
The majority affirms the Trial Judge’s summary dismissal of plaintiff’s action, and
I concur in the affirmance of the dismissal on the basis that plaintiff was either estopped or has
waived her right to maintain this action.

Richard W. Beckwith-Adams v. State of Tennessee
M1999-00041-WC-R3-CV
Authoring Judge: Per Curiam

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. Whereupon, it appears to the Court that the Memorandum Opinion of the Panel should be accepted and approved; and It is, therefore, ordered that the Panel's findings of fact and conclusions of law are adopted and affirmed, and the decision of the Panel is made the judgment of the Court. Costs will be paid by appellant, for which execution may issue if necessary.

Anita Chapman v. E-Z Serve Petroleum Marketing
M1999-00441-WC-R3-CV
Authoring Judge: Honorable Clara Byrd, Judge
Trial Court Judge: Wilson
Hamilton V. Gayden, Jr., Special Judge

Daughters of Charity, d/b/a Saint Thomas Hospital v. Brenda Boyd
M1999-00443-WC-R3-CV
Authoring Judge: James L. Weatherford, Senior Judge
Trial Court Judge: HONORABLE CAROL SOLOMAN
This worker's compensation appeal has been referred to the Special Worker's Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _50-6-225(e) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer, Saint Thomas Hospital, insists (1) that trial judge erred in failing to dismiss the employee's mental injury claim, (2) the trial judge erred by awarding permanent partial disability benefits to employee based on a 55% vocational disability to the body as a whole, (3) the trial judge erred in awarding discretionary costs to the employee and failing to award discretionary costs to the employer, and (4) the trial court erred in awarding employee medical expenses related to her treatment by medical providers not authorized by the employer.

Don Smith v. Keyport Self-Storage, et al.
W1998-00810-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge D'Army Bailey

This is a negligent supervision lawsuit. The plaintiff rented a unit from the defendants' selfstorage facility. An employee of the self-storage facility stole the plaintiff's property and disappeared. The plaintiff sued the storage facility and its owners, alleging negligent supervision of the dishonest employee. A jury found in favor of the plaintiff and awarded compensatory damages. The defendants appeal. We reverse, finding that the plaintiff submitted insufficient evidence to support a finding of negligent supervision.
 

Custom Interiors & Supply Company, v. Inn-Way, Inc.
W1999-02191-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Julian P. Guinn

This appeal arises from a dispute over whether Defendant Robert Shropshire personally guaranteed the debts of Defendant Inn-Way, Inc., to Plaintiff Custom Interiors & Supply Company, Inc. Custom Interiors sued Inn-Way to recover the sum of $54,537.30 for orders placed by Inn-Way after October 1996. Custom Interiors also sued Inn-Way’s president and owner, Robert Shropshire, contending that Shropshire had personally guaranteed Inn-Way’s debts to Custom Interiors. After Inn-Way filed for bankruptcy protection, Custom Interiors proceeded to trial against Shropshire. The trial court entered a judgment finding that Custom Interiors had failed to carry its burden of proof and that Shropshire was not a personal guarantor of Inn-Way’s debts to Custom Interiors. We affirm the trial court’s judgment based upon our conclusion that the evidence does not preponderate against these findings. 

State of Tennessee v. Timothy Williams
W1999-01193-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Carolyn Wade Blackett

In this appeal of right from the Shelby County Criminal Court, the defendant contends that his de novo appeal from a judgment of the General Sessions Court was erroneously dismissed at a status hearing. Because the Criminal Court Clerk failed to provide notice of the status hearing to defendant's counsel of record, the judgment of dismissal is reversed and the cause is remanded to the trial court for a hearing.

Coldwell Banker-Hoffman Burke and Donna Sliney, et al., v. Kra Holdings, et al.
W1999-02721-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

Plaintiff, a licensed affiliate real estate broker, sued to collect a commission for locating a particular property for a prospective buyer. When the sellers refused to sell the property, the prospective buyer abandoned efforts to obtain the property. About six weeks later, the prospective buyer contacted one of the sellers and was able to negotiate with all of the sellers for purchase of the property and ultimately consummated the purchase for a higher sale price than originally contemplated. Plaintiff alleges that she had an oral agreement for $150,000.00 commission, or, alternatively, that she was acting as a facilitator and entitled to a commission for her services as such. From the trial court’s order granting summary judgment to defendant, plaintiff has appealed. Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Chancery Court affirmed
 

State of Tennessee v. Monica L. Madden, a/k/a Shana Valeshia Goodwin, a/k/a Monica Wright
M1999-00176-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

Pursuant to a plea bargain agreement, the defendant pled guilty in Davidson County Criminal Court to two counts of assault and one count of accessory after the fact. She received an effective sentence of two years. The defendant appeals the trial court’s order that her sentence be served in the workhouse rather than in some alternative form, asserting that the trial court erred in considering her arrests while on bond as indications of her unsuitability for alternative sentencing; in making its determination based solely on her arrests while on bond; and in failing to consider her participation in a counseling program. Finding no error, we affirm the judgment of the trial court.

Katrinka A. Stalsworth, and Jim Stalsworth, v. Robert A Grummons, M.D.
M1999-00047-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas Goodall

The sole issue presented in this appeal is whether the trial court properly awarded as discretionary costs fees of the defendant’s expert witnesses who did not testify because the plaintiffs voluntarily dismissed their lawsuit on the day of trial before any proof was taken. The fees in question were charged by the defendant’s medical experts for reserving time in their schedules to testify, thereby precluding any other income-producing professional activities. The award of discretionary costs is affirmed.

State of Tennessee v. William Joseph Taylor
M1999-00218-CCA-R3-CD
Authoring Judge: Judge William B. Acree
Trial Court Judge: Judge J. O. Bond

The defendant was initially tried and convicted in Rutherford County for the crime of rape of a child. On appeal, this Court found that the defendant’s trial counsel was ineffective and remanded the case for a new trial. After remand, the defendant was indicted in Wilson County. The Wilson County Criminal Court found that the double jeopardy clauses of the United States Constitution and the Tennessee Constitution prohibited the State from prosecuting the defendant and dismissed the indictment. The State appealed the dismissal. We reverse the decision of the trial court and remand for a trial.

State of Tennessee v. Antonio Brewster
M1999-00989-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant was convicted in the Criminal Court, Davidson County, Wyatt, Randall J., of felony murder in the perpetration of a robbery, attempted aggravated robbery, aggravated robbery, and two counts of attempted first-degree murder. The defendant appealed. The Court of Criminal Appeals, Smith J., held that: (1) the trial court did not err in denying the defendant’s motion to suppress his statement; (2) there was sufficient evidence that the defendant murdered a bystander in the perpetration of a robbery to support conviction for felony murder; and (3) the defendant was not denied the effective assistance of counsel at trial.

Affirmed.