Dorothy Bond v. Murray, Inc.
W2000-01830-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists the trial court erred in finding that the employee's disability to her left arm was work-related. No issue is made with respect to the right arm. The trial court treated the gradual injury as two separate injuries and awarded permanent partial disability benefits based on 38 percent to the right arm and 3 percent to the left arm. As discussed below, the panel has concluded the award should be modified, by converting it to one based on 34 percent to both arms, and affirmed.

Hae Suk Holder v. Whirlpool Corporation
M2000-01368 WC-R3-CV
Authoring Judge: Catalano, Sp. J.
Trial Court Judge: Robert E. Corlew, III Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The defendant, Whirlpool Corporation, appeals the judgment of the Chancery Court of Rutherford County where pursuant to Tennessee Code Annotated _ 5-6-241(a)(2) the trial court allowed reconsideration of the plaintiff's industrial disability and found that the plaintiff was entitled to receive an additional award of six percent (6%) to the body as a whole in addition to the previous award of eight percent (8%) made in accordance with the original settlement order between the parties filed in the Chancery Court of Davidson County. The defendant submits that the trial court erred in finding that the plaintiff, who was terminated for personal misconduct, was entitled to reconsideration pursuant to Tennessee Code Annotated _ 5-6-241(a)(2), resulting in enhancement of a prior disability. Under the recent ruling of the Tennessee Supreme Court in Freeman v. Marco Transportation Co., 27 S.W.3d 99 (Tenn. 2), in which the Court held that a request for reconsideration brought pursuant to Tennessee Code Annotated _ 5-6-241(a)(2) must be filed in the same court that exercised jurisdiction over the original workers' compensation claim, we do not reach the issue raised by the defendant and find that the judgment of the trial court should be reversed and the cause dismissed without prejudice. Under the savings statute, the plaintiff can refile her request for reconsideration in the Chancery Court of Davidson County within one year of the date of the judgment that is the final disposition in this case. Tenn. Code Ann. _ 5-6-225 (e)(2) Appeal as of Right; Judgment of the Chancery Court Reversed and Dismissed. CATALANO, SP. J., in which BIRCH,J. and WEATHERFORD, SR. J., joined. David T. Hooper, Brentwood, Tennessee for the appellant, Whirlpool Corporation. Christopher K. Thompson, Murfreesboro, Tennessee for the appellee, Hae Suk Holder. MEMORANDUM OPINION In 1995, Hae Suk Holder injured her right shoulder while working for Whirlpool Corporation (Whirlpool). She returned to work in February 1996 making the same wage she had been earning prior to her injury. On October 23, 1996, the ChanceryCourt of Davidson County approved a lump- sum settlement between the parties awarding Ms. Holder an eight percent (8%) permanent partial impairment to the body as a whole. The order also provided that Whirlpool was "relieved of any further liability to [Ms. Holder] under the Tennessee Workers' Compensation Law or otherwise, except for the obligation of the defendant to provide future medical benefits attributed to this injury...." The order did not contain any provisions regarding the right to reconsideration under Tennessee Code Annotated _ 5-6- 241(a)(2). Ms. Holder continued to work for Whirlpool until June of 1998 when she had a physical altercation with another employee that resulted in her termination. On August 7, 1998, Ms. Holder filed a complaint in the Chancery Court of Rutherford County seeking additional workers' compensation benefits by a reconsideration of her industrial disability pursuant to Tennessee Code Annotated _ 5-6-241(a)(2). The trial court found that Ms. Holder had sustained a fourteen percent (14%) vocational disability (an additional award of six percent (6%) to the original settlement award of eight percent (8%) vocational disability). ANALYSIS Tennessee Code Annotated _ 5-6-241(a)(2) provides in pertinent part: In accordance with this section, the courts may reconsider, upon the filing of a new cause of action, the issue of industrial disability. Such reconsideration shall examine all pertinent factors, including lay and expert testimony, employee's age, education, skills and training, local job opportunities, and capacity to work at types of employment available in claimant's disabled condition. Such reconsideration may be made in appropriate cases where the employee is no longer employed by the pre-injury employer and makes application to the appropriate court within one (1) year of the employee's loss of employment, . . . . Tenn. Code Ann. _ 5-6-241(a)(2). In the recent case of Freeman v. Marco Transportation Co., 27 S.W.3d 99 (Tenn. 2), our Supreme Court held that a request for reconsideration pursuant to Tennessee Code -2-

Holly Paul vs. Thomas Paul
E2000-02161-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John B. Hagler, Jr.
Holly Lynn Coleman Paul ("Wife") filed a complaint seeking a divorce from Thomas Frazier Paul ("Husband") on the basis of inappropriate marital conduct or, in the alternative, irreconcilable differences. Husband filed a counterclaim seeking a divorce on the ground of inappropriate marital conduct. The Trial Court granted Husband the divorce, divided the marital property which the parties could not divide by agreement prior to trial, awarded custody of the two minor children to Husband, and granted visitation to Wife. Wife appeals challenging the Trial Court's determinations on all of these issues. We affirm as modified.

Mary Costa, Sue Henard, et al vs. James Clayton, LaRue Homes, et al
E2000-02627-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John F. Weaver
Plaintiffs' action to invalidate an agreement between the defendants to grant an easement as consideration for land was found to be meritorious by the Trial Judge, and plaintiffs were granted summary judgment. On appeal, we affirm.

Kanta Keith, et al vs. Gene Howerton, et al
E2000-02703-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
In this appeal from a judgment of the Knox County Circuit Court the Plaintiffs/Appellants, Kanta Keith, Darlene Keith and Walter Jackson, contest the Trial Court's ruling that the Defendants/Appellees, Gene Ervin Howerton and Easy Money, Inc., did not violate the Tennessee Consumer Protection Act of 1977 with respect to pawn transactions entered into with the Plaintiffs. The Plaintiffs also contest the amount of damages awarded by the Trial Court for property belonging to them which was stolen while in possession of the Defendants. We affirm in part as modified, reverse in part, and remand for proceedings not inconsistent with this opinion. We adjudge costs of the appeal against the Defendants, Gene Ervin Howerton and Easy Money, Inc.

Debra Smith vs. EZ Pawn Co., et al
E2000-02741-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: William E. Lantrip
This is a suit by Debra Smith seeking damages against EZ Pawn Company and others because of sexual harassment visited upon her by James Cameron, the owner of the company. The Trial Court found that her claim under the Tennessee Human Rights Act and under the Malicious Harassment Statute were barred by the applicable statute of limitations. We affirm.

Charles Doss et al vs. Grace T. Sawyers
E2000-01745-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jeffrey F. Stewart
This is a suit wherein the Plaintiffs seek to remove a cloud in the form of a purchase agreement from the title of property owned by the Plaintiffs. The Trial Court found that the purchase agreement was invalid because of lack of mental capacity of the then owner, Charles Doss, to sign the agreement, and awarded a judgment in the amount of $6900 to the Defendant for payments made under the agreement. We reverse the judgment of the Court relative to the invalidity of the purchase agreement and, in accordance with the prayer of the counter-complaint, order that the property be conveyed by the Clerk and Master to the Defendant subject to payment of the balance owed on the property as determined upon remand.

The John Lee Co., Inc. v. Lamar Haynes, et al.
M2000-02407-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The plaintiff, a manufacturers' representative, filed this action for a declaratory judgment that it is not indebted to the defendant for commissions on sales of tee shirts manufactured by Tee Jays Manufacturing Company and sold to Planet Hollywood, in light of the fact that the defendant's sole participation was to arrange a meeting between buyer and seller. The Chancellor found the plaintiff was liable for the commission under a contract theory. We affirm.

In re: Estate of Pauline Maddox
M1998-00925-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves the testamentary intent of an 89-year-old widow who died leaving a sizeable estate. After one of the decedent's grandsons, acting as her executor, submitted for probate a February 1991 will and a June 1995 codicil, the decedent's surviving daughter filed a will contest proceeding in the Chancery Court for Sumner County, alleging that the will had been procured by the executor's undue influence and that the distribution of the estate should be governed by a 1989 holographic instrument. Following a bench trial, the trial court upheld the validity of the 1991 will and the 1995 codicil. On this appeal, the decedent's daughter asserts that the trial court erred by determining that the 1991 will and the 1995 codicil expressed the decedent's testamentary wishes rather than the 1989 document. We have determined that the evidence supports the trial court's conclusions and, therefore, affirm the judgment.

Krishnalal Patel, et al., v. Dileep Patel
M2000-00583-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

The SREE General Partnership was formed for the purpose of owning and managing motel property in Nashville, Tennessee. During the ownership period, the property deteriorated. The partners sued a co-partner for breach of fiduciary duty, claiming that his negligent management of the property was what caused the deterioration and resulting economic loss. The trial court ruled for the defendant. We affirm.

State of Tennessee, ex rel., Woody M. Hartley v. Jennifer L. Robinson
M2000-01625-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Muriel Robinson

After divorce, Husband was ordered to pay child support to Wife for care of his minor children. Husband was employed as a commercial truck driver by Company. Thereafter, Husband was diagnosed with seizure disorder that required medication to treat. As a result, Husband lost his commercial trucking license as mandated by Federal Regulations. Upon losing his job as a commercial truck driver, Husband accepted a warehouse position with Company for considerably less money. He petitioned the court for a reduction of child support commensurate with his lower salary. The trial court found that he was underemployed and denied the reduction. Husband appealed. Although he failed to submit a transcript or statement of the evidence in the record, the trial court's order contains stipulated facts. We reverse and remand for entry of order reducing child support.

Jerry T. Beech Concrete Contractor, Inc. v. Larry Powell Builders, Inc., et al
M2000-01704-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an action by a contractor to receive the balance due under a contract for the construction of two buildings. The owner counterclaimed for damages alleging lack of good workmanship. A principal issue concerned attorney fees, and whether a document purporting to be a contract was, in fact, a contract. We hold that the document proffered by the plaintiff was accepted as a contract by the defendant, and that the attorney fee provision is enforceable.

Tommy Burgess, et al., v. Bill Fuller, D/B/A Bill Fuller Landscaping
M2000-02094-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Robert L. Holloway

In this dispute over a landscaping contract, the Circuit Court of Maury County held that the contractor breached the agreement. The defendant contends that the court rewrote the agreement. We disagree and affirm the judgment of the trial court.

State of Tennessee v. Winslow B. Roberts
W2000-00141-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett

The Defendant, Winslow B. Roberts, was found guilty by a Shelby County jury of two counts of especially aggravated kidnapping and two counts of aggravated robbery. The Defendant was sentenced to twenty years on each count of especially aggravated kidnapping, with the terms to be served concurrently, and ten years on each count of aggravated robbery, with the terms to be served concurrently. The trial court ordered that the Defendant's sentences for especially aggravated kidnapping be served consecutively to his sentences for aggravated robbery, for an effective sentence of thirty years. The Defendant now appeals, arguing that there was insufficient evidence presented at trial to convict him of especially aggravated kidnapping and aggravated robbery. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. William M. Fahr
W2000-00973-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Brown

Defendant was indicted by a Shelby County grand jury on the charge of rape of a child. Pursuant to a negotiated plea agreement, defendant entered a plea of nolo contendere to sexual battery and received a two-year sentence. The issue of how his sentence should be served was submitted to the trial court. Upon our review of the record, we conclude that it is necessary to remand for a new sentencing hearing since the trial court relied upon the defendant's failure to make a public confession at a church in determining the sentence.

State of Tennessee v. Freddie L. King
W2000-01256-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Bernie Weinman

The Defendant pled guilty to several offenses in 1992, receiving an agreed effective sentence of twenty-four years. He subsequently filed for post-conviction relief, which was denied after a hearing. The Defendant filed a second post-conviction petition which the trial court summarily dismissed. The Defendant now appeals; we affirm the judgment of the trial court.

State of Tennessee v. Charles Roy Cole
W2000-01129-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Charles Roy Cole, was charged with aggravated assault and rape of a child. He was acquitted on the first charge and convicted on the second. The trial court imposed a sentence of 20 years. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its jury instructions regarding admissions against interest. The judgment is affirmed.

State of Tennessee v. Thomas Leon Lewis, II
W2000-01740-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Roger A. Page

Pursuant to a negotiated plea agreement, the defendant pled guilty to contributing to the delinquency of a minor, a Class A misdemeanor, and unlawful use of an altered vehicle registration plate, a Class E felony. He received concurrent sentences of eleven months, twenty-nine days and two years, respectively, to be served on probation. The defendant appeals the trial court's denial of his request for judicial diversion. Upon our review of the record, we affirm the judgment of the trial court.

Anthony J. Robinson v. State of Tennessee
W2000-02248-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Otis Higgs, Jr.

Petitioner was originally convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced to thirty-seven years as a Range II offender. Petitioner now appeals the denial of his petition for writ of habeas corpus in which he alleged his indictment was void. Upon our review of the record, we affirm the judgment of the trial court.

David Patrick Pearson v. State of Tennessee
E2000-00438-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner appeals from the Knox County Criminal Court's dismissal of his petition for post-conviction relief, by which he sought to set aside his earlier guilty pleas. On appeal, the petitioner presses his claim that because he received ineffective assistance of counsel, his guilty pleas were not voluntary and knowing. Finding that the services of the petitioner's trial counsel were below the range of competence demanded of attorneys in criminal cases and that the petitioner was thereby prejudiced, we reverse the judgment of the post-conviction court, vacate the petitioner's convictions, and set aside the petitioner's guilty pleas without prejudice to further proceedings on the underlying charges.

State of Tennessee v. Mark A. Stacy
E2000-02906-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carroll L. Ross

The defendant was indicted by a Polk County Grand Jury for first degree murder. Following a two-day trial, he was found guilty of second degree murder, a Class A felony. The trial court sentenced the defendant to twenty-three years as a Range I, violent offender in the Tennessee Department of Correction. In this appeal as of right, the defendant does not challenge his conviction but contends only that his sentence is excessive. Having reviewed the entire record, including the transcript of the sentencing hearing, we conclude that the defendant's issues concerning the length of his sentence are without merit. We affirm the judgment of the trial court.

State of Tennessee v. David Walter Troxell
M2000-01100-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Burch

Defendant, charged with possession with intent to sell and/or deliver a controlled substance and possession of drug paraphernalia, filed a motion to suppress over 300 grams of cocaine, paraphernalia, and U.S. currency discovered during a search of his vehicle. The trial court, Dickson County, granted Defendant's motion to suppress the evidence on the ground that the search impermissibly exceeded the scope of Defendant's consent. The State appealed. After a review of the record, we reverse the judgment of the trial court.

State of Tennessee v . Victor D. Neuenschwander
M2000-01334-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Timothy L. Easter

The Defendant pleaded guilty to sexual battery by an authority figure, a Class C felony. The Defendant was sentenced as an especially mitigated offender to two years and seven months in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court erred in denying him alternative sentencing. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Sean W. Conway
M2000-01263-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Timothy L. Easter

The defendant was indicted for driving under the influence (DUI), driving while his alcohol concentration was .10% or more (DUI per se), and DUI, second offense. After a jury trial on DUI and DUI per se, the jury acquitted the defendant of DUI and was unable to reach a verdict on DUI per se. A second trial was held, and the jury convicted the defendant of DUI per se. The trial judge then found this conviction to be a second offense. In this appeal, the defendant alleges (1) the defendant's retrial for DUI per se violated the principles of double jeopardy; (2) the trial court erroneously admitted the results of the breath test and related evidence; (3) the trial court erroneously admitted testimony of the arresting officer concerning his encounters with other motorists charged with DUI; (4) the trial court improperly considered a prior conviction for enhancement of the defendant's sentence; and (5) the trial judge erroneously failed to recuse himself. Upon review of the record, we reduce the defendant's conviction to DUI, first offense, remand for resentencing, and affirm the trial court in all other respects.

State of Tennessee v. Jacob Lee Davis
M1999-02496-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Charles Lee

Following a jury trial, Defendant, Jacob Lee Davis, was convicted of premeditated first degree murder, reckless endangerment, and carrying a weapon on school property. The trial court sentenced him to life imprisonment for the first degree murder conviction and one year each for the reckless endangerment and carrying a weapon on school property convictions. The trial court ordered that the latter sentences be served concurrent to the sentence for life imprisonment. On appeal, the Defendant challenges the sufficiency of the evidence to sustain each of the convictions and argues that the trial court erred in failing to strike six potential jurors for cause. After a review of the record, we affirm the judgment of the trial court.