Opinions

State of Tennessee v. Stejana Holder
M1999-02470-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The appellant, Stejana S. Holder, was convicted of one count of aggravated assault, one count of resisting arrest, and one count of disorderly conduct. The Davidson County Criminal Court imposed an effective sentence of three years to serve sixty days in the workhouse followed by two years probation. On appeal, the appellant alleges that the trial court erred by denying total probation. Upon review, we find no error and affirm the sentence of the Davidson County Criminal Court.

State of Tennessee v. Shawn Dontay Beard
M1997-00114-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Charles D. Haston, Sr.

The Defendant, Shawn Dontay Beard, appeals as of right following his conviction in the Warren County Circuit Court. Defendant was convicted by a jury for sale of a Schedule II controlled substance, cocaine, in an amount of less than point five (0.5) grams within one thousand feet of school grounds. Defendant argues there was insufficient evidence regarding his identity to support his conviction. He further challenges the length of his sentence on the grounds that the State raised the felony classification of his offense pursuant to the Drug-Free School Zone Act but failed to provide the Defendant with notice of enhancement. The judgment of the trial court is affirmed.

Robert B. Turner, et al v. John Louis Kinser
E1999-01201-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Chancellor Thomas R. Frierson, II

By this suit the Plaintiffs seek a declaration that they are entitled to four separate prescriptive easements across property owned by the Defendant. Prior to the commencement of trial the Defendant conceded that the Plaintiffs were entitled to one easement and the Plaintiffs conceded that they were not entitled to another one. The Trial Court found in favor of the Plaintiffs as to the remaining two easements, resulting in this appeal. We affirm.

Sara T. McBride v. Kenneth A. McBride
E1999-02562-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor John F. Weaver

Kenneth A. McBride appealed from an Order of the Chancellor confirming the Referee's Report that concluded McBride had offered no new evidence on the issue of reducing child support, which had been previously adjudicated. We affirm.

Signal Capital Corpooration, et a.,l v. Signal One, LLC, et al.
E2000-00140-COA-R3-CV
Authoring Judge: Presiding Judge Houston M. Goddard
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal questions whether a forum selection clause is valid and enforceable against the Plaintiffs, Larry Wells and Signal Capital Corporation. Pursuant to the forum selection clause, Signal One LLC and NationsBanc Capital Corporation filed a motion to dismiss for improper venue. The Trial Court granted the motion to dismiss by finding the forum selection clause was valid. We affirm.

Diana Lynn Stinnett v. Jack Stinnett
01210-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

This is an appeal in a divorce case of the Trial Court’s denial of Wife’s Motion seeking postjudgment interest. The Judgment was satisfied three years and four months after it was entered. The Motion for post-judgment interest was filed three months after the Judgment was paid. The Trial Court denied post-judgment interest on two grounds. The first was the Trial Court’s finding of an accord and satisfaction resulting from Husband’s payment of the judgment without interest. The Trial Court also held it would be unconscionable and inequitable for Husband to pay post-judgment interest. The Trial Court then exercised its discretion to deny post-judgment interest. Wife argues that the Trial Court can not deny post judgment interest for equitable reasons, that Husband failed to prove an accord and satisfaction, and that the accord and satisfaction affirmative defense may not be raised for the first time during legal argument, cannot be established without proof, and is waived if not pleaded. We hold the Trial Court erred, reverse the Judgment of the Trial Court, and remand the case for further proceedings. To avoid the appearance of impropriety or lack of impartiality, the Trial Judge is to recuse himself from those further proceedings. Tenn. R. App. R. 3; Judgment of the Trial Court Reversed; Case Remanded
 

John W. Johnson v. Bernice Wade, et al.
W1999-01651-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Dick Jerman, Jr.

This appeal arises from an action for ejectment filed by Plaintiff John W. Johnson ("Plaintiff") against Defendant Bernice Wade ("Defendant"). Plaintiff filed suit in the Gibson County Circuit Court alleging that he was the sole owner of the tract of land where both Plaintiff's and Defendant's residences are located. Prior to Defendant's filing on an answer, Plaintiff filed a motion for default judgment. Thereafter, Defendant filed an answer, a motion to dismiss, and a motion to compel Plaintiff to appear for deposition. Following Plaintiff's failure to appear for deposition, failure to prepare an order as directed by the court, and an attempt to file a premature appeal, the trial court dismissed Plaintiff's case for failure to properly prosecute. Plaintiff appeals.

Valerie A. Lewis v. Saturn Corporation
M1999-00422-WC-R3-CV
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Irvin H. Kilcrease, Jr., 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 of findings of fact and conclusions of law. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WEATHERFORD, SR. J., in which BIRCH, J., and GAYDEN, SP. J., joined. Thomas H. Peebles, IV and K. Suzanne Crenshaw, Columbia, Tennessee, for the appellant, Saturn Corporation. Lloyd T. Kelso, Nashville, Tennessee, for the appellee, Valerie A. Lewis. MEMORANDUM OPINION The trial court found that employee, Valerie A. Lewis, suffered a compensable injury which arose out of the course and scope of her employment with employer, Saturn Corporation. The trial court awarded employee twenty percent (2%) permanent partial disability to the body as a whole, in addition to all medical expenses, and future medical expenses, and temporary total disability benefits. The trial court held the employerwas entitled to a set-off of $9,762.93 for disabilitypayments in accordance with Tenn. Code Ann. _5-6-114 (b). The trial court also granted employee discretionary costs in the amount of $2,846.5. The employer, Saturn Corporation, raises on appeal two issues: (1) The trial court erred in finding that employee's back injury arose out of the course and scope of employee's employment, and (2) The trial court erred in finding that employee sustained her burden of proof as to the causation of her back injury. The employee raises on appeal two issues (1) the trial court erred in holding that employer was entitled to a set-off of $9,762.93, and (2) the trial court erred in awarding employee two (2) times her medical impairment instead of awarding two and one-half (2 _) times her medical impairment. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings, unless the preponderance of evidence is otherwise. Tenn. Code Ann. _5-6-225 (e)(2). As discussed below, the panel has concluded that the judgment of the trial court should be affirmed. Employee was forty-two (42) years old at the time of trial. She left high school in the 12th year prior to graduation. She attended Ross Medical Education Center and obtained a certificate as a medical-dental administrator. Employee was employed as a medical insurance biller for various hospitals and worked for Buick Motor Co. and Fisher Body prior to being employed at Saturn Corporation. Employee began working for Saturn Corporation on January 16, 1992. Employee did a variety of jobs at Saturn, and in 1995 she was assigned to the "lost foam team" where she met fellow employee, Deborah Leach, who was a member of the same team. Employee and Ms. Leach did not get along well. Ms. Leach complained about employee coming in late, being out on medical, sleeping on the job and having bad work ethics. On October 8, 1996, employee had a blowout on her way to work and was informed that her tire had been slashed in a way that would cause air to leak out slowly. She thought that Ms. Leach had something to do with this, and she and Ms. Leach had a conversation about the tire. Later on the same day, employee was standing near a table talking to Melvin Brantley, a co-worker, when Deborah Leach, carrying supplies, approached the employee and shoved her with her shoulder. Employee fell back on a table, rolled off the table and landed in a chair. Employee did not feel any pain initially. She first felt pain approximately two hours later when she was at home while trying to use the bathroom. Employee was out of work on vacation until October 16, 1996. When employee returned to work on October 16, 1996, she went to Initial Care Facility because of pain in her back, and from there she was sent to Dr. Bartsokas. Employee informed Dr. Bartsokas that she had been pushed causing her to twist through her trunk and low back area and developed low back pain. She further revealed that she had experienced back pain previously, apparentlytwo months prior to this incident and had undergone on MRI scan which was entirely normal. -2-

Robert McAlister Barnett, III v. Paula Lynn Barnett
E1997-00010-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge L. Marie Williams

We granted this appeal to determine: 1) whether private school tuition constitutes an extraordinary educational expense under the Tennessee Child Support Guidelines; and 2) whether the noncustodial parent should be required to pay those expenses in addition to child support based upon the percentage of net income of the noncustodial parent. We hold that pursuant to the Tennessee Child Support Guidelines private school tuition is an "extraordinary educational expense." We affirm the decision of the Court of Appeals requiring the total amount of private school tuition to be paid by the obligor-father. We hold, however, that in appropriate cases a court may apportion the amount of tuition between the parties.

State of Tennessee vs. Thomas Wayne Overbay
E1999-00840-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck

Defendant was convicted by a jury of four counts of aggravated sexual battery and ten counts of rape of a child. In this direct appeal Defendant alleges he did not receive a fair trial because (1) the bill of particulars did not sufficiently inform Defendant of the charges, and (2) the prosecution violated Brady vs. Maryland when it failed to turn-over potentially exculpatory evidence to Defendant pre-trial. Held: the bill of particulars adequately appraised Defendant of the crimes with which he was charged. Although the prosecution violated Brady when it failed to turn over potentially exculpatory evidence to Defendant pre-trial, the error was harmless. Judgment of the trial court affirmed.

The Kroger Company, et al. v. Sara Cooper
M1999-01120-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: Walter C. Kurtz, Judge
The employer has appealed contending the trial court's award of permanent partial disability benefits based on thirty-five percent to the leg for a torn meniscus is excessive.

Patricia M. Campbell v. City of Tullahoma, et al
M1999-01235-WC-R3-CV
Authoring Judge: Loser, Sp. J.
Trial Court Judge: John W. Rollins, Judge
The appellant, Campbell, insists the trial court erred in granting the appellee's motion for discretionary costs because no equitable ground for such relief was asserted in the motion and accompanying affidavit. The panel concludes that the plaintiff's voluntary dismissal of her complaint is a sufficient ground for an award of discretionary costs.

Tennessee Farmers vs. Judy Cobb, et al
W1999-01729-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: J. Steven Stafford
This appeal involves a motion to set aside a default judgment. The trial court entered a default judgment against the defendants based on their failure to respond to the lawsuit. Seven months later, the defendants filed a motion to set aside the default judgment. The trial court denied the motion, and the defendants appealed. We affirm, finding no abuse of discretion in the denial of the motion to set aside the default.

State vs. Joe Hurt
W2001-02742-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: C. Creed Mcginley
The defendant contends the trial court should have sentenced him to a Community Corrections Program. We conclude ample evidence exists to support the trial court's findings that incarceration is necessary to protect society from the defendant. The defendant has a long history of criminal conduct. We affirm the judgments from the trial court.

Scholz vs. S.B. International
M1997-00215-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from a dispute over the severance benefits in an employment contract. Following his termination, a corporate officer filed suit against his former employer in the Chancery Court for Davidson County seeking his severance benefits. The employer asserted that its former officer was not entitled to the severance benefits. Following a jury trial, the trial court entered a judgment awarding the officer $111,623.33 but denying his requests for prejudgment interest and discretionary costs. On this appeal, the officer asserts that the trial court erred by failing to award him prejudgment interest and discretionary costs. We agree and, therefore, remand the case for further proceedings.

State of Tennessee v. Michael Byrd
M1999-00456-CCA-R3-CD-
Trial Court Judge: Jim T. Hamilton

Zettersten vs. Zettersten
M1999-01186-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Donald P. Harris
This appeal arises from an action for divorce and division of marital assets. The court below granted Linda Jean Zettersten ("Wife") a divorce on grounds of Rolf Birger Zettersten's ("Husband's") stipulation of inappropriate marital conduct; awarded Wife alimony in futuro and rehabilitative alimony and child support for the parties' minor child; awarded Wife $11,923.50 in attorney's fees, discretionary costs and court costs. Wife appeals.

State vs. Theron L. Boyd
M1999-01125-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Seth W. Norman
The Defendant, Theron L. Boyd, appeals as of right from an "Agreed Final Judgment Granting Delayed Appeal" entered by the trial court upon the trial court's finding that the Defendant was entitled to post-conviction relief. The "Agreed Final Judgment Granting Delayed Appeal" purports to modify the original judgment of conviction by explicitly reserving certified questions of law which would be dispositive of the case and then to grant a delayed appeal of those issues. The Defendant argues that his convictions pursuant to his guilty pleas should be reversed because the trial court erred in denying his motion to suppress evidence found as a result of illegal searches by police. The State, however, argues that we lack jurisdiction to address the merits of the Defendant's contentions because the trial court did not have jurisdiction to amend the final judgment which did not reflect the reservation of certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b). We conclude that this appeal is not properly before us. Accordingly, we must dismiss this appeal and remand to the trial court for further proceedings consistent with this opinion.

Streeter vs. TDOC
M1999-02267-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prison inmate claimed that he was entitled to be released, because he had earned the required sentence reduction credits. The Department of Correction disagreed. The trial court granted summary judgment to the Department on the basis of laches. We affirm the trial court's judgment, but upon a different basis.

Kibby vs. Kibby
M1999-00906-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Buddy D. Perry
This appeal presents a dispute of custody, visitation, and attorney fees. The parties are parents of one child, Ian Kibby, who is the subject of this dispute. The father was awarded primary custody when the parties divorced in May of 1996. The mother filed a Petition for Contempt and Modification seeking primary residential placement of Ian and later requested that the court refer this matter to mediation. The father filed a counter-petition requesting a change in the mother's visitation privileges and attorney's fees. The trial court dismissed the mother's petition but granted the father's petition reducing the mother's visitation rights. The court also refused to refer this matter to mediation and did not award attorney fees to the father. The mother now appeals the court's dismissal of her petition, failure to refer the matter to mediation, and change in visitation; the father also appeals the failure of the trial court to award attorney fees to him. We agree with the trial court on all issues and affirm its ruling. We also award attorney's fees necessitated by this appeal to the father and remand to the trial court for a determination of this amount.

Union Planters Bank vs. Choate
M1999-01268-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from a breach of contract case filed against Mickie Davis ("Davis") by Carole Choate ("Choate"). Choate alleged that Davis breached her contractual and fiduciary duties by authorizing release of funds to Rochford Realty ("Rochford") for a construction project. The trial court granted Davis' motion for summary judgment. Choate appeals.

State of Tennessee v. Gdongalay Parlo Berry
M1999-01901-CCA-MR3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. Randall Wyatt, Jr.

Home Builders Assoc. of Middle TN vs. Maury Co.
M1999-02383-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Stella L. Hargrove

Home Builders Assoc. of Middle TN vs. Maury Co.
M1999-02383-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Stella L. Hargrove

Howard vs. Howard
M1999-00670-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal arises from a dispute over a contractual provision in a Marital Dissolution Agreement ("MDA") between the parties. Susan Trabue Howard ("Mother") filed a Petition for Enforcement of Contractual Obligation, alleging that Robert Mark Howard ("Father") had failed to abide with a provision in the MDA providing that Father would be responsible for Daughter's "related costs of education." The court below found in favor of Mother, holding that Father was responsible for all of Daughter's expenses for the time specified in MDA. Father appeals.