Opinions

Pemberton v. Campbell
03S01-9604-CH-00044
Authoring Judge: William H. Inman, Senior Judge
Trial Court Judge: Hon. Billy Joe White,
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 plaintiff was awarded lifetime benefits based on a finding of total, permanent vocational disability, with the employer and Second Injury Fund ordered de novo concurrent, pro rata payments for permanent disability until the plaintiff reaches age 65. Because we find that the preponderance of the evidence does not support a finding of total and permanent disability, but supports a finding of 75% permanent partial disability to her whole body, the judgment is modified to award the plaintiff weekly benefits for 3 weeks. Our review is de novo on the record, accompanied by the presumption that the trial court's findings of fact are correct unless the evidence preponderates otherwise. T.C.A. _ 5-6-225(e)(2). Seiber v. Greenbrier Ind., 96 S.W.2d 444, 446 (Tenn. 1995). The plaintiff injured her neck and shoulders on September 15, 1992, rupturing a cervical disc. Dr. Bernhard Kliefoth performed surgery and released the plaintiff to return to work with no restrictions on October 7, 1992. She was employed as a teacher's aide and suffered the injury while lifting a child. She was then 37 years old. On April 1, 1991, she had injured her neck but had not pursued a claim; in this connection, the orthopedic surgeon, Dr. William Kennedy, testified that about one- half of the plaintiff's impairment was attributable to the former injury. Because of ongoing shoulder pain, the plaintiff saw Dr. David Hauge, who performed surgery on July 7, 1994 for suprascapular nerve entrapment and testified that the plaintiff had a 9% impairment for the cervical injury and a 15% impairment for the nerve entrapment, for a total of 17% impairment to her whole body. Dr. Kennedy evaluated the plaintiff on May 5, 1993 and testified that she had a 2% impairment due to neck problems. As noted, he attributed one-half of the impairment to the 1991 injury. 2

Atwell v. Colonial
03S01-9609-CV-00090
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. Harold W Imberly,
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. Plaintiff, S. Scott Atwell, has appealed from the trial court's action in modifying a portion of a judgment which provided for a structured settlement of a workers' compensation claim. Originally the parties to this action entered a judgment on September 17, 1993, finding plaintiff to be totally (1%) disabled and providing the award would be payable as follows: a. Lump sum payment of $55,235. upon the entry of judgment. b. Payment of $588. every two weeks for a one year period. c. Lump sum payment of $14,34. on August 3, 1994. d. Lump sum payment of $14,34. on February 28, 1995. e. Lump sum payment of $15,37. on February 28, 1996. Upon learning plaintiff was engaged in certain work activities, the defendant, Colonial Freight Systems, Inc., filed a motion on March 8, 1995, to modify the last two annual payments upon the ground the evidence indicated the employee was not totally disabled. This motion was filed pursuant to the provisions of T. C. A. _ 5-6- 231 and Rule 6, T. R. Civ. P. After conducting a hearing, the trial court found there had been a "change of circumstances" and entered an order relieving the employer of the responsibility of paying the last two annual payments. The order did not state whether relief was granted pursuant to the statute or Rule 6 or both. This ruling was based upon evidence the employee had been working at a construction site in South Carolina over a certain period of time. Evidence of this nature was produced at the hearing by a private investigator who had observed the employee and a video made at the construction site. On appeal the employee argues the payments which the court abated were classified as lump sum payments and were not subject to modification under the statutory language and further that the evidence did not justify relief under Rule 6. 2

Gregory Eidson vs. State
M2004-02528-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Jane W. Wheatcraft
The Petitioner, Gregory Eidson, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

King v. State
03C01-9601-CR-00024

Marvin & Ellyse McCarley vs. West Food Quality Service
02S01-9610-CV-00085

Marvin & Ellyse McCarley vs. West Food Quality Service
02S01-9610-CV-00085

State vs. Gray
M1998-00256-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Gale B. Robinson
The sole remaining question in this appeal is whether in October of 1998 the General Sessions Court of Davidson County had jurisdiction over a contempt warrant issued for violating the Davidson County Circuit Court's order of protection. We affirm the General Sessions Court's exercise of jurisdiction.

Henry B. Waggoner vs. David Mills Warden
01C01-9604-CC-00142
Trial Court Judge: Donald P. Harris

Thomas E. Montooth vs. State
01C01-9604-CC-00126
Trial Court Judge: Charles D. Haston, Sr.

Jimmy Lee Heard vs. State
01C01-9704-CR-00120

Douglas Trammell vs. State
01C01-9602-CC-00083
Trial Court Judge: James E. Walton

State vs. Lutcher O. Miles & Amber Dawn Miles
01C01-9604-CC-00169

State vs. John P. Pelfrey
01C01-9606-CR-00251
Trial Court Judge: J. O. Bond

State vs. Randall Lunsford
01C01-9603-CC-00098

Taft Douglas vs. State
01C01-9605-CR-00182

State vs. Terry Wayne Farrar
01C01-9605-CC-00198

State vs. Ricky Tucker
02C01-9606-CR-00196
Trial Court Judge: W. Fred Axley

State vs. Milton Spears, Jr.
02C01-9606-CR-00197

State vs, Albert Lewis
02C01-9512-CR-00394
Trial Court Judge: Bernie Weinman

State vs. John Earnest
02C01-9604-CR-00114
Trial Court Judge: Carolyn Wade Blackett

State of Tennessee vs. Joseph L. Fletcher
03C01-9606-CC-00229
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James E. Beckner

Defendant, Joseph L. Fletcher, appeals as of right a jury conviction for driving under the influence (DUI), second offense. He was sentenced to eleven months and twenty-nine days and fined $610. Fletcher presents four issues for our review: 1) whether the evidence was sufficient to sustain the conviction; 2) whether the state is required to prove a culpable mental state for a DUI conviction; 3) whether the trial court abused its discretion in allowing testimony about certain drugs; and 4) whether the sentence is excessive. We affirm the judgment of the trial court.

State of Tennessee vs. Clinton Darrell Turner
03C01-9604-CC-00151
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

The Defendant, Clinton Darrell Turner, appeals as of right his conviction and sentence for DUI. Following a jury trial, the Defendant was convicted of driving a motor vehicle while under the influence of an intoxicant and driving on a revoked license in the Cocke County Circuit Court. The trial court sentenced the Defendant to eleven (11) months and twenty-nine (29) days on the charge of driving while under the influence and six months for the charge of driving on a revoked license. The sentences were ordered to be served concurrently. The trial court suspended the entire sentence for the conviction of driving on a revoked license. On the DUI, the Defendant was ordered to serve seven days in jail with the balance to be served on probation. In addition to challenging the sufficiency of the evidence, Defendant also argues the trial court erred by allowing an officer to testify as to field sobriety tests when the officer was not trained to administer those tests. The last issue the Defendant raises is that the trial court erred by sentencing him to serve seven days rather than the two (2) day minimum provided by law. We affirm the judgment of the trial court.

Mid-State Trust, IV v. Randall W. Swift
01A01-9703-CV-00145
Authoring Judge: Judge Samuel L. Lewis
Trial Court Judge: Judge Leonard W. Martin

This is an appeal by defendant/appellant, Randall W. Swift, from the decision of the Cheatham County Circuit Court dismissing his appeal from the general sessions court. The facts out of which this matter arose are as follows

Shirley Jean McCracken and Alan McCracken, et. al., v. Brentwood United Methodist Church
01A01-9511-CV-00531
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Cornelia A. Clark

This appeal involves a woman who broke both ankles in a fall at church. The woman and her husband filed suit in the Circuit Court for Williamson County against the church and others. The trial court granted the church’s motion for summary judgment based on the statute of limitations and the joint enterprise rule.The woman and her husband perfected this appeal after obtaining post-judgment relief from an inappropriate interlocutory appeal. We have determined that the trial court properly granted the post-judgment relief but erred in summarily dismissing the complaint.

Tom Milligan and wife Louise Millgan v. Curtis George and wife Wilma George
01A01-9609-CH-00406
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Robert E. Corlew, III

This interlocutory appeal involves a boundary line dispute between neighbors who live along Wilmouth Creek in Cannon County. Following inconclusive litigation between two of their neighbors, the owners of one of the tracts filed a boundary line action in the Chancery Court for Cannon County against the owners of one of the adjoining tracts that had been involved in the earlier litigation. The defending landowners moved to dismiss the complaint on the ground that the decision in the earlier litigation was res judicata as to the plaintiff landowners’ claims. The trial court denied the motion but grante permission to seek an interlocutory appeal. We granted the application for permission to appeal and now affirm the denial of the motion to dismiss because the parties in this case and the former case are not the same.