Opinions

George Robert Rector v. Bridgestone (U.S.A.), Inc.
M1999-02284-WC-R3-CV
Authoring Judge: James Weatherford, Sr. J.
Trial Court Judge: Robert E. Corlew III, Chancellor
The defendant, Bridgestone, appeals the judgment of the Chancery Court of Rutherford County where the trial court awarded Mr. Rector a 5% vocational disability for a psychological injury incurred as a result of his employment and found Bridgestone responsible for the cost of future psychiatric treatment as well as the cost of psychiatric treatment previously provided by Dr. Ravi Singh. For the reasons stated in this opinion We affirm the judgment of the trial court.

Roderick D. Cobb v. State of Tennessee
W1999-00655-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Chris B. Craft

The issue raised in this appeal is whether the trial court properly denied the Appellant/Petitioner's post-conviction petition? After a review of the record in this cause, the briefs of the parties and applicable law, we affirm the trial court's judgment.

Bruce Hardin v. Travelers Indemnity Co. of Illinois
W2000-01966 WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
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. The defendant, Travelers Indemnity Co. of Illinois (Travelers) appeals that part of the trial court's judgment which ordered Travelers to pay to the plaintiff, Bruce Hardin (Hardin) and his attorney, $28,652.23 the total of Hardin's medical expenses and required Hardin's attorney to satisfy Blue Cross and Blue Shield's subrogation lien. For the reasons stated in this opinion, we reverse the judgment of the trial court requiring the payment of the total medical expenses and remand for a determination of the amount of medical expenses paid by Hardin. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded W. MICHAEL MALOAN, SP. J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR. SP. J., joined. Mary Peterson, Memphis, Tennessee, for the appellant, Travelers Indemnity Co. of Illinois. Ricky Boren, Jackson, Tennessee, for the appellee, Bruce Hardin. MEMORANDUM OPINION The relevant facts are not in dispute. Hardin filed a claim for workers' compensationbenefits for an April 1998 fall at his place of employment, Young Radiator. The employer's insurance carrier, Travelers, provided benefits including medical treatment for some period of time but, after an investigation, denied liability and ceased any benefits. Hardin continued to receive medical treatment which was paid in part by him and by his group health insurance carrier, Blue Cross and Blue Shield. At trial, the parties stipulated Hardin's total medical expenses of $28,652.23 were reasonable and necessary. The trial court found Hardin's claim to be compensable and awarded permanent partial disability benefits of forty-three (43) percent to the body as a whole. Further, the trial court ordered Travelers to pay to Hardin and his attorney the total of his medical expenses of $28,652.23 and for them to satisfyBlue Cross and Blue Shield'ssubrogation interest. Travelers appeals this part of the trial court's order. The scope of review of questions of law is de novo with no presumption of correctness. Cunningham v Shelton Sec. Services, Inc., 958 S.W.2d 338, 34 (Tenn. 1997). The sole issue of this appeal is the authority of the trial court to order Travelers to paythe total medical expenses to Hardin and his attorney. This issue was considered in the recent case of State Auto Mut. Ins. Co. v Hurley, 31 S.W.3d 562, 565 (Tenn. Sp. Workers' Comp. 2). The Special Workers' Compensation Panel of the Supreme Court held as follows: We find this issue is controlled by the language of Tenn. Code Ann. _ 5-6-24(a)(1) and by the Tennessee Supreme Court decision of Staggs v National Health Corp., 924 S.W.2d 79, 81 (Tenn. 1996). Tenn. Code Ann. _ 5-6-24(a)(1) provides in part: The employer or employer's agent shall furnish free of charge to the employee such medical and surgical treatment, medicine, medical and surgical supplies, . . . made reasonably necessary by accident, . . . as may be reasonably required;. . . . In Staggs, 924 S.W.2d at 81, the Supreme Court held as follows: An employee is not entitled to personally receive payment for medical expenses unless he or she personally paid the medical expenses and is due reimbursement. Instead, employers must pay the providers of medical care directly for incurred medical expense. State Auto Mut. Ins. Co., 31 S.W.3d at 565. Hardin attempts to distinguish the present case from State Auto by the fact he paid a portion of the premiums to his group health insurance carrier, Blue Cross and Blue Shield. He relies on the following language in Tenn. Code Ann. _ 5-6-114(b): (b) However, any employer may set off from temporary total, temporary partial, and permanent partial and permanent total disability benefits any payment made to an employee under an employer funded disability plan for the same injury; provided, that the disability plan permits such an offset.... -2-

M.S. Carriers, Inc. v. Robert Wood
W2000-00841-WC-R3-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Karen R. Williams, Judge
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 a hearing and reporting of findings of fact and conclusions of law. As discussed below, we affirm the trial court's judgment. FACTUAL BACKGROUND At trial, Robert Wood, age forty-nine (49), a resident of Clinton, Arkansas, testified that he had finished the 1th grade, but he has not received a GED. Until his truck accident, the Respondent had been employed by M.S. Carriers, Inc. ("Carriers"), as an over-the-road truck driver for three and one-half (3_) years. He stated that on June 25, 1996, during the early morning hours, he entered an on ramp on an interstate in Perryville, Maryland, when "I had a paper load that shifted, and it took me off -- laid the tractor and trailer over on its side." Carriers assisted him in returning to Memphis, Tennessee, where he was seen by Dr. Bruce Randolph on June 27, 1996. Dr. Randolph set the Respondent up for physical therapy. Next, the Respondent saw a Dr. Thomas Eans, in Little Rock, Arkansas, with the permission of Carriers. After an MRI, Dr. Eans referred the Respondent to Dr. Blankenship. Here, the Respondent testified that he wanted to see a Dr. Peek, from a list of doctors furnished by Carriers, but Carriers refused and wanted him to be seen by Dr. Scott Schlesinger. Dr. Schlesinger ordered no tests but set the Respondent up with a work hardening program and FCE (functional capacity evaluation). After two visits, Dr. Schlesinger released the Respondent in November of 1996. The Respondent testified that he returned to see Dr. Eans in January 1997. In the interim, Carriers had notified the Respondent that he would not be receiving any more medical treatment or be able to see any more doctors, and that they were not authorizing it, although he had requested additional treatment. According to the Respondent, Dr. Eans referred him to Dr. Schock, an orthopedic surgeon and back specialist. After a discogram, Dr. Schock operated on the Respondent for two herniated discs in July of 1997. Since his surgery, the Respondent has attempted to find employment at various places, but has been unsuccessful. The Respondent testified1 that he still has trouble with too much sitting or standing, and is somewhat incapable of really bending or stooping. He estimates that he can lift between ten (1) or fifteen (15) pounds without too much discomfort. During cross-examination, the Respondent conceded that he was upset and thought that it was somewhat unfair for Carriers to terminate him as a result of the accident. Also, after release from Dr. Schlesinger, Respondent did not speak to Pat Aeschliman, a workers' compensation adjuster for Carriers about continuing medical treatment from Dr. Eans, or surgery performed byDr. Schock. Mrs. Halle S. Wood, wife of the Respondent, testified that they have been married twenty- seven (27) years, and prior to his surgery her husband was in an extreme amount of pain, and had problems walking and getting around. She stated that since the surgery, her husband is doing much better. 1Wood's injury occurred on June 25, 1996. The trial of this action was held on March 1, 1999, and the case was taken under advisement. The trial court's order was entered on March 1, 2. We point out that workers' compensation cases are granted priority over all other cases on both the trial and appellate dockets. Tenn. Code Ann. _ 5-6-225(f)(1). -2-

Mary Louise Goodman Case, v. Billy Ray Case
M2000-00547-COA-R3-CV
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Clara W. Byrd

This is a divorce case. The parties were married for twenty-five years and had no children. The wife was employed full-time and had a pension, and the husband was unemployed and disabled. The trial court granted a divorce to the wife on the grounds of inappropriate marital conduct by the husband, classified and divided the marital property without determining the value of the wife's pension, and made no provision for spousal support for the husband. The husband appeals. We affirm the grant of the divorce to the wife and affirm the decision not to award alimony to the husband. We reverse in part and remand for the trial court to classify the wife's pension plan as marital property, determine its value, and equitably divide it between the parties.

Charles Edward Taylor v. State of Tennessee
W2000-02167-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

The petitioner appeals the post-conviction court's dismissal of his petition for post-conviction relief. Following his jury conviction of aggravated robbery, the petitioner filed a petition for post-conviction relief, alleging, among other things, that he received ineffective assistance of counsel at trial. At the conclusion of an evidentiary hearing, the post-conviction court dismissed the petition, finding that the petitioner failed to meet his burden of showing ineffective assistance of trial counsel. After a careful review, we affirm the post-conviction court's dismissal of the petition.

Danny Ray Lacy v. State of Tennessee
W2000-01898-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joe C. Morris

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief. After review, we hold that the record supports the post-conviction court's finding that trial counsel was not ineffective in failing to obtain the 911 tape; was not ineffective in preparing a defense; was not ineffective for failing to introduce fingernail samples taken from the petitioner; and was not ineffective for failing to adequately develop the victim's mother as a suspect.

State of Tennessee v. Jerry Maxwell
W2000-01947-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Steven Stafford

Defendant, the attorney for the Dyer Industrial Development Board, was convicted by a Gibson County jury of theft over $60,000 and theft over $1,000. On appeal, he contends the evidence was insufficient to establish guilt. We affirm the judgment of the trial court.

Everett E. Hollingsworth v. Crouch Lumber Company
W2000-01214-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employer insists the evidence preponderates against the trial court's finding that the employee is permanently and totally disabled and in favor of a minimal award of permanent partial disability benefits. As discussed below, the panel has concluded the judgment should be affirmed.

State of Tennessee v. Curtis Jason Ely And State of Tennessee v. Laconia Lamar Bowers
E1998-00099-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge James B. Scott

And No. E1998-00099-SC-R11-CD

This is a consolidated appeal from the defendants’ convictions in the Criminal Courts of  Anderson County and Knox County, respectively.  Defendant Ely was originally charged with one count of premeditated murder and one count of felony murder; defendant Bowers was charged with two counts of felony murder. In Ely’s case, the State nolle prossed the premeditated murder count upon the conclusion of the proof, and the trial court refused to instruct any lesser-included offenses to felony murder. He was convicted as charged of felony murder and sentenced to life imprisonment. In defendant Bowers’s case, the trial court dismissed the charges of felony murder at the conclusion of the proof and, over his objection, instructed the jury on the lesser offenses of second degree murder, reckless homicide, and criminally negligent homicide. Bowers was convicted of second degree murder.

On appeal to the Court of Criminal Appeals, Ely argued that the offenses of second degree murder, reckless homicide, criminally negligent homicide, facilitation of felony murder, and accessory after the fact to felony murder were all lesser-included offenses of felony murder and should have been instructed. A majority of the intermediate court held that accessory after the fact was not a lesserincluded offense of felony murder. However, assuming that the other lesser offenses were included, the Court of Criminal Appeals determined that no error occurred because the evidence did not -2- support an inference of guilt of any of the other lesser offenses. In his direct appeal, Bowers argued that second degree murder was not a lesser-included offense of felony murder and should not have been charged. The intermediate court held that second degree murder was a lesser-included offense of felony murder and that it was properly instructed in his case.

We granted review in this consolidated appeal to determine several issues: (1) whether there are any lesser-included offenses to felony murder; (2) if there are no lesser-included offenses, whether the conviction in Bowers’s case is therefore invalid; (3) if there are lesser-included offenses, whether failure to instruct such offenses was error in Ely’s case; and (4) whether any such error was harmless.  We also take the opportunity in this case to clarify the harmless error standard, which has been the subject of some confusion since our decision in State v. Williams, 977 S.W.2d 101, 104-06 (Tenn. 1998). We conclude that the offenses of second degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder, and therefore, instruction on these offenses in Bowers’s case was not error. In Ely’s case, we find that some evidence exists that reasonable minds could accept as to several lesser-included offenses, and therefore, the failure to instruct such offenses was error. Because we conclude that such error was not harmless beyond a reasonable doubt, we reverse Ely’s conviction and remand his case for a new trial.

Wessington House Apartments v. Ashley Clinard
M1999-01029-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas Goodall

Appellee, a privately owned, government subsidized apartment complex filed an unlawful detainer action seeking to evict appellant, Ashley Clinard, after a small amount of marijuana was found in her apartment. A guest admitted to having the marijuana despite Ms. Clinard's expressed prohibition against drugs in her apartment. The circuit court entered a judgment for possession of the premises against the defendant, interpreting provisions of the lease, one required by federal law and the other allowed by Tennessee law, to permit eviction of a tenant for drug related actions of a guest, even without the knowledge of the tenant. Based upon the Tennessee Supreme Court's decision in Memphis Housing Authority v. Thompson, 38 S.W.3d 504 (Tenn. 2001), holding that a tenant may not be evicted for drug related criminal activities of a guest, under federally-required lease provisions, unless the tenant knew or should have known of the activity and failed to take reasonable steps to prevent it, and because the evidence shows that Ms. Clinard had no reason to know that her guest had marijuana in her apartment, we conclude the eviction based on that provision must be reversed. Additionally, because we find that temporary mere presence of a small amount of marijuana does not constitute "a violent act" or "a real and present danger to the health, safety or welfare of the life or property of other tenants or persons," we conclude that state law does not authorize the summary eviction. Accordingly, we reverse the trial court.

James L. Kirchner vs. Jacqueline Kirchner
M2000-02102-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol A. Catalano

The trial court granted the husband a divorce, divided his military pension between the parties, and awarded the wife rehabilitative alimony. The wife argued on appeal that she should have been given a greater share of the husband's pension, and that the alimony award was inadequate. We affirm the property division and the amount of the alimony award, but remand this case to the trial court for a determination of whether a change of circumstances would entitle the wife to an extension in the duration of the award.

Danny Hudson v. Farmers Insurance Group of Companies
W2000-00342-WC-R3-CV
Authoring Judge: C. Creed Mcginley, Sp. J.
Trial Court Judge: Joe C. Morris, Jr., Chancellor
The plaintiff, Danny Hudson, appeals the judgment of the trial court that found that the plaintiff had failed to carry his burden of proof in establishing that his medical condition was caused by the work-related accident of August 21, 1996 and dismissed his claim. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Michael Russo v. State of Tennessee
M2000-00919-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of counsel at trial. The petitioner was convicted by a jury of first degree murder for shooting his wife to death, and sentenced to life imprisonment. In his post-conviction petition, the petitioner asserted a number of grounds for relief, including ineffective assistance of counsel. The post-conviction court denied the petition, finding, with regards to the ineffective assistance of counsel claim, that many of the petitioner's allegations did not constitute a deficiency in counsel's performance, and further, that the petitioner had failed to meet his burden of showing that any of the alleged deficiencies of counsel prejudiced the outcome of his case. After a thorough review of the record, we reverse the judgment of the post-conviction court as to the effect of trial counsel's misplacing of photographs which were not located until after the trial and the post-conviction hearing and remand for an additional hearing. As to the other issues, we affirm the judgment of the trial court.

State of Tennessee v. James L. Roberson, aka James Robinson, aka "Blookie"
W2000-02591-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, James L. Roberson, was charged with attempted second degree murder for the repeated stabbing of a female acquaintance and was convicted of the offense, following a bench trial. He testified that he was under the influence of drugs at the time of the offense and could not remember what had happened. He appealed the conviction, arguing that, as the result of his mental state, the proof was insufficient to sustain the conviction. We affirm the judgment of the trial court.

Terrance B. Burnett v. State of Tennessee
W2000-01954-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner appeals the dismissal of his petition for post-conviction relief, arguing that it was error for the post-conviction court to dismiss his petition without holding an evidentiary hearing. The petitioner pled guilty to two counts of felony murder, two counts of attempted first degree murder, and one count of especially aggravated burglary. In a pro se petition for post-conviction relief, the petitioner alleged that his trial counsel induced him to plead guilty just prior to the start of trial by showing him a videotape of a television show chronicling the final hours of a death row inmate's life. After appointing counsel, the post-conviction court dismissed the petition without an evidentiary hearing, ruling that the petition failed to present a colorable claim for relief. Based upon our review, we affirm the judgment of the post-conviction court.

Forrest L. Holder v. Terminex International Company,
W1999-01040-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: George Brown, Judge
The appellant presents the following issues for review: (1) Whether the trial court correctly found that Mr. Holder did not give notice of a job injury or adequately disclose his condition; (2) Whether Mr. Holder permanently aggravated an underlying or pre-existing condition; (3) Whether Mr. Holder sustained any permanent partial disability as a result of his employment. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

William Harper v. Nestaway
W2000-02824-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
In this appeal, the employee insists the evidence preponderates against the trial court's finding that the proof failed to establish permanency by a preponderance of the evidence. As discussed below, the panel has concluded the judgment should be affirmed.

Linda Harris v. Heritage Manor of Memphis
W2000-00081-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Walter L. Evans, Chancellor
The trial court determined that the plaintiff had suffered a 2% vocational impairment to the left arm and a 1% vocational impairment to the right arm as the result of bilateral carpal tunnel syndrome. The defendant asserts that the plaintiff failed to prove her injury arose out of and within the course and scope of her employment; that she failed to give proper notice of her injury to the defendant; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

Pamela Thomas v. Murray, Inc.
W2000-01280-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Julian P. Guinn, Judge
In this appeal, the employer insists the award of permanent partial disability benefits based on 3 percent to the right arm and 15 percent to the left arm is excessive and should be reduced to one based on 1 percent to the right arm and 5 percent to the left. As discussed below, the panel has concluded the award of permanent partial benefits should be modified to one based on its functional equivalent, 22.5 percent to both arms, and affirmed.

Brenda Thompson v. Ameristeel Corporation
W1999-01466-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 24% vocational impairment to the whole body. On appeal, the defendant submits that the plaintiff failed to prove by a preponderance of the evidence that she sustained a vocational impairment as the result of her work with the defendant. The defendant also submits that the award of 24% to the whole body is excessive. For the reasons set forth below, We affirm the judgment of the trial court.

Paul Rodgers v. Marvin Windows of Tennessee,
W1999-01852-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp. J.
Trial Court Judge: Martha Brasfield, Chancellor
The appellant presents the following issues for review: (1) Whether the evidence preponderates against the trial court's finding that the plaintiff sustained a work related injury that resulted in a permanent disability to the plaintiff, and; (2) Whether the evidence preponderates against the trial court's finding that the Plaintiff had a 15% permanent partial disability. After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment.

IN RE: Guardianship of Courtney Warner Hodges
W2000-01424-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donn Southern

This appeal arises from the deed and devise of property to Courtney Warner Hodges, a minor, by her great grandmother, now deceased. The Appellee brought a petition for appointment of a guardian for Courtney in the Probate Court of Shelby County. The petition stated that Courtney needed a guardian to represent her interests and collect and invest her income from the property. The petition also stated that the income interest to Courtney was not encumbered by trust. Following a hearing, the trial court entered an order for management of minor's estate. The trial court found that the evidence was insufficient to impose oral trusts upon the property.

Betty L. Johnson, et al., v. Charles S. Settle, M.D., et al.
M1999-01237-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal of a jury verdict based on personal injuries plaintiff received as a result of the wrong acetic acid solution being applied during a colposcopy. Metro Medical Supply, Inc., the supplier of the acid, appeals the trial court's decisions on post trial motions and the amount of the remittitur. Among other grounds, Metro Medical asserts that it is not liable because any acts or omissions on its part were too remote and that there were intervening superceding causes that were the legal and proximate cause of plaintiff's injuries. We agree, and for the reasons below, we find that Metro Medical was not legally liable to plaintiffs and any negligence on its part was superceded by unforeseeable intervening causes. Accordingly, the judgment against Metro Medical Supply, Inc. is reversed.

Paula C. Bencriscutto, v. Lamesia Simmons and Brooke A. Lucas, v. Lamesia Simmons
M2000-01816-COA-R3-CV
Authoring Judge: Judge J. S. Steve Daniel
Trial Court Judge: Judge Walter C. Kurtz

This consolidated appeal concerns a multiple vehicle automobile collision which occurred during interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle. Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto against Simmons to recover damages associated with the collision. These suits were consolidated for trial and this subsequent appeal. At the close of the Plaintiffs' proof the court directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in granting the directed verdict. We affirm the action of the trial court in directing the verdict and the damage award.