Opinions

Robert Cunningham, Jr., et al,. vs. Shelton Security Service, Inc., et al.
M1998-00023-SC-WCM-CV
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Chancellor Carol McCoy

In this workers’ compensation case, the estate of the employee, Robert W. Cunningham, Sr., has appealed from a chancery court judgment dismissing a claim for death benefits filed against the employer, Shelton Security Service, Inc. The employee, who worked as a security guard for the employer, died of heart failure while performing his duties at a store. At the close of the employee’s proof, the trial court granted the employer’s motion to dismiss on the basis that the emotional stress experienced by the employee the night of his death was not extraordinary or unusual for a security guard. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law, found that there was sufficient evidence of causation to warrant a trial and, thus, reversed the trial court’s dismissal. Thereafter, the employer filed a motion for full Court review of the Panel’s decision. We granted the motion for review to consider whether the trial court erred in dismissing the employee’s claim on the basis that his heart failure did not arise out of the employment because it was not caused by a mental or emotional stimulus of an unusual or abnormal nature, beyond what is typically encountered by one in his occupation. After carefully examining the record and considering the relevant authorities, we agree with the Panel and reverse the trial court’s judgment. Tenn. Code Ann. § 50-6-225(e); Findings of Fact and Conclusions of Law by the Special Workers’ Compensation Panel Affirmed; Judgment of the Trial Court Reversed and Case RemandedE. RILEY ANDERSON, C.J.,

State of Tennessee v. Tammy Yvonne Knight
M1999-02540-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert W. Wedemeyer

The defendant pled guilty to four counts of obtaining prescription drugs by use of a forged prescription, and the trial court sentenced her to an effective sentence of fourteen years incarceration. The defendant contests the sentences imposed. We affirm the trial court.

Dorothy G. Mackie, et al. v. Young Sales Corporation, et al.
M1998-00590-SC-WCM-CV
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Thomas W. Brothers

We granted review in this workers' compensation case to determine whether the trial court erred in awarding temporary total benefits and death benefits based on the maximum weekly wage where the employee did not earn any wages in the 52 weeks prior to being diagnosed with malignant mesothelioma. On appeal, the Special Workers' Compensation Appeals Panel concluded that the trial court erred in awarding benefits based on the maximum weekly wage because the employee was voluntarily retired at the time of his diagnosis, and that benefits were to be based on the minimum weekly wage. After reviewing the record and applicable authority, we conclude that an employee's voluntary retirement does not preclude workers' compensation benefits for an injury arising out of and in the course of employment and that the trial court properly awarded benefits based on the maximum weekly rate under the facts of this case.

Mohamed F. Ali v. Howard Carlton,
E2000-02549-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: G. Richard Johnson

Laura Mayshark Nichols v. Craig Alan Nichols
E1999-2825-COA-R3-CV
Trial Court Judge: G. Richard Johnson

Brian Keith Smelley v. Dan Rawls, Individually And
26220-COA-R3-CV
Trial Court Judge: Lawrence H. Puckett

Elizabeth Doramus, et al vs. Rogers Group, Inc. and T.W. Comer
M1998-00918-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Tom E. Gray
This appeal involves an intrafamily dispute over the use of a 498 acre farm. The conflict's seeds were sown nearly fifty years ago when the now-deceased owners conveyed the farm to a corporation and entered into a long-term lease which created successive leasehold tenancies for life for them, followed by their son, T. W. Comer. T. W. Comer's heirs at law were given the option to choose to become tenants upon his death. Years later, after T. W. Comer had become the tenant, he and Rogers Group, Inc., a mining company which had purchased the remainder interest in the farm, entered into an agreement involving the removal of limestone from the property. Mr. Comer's daughters and his granddaughters responded by commencing this action, seeking to prevent any mining on the property. After the daughters voluntarily dropped their claims, the trial court dismissed the complaint, and the granddaughters appealed. We affirm the trial court's ruling because we find that the granddaughters' interest is not sufficient to warrant an injunction against the lessor and the current lessee.

Mary Jarmakowicz, et al vs. Billy Suddarth, et al
M1998-00920-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Thomas Goodall
This appeal arises out of a dispute over the purchase of Nationwide Travel Services, LLC. The jury found that the Sellers were still the owners of the agency and found for Buyers on the Sellers' claim for breach of contract. The jury found for Buyers on their claims of fraud and deceit, conversion and abuse of process and awarded compensatory damages. At the close of the proof, the trial court granted Sellers' motion for directed verdict on the issue of punitive damages. Later, the court denied Buyers' Motion for discretionary costs, and this appeal resulted. Buyers take issue with whether the trial court properly granted a directed verdict on punitive damages and whether the Court abused its discretion by denying discretionary costs. Sellers argue there was not sufficient evidence to support the jury's award on fraud and deceit, conversion and abuse of process. They also argue that the jury should have found for Sellers on the breach of contract claim. For the reasons below, we affirm the jury's award of compensatory damages and hold there was sufficient evidence to support the jury's determination of fraud and deceit, conversion, abuse of process and no breach of contract. Further, we affirm the trial Court's directed verdict on the issue of punitive damages. However, we vacate the denial of Buyers' motion for discretionary costs and remand for consideration consistent with this opinion.

Peggy Birmingham v. Porter-Cable Corporation
W1999-00695-WC-R3-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The defendant, Porter-Cable Corporation, appeals the judgment of the Chancery Court of Madison County which awarded the plaintiff, Peggy Birmingham, permanent partial disability of sixty percent (6%) to the body as a whole. For the reasons stated in this opinion, We affirm the judgment of the trial court.

James Eakes v. Goodyear Tire & Rubber Company
W2000-00142-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: William Michael Maloan, Chancellor
In this appeal, the employee contends the evidence preponderates against the trial court's finding that the preponderance of the evidence fails to establish a causal connection between his injury and his employment. As discussed below, the panel has concluded the judgment should be affirmed.

Betty Jeane Scott, v. Cumberland Health Care Center,Inc., d/b/a General Care Convalescent Center, et al.
M2000-00075-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Carol Catalano, 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 trial court found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her thirty-five percent vocational disability to the body as a whole. Further, the trial court ordered the defendant to pay medical expenses incurred by the plaintiff as a result of the injury. The defendant argues the evidence does not support the finding of the trial court as to a compensable injury and the vocational disability, and claims the medical bills incurred by the plaintiff were not necessary We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed JOHN K. BYERS, SR. J., in which FRANK F. DROWOTA III, J. and TOM E. GRAY, SP. J., joined. Jill A. Hanson, Nashville, Tennessee, for the appellants Cumberland Health Care Center, Inc., d/b/a General Care Convalescent Center and Legion Insurance Company. Stacy A. Turner, Clarksville, Tennessee, for the appellee, Betty Jeane Scott. OPINION The trial court found the plaintiff had suffered an injury arising out of her employment with the defendant and awarded her thirty-five percent vocational disability to the body as a whole. Further, the trial court ordered the defendant to pay medical expenses incurred by the plaintiff as a result of the injury. The defendant argues the evidence does not support the finding of the trial court as to a compensable injury and the vocational disability, and claims the medical bills incurred by the plaintiff were not necessary. Facts The plaintiff, forty-seven years of age at the time of trial, has a twelfth- grade education, and training as a certified nurses' aide. The plaintiff began working for the defendant in 1974. She left work for the defendant for a period of time but returned during the mid or later part of the 198's. On July 9, 1991, she fell while in the course of her work. She fell upon her left side and injured her lower back, left hip, cervical and thoracic spine and left shoulder. Medical Evidence The defendant first sent the plaintiff to Dr. David Gullet, the company doctor. Dr. Gullet referred the plaintiff to Dr. Steve McLaughlin, an orthopedic surgeon. Dr. McLaughlin entered into a course of treatment of the plaintiff on July 24, 1991. Dr. McLaughlin found the plaintiff had a pinching of the rotator cuff in her shoulder and an inflamation of the bursa over the left hip, which accounted for her left hip and left knee pain. Dr. McLaughlin opined these findings were caused by the fall the plaintiff had at work. Dr. McLaughlin saw the plaintiff again approximately ten days after the initial examination; she expressed complaints similar to those of the earlier visit. On August 26, 1991, Dr. McLaughlin saw the plaintiff and had an MRI done which showed some degenerative disease at the 4th and 5th lumbar vertebra and perhaps a mass in the pelvis. Dr. McLaughlin did not see the plaintiff again until May 3, 1996. She missed an appointment on September 9, 1991. Dr. McLaughlin saw the plaintiff on several occasions after the May appointment over the next few weeks. He found she was suffering from the same problems as she had in 1991. He was of the opinion that this was not unusual for the condition the plaintiff suffered in 1991. Dr. McLaughlin performed surgery upon the plaintiff's shoulder. Dr. McLaughlin was of the opinion the plaintiff had sustained a ten percent medical impairment to the upper extremity. The plaintiff wentto Dr. James D. Davis, a chiropractor, on December 13, 1993, complaining of the same symptoms about which Dr. McLaughlin testified. Dr. Davis' examination revealed similar findings as those of Dr. McLaughlin. He found the plaintiff had a five percent permanent medical impairment to the body as a whole. Dr. Richard Fishbein, an orthopaedic surgeon, evaluated the plaintiff in October of 1996. -2-

John Fiser, et al vs. Town of Farragut
E1999-00425-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Daryl R. Fansler
In this suit the Plaintiffs seek a declaratory judgment that a Zoning Ordinance of the Town of Farragut, which admittedly seeks to eliminate off-premises billboards, is invalid insofar as their property is concerned. The Trial Court found in favor of Farragut. We reverse.

Vickie Sherman vs. American Water Heater Co., Inc.
E2000-01389-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
The Trial Court held release given by plaintiff barred plaintiff's claim for statutory indemnification. On appeal we reverse.

James Fraysier vs. Karen Fraysier
E2000-02485-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jean A. Stanley
James Thomas Fraysier ("Husband") filed a complaint seeking a divorce from Karen Kay Singleton Fraysier ("Wife") on the grounds of inappropriate marital conduct or, in the alternative, irreconcilable differences. Wife filed an answer and counterclaim seeking a divorce on the same grounds. The parties agreed upon the distribution of the marital assets, which was approved by the Trial Court. The two issues to be decided at trial were who should be granted the divorce and whether Wife was entitled to alimony. The Trial Court determined that Husband was entitled to a divorce on the basis of inappropriate marital conduct and that Wife was entitled to rehabilitative alimony in the amount of $600.00 per month for a period of 48 months or until further order of the court. Both parties appeal the Trial Court's determination with regard to alimony. We affirm.

Jim Vines vs. David Gibson
E2000-02257-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: James B. Scott, Jr.
In this breach of contract case, the defendant appeals from the trial court's refusal to grant a new trial or set aside an order favorable to the plaintiff. Because we find that the defendant did not receive advance notice of the hearing that led to the entry of the order, we vacate the order of the trial court.

Henry J. White, Jr. v. Howard Carlton, Warden
E2000-02246-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Robert E. Cupp

The petitioner challenges the trial court's denial of his habeas corpus petition for failure to state a cognizable claim for relief. We affirm the denial of the petition.

William R. Clark v. Willamette Industries, Inc.
E1999-02693-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: John S. Mclellan, III, Chancellor
The dispositive issue is whether the evidence preponderantly proved that the condition of the plaintiff's right knee was causally related to a fall he suffered in March 1997. The expert proof was divergent, and the plaintiff's credibility was remarked by the trial judge.

State of Tennessee v. David Plunk
W2000-00526-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge L. Terry Lafferty

A Crockett County jury convicted the defendant of premeditated first degree murder, and the trial court sentenced him to life imprisonment. In this appeal as a matter of right, the defendant challenges (1) the introduction of statements he made to officers, and (2) the sufficiency of the evidence. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Jeffery Scott Shands
W2000-00006-CCA-R9-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John Franklin Murchison

The defendant, Jeffery S. Shands, challenges the trial court's order upholding the District Attorney General's denial of pretrial diversion for the charges of criminally negligent homicide and reckless driving. He contends that the District Attorney abused his discretion in failing to consider and weigh all of the relevant factors presented in the evidence. After a review of the record and the applicable law, we affirm the trial court's order denying pretrial diversion.

Anthony M. Freeman v. State of Tennessee
W2000-02001-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Anthony M. Freeman, appeals the dismissal of his petition seeking a writ of habeas corpus and/or post-conviction relief. We conclude the petition does not state a cognizable claim for habeas corpus relief, and the petition was filed beyond the statute of limitations for post-conviction relief. Accordingly, we affirm the judgment of the trial court.

Robert Wilson, Jr. vs. Martha Wilson
E2000-01181-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William R. Brewer
In this post-divorce case, the trial court (1) denied the father's request to relocate to Georgia with the parties' minor child; (2) imposed sanctions for the father's perjury; and (3) changed the joint custody decreed at the time of the divorce to sole custody in the mother. On this appeal, the father argues (1) that the trial court erred in reversing its initial post-divorce decision pursuant to which the father had been permitted to relocate to Georgia; (2) that the trial court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act to make a custody determination; (3) that the trial court should have declined to exercise jurisdiction on the ground of inconvenient forum; (4) that the trial court erred in basing its change of custody upon the father's admittedly false testimony; (5) that the trial court's reversal of its prior decision to permit the father to relocate is barred by the doctrine of laches; (6) that the trial court erred in finding that father's contemptuous behavior was a proper basis for denying him an award of child support; and (7) that the trial court abused its discretion when it imposed sanctions for criminal contempt without providing the necessary procedural safeguards. We find that the trial court erred in dismissing Father's petition for child support. In all other respects, we affirm the judgment of the trial court.

State of Tennessee v. Curtis Cleggins
W1999-00657-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bernie Weinman

The defendant, indicted for aggravated sexual battery for intentionally engaging in sexual contact with a child under the age of thirteen, pled guilty to one count of sexual battery, a Class E felony, and received a two-year sentence. The trial court ordered that the defendant serve ninety consecutive days in jail, with the remainder of the sentence suspended, and the defendant placed on three years' probation. Counseling was ordered as a condition of probation. The defendant challenges the sentencing imposed, arguing that the trial court erred in denying his requests for full probation, service of his sentence of incarceration on weekends, or judicial diversion. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Cedric Terry
W1999-01568-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Bernie Weinman

A Shelby County jury convicted defendant of one count of premeditated first degree murder and two counts of attempted first degree murder. Defendant was sentenced to life imprisonment for first degree murder and twenty years for each attempted first degree murder conviction. The two twenty-year sentences run concurrently with each other but consecutively to the defendant's life sentence. In this appeal as of right, defendant challenges: (1) the trial court's denial of his motion to suppress his identification by the two surviving victims, (2) the sufficiency of the evidence, and (3) the length and consecutive nature of his sentences. Upon our review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Anthony Wayne Lankford and Christopher Arthur McKeon
W2000-00708-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

This case raises issues of first impression in Tennessee. The defendants are convicted felons from Montana who were sent to serve portions of their Montana sentences at a private, for-profit prison facility in Tennessee. Following their escape from the Tennessee facility, the defendants were each convicted of one count of escape, in violation of Tennessee Code Annotated Section 39-16-605. The defendants now appeal their convictions, raising two interrelated issues: 1) whether Tennessee's escape statute makes it a crime for a prisoner who has not been convicted under Tennessee law to escape from a private prison in this state; and 2) whether they were unlawfully imprisoned in Tennessee. After a thorough review of applicable law, we conclude that Tennessee Code Annotated Section 39-16-605, by its plain language, applies to the escape of an out-of-state prisoner from a private prison facility in this state. We further conclude that the defendants, duly convicted of crimes in Montana and incarcerated at the private prison pursuant to a contract between the Montana Department of Corrections and a private prison company, were not unlawfully imprisoned in Tennessee. Accordingly, we affirm the judgment of the trial court.

Stanley Blackwood vs. Patrick Martin & Hardee, Martin, Jaynes, Ivy
W2000-01573-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Jon Kerry Blackwood
This is a legal malpractice case arising from an underlying criminal conviction. The plaintiff prisoner was convicted on twelve counts, including one count of first degree murder. The plaintiff sued the defendant attorneys for malpractice, alleging, inter alia, that the defendants negligently failed to conduct a thorough investigation and that, after the plaintiff terminated the defendants' services, the defendants improperly retained a portion of the retainer fee paid by the plaintiff for post-trial representation. The defendant attorneys filed a motion to dismiss and/or for summary judgment. The plaintiff then filed a motion seeking the appointment of a court-appointed expert, which was denied. The trial court subsequently granted the defendants' motion for summary judgment. The plaintiff now appeals. We affirm, finding that the trial court did not abuse its discretion in declining to appoint an expert and did not err in granting the defendants' motion for summary judgment.