Opinions

State of Tennessee, v. Robert Willis Chance, Jr.
02C01-9605-CC-00178
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge C. Creed McGinley

The appellant, Robert Willis Chance, pled guilty to one count of second degree murder and one count of attempted first degree murder. Pursuant to the plea agreement, the sentences were to be served concurrently. The Hardin County Circuit Court imposed a sentence of twenty-three years for each conviction. In his sole issue, the appellant contends that the trial court erred in imposing twenty-three year sentences because of the misapplication of Tenn. Code Ann. § 40-35-210 (1995 Supp.), regarding the presumptive sentence of a class A felony.

Lynn Bernice Carraher, v. Michael Thomas Carreher
03A01-9608-CV-00259
Trial Court Judge: Senior Judge William H. Inman

The plaintiff’s employer had a generous profit-sharing plan to which the plaintiff was not required to contribute. The trial judge declined to treat this fund as marital property because the “plaintiff didn’t earn it, and the defendant didn’t contribute to it.”

Patricia Broadwell, v. Thomas Michael Broadwell
03A01-9607-CV-00242
Authoring Judge: Senior Judge William H. Inman

This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.
 

Patricia Broadwell, v. Thomas Michael Broadwell
03A01-9607-CV-00242
Authoring Judge: Senior Judge William H. Inman

This is a domestic relations case. The issues are whether the evidence preponderates against (1) an award of alimony in futuro to the appellee, (2) the finding that an alleged loan to the parties was intended as a gift, (3) an award of attorney’s fees.

Lori Lee Grissom (Brown) v, Jeffrey Donald Grissom
03A01-9607-CV-00219
Authoring Judge: Per Curiam
Trial Court Judge: Judge Bill Swann

This appeal came on to be heard upon the record from the Circuit Court of Knox County and briefs filed on behalf of the respective parties. Upon consideration thereof, this Court is of the opinion that there is reversible error in the trial court's judgment.

United American Bank of Memphis, v. Mylan Financial Services, Inc. and Stanley R. Waxman, Stanley R. Waxman, v. United American Bank of Memphis
02A01-9605-CV-00094
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Judge Janice M. Holder

This case involves an action to recover on a loan guarantee. The trial court entered a
judgment in favor of the plaintiff bank against the individual guarantor. We affirm.

Ronald D. McKinna, v. Lasco, Inc.
02A01-9604-CH-00083
Authoring Judge: Senior Judge William H. Inman

We have for consideration a thoughtful petition to re-hear in which the employer insists that our enquiry was abortive since we failed (1) to examine the proffered reason for the employee’s termination, (2) to examine the plaintiff’s evidence of pretext, and (3) to find that age discrimination was a motivating factor in the determination.

Montee H. Carrutheres Johnson, v. Nathan Johnson
02A01-9603-CH-00061
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor D. J. Alissandratos

This is a divorce case involving an Illinois decree. An Illinois court granted a divorce to the husband and awarded the marital residence in Tennessee to the husband. The Tennessee trial court enforced the Illinois court’s award of property, and the wife appeals. Because the Illinois court did not have personal jurisdiction over the wife, we reverse and remand.

Steven Ray Norfleet v. J. W. Goad Construction, Inc.,
M2001-00425-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Carol Catalano, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this case, the employer and its insurer contend (1) the action is time barred, (2) the claim is barred by the plaintiff's failure to give timely notice, (3) the award of benefits is excessive, (4) the award of bad faith sanctions is erroneous, and (5) the trial court erred in awarding attorney fees for the collection of unpaid medical expenses. As discussed below, the panel has concluded the award of attorney fees against the employer should be vacated, and the judgment otherwise affirmed.1 Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed as Modified. JOE C. LOSER, JR., SP. J., in which FRANK F. DROWOTA, III, J., and HAMILTON V. GAYDEN, JR, SP. J., joined. D. Brett Burrow and Gordon C. Aulgur, Nashville, Tennessee, for the appellants, J. W. Goad Construction, Inc., Sue Goad, Executrix for the estate of Jackie W. Goad, deceased, and Maryland Casualty Company. Thomas R. Meeks and Gregory D. Smith, Clarksville, Tennessee, for the appellee, Steven Ray Norfleet. MEMORANDUM OPINION 1 Because the Ru le 59 motio n has no t been add ressed by the trial c ourt, the appeal may be premature. However, because the injury occurred more than eight years ago, we have elec ted to add ress the m erits of the appeal. This case needs to be finally resolved. This civil action was commenced on October 1, 1996 following voluntary dismissal of a timely filed complaint on August 14, 1995. No issue was raised in the answer to the second complaint as to its timeliness. Following a trial on the merits on July 31, 2, the trial court awarded permanent partial disability benefits based on 63 percent to the body as a whole, discretionary costs, bad faith penalties, temporary total disability benefits and medical expenses. The judgment was filed on October 3, 2. On November 14, 2, the trial court awarded attorney fees of $19,5. pursuant to 5-6-24(b)(2).2 Although the defendant had filed a timely Tenn. R. Civ. P. 59 motion, the award of attorney fees appears from the record to be unrelated to that motion. On February 26, 21, the trial court ordered the appellants to provide medical treatment for the appellee, pending appeal. So did a Special Workers' Compensation Appeals Panel. At the time of the trial, the injured employee or claimant was 45 years old. He was injured on April 1, 1993, when he fell from a scaffold. The treating physician, Dr. Steven McLaughlin treated him for multiple injuries, including an elbow injury, a shoulder injury and carpal tunnel syndrome, all causally related to the fall, as well as a knee injury occurring during rehabilitation. Permanent impairment ratings of 5 percent to the elbow, 1 percent to the shoulder and 1 percent to the wrist were estimated by the doctor. The claimant has not returned to work for the same employer. Relying largely on the testimony of Dr. McLaughlin, the trial court awarded, inter alia, permanent partial disability benefits based on 63 percent to the body as a whole and temporary total disability benefits for 51 2/7th weeks. Appellate review of findings of fact is de novo upon the record of the trial court accompanied by a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court that had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. 2 (2) In addition to any attorney fees provided for pursuant to the provisions of _ 5 -6-22 6, a co urt ma y award attorney fees and reasonable costs to include reaso nable and nece ssary court repo rter expenses a nd exp ert witness fees for depo sitions and trials incurred when the employer fails to furnish appropriate med ical, surgica l and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial me mbe rs and other a ppa ratus to an employee provided for pursuant to a settlement or judgment under this chapter. -2-

Ron M Artin v. Blount County , Tennessee
E2000-01138-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: W. Dale Young, Circuit Court 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 hearing and reporting of findings of fact and conclusions of law. The employer appeals and contends the trial court erred in finding the employee to be 1 percent disabled because no expert medical proof established permanency of the disability. We sustain the contention of the employer and reverse the award of permanent disability. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Blount County Circuit Court Reversed. HOWELL N. PEOPLES, SP. J., in which WILLIAM M. BARKER, JR., JUSTICE, and JOHN K. BYERS, SR. J., joined. Michael K. Atkins, Knoxville, Tennessee, for the Appellant Blount County, Tennessee Kevin Shepherd, Maryville, Tennessee, for the Appellee Ron Martin MEMORANDUM OPINION Background Facts Plaintiff, Ron Martin (Martin) was employed by the Blount County Sheriff's Department as a criminal investigator on June 16, 1993. That day, Martin, in the course and scope of his employment, investigated a fire scene at Pope's Plant Farm. There is no 1 indication that Martin had any health problems prior to this time. While investigating the fire scene, Martin became ill. He also found evidence that Malathion and other pesticides were present in the building at the time of the fire. Martin returned to work the next day but went home after becoming sick at work. Martin first sought treatment from his family physician, Dr. Kim Cline. Later, Martin was seen by Dr. Marek Pienkowski, an immunologist. In the course of his treatment, Martin was also seen by Drs. Hargrove, Porter and Warwick, though no proof was submitted regarding either the treatment provided or the opinions formed by these physicians. An independent medical examination was performed by Dr. Arnold Hudson, Jr., a pulmonologist On November 8, 1993, according to Dr. Pienkowski, Martin reached maximum medical improvement. Martin returned to work with the only restriction being that "it is absolutely essential that he avoid all chemical exposure." This prevented Martin from resuming his duties as an arson investigator. For approximately one year, Martin remained with the Blount County Sheriff's department primarily performing clerical duties. From January 1995 through July 1997, Martin worked in various positions with the Blount County Court Clerk's office. Martin was employed by Blount County for almost four years after he reached maximum medical improvement before he was placed on disability retirement. From the date of exposure, Martin complained of joint pain, lethargy, and fatigue. These symptoms caused Martin to be unable to perform the light clerical duties he was assigned upon his return to the Sheriff's Department and resulted in him being placed in the Court Clerk's office. Despite being moved to another position, Martin remained unable to perform the tasks assigned to him. The parties stipulated the June 16, 1993 injury was compensable and agreed upon the appropriate compensation rate. No outstanding medical bills were left unpaid, nor were there any issues regarding the payment or non-payment of temporary total disability benefits. The only issue at trial was whether Martin suffers from a permanent vocational disability. As proof on this issue, the depositions of three physicians, Drs. Cline, Pienkowski, and Hudson, and two vocational experts, Drs. Nadolsky and Caldwell, were submitted, and the testimony of Martin and Dale Gorley, chief of detectives of the Blount County Sheriff's Department was heard. The trial court found that Martin suffers from a 1% total vocational disability. Blount County appeals this finding. Standard of Review The extent of vocational disability is a question of fact to be determined from all of the evidence, including lay and expert testimony. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999); Worthington v. Modine Mfg. Co., 798 S.W.2d 232, 234 2

Paul Kevin Nelson, v. The Application Group, Inc.
01A01-9703-CV-00137
Authoring Judge: Judge William C. Koch, Jr.

I concur with the court’s conclusion that The Application Group, Inc. is entitled to Tenn. R. Civ. P. 60.02(1) relief under the facts of this case. However, I have prepared this separate opinion to state that I do not concur with the court’s sweeping conclusion that “Rule 60.02(1) relief should be granted when the lawyer realizes his [or her] oversight and takes steps to correct it.” I know of no precedent for the notion that efforts to correct an error, by themselves, are always enough to entitle a lawyer to post-judgment relief. They are only one of the many factors to consider when engaging in the fact-intensive analysis required by Tenn. R. Civ. P. 60.02(1).

Prism Partners, L.P., v. Michael D. Figlio, v. Prism Partners, L.P. Larry Cherry
01A01-9703-CV-00103
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Barbara N. Haynes

In this unlawful detainer action, Defendant Michael D. Figlio appeals the trial court’s final judgment which held that Plaintiff/Appellee Prism Partners, L.P., had free and clear 2 title to the subject property, ordered Figlio to vacate the subject property, and dismissed Figlio’s counterclaim for conspiracy. The trial court’s judgment also dismissed Figlio’s thirdparty complaint for fraud and conspiracy against Third-Party Defendant/Appellee Larry Cherry. For the reasons hereinafter stated, we affirm in part and reverse in part the trial court’s judgment, and we remand for further proceedings.

In re: Ernest L. White, Conservatorship, v. Loretta DeLoach, Substitute Conservator
01A01-9704-PB-00154
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge Frank G. Clement, Jr.

This appeal involves the adequacy of a conservator’s accounting of a disabled person’s estate. After the conservator filed her final accounting in the Probate Court of Davidson County, the personal representative of the disabled person’s estate objected to the accuracy and completeness of the accounting. The probate court conducted a bench trial and approved the conservator’s amended final accounting. On this appeal, the personal representative asserts that the final accounting was irregular and that the conservator has failed to account for all of the disabled person’s funds. We have determined that the conservator’s final accounting cannot be reconciled and, therefore, that the order approving the final accounting must be vacated.

Patricia Ann Wolfe, Bette L. Roberts, Patricia Pelton, Odie L. Mann, Boyd Stubblefield, and Richard G. Ray vs. The University of Tennessee and the University of Tennessee Space Institute - Concurring
01A01-9611-CH-00514
Authoring Judge: Judge William C. Koch, Jr.

I concur with the results of the Court’s opinion. Based on my independent review of the evidence both in support of and in opposition to the motion for summary judgment, I have determined that the six plaintiffs have not produced evidence from which a jury could reasonably conclude that the reasons given by the University of Tennessee Space Institute for the adverse employment actions taken against each of the plaintiffs were pretextual or that the employment actions were taken for prohibited reasons.

Southern Rehabilitation Specialists, Inc., v. Ashland Healthcare Center, Inc., et. al.
01A01-9607-CH-00345
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Leonard W. Martin

Defendant Ashland Healthcare Center, Inc. (Ashland), appeals the judgment entered against it in this breach of contract action. The contract at issue was between Plaintiff/Appellee Southern Rehabilitation Specialists, Inc. (Southern Rehab), andOakmont Healthcare Center (Oakmont). In imposing liability against Ashland, the trial court ruled that Pete Prins, the administrator of Oakmont and an employee of third-party defendant Monarch Nursing Homes, Inc. (Monarch), had the authority to bind Ashland to the contract between Southern Rehab and Oakmont. For the reasons hereinafter stated, we reverse the judgment against Ashland and remand for further proceedings.

Jack Jordan, v. Frances J. Marchetti
01A01-9607-CH-00340
Authoring Judge: Judge Holly Kirby Lillard
Trial Court Judge: Chancellor Cornelia A. Clark

This case involves an action for rescission of a deed to land allegedly procured through promissory fraud and duress. The trial court dismissed the case on the grounds that it had been brought after the expiration of the applicable statute of limitations. We reverse.

Metropolitan Nashville Fire Fighters Association Local 763 and B.R. Hall, Jr., v. Metropolitan Government of Nashville and Davidson County, et al.
01A01-9701-CH-00019
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Gilcrease, Jr.

This case is before the Court on appeal from the Chancery Court of Davidson
County, Tennessee wherein a Motion for Summary Judgement made by the Defendants
was sustained by the Chancellor.

Knox County Education Association v. Knox County Board of Education, et al.
E2000-01019-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor John F. Weaver

This is an action brought by the Knox County Education Association seeking a declaratory judgment and injunctive relief against the Knox County Board of Education and its then-superintendent, Allen Morgan. The trial court found that provisions of a private act granting tenure to principals employed in the Knox County School System were repealed and superseded by the enactment in 1992 of a public act, the Education Improvement Act, and that the private act, to the extent that it conflicts with the general law, violates Article XI, Section 8 of the Tennessee Constitution. The trial court further found that Knox County principals are not members of the bargaining unit represented by the Knox County Education Association as to the subjects of performance, accountability, and contract renewal. The Knox County Education Association appeals, arguing (1) the trial court erred in finding that provisions of the private act were repealed by the Education Improvement Act and (2) the trial court erred in concluding that school principals are not members of the bargaining unit as to the subjects of performance, accountability, and contract renewal. We affirm.

Raymond Mueller v. Denise Mueller
M2001-00098-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Jeffrey S. Bivins
In this appeal of a divorce decree, the husband argues that the rehabilitative alimony awarded to the wife is excessive, and that his visitation schedule unnecessarily limits the time he can spend with his son. We affirm the award of rehabilitative alimony, but reduce its duration to three years. We also remand this case to the trial court for reconsideration of the visitation schedule.

Karmen Lane v. Richard Lane
M2000-01135-COA-R3-CV
Authoring Judge: Judge John A. Turnbull
Trial Court Judge: Muriel Robinson
This appeal challenges an award of child support which did not include private school tuition of the minor daughter, a division of property that did not take into account alleged dissipation of assets by the husband, a child support award that did not deviate upwards from the Guidelines because of lack of visitation, and a finding of criminal contempt. Also at issue is whether the trial court erred in awarding alimony in futuro rather than rehabilitative alimony. We affirm the judgment of the trial court with respect to all issues except to hold that pursuant to the Tennessee Child Support Guidelines, private school tuition is an "extraordinary educational expense" which husband obligor must pay.

State of Tennessee v. John D. Pass
E2000-02266-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Richard R. Baumgartner

The defendant appeals from his conviction for aggravated assault and his sentence. We conclude that there was sufficient evidence to support the conviction for aggravated assault. The imposition of a six (6)-month jail term pursuant to a sentence of five (5) years in split confinement is appropriate. We affirm the judgment of the trial court.

Roger M. Gardner v. State of Tennessee
E2000-02270-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller

The petitioner, Roger M. Gardner, appeals the order of the Sullivan County Criminal Court denying his petition for post-conviction relief. A Sullivan County jury found the petitioner guilty of attempted aggravated kidnapping, and the trial court subsequently sentenced him to serve eight years as a Range II multiple offender. The petitioner challenged his conviction on direct appeal, and this Court affirmed his conviction. State v. Roger Morris Gardner, No. 03C01-9712-CR-00524, 1999 WL 486847, at *1 (Tenn. Crim. App. at Knoxville July 13, 1999). Subsequently, the petitioner filed for post-conviction relief, alleging ineffective assistance of counsel, prosecutorial misconduct, judicial misconduct, the trial court's lack of jurisdiction, and denial of statutory rights. The post-conviction court denied the petition, and the petitioner now brings this appeal alleging ineffective assistance of counsel. For the following reasons, we find that none of these allegations merit relief and therefore affirm the decision of the post-conviction court.

State v. Stephen Bart Wood
M2001-00872-COA-R3-CD
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Steve R. Dozier
The General Sessions Court of Davidson County found the defendant guilty of thirty-six violations of an order of protection and ordered him to serve ten days for each violation. Each sentence was to be served consecutively and day-for-day. The defendant appealed to the Criminal Court and that court affirmed. We find that the Criminal Court lacked subject matter jurisdiction to hear the appeal, that the sentence should be vacated, and the cause remanded to the General Sessions Court for a review of the sentence for excessiveness in accordance with the guidelines we adopt in this opinion.

State of Tennessee v. Steven Lloyd Givens
M2001-00021-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, Steven Lloyd Givens, was convicted of attempted especially aggravated kidnapping in the Criminal Court of Davidson County. After a sentencing hearing, the trial court imposed a sentence of twelve years as a Range I offender to be served in the Department of Correction. In this appeal as of right, the Defendant argues that the trial court erred in (1) denying the Defendant's motion to suppress the evidence seized during the Defendant's arrest, (2) denying the Defendant's motion to suppress the results of a show-up identification of the Defendant by the victim, (3) denying the Defendant's motion to amend the indictment, and (4) in sentencing the Defendant to the maximum sentence. We affirm the judgment of the trial court.

State of Tennessee v. A Tract of Land Known as 141 Belle Forest Circle, et al.
M2000-01827-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The appellant, Westminster Realty Company, appeals an order entered by the Davidson County Criminal Court denying its claim to an interest in the proceeds from the sale of property pursuant to forfeiture proceedings. Following a thorough review of the record and the parties' briefs, we affirm the judgment of the trial court.