Ronald Eugene Jones v. Cracker Barrel Old Country
E2002-01681-WC-R3-CV
Authoring Judge: H. David Cate, Sp. J.
Trial Court Judge: James B. Scott, Jr., Judge
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 its findings of fact and conclusions of law. The employer, Cracker Barrel Old Country Store, Inc., argues that the trial court erred by: (1) evaluating the permanent total disability claim of the employee, Ronald Eugene Jones, pursuant to Tenn. Code Ann. _ 5-6-242 instead of Tenn. Code Ann _ 5-6-27(4)(B); (2) finding the employee entitled to permanent total disability benefits when the preponderance of the evidence indicated he could return to "an occupation which would produce an income"; (3) holding the employee's claim was not limited to the multipliers established by Tenn. Code Ann. _ 5-6-241; and (4) entering the order of judgment without a reapportionment clause compelling the second injury fund to reimburse the employer in the event the employee dies before reaching age sixty-five.1, 2, 3 We agree with the employer that a permanent total disability claim should be evaluated on the basis of Tenn. Code Ann. _ 5-6-27(4)(B); the preponderance of the evidence indicates he could return to "an occupation which would produce an income"; and his claim is governed by the Tenn. Code Ann. _ 5-6-241 multipliers. While the last issue concerning a reapportionment clause is pretermitted, we nevertheless disagree with the employer. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court 1 The employer complains about the dismissal of the appeal when the notice of appeal and transcript of the evidence were filed prior to the entry of the final judgment, since Rule 4(d) of the Tenn. R. App. P. permits a prematurely filed notice of appeal to be treated as filed after the entry of judgment and on the day of its entry. The per curiam order of the Supreme Court dismissed the appeal on February 13, 23, not because the transcript had not been timely filed as thought by the employer, but because the final judgment had not been entered. However, the final judgment had been entered in the trial court on February 6, 23. 2 The employee states the issues in a slightly different manner. They will be inherently discussed as we discuss the employee's complaints. 3 The second injury fund takes the same position as the employer except on the reapportionment clause issue. Reversed in Part, Modified in Part and Remanded H. DAVID CATE, SP. J., in which WILLIAM M. BARKER, J., and ROGER E. THAYER, SP. J., joined. James T. Shea IV, Knoxville, Tennessee, attorney for Appellant, Cracker Barrel Old Country Store, Inc. Roger L. Ridenour, Clinton, Tennessee, attorney for Appellee, Ronald Eugene Jones. Paul G. Summers, Attorney General and Reporter, E. Blaine Sprouse and Richard M. Murrell, Assistant Attorney Generals, for Appellee, Sue Ann Head. MEMORANDUM OPINION I. Factual Background Ronald E. Jones, the employee, was forty-six years old when this cause was tried. He left high school in the eleventh grade, has no general equivalency diploma and has no other formal training or education. After he dropped out of school he took care of his grandfather, who had a heart condition. Years later he took a job as a laborer for a construction company. Next, he worked as a night watchman for approximately five years. Then he took a job with Cracker Barrel Old Country Store, Inc., the employer. He worked for the employer for fifteen years, washing dishes, bussing tables and unloading trucks. On December 27, 1992, while in the employ of the employer, the employee sustained a knee injury. He returned to work with restrictions against stooping, bending and squatting. He settled this workers' compensation claim for 15 percent to the body as a whole. On April 23, 1998, the employee, while working for the employer, sustained an injury to his neck, which was diagnosed as a cervical radiculopathy at C7. This workers' compensation claim was settled on January 22, 22, for 19 percent to the body as a whole. He returned to work after the neck injury, but on September 18, 1998, while lifting a case of green beans at work, the employee sustained an injury to his low back. He was treated by Dr. Cletus J. McMahon, Jr., an orthopedic surgeon, who diagnosed the employee's injury as a low back strain, an injury to the soft tissue, the ligaments, muscles and tendons. Dr. McMahon discharged the employee from his care on March 29, 1999, assigning him a 5 percent impairment to the body as a whole. The employee returned to work for the employer with the primary restriction of no lifting over twenty-five pounds. He worked a modified schedule of 18 to 2 hours until he quit because of pain in June, 1999. -2-

Nashville Lodging Co. v. Metric Partners Growth Suite Investors, L.P.
M2002-02356-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Nashville Lodging Company and G.P. Credit Company, LLC appeal the action of the trial court in which the trial judge having previously granted Appellants' motion for summary judgment as to liability in this breach of contract action decided all issues as to damages in favor of Appellees. We affirm the action of the trial court.

Gregor Nadler v. Mountain Valley Chapel Business Trust
E2003-00848-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety, Jr.

Gregor Nadler ("the plaintiff") took a default judgment in the amount of $68,270.98 against Gerald H. Lucas ("Mr. Lucas") in a Florida proceeding. The judgment survived Mr. Lucas's subsequent bankruptcy filing. The plaintiff domesticated his judgment in Tennessee and then filed suit against, inter alia, the Mountain Valley Chapel Business Trust and Mr. Lucas, claiming (1) that Mr. Lucas had engaged in a fraudulent conveyance when he formed the trust and (2) that the trust was his alter ego. Following a bench trial, the court dismissed the plaintiff's complaint. From this judgment, the plaintiff appeals, challenging the trial court's rulings with respect to his fraudulent conveyance and alter ego claims. In addition, the plaintiff raises an evidentiary issue. We affirm.

Jeffrey Lynn Miller v. Jerry Ellison, et al
E2003-02732-COA-R3-CV
Authoring Judge: Judge H. David Cate
Trial Court Judge: Judge Conrad E. Troutman, Jr.

Plaintiff, a customer who was injured when assaulted on the premises, brought action for damages against the owners-lessors of the premises and others. The Circuit Court, Campbell County, Conrad Troutman, Judge, dismissed the action as to the owners-lessors for failure to state a claim upon which relief could be granted, and plaintiff appeals. We affirm.

Ruby Tuesday, Inc. v. Gerald Largen
E2003-01795-COA-R3-CV
Authoring Judge: Retired Judge Ben H. Cantrell
Trial Court Judge: Chancellor Frank V. Williams, III

This case started out as a dispute over the title to a twenty to thirty-five foot wide strip along a state highway. The Chancery Court of Roane County held that the defendant held the title, but that the plaintiff had an access easement over the property. The defendant asserts on appeal that the Court erred because the plaintiff never claimed an easement in its pleadings and that the Court simply created one. The plaintiff asserts that the Court erred in finding that the defendant held the title to the property. We affirm.

State of Tennessee v. Charles Keith
E2003-01721-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller

The appellant, Charles Keith, was convicted by a jury in the Sullivan County Criminal Court of one count of possession of marijuana and one count of possession of drug paraphernalia. The trial court sentenced the appellant to consecutive sentences of eleven months and twenty-nine days confinement in the county jail, to be served at seventy-five percent. On appeal, the appellant challenges the trial court's denial of his motion to suppress evidence seized as a result of an investigatory stop of his vehicle. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

Melanie Sue Gibson v. Ernestine W. Francis
E2003-02226-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Richard R. Vance

This tort action arises out of a two-vehicle accident. At trial, the defendant Ernestine W. Francis admitted liability. The jury returned a verdict in favor of the plaintiff Melanie Sue Gibson for property damage in the amount of $6,900; however, the jury declined to award her any damages on her claim for personal injuries. On appeal, the plaintiff argues that the trial court did not properly perform its role as thirteenth juror; that the verdict is contrary to the weight of the evidence; and that the trial court erred when it re-instructed the jury in response to a question from that body. We affirm.

State of Tennessee v. Marsha Yates
E2003-01900-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Phyllis H. Miller

Following a revocation hearing, the trial court revoked the probation of Defendant, Marsha Karen Yates, and ordered her to spend the remainder of her sentence in confinement. On appeal, Defendant argues that the trial court abused its discretion in revoking her probation. After a careful review of the record in this matter, we affirm the judgment of the trial court.

Mary Rachel Brown Williams v. Jeweline R. Crenshaw
CH-01-0197-1
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

Plaintiff brought suit on a defectively executed joint will, arguing that, despite its infirmities as a testamentary instrument, it is still enforceable as a contract for the benefit of a third party. In her suit, Plaintiff sought to recover certain property, purportedly covered by the defective joint will, that Decedent had devised to Defendant in a subsequent will. The lower court granted Defendant’s motion for summary judgment, finding that the defective joint will does not constitute an enforceable contract. For the following reasons, we affirm.

State of Tennessee v. Larry Adams
E2002-03046-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Richard R. Baumgartner

The appellant, Larry Arnell Adams, was convicted by a jury in the Knox County Criminal Court of one count of especially aggravated kidnapping, one count of aggravated spousal rape, one count of assault, and two counts of rape. He received a total effective sentence of thirty-seven years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises numerous issues for our review, including consolidation and sufficiency. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

State of Tennessee v. Brian French
M2002-02465-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Michael R. Jones

The defendant, Brian French, appeals the revocation of his probation. We dismiss the appeal due to the untimely filing of the notice of appeal.

State of Tennessee v. Felicia Murphy
M2003-02466-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John J. Maddux

The appellant, Felicia Murphy, appeals the sentencing decision of the DeKalb County Circuit Court following revocation of her probation. In December 2001, Murphy pled guilty to misdemeanor reckless endangerment and received a sentence of eleven months and twenty days, which was to be suspended after service of ten days. While on probation Murphy was found to be in violation of her probation, resulting in the extension of her probationary period for an additional six months. On the day before this extended period was to expire a violation warrant was issued, which alleged numerous violations of conditions of her probation. Following a hearing, the trial court revoked her probation and ordered reinstatement of her original sentence. On appeal, she argues that the trial court "acted too harshly" by revoking her sentence and, instead, should have extended her probationary period for one year. Finding no merit to Murphy's claim, the judgment of the trial court revoking her probation and ordering reinstatement of her original eleven-month and twenty-nine-day sentence is affirmed.

Frank Barnard v. State of Tennessee
M2003-02809-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Russell Heldman

The petitioner, Frank A. Barnard, was convicted in 1992 of first degree murder, aggravated robbery, and aggravated sexual battery, for which he was sentenced, respectively, to sentences of life, eight years, and ten years, with the latter sentence to be served consecutively to the first two. In a petition for writ of habeas corpus, he claimed that the trial court was without jurisdiction to impose judgment for the murder conviction. The trial court dismissed the petition, and this timely appeal followed. After review, we affirm the dismissal.

Patricia Henderson Jolley, et al, v. Wanda K. Henderson
E2003-01406-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howell N. Peoples

This is a will contest case. Patricia Henderson Jolley and Howard E. Henderson, Jr. (collectively "the Contestants") appeal the chancery court's judgment that they do not have standing to contest their father's will. The Contestants contend that the chancery court erred in addressing the issue of their standing and in other ways. They argue that their stepmother, Wanda K. Henderson ("the Executrix"), failed to raise the standing issue and, as a consequence, waived it. They also rely on alleged procedural errors and contend that they do have standing. We affirm.

Burchell Insurance v. Western Sizzlin Steakhouse
E2003-01001-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Thomas R. Frierson, II

Action by corporation for judgment on promissory notes representing loans made to partnership resulted in Judgment against defendant partner for one-half of amount of the loans plus interest and attorney's fees. On appeal we affirm.

CBM Package Liquor, et al. v. City of Maryville, et al.
E2003-01220-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

In this case it is argued that the Trial Court erred in approving the decision of the Appellees, the City of Maryville and the City Council for the City of Maryville, to issue certificates of compliance to three applicants as a precondition to each such applicant securing a license to operate a retail liquor store from the Tennessee Alcoholic Beverage Commission. We affirm the judgment of the Trial Court and remand

A.D. Doe And M.A. Doe v. May et al.
E2003-1642-COA-R3-CV
Authoring Judge: Retired Judge Ben H. Cantrell
Trial Court Judge: Judge Wheeler A. Rosenbalm

The plaintiff A.D. Doe for himself and his daughter M.A. Doe sued the Sheriff of Knox County and the County itself for damages when M.A. Doe was allegedly raped by a deputy sheriff. The complaint alleged that the sheriff was liable on his bond and on his oath of office and that Tenn. Code Ann. § 8-8-302 imposed liability on the County because the deputy was acting “by virtue of or under color of the office.” The Circuit Court of Knox County dismissed the complaint against the Sheriff and the County for the failure to state a claim. We affirm.

Deron A. Hatton v. CSX Transportation
E2003-01831-COA-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge W. Neil Thomas, III

This is a an action for damages under FELA wherein the Plaintiff claimed that he was negligently exposed to toxic chemicals in the workplace. The Defendant pleaded, inter alia, the defense of the three-year statute of limitations, to which the discovery rule was applicable. This issue was bifurcated and tried separately, to the same jury, which found in favor of the Plaintiff. On the issues of liability, causation, and damages [the second phase of the trial] the jury found in favor of the Defendant. Plaintiff appeals, claiming that the issue of the statute of limitation should not have been bifurcated, that the court should have directed a verdict for the Plaintiff on account of OSHA violations, and the exclusion-admission of expert testimony. Finding no error, the judgment is affirmed.

State of Tennessee v. Robert Yoreck, III
M2004-01289-CCA-RM-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John H. Gasaway, III

This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Robert James Yoreck, III, pled guilty to aggravated assault, a class C felony. Following a sentencing hearing, the trial court sentenced Yoreck, as a Range II multiple offender, to nine years in the Department of Correction. On appeal, Yoreck argues that his sentence was excessive. After a review of the record, we affirm the sentence as imposed by the Montgomery County Circuit Court

State of Tennessee v. Mario Estrada
M2004-01291-CCA-RM-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Jones

This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Mario C. Estrada, appeals the imposition of a sentence of twelve years confinement in the Department of Correction. The sentence arose from a guilty plea entered by Estrada to one count of arson, eight counts of aggravated assault, and one count of possession of a prohibited weapon. In this appeal, Estrada raises the issue of whether the trial court erred by ordering a sentence of total confinement rather than a less restrictive alternative. After review, we find no error. Accordingly, the judgment is affirmed.

State of Tennessee v. Renne Arellano
M2004-01292-CCA-RM-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Jones

This case presents an appeal to this court after remand by order of the Tennessee Supreme Court. The Appellant, Renne Efren Arellano, appeals from the sentencing decision of the Maury County Circuit Court. In a negotiated plea agreement, Arellano pled guilty to arson, eight counts of aggravated assault, and felony possession of a weapon and received an effective twelve-year sentence as a Range I standard offender. The manner of service was to be determined by the trial court. Following a sentencing hearing, the trial court denied any form of alternative sentencing and imposed total incarceration for the twelve-year sentence. On appeal, Arellano contends that the trial court erred in not sentencing him to any form of alternative incarceration. Finding no error, the sentences of the trial court are affirmed.

State of Tennessee v. Thaddaeus Medford
W2003-01544-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph H. Walker, III

The Defendant, Thaddeaus Medford, was convicted of three counts involving the delivery and attempted delivery of cocaine. In his first appeal, the Defendant contended, in part, that the State used a peremptory challenge to exclude a potential juror based on race. We remanded the case for the trial court to determine whether the State’s challenge was based upon a racially-neutral reason. On remand, the trial court determined that the State’s challenge was based upon a racially-neutral reason, and the Defendant appeals, contending that this finding by the trial court is in error. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Stephen Keith Frazier
W2003-01612-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge C. Creed McGinley

A Hardin County jury convicted the Defendant, Stephen Keith Frazier, of vehicular homicide and two counts of driving while under the influence of an intoxicant or drug (“DUI”). The trial court merged the two DUI convictions and sentenced the Defendant to ten years for vehicular homicide, and eleven months and twenty-nine days for the DUI conviction, with both sentences to run concurrently. On appeal, the Defendant contends that: (1) the evidence was insufficient to support the convictions; and (2) the trial court erred in sentencing the Defendant by improperly applying enhancement factor (17) to increase the length of the sentence and in not imposing alternative sentencing. Based upon our review, we affirm the conviction for vehicular homicide and vacate the conviction for DUI, this offense being merged into the conviction for vehicular homicide. Additionally, we affirm the Defendant’s sentence for his vehicular homicide conviction, and we vacate the Defendant’s sentence for his DUI conviction. We therefore remand to the trial court for the entry of a single judgment in accordance with this opinion.

Quinton Armstrong v. Michael MaGill, Commissioner of the Tennessee Department of Labor and Workforce Development, and Piccadilly Cafeteria
W2003-00207-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a claim for unemployment benefits. The claimant was terminated from her employment at the defendant business. Her separation notice indicated that she was terminated for improper conduct and having a disrespectful attitude. Subsequently, the claimant filed a claim for unemployment benefits. The agency denied benefits. The claimant appealed. The appellate tribunal conducted a telephonic hearing and affirmed the denial of benefits. The claimant filed the instant petition for judicial review, claiming that the administrative proceedings were so fundamentally flawed that her procedural due process rights were violated. The trial court denied the petition and affirmed the denial of benefits. The claimant now appeals. We affirm, finding that the claimant’s due process rights were not violated, and that there is substantial and material  evidence to support the denial of benefits.
 

Larry Benton v. The Vanderbilt University - Dissenting
M2002-00085-SC-R11-CV
Authoring Judge: Justice Adolpha A. Birch, Jr.
Trial Court Judge: Judge Carol L. Soloman