State Automobile Mutual Ins. Co. v. Natalie Hurley
W1999-01765-SC-WCM-CV
Authoring Judge: W. Michael William Michael Maloan, Special Judge
Trial Court Judge: John R. Mccarroll, 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 of findings of fact and conclusions of law. The plaintiff, State Automobile Mutual Insurance Company (State Auto), appeals the judgment of the Circuit Court of Shelby County which ordered State Auto to pay to the defendant, Natalie Hurley (Hurley), $28,873.91 being the total of her medical bills. For the reasons stated in the opinion, we find the trial court erred and reverse the judgment of the trial court.

In re: Stephanie Ann Linville, a Minor
M2000-01097-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Ben Hall McFarlin, Jr.

This appeal arises from the trial court's grant of an award of child support to the appellee, the child's paternal grandmother and legal custodian, from the child's mother. For reasons stated herein, we affirm the judgment of the trial court.

State of Tennessee v. Jesse C. Goodman, Jr.
M1999-02132-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Timothy L. Easter

The defendant, Jesse C. Goodman, Jr., was convicted by a Hickman County jury of one count of aggravated assault, a Class C felony, three counts of reckless endangerment, a Class E felony, and one count of assault, a Class A misdemeanor. All counts arose out of a single incident of domestic violence, with ramifications that included a four-hour standoff between the defendant and five law enforcement officers. The defendant was sentenced as a Range II, multiple offender to nine years for aggravated assault; two years for each of the reckless endangerment convictions; and eleven months and twenty-nine days for assault. The sentences for aggravated assault and reckless endangerment were ordered to be served consecutively, and the misdemeanor conviction was ordered to be served concurrently as to the other sentences, for an effective sentence of fifteen years in confinement. In this appeal as of right, the defendant presents two issues: (1) Whether the evidence was sufficient to convict him of either aggravated assault or assault; and (2) Whether the sentences were appropriate, both as to length of the aggravated assault sentence and the consecutive manner of service of the aggravated assault sentence and the reckless endangerment sentences. We conclude that the convicting evidence was sufficient, both as to the aggravated assault charge and the assault charge. We further conclude that the nine-year sentence for aggravated assault was appropriate, as was the consecutive manner of service of the sentences for aggravated assault and reckless endangerment. The judgment of the trial court is affirmed.

Robert Lafferty, et al., v. City of Winchester, et al.
M1997-00224-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Judge J. Curtis Smith

This appeal involves a dispute between the owners of a bed and breakfast and the City of Winchester regarding a proposed expansion of the business's bar and banquet facilities. When the city's Board of Zoning Appeals declined to approve the expansion, the owners of the bed and breakfast filed a petition for a common-law writ of certiorari in the Circuit Court for Franklin County challenging the Board's decision. After reviewing the record of the proceedings before the Board, the trial court determined that the Board acted within its discretion when it declined to approve the proposed expansion of the bed and breakfast. We affirm the judgment of the trial court.

Harry Barnett and Elizabeth Barnett, vs. Gary L. Lane and Donna L. Lane
E2000-00967-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor John F. Weaver

Plaintiffs, purchasers of house from defendants, were awarded damages for defects in house not revealed by defendants. Plaintiffs appeal, asking punitive damages and an increase in compensatory damages. We affirm.

Harry Fletcher, et al., v. Anthony Edwin Bickford, et al.
E2000-01020-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

Plaintiff's car was caught between the minivan in front of him and the dump truck behind him when the minivan and Plaintiff's car stopped to avoid an obstruction in the roadway. The dump truck was unable to stop and hit Plaintiff's car. The jury returned a verdict for Plaintiff for $225,000. The jury allocated 80 percent of the fault against the dump truck driver and owner and 20 percent of the fault against Plaintiff's uninsured motorist insurance carrier on behalf of the unknown driver of a truck which dropped the obstruction onto the road. The dump truck driver and owner appeal, raising issues of law including the introduction of claimed inadmissible evidence, prejudicial final argument, improper and incomplete jury instructions, jury misconduct and the failure of the Trial Court to grant Defendants' motions for directed verdict and judgment notwithstanding the verdict. We affirm the judgment of the Trial Court.

Debra Michelle Lambert v. Famous Hospitality, Inc. A/K/A A.S. Hospitality A/K/A M W M Dexter, Inc. and American Motorist Insurance Company
02S01-9511-CV-00112
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge Wyeth Chandler

In this workers’ compensation action, the employer, Famous Hospitality, Inc., defendant-appellant, has appealed from a judgment of the Circuit Court of Shelby County finding that the employee, Debra Lambert, plaintiff-appellee, sustained a 60 percent permanent impairment to the whole body due to a workrelated shoulder injury. The trial court also directed the employer to pay various medical and litigation related expenses incurred by the employee, but did not require the employer to pay for future medical treatment by doctors that had been selected by the employee and who had treated her before trial. The Special Workers’ Compensation Appeals Panel, upon reference for findings of fact and conclusions of law pursuant to Tenn. Code Ann. § 50-6-225(e)(5), affirmed the trial court. Thereafter, the employer filed a motion for full Court review of the Panel’s decision pursuant to Tenn. Code Ann. §50-6-225(e)(5)(B). We granted the motion to determine whether the employee should have been authorized to seek future medical treatment, at the employer’s expense, from doctors selected by her who had treated her injuries. After carefully examining the record before us and considering the relevant authorities, we affirm the trial court’s judgment except to the extent that the judgment does not authorize future medical treatment by the employee’s treating physicians at the employer’s expense.

State of Tennessee v. Eddie Arcaro Williams
01S01-9503-CR-00033
Authoring Judge: Chief Justice E. Riley Anderson
Trial Court Judge: Judge Ann Lacy Johns

We granted the State's appeal to consider whether the defendant's federal or state constitutional right of confrontation was violated by the admission into evidence of surveillance photographs taken at the scene of the robbery. The Court of Criminal Appeals decided that the defendant's constitutional right of confrontation was violated and that the evidence was insufficient as a matter of law to establish guilt beyond a reasonable doubt. As a result, they reversed the trial court's judgment of conviction.

Lenore Berry Ross Storey, Debtor v. Bradford Furniture Company, Inc.
93-08973-KL3-7
Authoring Judge: Justice Penny J. White
Trial Court Judge: Judge Keith N. Lundin

QUESTION CERTIFIED Pursuant to Rule 23 of the Tennessee Supreme Court Rules,1 we have accepted a question certified to us by the United States Bankruptcy Court for the Middle District of Tennessee. The bankruptcy court has asked: Which of the following is the correct interpretation of Tenn. Code Ann. § 26-2-111(1)(E): (1) Once asserted in any judicial proceeding, the exemption in alimony described in Tenn. Code Ann. § 26-2-111(1)(E) is effective with respect to all subsequent executions, seizures or attachments of alimony; or (2) The exemption in alimony described in Tenn. Code Ann. § 26-2-111(1)(E) is effective only if claimed in each judicial proceeding in which execution, seizure or attachment of alimony is sought. For the reasons explained below, we conclude that the alimony exemption set forth in Tennessee Code Annotated Section 26-2-111(1)(E) is effective only if claimed in each judicial proceeding in which execution, seizure, or attachment of alimony is sought.

Jack and Nancy Ritter, Thomas H. and Debra Kitts, and Fred A. and Donna J. Sykes v. Custom Chemicides, Inc.
01S01-9408-OT-00092
Authoring Judge: Justice Lyle Reid
Trial Court Judge: Judge Harry W. Welford

The Court has accepted for decision two questions of law certified by the Sixth Circuit Court of Appeals, pursuant to Rule 23, Supreme Court Rules, which questions are as follows:

( l ) Whether the tort of negligent misrepresentation applies only to professinals and others who  specialize in providing information as a service; and not to commercial entities or businesses which allegedly supply misleading information for the guidance of others in their business transactions; and

(2) Whether a party alleging negligent misrepresentation, in order to recover 'economic losses," must be in privity of contract with the defendant. The decision of the Court is that liability for the tort of  negligent misrepresentation is not limited to 'professionals'; however, the record in this case does not establish the essentials of that cause of action.

Linda Bogle v. Toshiba America Consumer Products, Inc.
M2000-00247-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp.J.
Trial Court Judge: Hon. James O. Bond, Judge
In this case, the defendant-employer contends (1) that the evidence does not support the trial court's finding that the plaintiff-employee's closed head injury and herniated cervical disc arose out of and in the course of her employment with the defendant, (2) that the trial court erred in determining the plaintiff's permanent partial impairment of 52.5%, and (3) that the trial court erred in determining that the defendant is entitled to an offset for the net short-term disability benefits provided to the plaintiff rather than for the gross amount that was paid by the provider. As discussed below, the Panel concludes that the judgment of the trial court should be affirmed in all respects.

Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and Cigna Property & Casualty Insurance Co.
M1999-02260- WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: J. Richard McGregor, Special Judge
The employer contends the trial court erred in finding that the plaintiff suffered a vocational disability of 12% to the body as a whole from his back injury, and an additional 15% to the left arm from his wrist injury which occurred two months later. As discussed below, the panel concludes that the judgment of the trial court should be affirmed. The panel further concludes that the appeal was frivolous or for the purpose of delay and remands the case to the trial court for imposition of appropriate penalty.

Harold W. Ferrell, Jr. v. Apac-Tennessee, Inc. and Cigna Property & Casualty Insurance Co.
M2000-00223- WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: J. Richard McGregor, Special Judge
The employer contends this claim for work related hearing loss is time barred by notice and statute of limitations provisions, and that the award is excessive. We conclude that notice was timely given, suit was timely filed, and the award is supported by the evidence.

Linda Bogle v. Toshiba America Consumer Products, Inc.
M2000-00247-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp.J.
Trial Court Judge: Hon. James O. Bond, Judge
In this case, the defendant-employer contends (1) that the evidence does not support the trial court's finding that the plaintiff-employee's closed head injury and herniated cervical disc arose out of and in the course of her employment with the defendant, (2) that the trial court erred in determining the plaintiff's permanent partial impairment of 52.5%, and (3) that the trial court erred in determining that the defendant is entitled to an offset for the net short-term disability benefits provided to the plaintiff rather than for the gross amount that was paid by the provider. As discussed below, the Panel concludes that the judgment of the trial court should be affirmed in all respects.

Debra Ward v. Kantus Corporation
M1999-01718-WC-R3-CV
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Lee Russell, 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 to the Supreme Court of findings of fact and conclusions of law. The defendant, Kantus Corporation, appeals the judgment of the Circuit Court for Marshall County, where the trial court awarded permanent partial disability benefits of $32,879.6, representing a permanent partial disability of thirty-two and one-half percent (32.5%) to the body as a whole, and representing two and one-half times the plaintiffs impairment rating of thirteen percent (13%) with open future medical benefits. The trial court commuted the award to a lump sum, and taxed court costs to Kantus. The defendant submits that: (1) Ms. Ward's claim is barred by the statute of limitations; (2) she failed to give notice to her employer of her injury; (3) Ms. Ward did not sustain an injury arising out of and in the course and scope of her employment; (4) the trial court's award of thirty-two and one-half (32.5%) permanent partial disability to the body as a whole was excessive and contrary to the weight of the evidence; and (5) the trial court erred in affording equal or greater weight to the opinion of the evaluating physician than that of the treating neurosurgeon in determining permanent partial impairment and disability. For the reasons stated in this opinion, We affirm the judgment of the trial court.

James R. Hyde v. All American Homes, Llc.
M2000-00899-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: James E. Walton, Circuit Judge
The trial court awarded the employee thirty-five percent disability to both arms and ordered the award to be paid in a lump sum. The employer contends the award is excessive and the lump sum is not in the employee's best interest. We affirm.

George Thomas Carter v. Kenneth O. Lester Company
M2000-00651-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: C. K. Smith, Chancellor
In this appeal, the employer insists the trial court erred in accrediting the testimony of an examining physician over that of the treating physician and by exceeding the multiplier applicable in cases where the employee returns to work at the same or greater wage. As discussed below, the panel has concluded the judgment should be affirmed.

Kennedy vs. Kennedy
M1997-00219-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a man's efforts to use his voluntary early retirement as a basis for ending his spousal support obligation. Three years after the divorce, the man filed a petition in the Circuit Court for Davidson County seeking to end his responsibility to pay child support. His former wife responded by filing a petition seeking to hold him in contempt for failure to pay spousal support. Following a bench trial, the trial court dismissed the man's petition, held him in contempt, and entered a $3,106 judgment against him for back spousal support. On this appeal, the man asserts that the trial court erred by declining to relieve him of his alimony obligation because of his inability to pay and his former spouse's lack of need. We affirm the trial court's judgment.

Hodges vs. TN Atty. General
M2000-00550-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal arises from the dismissal of a prisoner's pro se complaint for failure to prosecute. The Chancery Court for Davidson County dismissed the complaint eleven months after it was filed because the prisoner had failed to provide summonses and copies of the complaint for service on the defendants. The prisoner has appealed to this court. Instead of arguing that the trial court erred by dismissing his complaint for failure to prosecute, the prisoner has simply renewed the assertions he made in the trial court that his sentence credits have been calculated incorrectly and that he should be released on parole. We determined that the trial court properly dismissed the complaint for failure to prosecute.

Jeffrey Bivens v. State of Tennessee
W1999-01028-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

Jeffrey Bivens appeals from the Madison County Circuit Court's denial of his petition for post-conviction relief. Although the petition was filed outside the one year limitations period, the post-conviction court excused the "late-filed" petition "in the interest of justice." Following a hearing upon the merits of the petition, the court denied post-conviction relief. Because the petition was time-barred, the post-conviction court was without jurisdiction to conduct a hearing on the merits. For this reason, dismissal of the petition is affirmed.

Angela Joan Wagner, v. Rodney Keith Wagner
M1999-01045-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Robert E. Corlew, III

The trial court granted the parties a divorce, ordered joint custody of the parties' minor son, and divided the marital property. On appeal, Ms. Wagner contends that the trial court's award of joint custody on an alternating week basis was improper, that the division of marital property was inequitable, and that the trial court's order requiring her to bear one-half of the child's medical insurance was improper. We disagree and affirm the trial court's judgment.

James W. Hunter vs. Shirley C. Hunter
E2000-00662-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Telford E. Forgerty, Jr.
In this divorce case, Shirley C. Hunter ("Wife") appeals, arguing that the trial court erred (1) in classifying and dividing the parties' property; (2) in refusing to find James W. Hunter ("Husband") in contempt for failing to pay Wife's medical bills; (3) in restricting Wife's spousal support award to one of alimony in solido of $7,200; (4) in awarding Husband a judgment against Wife for $5,068.53 in connection with Wife's use of his vehicle; and (5) in failing to award Wife her attorney's fees. We vacate the trial court's judgment ordering Wife to pay for her use of Husband's vehicle. In all other respects, the judgment of the trial court is affirmed.

Patricia Baldwin v. Waldenbook Company, Inc.
M1999-01577-WC-R3-CV
Authoring Judge: Frank G. Clement, Jr., Sp. J
Trial Court Judge: Hon. Robert E. Corlew, III, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer contends the trial court erred in finding that the statute of limitations was tolled and that suit was timely filed. As discussed below, the panel has concluded that the judgment of the trial court should be affirmed, finding that suit was timely filed. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed Frank G. Clement, Jr., Sp.J., in which Frank F. Drowota, III, J., and John A. Turnbull, Sp.J., joined. Richard E. Spicer, Spicer, Flynn, & Rudstrom, PLLC, Nashville,TN, for the appellants, Waldenbook Company, Inc. Scott Daniel, Murfreesboro, TN, for the appellee, Patricia Baldwin. MEMORANDUM OPINION There are two issues to be considered to determine whether suit was filed timely. One issue is whether there was but one compensable injury or two separate compensable injuries. If there was only one compensable injury, the suit was filed timely. If there were two separate compensable injuries, instead of one, then the issue is whether Travelers Insurance Company was authorized, as agent for Waldenbook, to act for and thereby obligate Waldenbook for matters pertaining to the injury(ies). 1 Patricia Baldwin ("Baldwin"), the employee/appellee, began working for Waldenbook Company ("Waldenbook"), the employer/appellant, in 1989. Baldwin's employment consisted of performing general tasks within Waldenbook's warehouse. The first of the two incidents occurred on October 19, 1994. On that date Baldwin was loading books into a Gaylord1 at Waldenbook when she felt her wrist pop. Baldwin's hand immediately began to swell and a ganglion cyst appeared. She reported the injury to Waldenbook immediately. A First Report of Work Injury was completed and filed. Waldenbook sent Baldwin to the nearest local clinic to have her injury examined and/or treated. The clinic recommended Dr. Renfro, a specialist, who provided conservative treatment until February 2, 1995, at which time he performed surgery in order to excise the ganglion cyst. After the surgery, Baldwin returned to work on light duty but continued to complain of wrist pain. Baldwin requested that she be permitted to see another doctor but the request was refused by KM. Though she had returned to work, Baldwin was still restricted to light duty when the second incident occurred. The second incident occurred on May 18, 1995,when Baldwin felt the same wrist pop again. The wrist began to swell in the same place just as it did following the first incident in 1994. Baldwin promptly reported the incident to Waldenbook. Her symptoms were the same as before, only worse. She was authorized to receive further medical care and was treated by eleven doctors. Though the 1995 incident was immediately reported to Waldenbook, and though Baldwin was authorized to be treated by several doctors as a result of this incident, neither Waldenbook nor Travelers ever filed a First Report of Work Injury for this so-called "second injury." The only "First Report" that was filed pertained to the 1994 incident, the so-called "first injury." It is the May 18, 1995 incident which Waldenbook now insists is the second and separate compensable injury. Conversely, Baldwin insists the 1995 incident is merely an aggravation of the first and only injury, which occurred on October 19, 1994. Waldenbook was self-insured from the time Baldwin first became a Waldenbook employee until February 1, 1995. While Waldenbook was self-insured, KM Administrative Services ("KM") served as a third-party administrator processing Waldenbook's workers' compensation claims. Travelers Insurance Company became the designated workers' compensation insurance carrier for Waldenbook on February 1, 1995, Waldenbook was no longer self-insured after that date and KM no longer administered their claims. Both Waldenbook (through KM) and Travelers paid Baldwin's medical bills. Her bills were paid through November 27, 1996. On April 19, 1996, KM verbally informed Baldwin's attorneythat the last voluntary medical 1A large box in which books are packed for shipping. 2

Merlin Gene Cletcher v. Wal-Mart Stores, Inc.
M1998-00011-WC-R3-CV
Authoring Judge: Hamilton V. Gayden, Jr., Special Judge
Trial Court Judge: Hon. C.K. Smith, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. The employer, Wal-Mart, contends the trial court erred when it held 1) that Dr. Dan Jackson's treatment of Plaintiff's workers' compensation injury was reasonable and necessary, 2) that Dr. Jackson, a chiropractor, was and should remain an authorized provider, and 3) that Defendant should pay for all future medical-related charges that Dr. Jackson deems reasonable and necessary for the treatment of the compensable injury which is the subject of this action. After careful review of the record, it is the opinion of this Panel that the decision of the trial court should be affirmed.

Pamela Harper v. Travelers Insurance Co., et al
M1999-01913-WC-R3-CV
Authoring Judge: Hamilton V. Gayden, Jr, Special Judge
Trial Court Judge: Hon. James O. Bond, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. Plaintiff commenced this cause of action on March 18, 1998 alleging that she had developed bilateral carpal tunnel syndrome due to the repetitive use of her hands and arms while employed at Flex Technologies, Inc. The trial court awarded permanent partial disability benefits based on the functional equivalent of 75% to both arms. Flex Technologies, Inc. and The Travelers Insurance Company, respectively, filed this appeal. Appellants contend that the trial court erred 1) by denying Appellants' motion for a continuance of the trial, 2) in accepting the opinion of an independent medical expert over the opinion of the treating physician, and 3) in awarding excessive permanent partial disability benefits. As discussed below, the Panel holds that the trial court's award of permanent partial disability benefits was not excessive and that the judgment of the lower court should be affirmed.