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| Mary Henry vs. Obstertrics and Gynecology Consultants
E2001-01246-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Dale C. Workman |
Knox County | Court of Appeals | 12/11/01 | |
| Jerry L. Luster v. B. Campbell Smoot
M2000-02191-COA-R3-CV
A prisoner filed a civil rights intimidation suit against a public defender who uttered a racial slur during a recess in the plaintiff's criminal trial. The trial court granted summary judgment to the public defender. We affirm.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Lee Russell |
Coffee County | Court of Appeals | 12/11/01 | |
| Susan Whiton vs. Alan Whiton
E2000-00467-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Ben W. Hooper, II |
Sevier County | Court of Appeals | 12/11/01 | |
| Firefly Industries, Inc. v. Rhonda Sexton
E2001-00132-WC-R3-CV
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 trial court awarded the employee 25 percent disability to the body as a whole. The employee has appealed insisting the award is inadequate and should be much higher. The employer argues certain medical expenses were unauthorized and that the incident in question caused no vocational disability. Judgment of the trial court is affirmed as to the award of disability and modified as to the allowance of medical expenses. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Modified and Affirmed THAYER, SP. J., in which ANDERSON, J. and BYERS, SR. J., joined. Charles B. Sexton, Oneida, Tennessee, for the Appellant, Rhonda Sexton. Linda J. Hamilton Mowles, Knoxville, Tennessee, for the Appellee, Firefly Industries, Inc. OPINION In this case the trial court awarded the employee, Rhonda Sexton, 25 percent permanent partial disability to the body as a whole. Being dissatisfied with the amount of the award, the employee has appealed. Basic Facts The record indicates the employee was 49 years of age and lacked one and one- half credits in graduating from high school. She never obtained a G.E.D. certificate but has some vocational training in a basic computer course. She was a licensed cosmetologist and had 15 years experience in this type of work. She had some training and experience as an insurance sales agent and five years experience (part-time) as a school bus driver. During her employment career, she had 15 years experience in secretarial work. At the time in question, January 13, 1998, she was employed as a secretary with Firefly Industries, Inc., a company involved in metal fabrication. On this day she was asked to go down in the plant and work with a box of metal parts. She testified the box of parts weighed about 4-5 pounds and as she attempted to pull it off the table to move the box, she said the box started to fall and she felt a pop in her back with pain running down her buttock and left leg. She called for help and supervisor Gloria Adkins came over and assisted her. She told Adkins she had hurt herself but did not need medical treatment. On January 2, she decided she had better go see a doctor and went to Dr. D. Bruce Coffey, a family practice physician, who treated her with medicine and therapy and then after a period of time referred her to several other doctors. She eventually returned to work during March 1998 but only worked a light duty job for about 1 days. As to her physical condition prior to the incident in question, she told the court she had neck and shoulder pain that had been diagnosed as fibromyalgia; she suffered from endometriosis which caused some back pain; she had upper back pain for which she took pain medication; and she had suffered from depression. She also testified she had hurt her back at work during June 1997 while lifting but never mentioned the event to her employer. Medical records (Exhibit #3) from a doctor's clinic indicate chronic back pain dating back to late 1996. At the trial she stated she could not do housework or walk very far; that because of the pain she could not really do any type work and had not looked for work. She said she was very depressed and had gained 3-4 pounds since the accident. Gloria Adkins, a supervisor in the plant, testified that before the January 13 incident, she complained all the time about back pain and she quoted the employee as saying she hurt her back (1) at home scrubbing carport concrete, (2) at a family reunion, (3) vacuuming the office, and (4) moving stuff in the office. She said the box of metal parts weighed about 2-3 pounds and that the box did not start to fall but was still resting part on and part off the table when she took it from her. Adkins also testified that before the incident the employee said she was taking six different kinds of medicine for various problems. Lester S. Webster, Sr., part owner and president of the company, testified she told him shortly after the incident she had hurt her back but she did not need to see a doctor. The incident was not reported to the workers' compensation carrier as an injury. He stated the first he realized she was claiming any injury was when one of the doctors called his office several weeks thereafter. He said she had a lot of complaints about back pain before the incident and she said she was taking six different kinds of medicine. Mr. Webster also told the court that when she stopped working she -2-
Authoring Judge: Thayer, Sp. J.
Originating Judge:Conrad Troutman, Jr., Circuit Judge |
Knox County | Workers Compensation Panel | 12/11/01 | |
| Roger Thomas v. Gail Thomas
M2001-01226-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Jim T. Hamilton |
Giles County | Court of Appeals | 12/11/01 | |
| Stuart Lowenkron vs. Laura Lowenkron
E2001-00957-COA-R3-CV
The spousal support obligation of the appellant was suspended during his disability, but was ordered to resume when he returned to the practice of medicine. He disfavors the requirement that he must resume alimony payments when he returns to employment. Judgment affirmed.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Thomas R. Frierson, II |
Hamblen County | Court of Appeals | 12/11/01 | |
| Regina Ann Thompson v. Vivra Renal Care, Inc.
W2000-03017-WC-R3-CV
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. Although the only issue at trial was the extent of the employee's permanent disability, the employer contends in this appeal the evidence preponderates against the trial court's findings as to causation and permanency. The panel has agreed to address the issues on appeal and, as discussed below, concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and ROBERT L. CHILDERS, SP. J., joined. John D. Burleson and V. Latosha Mason, Jackson, Tennessee, for the appellant, Vivra Renal Care, Inc. Mary Dee Allen, Cookeville, Tennessee, and George L. Morrison, III, Jackson, Tennessee, for the appellee, Regina Ann Thompson MEMORANDUM OPINION The employee or claimant, Regina Ann Thompson, is a licensed practical nurse. She began working for the employer, Vivra Renal Care around September 1995 in its dialysis clinic. She is also trained in the care of HIV positive and hepatitis patients. Approximately two years after beginning work for the employer, she was required to perform a treatment on an HIV positive, hepatitis infected patient. She followed the usual precautions of donning two pairs of gloves, two pairs of shoes, a coat and a cap, then began the treatment in a room secluded from other patients. After she removed the needle from the patient, the patient made an unexpected move and the claimant accidentally stuck herself in the thumb with the dirty needle. Although tests conducted soon after the accident reflected no evidence of infection, she received a notice from the Obion County Health Department that a letter from the Shelby County Health Department indicated that she was HIV positive. She later learned that the letter was intended for someone else with the same or similar name and that she was not infected. The tests had been conducted in Shelby County. She was given literature to read and advised of organizations available to her as her disease progressed. She became anxious about her condition and her family and other personal relationships suffered. Her attorney referred the claimant to Dr. Elias King Bond, a psychiatrist, who established both medical causation and permanency. The record contains no countervailing medical or lay proof. At the time of the trial the claimant was taking prescription antidepressant medication. She is now working for a different employer but becomes squeamish at the sight of blood and in the use of needles. The trial court awarded, inter alia, permanent partial disability benefits based on 15 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, 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 which 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. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 456 (Tenn. 1999). The employer argues that the mental injuries are compensable only if they can be traced to an identifiable, stressful, work-related event producing a sudden mental stimulus such as fright, shock or excessive unexpected anxiety, citing Batson v. Cigna Property and Cas. Co., 874 S.W.2d 566, 569 (Tenn. 1994). However, mental and nervous illnesses are also compensable when causally connected to a work-related accident. Gentry v. Dupont, 733 S.W.2d 71, 73 (Tenn. 1987). The employer argues that Dr. Bond's report does not establish permanency. From our independent examination of Dr. Bond's report, we disagree. For the above reasons and because the evidence fails to preponderate against the findings of the trial court, the judgment is affirmed. Costs are taxed to the appellant. -2-
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Originating Judge:William Michael Maloan, Chancellor |
Obion County | Workers Compensation Panel | 12/11/01 | |
| Dept.of Children's Svcs vs. LaShondra Whaley
E2001-00765-COA-R3-CV
This appeal from the Juvenile Court of Bradley County questions whether the Trial Court erred in terminating the parental rights of Ms. Whaley. We reverse the judgment of the Trial Court.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:C. Van Deacon |
Bradley County | Court of Appeals | 12/11/01 | |
| Susan Whiton vs. Alan Whiton
E2003-01279-COA-RM-CV
Upon appeal to the Supreme Court, it reversed our determination that the guidelines promulgated with regard to child support were unconstitutional and remanded the case to this Court for reconsideration in light of the recently-released opinion in Gallaher v. Elam, S.W.3d 2003 WL 2010731 (Tenn. May 2, 2003).f
Authoring Judge: Judge Houston M. Goddard
Originating Judge:Ben W. Hooper, II |
Sevier County | Court of Appeals | 12/11/01 | |
| Jo Anne Hofmeister v. John Hofmeister
M2000-00363-COA-R3-CV
A series of post-divorce petitions resulted in a hearing on July 22, 1999 in which no witnesses were called nor any sworn testimony offered. Based on the petitions, the answers, and the statements of counsel, the court modified the final decree of divorce with respect to the husband's obligations to pay the wife's medical insurance premiums, medical expenses, and life insurance premiums. The court also denied the wife's petition for post-judgment interest on a payment to the wife that had been ordered in the final decree. The wife appeals on the grounds that (1) there were no pleadings or proof justifying the amendments and (2) the court erred in not granting her petitions. We affirm the trial court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Marietta M. Shipley |
Davidson County | Court of Appeals | 12/10/01 | |
| Anthony Myers, et al. v. Allen Bryan, III
M2000-03188-COA-R3-CV
This case originated as a suit against a subdivision developer, W. Allen Bryan, III, ("Bryan"), for fraud, negligent misrepresentation, and violation of the Tennessee Consumer Protection Act, all predicated on the failure of a subdivision plat plan to reflect an existing drainage easement. Thereafter, Bryan filed a third-party complaint seeking indemnification from the surveyor who prepared the plat plan, Ragan-Smith, Associates, Inc. ("Ragan-Smith"), in the event Bryan was cast in judgment. On this Tenn. R. App. P. 54.02 appeal, we are presented with the issue of whether Bryan's cause of action for failure to reflect the drainage easement on the plat plan is barred by the four-year statute of repose for surveying errors. The court below granted Ragan-Smith summary judgment, finding that Bryan's claim is barred by the aforesaid statute of repose. Bryan appeals, arguing that Ragan-Smith is not entitled to summary judgment because, according to Bryan, the omission of the drainage easement is an engineering error, not a surveying error, and hence, so the argument goes, the subject claim is not barred by the four-year statute of repose for surveying errors. In the alternative, Bryan argues that even if the failure to reflect the drainage easement on the plat plan is a surveying error, his third-party complaint was timely filed. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Russell Heldman |
Williamson County | Court of Appeals | 12/10/01 | |
| In re: Estate of M.L. Wakefield, Deceased
M1998-00921-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Frank G. Clement, Jr. |
Davidson County | Court of Appeals | 12/10/01 | |
| Forrest Cate Motor v. Dealer Computer Services
M2001-01577-COA-R3-CV
Plaintiff appeals a declaratory judgment wherein the trial judge held that the mandatory arbitration provisions in the contract between the parties controlled and declared accordingly. We affirm.
Authoring Judge: Judge William B. Cain
Originating Judge:Buddy D. Perry |
Sequatchie County | Court of Appeals | 12/10/01 | |
| Cynthia Long vs. City of Maryville
E2001-00908-COA-R3-CV
Upon remand from this Court, the Trial Court entered Judgment for defendant in this slip and fall case. On appeal, we reverse.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:W. Dale Young |
Blount County | Court of Appeals | 12/10/01 | |
| People's Bank of Elk Valley, v. American Bankers Financial Services, Inc., et al.
01A01-9506-CV-00260
Plaintiff, People's Bank of Elk Valley ("People's Bank"), appeals from the trial court's order granting summary judgment to defendant, American Banker's Financial Services, Inc. ("American") and dismissing People's Bank's complaint.
Authoring Judge: Judge Samuel L. Lewis
Originating Judge:Judge Lee Russell |
Lincoln County | Court of Appeals | 12/10/01 | |
| State of Tennessee v. Jared M. Barnes
E2001-00325-CCA-R3-CD
The defendant, Jared M. Barnes, was convicted upon his guilty plea for vehicular homicide by recklessness, a Class C felony. The trial court sentenced him as a Range I, standard offender to five years, with ten months, day for day, to be served in the county jail and the remainder of the sentence to be served on probation. In addition, the trial court suspended the defendant's driving privileges for five years and ordered that he complete five hundred hours of community service. The defendant appeals his sentence, contending that the trial court erred in denying him judicial diversion or full probation. We affirm the trial court's denial of judicial diversion and full probation, but hold that the order that the defendant serve his ten-month incarceration day for day does not preclude use of applicable conduct credits.
Authoring Judge: Judge Joseph M. Tipton
Originating Judge:Judge Richard R. Vance |
Sevier County | Court of Criminal Appeals | 12/10/01 | |
| Vandal Doss v. Tennessee Farmers Mutual Ins. Co.
M2000-01971-COA-R3-CV
This is an appeal from the Judgment of the Chancellor for Sumner County, Tennessee, dismissing Vondal Doss's Complaint against Tennessee Farmers Mutual Insurance Company, alleging breach of contract for failure to make payment for medical expenses pursuant to the medical payment coverage contained in two insurance policies and the Defendant's Counter-Complaint for subrogation. Doss had suffered a personal injury as a result of an auto accident which occurred on April 8, 1993 involving a third-party tort-feasor. Plaintiff/Appellant filed a Motion to Appeal on August 2, 2000. The Judgment of the Chancellor is affirmed on all counts. Doss's claim for additional post-settlement medical payments is denied as a result of the execution of the Release and Order of Compromise and Settlement which extinguished Tennessee Farmers' subrogation rights. Tennessee Farmers' claim for reimbursement is denied. Costs of this Appeal are assessed to the Appellant.
Authoring Judge: Judge Don R. Ash
Originating Judge:E. Gray |
Sumner County | Court of Appeals | 12/10/01 | |
| Thomas Stubblefield vs. Monique Stubblefield
E2001-01433-COA-R3-CV
Husband appeals the Trial Court's allocation of the parties' marital estate in this divorce action. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:William R. Brewer |
Blount County | Court of Appeals | 12/10/01 | |
| Janet Harper, et al. v. Keith Churn, et al.
M2000-02353-COA-R3-CV
This is a personal injury case arising from a vehicular collision. The plaintiffs, the Harpers, and the defendants, Mr. Churn and Mr. Beard, along with several others, were traveling together in a rented vehicle at the time of the collision. Mr. Churn was the driver of the vehicle; Mr. Beard was the pastor of the parties' church. At trial, the Harpers asserted that Mr. Churn was negligent in his operation of the vehicle. Additionally, the Harpers claimed that Mr. Beard was vicariously liable for their injuries, or in the alternative, that Mr. Beard was liable under the theory of negligent entrustment. The trial court granted Mr. Beard's motion for a directed verdict, and the jury found in favor of Mr. Churn. The Harpers appeal both decisions. We affirm the judgment of the trial court.
Authoring Judge: Judge David R. Farmer
Originating Judge:Hamilton V. Gayden, Jr. |
Davidson County | Court of Appeals | 12/10/01 | |
| John Jaco v. Department of Health Bureau of Medicaid
01-A-01-9507-CH-00285
This appeal involved judicial review of an administrative decision regarding the denial of petitioner’s application for benefits for care at a nursing home facility. The chancellor granted the motion to dismiss of the Department of Health, Bureau of Medicaid (?respondents” or by name) on the ground that the trial court did not have subject matter jurisdiction due to the failure of petitioner1 to cause a summons to be properly issued and served on the Department within the sixty (60) day time limit specified in T.C.A. § 4-5-322(b)(1). The sole issue presented for review by this court is whether the chancellor erred in dismissing petitioner’s suit for judicial review for lack of subject matter jurisdiction. We find no error and affirm.
Authoring Judge: Judge Hewitt P. Tomlin
Originating Judge:Chancellor Robert S. Brandt |
Davidson County | Court of Appeals | 12/10/01 | |
| William Patrick Varley, Jr., v. Pamela Dawn Varley
01A01-9511-CV-00498
This is a divorce action wherein the appellant, Pamela Dawn Varley (Wife), appeals from the final decree which awarded a divorce and sole custody of the parties’ three minor children to Appellee, William Patrick Varley, Jr. (Husband). The children are Bridget Marie, born December 14, 1988, William Patrick Varley, III, born January 23, 1991 and Sadie Ellen Varley, whose date of birth is June 30, 1992. The decree also fails to award Wife alimony.
Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Muriel Robinson |
Davidson County | Court of Appeals | 12/10/01 | |
| Cheryl Ann Cupples, v. Luther Wayne Cupples
02A01-9408-CH-00193
This divorce action involves dissolution of the 25 year marriage between Appellant, Cheryl Ann Cupples ("Wife"), and Appellee, Luther Wayne Cupples ("Husband"). Wife filed for divorce in September 1992, citing irreconcilable differences and inappropriate marital conduct. Husband counterclaimed for divorce alleging inappropriate marital conduct. Both parties sought custody of their minor son, Jonathan, age 10 at the time of trial.1 On appeal, Wife cites as error the trial court's award of an absolute divorce and custody of the child to Husband, its failure to award her alimony and its division of the marital estate. For reasons hereinafter expressed, we affirm.
Authoring Judge: Judge David R. Farmer
Originating Judge:Chancellor Joe C. Morris |
Chester County | Court of Appeals | 12/10/01 | |
| American Child Care, Inc. v. Dept. of Human Services, et al.
M2000-01790-COA-R3-CV
This appeal arises from the trial court's denial of appellant American Child Care, Inc.'s, request for attorney's fees resulting from an administrative action in which appellant's license was suspended and later reinstated. The trial court later granted appellee summary judgment on all issues, including attorney's fees. We reverse the trial court's decision denying the appellant's application and remand to the trial court to set a reasonable fee for the appellant.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 12/10/01 | |
| State ex rel. Margaret Holtsinger vs. Jack Elrod
E2001-00257-COA-R3-CV
These parties were divorced in May 1996. Custody of their children was awarded to Wife. The oldest child, Catherine, DOB July 14, 1981, was mentally and physically afflicted. Support was awarded as the Guidelines direct. Father filed a petition to modify the judgment by eliminating the support requirement for Catherine, who reached her majority. The Chancellor held that the duty of support of the afflicted child was a continuing one. We affirm.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:William E. Lantrip |
Anderson County | Court of Appeals | 12/10/01 | |
| Guy Wilson, et al. v. Thompson Const. Co., et al.
M2000-03200-COA-R3-CV
This is a suit by Guy Wilson and his wife Rhessa, owners of a building in Gallatin, Tennessee, against their general contractor in the construction of an addition to the building and against their electrical subcontractor. The complaint charges negligence in the use of a defective fiberglass ladder that broke as Guy Wilson was climbing on it to inspect the work. The trial court held that the general contractor, Thompson Construction Company, had breached no duty of care to Plaintiffs and that the electrical contractor, Gary R. Boyd, was an independent contractor for whose alleged negligence Thompson Construction Company was not vicariously liable. On such basis, the trial court granted summary judgment to Thompson Construction Company on all issues and, pursuant to Tennessee Rules of Civil Procedure 54.02, entered final judgment on all issues in favor of Thompson Construction Company. Plaintiffs appeal, and we affirm the trial court.
Authoring Judge: Judge William B. Cain
Originating Judge:C. L. Rogers |
Sumner County | Court of Appeals | 12/10/01 |