Opinions

State of Tennessee v. Kevin Wilkins
W1999-01462-CCA-MR3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: James C. Beasley, Jr.

State vs. James Snider
W1999-01849-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Roy B. Morgan, Jr.
The defendant was found guilty of rape of a child and aggravated sexual battery. He appealed, arguing that the evidence was insufficient to support a guilty verdict and that the trial court erred in allowing the victim's mother to testify to hearsay statements made by the victim, in prohibiting the defendant from questioning the victim's mother about sexual abuse in her childhood, and in sentencing the defendant in an excessive manner on the rape conviction. We conclude that these issues are without merit and affirm the judgment of the trial court.

State vs. Reggie Jones
W1999-00898-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: William B. Acree
The defendant was found guilty of aggravated robbery, theft over $10,000 and felonious escape. The trial court merged the theft conviction into the aggravated robbery conviction. Defendant received a ten-year sentence for aggravated robbery and a consecutive one-year sentence for felonious escape. The defendant raises the following issues for review: (1) whether the defendant's prosecution in Haywood County for aggravated robbery, following an acquittal for the same offense in federal court, violated double jeopardy; (2) whether the trial court erred in failing to grant a new trial when it was discovered that a juror had a prior felony conviction; and (3) whether the defendant was improperly convicted of both aggravated robbery and the lesser-included offense of theft. Upon a review of the record, we affirm the judgment of the trial court.

State vs. Lee Townes
W1999-01126-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Julian P. Guinn
The trial court dismissed the petitioner's post-conviction relief petition, based upon its findings that trial counsel rendered effective assistance and that the other grounds for relief had been waived or previously determined. On appeal, the record supports the trial court's judgment, and we affirm.

Claudean Edwards Hulsey v. Peterbilt Motors
M1999-00350-WC-R3-CV
Authoring Judge: Turnbull, Sp. J.
Trial Court Judge: Hon. James Walton, Judge
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 contends that the award of permanent partial disability benefits is excessive. The employee asserts that the appeal is frivolous. The panel has concluded the award should be affirmed and no damages should be awarded for a frivolous appeal.

Walter Taylor, Jr. v. Athens Paper Company, Inc., et al.
M1999-00853-WC-R3-CV
Authoring Judge: Turnbull, Sp. J.
Trial Court Judge: Hon. Ellen Hobbs Lyle, 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 of findings of fact and conclusions of law. The employer contends the trial court erred in finding the employee did not intentionally misrepresent his physical condition to the employer, and in finding a causal connection between the June 1998 accident and the October 1998 surgery and permanent impairment, and in finding employer responsible for "unauthorized" medical benefits. The panel has concluded that the judgment of the trial court should be affirmed on all issues.

Construction Company, Appellee v. Pennsylvania National
M1999-01917-WC-R3-CV
Authoring Judge: Turnbull, Sp.J.
Trial Court Judge: Hon. Carol Mccoy, 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. In this case, a temporary employer and its insurance company contend the trial court erred in finding a deceased employee to be a loaned servant. The panel has concluded that the judgment of the trial court should be affirmed because the deceased employee was a loaned servant.

Ella Pruett vs. Wal-Mart
W1999-01026-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Plaintiff sued employer under Americans With Disabilities Act and case was tried before a jury. After a jury verdict for plaintiff, defendant moved for judgment notwithstanding the verdict which the court granted. Plaintiff has appealed. The record reflects that defendant failed to move for a directed verdict at the conclusion of all of the evidence and also reflects that no judgment was entered on the jury verdict. Appeal dismissed.

Welborn vs. Sellars
M1999-00164-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert E. Corlew, III
This is an insurance case. The plaintiff was driving a motorcycle when he was involved in an accident with an automobile driven by an uninsured motorist. The plaintiff's motorcycle was not listed in his insurance policy. The plaintiff filed suit seeking damages for his injuries sustained in the accident. The plaintiff's insurance company moved for summary judgment in the case based on an exclusion in the plaintiff's insurance policy which denied uninsured motorist coverage for vehicles for which insurance was not afforded under the policy. The trial court granted the insurance company's motion and the plaintiff appealed. We affirm, finding that the policy exclusion applies to the plaintiff's motorcycle.

Ross vs. Campbell
M1999-01805-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
An inmate in custody of the Tennessee Department of Correction brought an action for declaratory judgment contending that the Department failed to give him all sentence credits due. The trial court granted the respondent's motion for summary judgment and we affirm on the basis that no genuine issue of material fact was shown.

Johnson vs. Allstate
M1999-01639-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Buddy D. Perry
Insured sued his insurer to recover policy coverage due on a fire loss to his automobile after the insurer denied coverage under the fraud provision of the policy. Judgment was entered on a jury verdict for the insured, and the insurer has appealed.

American Airlines vs. Johnson
M1999-02390-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol L. Mccoy
American Airlines, Inc., appeals the trial court's final judgment denying its request for a refund of use taxes paid on aviation fuel purchased out of state during the years 1992 through 1995. We affirm the trial court's judgment.

Hartsville Hospital vs. Bay Nat'l Bank & Trust Co.
M1999-01276-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. K. Smith
This appeal arises from a dispute over the ownership of monies held in a bond fund. Hartsville Hospital Incorporated ("Hartsville") filed suit against Bay National Bank ("Bank") seeking the contents of the fund. The court below entered judgment for Hartsville, holding that Bank had no claim to the bond fund money pursuant to a release agreement between the parties and that Hartsville was not estopped from asserting ownership. Bank appeals.

Huffer vs. State
M1999-01278-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
The claimants sought to hold the State liable for the personal injuries and deaths caused in an automobile accident on U.S. Highway 64 in Franklin County. After first holding that the State's negligence was the cause of twenty-five percent of the damages, the Claims Commissioner modified his findings and concluded that the State had a discretionary function immunity and that the sole proximate cause of the accident was the negligence of the driver of the automobile in which the injured persons were riding. We affirm on the proximate cause issue.

Wright vs. Hull
M1999-02307-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Billy Joe White
Plaintiff/Appellee, Bill D. Wright, sued to set aside a 1986 deed whereby he conveyed a certain tract of land to Defendant/Appellant, Bonnie S. Hull. He charged failure of consideration and fraud. Defendant, Ms. Hull, asserted that she and Mr. Wright cohabited without marriage for twelve years until their separation in 1998. She asserted that the property conveyance was a gift and was also conveyed to her by Mr. Wright to put the property out of the reach of his creditors. The trial court held the parties to be equal tenants in common and ordered the property sold. We reverse the trial court and dismiss the case.

International Flight Center vs. City of Murfreesboro
M1999-00324-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Royce Taylor
This appeal arises out of a dispute between Plaintiff International Flight Center ("IFC") and Defendants City of Murfreesboro ("City") and City of Murfreesboro Airport Committee ("Airport Committee") regarding the alleged breach of a lease agreement and the nonpayment of certain property taxes. The trial court granted a judgment in favor of IFC in the amount of $174,718.00 plus ten percent prejudgment interest. Additionally, the court ruled that the City is estopped from collecting the property taxes allegedly owed to the City by IFC. On appeal, we reverse the trial court's finding that the City breached the parties' 1989 lease agreement, vacate the court's ruling regarding the jet fuel equipment that was purchased by IFC but that remained at the Airport following the expiration of the parties' 1989 lease agreement, remand the cause for further findings of fact regarding this jet fuel equipment, affirm the court's ruling regarding the matter of prejudgment interest to the extent hereinafter discussed, and reverse the court's ruling that the City is estopped from collecting the real and personal property taxes allegedly owed to the City by IFC.

Kenneth L. Bonner vs. TN Dept. of Correction
M1999-00343-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
The petitioner contends that the trial court erred in dismissing his petition regarding the Department of Correction's calculation of his release eligibility date. An adjustment of the release eligibility date, made subsequent to the filing of this appeal, has rendered most of the petitioner's arguments moot. As to the remaining issue, we affirm the dismissal of the petition because we agree with the trial court that it lacked jurisdiction to consider the petition.

Heathman-Wood vs. Wood
M1999-00341-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Leonard W. Martin
This is a post-divorce child custody case. When the mother and father divorced, by agreed order, they gave custody of their minor child to the child's maternal aunt and uncle. The aunt and uncle later petitioned the trial court to allow them to move with the child to another state. The father then sought custody of the child. The trial court found that the father had failed to prove a change in circumstances warranting a change in custody from the aunt and uncle. Consequently, the father's petition for custody was dismissed and the aunt and uncle's petition to move to another state was granted. We reverse, finding that an erroneous legal standard was used. The cause is remanded for a determination of whether granting the father's petition for custody would result in substantial harm to the child.

Stanley Bridges v. Liberty Insurance Company of
E1999-01775-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Hon. R. Vann Owens, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The chancellor ruled that the plaintiff suffered from pneumoconiosis and that the two physicians who testified the plaintiff had the condition were more credible than the physician who testified he did not. However, the judge found the plaintiff failed to carry the burden of showing he was totally and permanently disabled from the pneumoconiosis; therefore, an award could not be made under the guidelines as expressed in the Federal Coal Mine Health and Safety Act of 1969 and adopted by the Tennessee General Assembly in Tennessee Code Annotated _ 5-6-32 et. seq. However, the chancellor ruled that even though the evidence and circumstances did not support an award of one hundred percent permanent total disability under the coal worker's pneumoconiosis provisions, the court could still award permanent partial disability under the general occupational diseases provisions of the Tennessee Worker's Compensation Act. TENN. CODE ANN. _ 5-6- 31. The court then found the plaintiff suffered from coal miner's pneumoconiosis arising out of and in the course and scope of his employment with the defendant and also found the condition causally linked to the plaintiff's exposure to conditions and hazards of his employment. The plaintiff was found to be one hundred percent disabled from a combination of his arthritic condition and pneumoconiosis; however, the disabilityattributable to pneumoconiosis was found much less significant than the non- compensable arthritic disability, resulting in an award of fifteen percent permanent partial disability to the bodyas a whole. We affirm the chancellor's finding that the plaintiff's pneumoconiosis is not totally disabling but reverse the award of permanent partial disability benefits. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed in part; Reversed in part and Dismissed JOHN K. BYERS, SR. J., in which E. RILEY ANDERSON, and ROGER E. THAYER, SP. J., joined. Linda J. Hamilton Mowles, Knoxville, Tennessee for the appellant, Security Insurance Company of Hartford David H. Dunaway and Frank Q. Vettori, Knoxville, Tennessee, for the appellee, Stanley Bridges MEMORANDUM OPINION The review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. TENN. CODE ANN. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial courts in workers' compensation cases. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). Facts The plaintiff, forty-seven years of age at the time of trial, has a high school diploma. His work history consists of coal mining and work at the mines as a night watchman. His duties in these positions required him to shovel coal dust, pick rock, sweep, and, when in the mines, be exposed to mine effluence. He has also operated a variety of equipment and loaded supplies to take into the deep mine; when working at strip mining he would shoot powder and also work as a drill operator. The plaintiff last worked in the mines in the fall of 1989. In 1986 the plaintiff was diagnosed with rheumatoid arthritis. As a result, the plaintiff was off work for part of 1986 and all of 1987. During that time, the plaintiff was under medical treatment in which he received gold shots and steroids. He returned to the mine as a night watchman but eventually became unable to perform those duties, and he has not been able to work since leaving his last position with the defendant. The plaintiff admitted he quit working for the defendant because of his rheumatoid arthritis, not because of his breathing difficulties. The plaintiff's wife, who testified at trial, also stated he quit working in the mines because of the rheumatoid arthritis symptoms. The plaintiff testified he does not currently know of any work he could do because of his breathing problems and his arthritis_he gets out of breath very easily and coughs and spits up sputum often; he has painfullyswollen joints on his hands and painful knots on his feet. He mainly watches television, goes for short walks and washes dishes sometimes. He testified the arthritis from which he suffers keeps him from doing just about anything, including at times such everyday tasks as holding a coffee cup, brushing his hair, buttoning his clothes and getting out of the bathtub. He cannot engage in any hobbies or activities that involve reaching overhead or behind. -2-

State of Tennessee, Department of Children Services, v. MR
E1999-02703-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge David Schulty

The Trial Judge granted the Department's petition to terminate parental rights of the mother to her ten year old child on numerous grounds. The mother has appealed, and we affirm termination.

Carl O. Koella, Jr. vs. Fred McHargue, et al
E1999-02752-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: C. K. Smith
This is the second time that this case has been before us on appeal. On the first appeal, which was filed with respect to an order entered pursuant to Tenn. R. Civ. P. 54.02, we affirmed the trial court's grant of partial summary judgment to the plaintiff on the primary issue raised by the original complaint for declaratory judgment. While that case was pending on appeal, the original plaintiff, Carl O. Koella, Jr., died, and, on motion of his counsel, we entered an order substituting his widow, Maribel Koella, in his place. On remand, the plaintiff -- not otherwise identified in the pleading -- filed a motion in the trial court to dismiss the defendants' still-pending counterclaim. That motion was based on the failure of the defendants, in their capacity as counter-plaintiffs, to file a motion "to substitute the proper party for [Mr. Koella] in the trial court." The trial court granted the motion. We reverse.

Byron Lowell Mitts vs. Virginia Ann Jones Mitts
E2000-00374-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: W. Neil Thomas, III
The trial court dissolved a marriage of over 26 years. Wife appeals, arguing (1) that the increase in value of Husband's separate property interest in two stock holdings is, in each instance, marital property; (2) that the trial court erred in its award of alimony; (3) that the trial court erred in calculating Husband's child support obligation; and (4) that she is entitled to an award of attorney's fees, both at the trial level and on appeal. We affirm the trial court's classification of the increase in value of Husband's Rivermont stock as his separate property. We also affirm the trial court's finding that no portion of the value of the Coca-Cola stock is marital property. We modify the award of rehabilitative alimony so as to provide for a monthly payment of $2,000 for a period of four years beginning with the first full month after the entry of the divorce judgment below. We find that Wife is entitled to her attorney's fees at both stages of this proceeding. We remand this case for the trial court to determine if the child support obligation should be increased due to Husband's lack of standard visitation.

Mills vs. Solomon
M1998-00393-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
These proceedings began when David Mills filed a complaint seeking to condemn an easement across Linda Solomon's property. In bifurcated proceedings, the jury first determined the location of Mills' easement across Solomon's property and, later, found that Solomon was entitled to an award of damages totaling $11,908 for the easement, including $9900 in incidental damages. On appeal from the trial court's judgment entered on the jury's verdict, Mills challenges only the award of $9900 in incidental damages. We agree with Mills' contention that the record fails to contain material evidence to support the award of incidental damages, and we reverse that portion of the trial court's judgment.

Richardson vs. Miller
M1997-00205-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley

Richardson vs. Miller
M1997-00205-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley