Opinions

Southwest Progressive Ent., Inc. v. Shri-Hari Hospitality, LLC and Trans Financial Bank of Tennessee - Concurring
01-A-01-9810-CH-00542
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Robert E. Corlew, III

A construction company sued a hotelkeeper for payment of the balance due on their contract. The trial court ordered the hotelkeeper to pay the balance, as well as pre-judgment interest and attorney fees. We affirm the award of pre-judgment interest, but we reverse the award of attorney fees. We also reverse a $500 offset the trial court granted to the defendant for the plaintiff’s alleged failure to complete a punch list.

Terry David Mackie v. Sarah Catheine Mackie
01A01-9810-CV-00536
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Bobby H. Capers

This case represents an appeal from the grant of divorce upon stipulation of grounds pursuant to Tennessee Code Annotated section 36-4-129. The parties to this action, Terry David Mackie ("Husband"), and Sarah Catherine Campbell Mackie ("Wife") were married on November 6, 1984. Husband filed a complaint in Williamson County Circuit Court on March 6, 1997, seeking divorce on the grounds of inappropriate marital conduct and irreconcilable differences. On March 20, 1997, Wife answered and counterclaimed. In her answer, Wife admitted the ground of irreconcilable differences and alleged inappropriate marital conduct on the part of the Husband. Over the next 14 months the parties participated in successive proceedings regarding pendente lite custody of their severely ill minor child. The case was originally set for trial on June 3, 1997. Both parties agreed to continue the case; each sought a scheduling order for the sequence of discovery. The parties were ordered to attend mediation on February 23, 1998. On May 18, 1998, Husband moved to change pendente lite custody and to compel discovery. This motion was to be heard on June 3, 1998. At the June 3, hearing, in an admittedly unorthodox proceeding, the parties stipulated under oath that each had grounds for divorce. At this point in the hearing, both parties were sent into an antechamber to provide for the division of the marital estate and custody of the child. These negotiations are documented in handwritten notes, signed by the parties and their counsel, and appearing in the record.

Michael Keith Newcomb and wife Caroline Newcomb, Darden E. Davis and wife, Ann J. Davis, v, William Gonser, and wife Lois Gonser and Christopher Gonser, and wife Lisa Gonser, and Shirley Zeitlin & Company
01A01-9705-CH-00220
Authoring Judge: Judge Walter W. Bussart
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

This is an appeal by plaintiffs/appellants, Michael and Caroline Newcomb and Darden and Ann Davis, from the decision of the Davidson County Chancery Court granting the motion for summary judgment filed by defendants/appellees William and Lois Gonser. The facts out of which this matter arose are as follows

Dorothy and Roger Smith v. Maury County - Concurring
01-A-01-9804-CH-00207
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge William B. Cain

The plaintiffs, a mother and her son owning adjoining farms on a rural road in Maury County, sued the county for a nuisance created when the county improved the road. The county argued that the exclusive remedy was for inverse condemnation, and that the one year statute of limitations barred the action. On appeal the county asserts, in addition to its original defense, that the damages awarded were beyond the range of reasonableness. We reverse the judgment below and remand for a new trial.

State of Tennessee vs. Gaile K. Owens
02C01-9806-CR-00182
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

In this capital case, the appellant, Gaile K. Owens, appeals as of right the judgment of the Criminal Court of Shelby County denying her petition for postconviction relief. In 1986, the appellant was convicted of accessory before the fact to first degree murder. In a joint trial, the appellant’s co-defendant, Sidney Porterfield, was also convicted of first degree murder and following a separate sentencing hearing, both were sentenced to death by electrocution. The appellant’s conviction and sentence were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Porterfield, 746 S.W.2d 441 (Tenn.), reh’g denied, (1988), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756 (1988).

State vs. Roger Vance
03C01-9808-CC-00317

State vs. Jerry Darrell Duncan
03C01-9808-CR-00300

State vs. Terrell Jackson
W2001-00901-CCA-R3-PC
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Arthur T. Bennett
The petitioner, Terrell E. Jackson, appeals the trial court's denial of post-conviction relief. The issues presented for review are whether the petitioner was denied the effective assistance of counsel and whether he entered a knowing and voluntary guilty plea. The judgment is affirmed.

State vs. Harrison Pearson
03C01-9802-CR-00076
Trial Court Judge: Stephen M. Bevil

Imogene Dixon v. State
03S01-9810-BC-00111
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: The Honorable

Rita L. England v. Cigna Insurance Co.
01S01-9804-CH-00082
Authoring Judge: Per Curiam
Trial Court Judge: Hon. Irvin H. Kilcrease

Tire Shredders vs. ERM
02A01-9803-CV-00058
Trial Court Judge: James F. Russell

Hathaway vs. First Family Financial Svcs.
01S01-9811-FD-00203
Trial Court Judge: John T. Nixon

Concrete Spaces vs. Sender
01S01-9812-CH-00224
Trial Court Judge: Cecil Crowson

Hawkins vs. Hart
01S01-9811-CV-00199

Schering Plough Healthcare vs. State Bd. of Equalization
02S01-9810-CH-00096

Edwin Elam vs. Martha Elam
02A01-9812-CH-00362
Trial Court Judge: Dewey C. Whitenton

02A01-9908-CH-00237
02A01-9908-CH-00237

03C01-9809-CC-00316
03C01-9809-CC-00316

Abdullah Morrison v. State of Tennessee
W2006-02480-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Arthur T. Bennett

State vs. Johnny Shields
W2001-01554-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Donald H. Allen
Appellant, Johnny Shields, was convicted of two counts of aggravated sexual battery, a class B felony, following a jury trial. The trial court sentenced Shields, as a Range I offender, to concurrent eleven year sentences in the Department of Correction. On appeal, Shields raises the following issues: (1) whether the evidence was sufficient to support the verdicts, and (2) whether his sentences were proper. After a review of the record, we affirm Shields' convictions but modify his sentences due to misapplication of enhancing and mitigating factors.

M. S. Carriers, Inc. v. William Oringe
02S01-9804-CV-00042
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Hon. James F. Russell, Judge
This workers' compensation appeal was referred to the Special W orkers' Compensation Appeals Panel of the Supreme Court pursuant to Tenn. Code Ann. _ 5-6- 225(e)(3) (Supp. 1998) for a hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff/counter-defendant employer in this case, M.S. Carriers, Inc., originally filed a petition against the defendant/counter-plaintiffemployee, William Oringe, requesting a dismissal of Mr. Oringe's workers' compensation claim for an injury that the company alleged was not work-related. Mr. Oringe filed an answer and counter-complaint for benefits against the company. To avoid confusion on appeal, we will refer to Mr. Oringe as "the claimant" and to M.S. Carriers, Inc., as "the employer." The case was tried on March 9, 1998. The trial judge found that the claimant failed to prove that his injury arose out of and in the course of employment with M.S. Carriers, Inc., on January 16, 1997. The claimant presents several issues on appeal that can be summarized as follows: (1) Whether the trial court erred in allowing a computer printout surrounding the date in question to be used in the testimony of David Work, the claimant's supervisor at the time of the accident; and (2) whether the trial court erred in finding that the claimant did not sustain a work-related injury. After a careful review of the record, we find that the judgment of the trial court must be affirmed. At the time of trial, the claimant testified that he was a 33-year-old high school graduate with some vocational training in welding and truck driving, as well as experience as a supply clerk in the National Guard. He worked for the employer, M.S. Carriers, Inc., as an over-the-road truck driver from October of 1991 until January of 1997. In addition to driving a truck, the claimant was responsible for loading and unloading various types of cargo at their destinations. He testified that he had sustained two previous injuries to his back while working for the employer. The first injury occurred in 1993 or 1994 and healed normally. The second injury occurred on October 18, 1996, while the claimant was unloading a refrigerator from a truck with a two-wheeler, and his back "popped." He was treated by his family physician, Dr. James R. Jacobs, who referred him to a neurosurgeon, Dr. Gregory F. Ricca. An MRI revealed a bulging disc, and the claimant was released from 2

Jones v. Liberty Mutual Ins. Co.
03S01-9806-CV-00057
Authoring Judge: Roger E. Thayer, Special Judge
Trial Court Judge: Hon. John J. Maddux,
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 insurance carrier, Liberty Mutual Insurance Company, has appealed the trial court's award of 6% permanent partial disability to the body as a whole. Since the award did not result in invoking any provision of the second injury fund statute, T.C.A. _ 5-6-28, the case against the state fund was dismissed. The trial commenced on August 16, 1996 and continued through several hearings until a final hearing on March 6, 1998. While there were many issues at the trial stage, the appeal only involves two issues. The insurance company contends (1) the evidence preponderates against the award of 6% permanent disability and (2) the evidence preponderates against the trial court's ruling that the employee was entitled to temporary total disability benefits up to December 1, 1997. We have carefully examined the lengthy record and are of the opinion the judgment entered below should be affirmed. The employee, Robert Jones, sustained a work-related back injury on July 2, 1994 when he fell from standing on a five gallon barrel or drum. At the date of the initial hearing, he testified he was 4 years of age, had a G.E.D. certificate and had received some vocational training. He contends he sustained physical and mental injuries as a result of the accident. Prior to the accident in July 1994, plaintiff had received several warnings concerning unexcused absences from work and was eventually terminated after the accident during March or April 1995. He told the trial court he had missed several days work due to doctor visits and upon returning to work was told he did not have authority to be absent and he was terminated. He stated he had not worked since the termination and that he was not able to work; that he still endured a lot of pain and felt he was 1% disabled. His testimony also indicates that after the accident in question, he became separated and divorced from his wife, lost his house due to a fire and was caring for his two small children. 2

Brenda Rainey v. Cleo, Inc.
02S01-9802-CV-00018
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Hon. C. Creed Mcginley, 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. Plaintiff, Brenda Rainey, has appealed from the judgment of the trial court denying her claim for workers' compensation on the grounds that she failed to carry her burden of proof that she sustained a work-related injury in the course and scope of her employment and that she sustained a permanent anatomical impairment as a result of a work- related injury. On appeal, the only issue presented by the plaintiff is whether the evidence preponderates against the judgment of the trial court. For the reasons hereinafter stated, we find that it does not, and, therefore affirm the trial court's judgment. At the time of trial, the plaintiff testified she was a single mother with two adult children, an eighth grade education, and a previous work history consisting of factory jobs and a nursing home position. The plaintiff testified she worked for the defendant as a bow inspector in November, 1995. The plaintiff's job was to watch 2-3 gift bows go by on a conveyor belt and "pick them out." While observing the conveyor line and bows, the plaintiff testified that her hands began hurting, and she notified her supervisor/line leader.1 The line leader replied, "Well, you'll be okay," and told the plaintiff that the absence would count against her if she left work. The plaintiff had previously complained about her left wrist while employed with another employer. She was seen by Dr. James Crenshaw and treated with wrist bands and medication. On November 4, 1995, the defendant notified the plaintiff that she was being laid off and subsequently closed the factory without notice. The plaintiff testified she was not furnished a panel of physicians from the defendant's compensation carrier until her attorney got approval for her to see Dr. Michael Cobb. The plaintiff lived in Humboldt, Tennessee, and Dr. Cobb's office was in Jackson, Tennessee. The plaintiff testified that 1In her complaint, the plaintiff stated that the date of injury was November 11, 1995, and the defendant's answer acknowledged that notice of an injury was given on November 4, 1995. Plaintiff later amended her complaint to allege the injury was gradually occurring with the last occurrence on November 11, 1995. 2

Kesterson vs. Dept. of Safety
01A01-9805-CH-00256