Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 04/26/2015
Format: 04/26/2015
Crystal M. Trueitt v. Alan A. McCurry and Carmen Y. Silvels, v. Alan A. McCurry
03A01-9612-CV-00399

Crystal M. Trueitt and Carmen Y. Silvels, individually and as mother and next friend of Christopher M. Silvels, a minor,2 appeal jugements rendered in heir favor in the Circuit Court for Hamilton County in the amount of $1,033.36, $1,004.60, and $98.50, respectively.

 

Hamilton County Court of Appeals 06/06/97
Brian Grant vs. Tonya Grant
02A01-9603-CV-00053
Court of Appeals 06/05/97
Mabel Donnelly v. Robert E. Walter M. D. and Hermitage Nursing Center - Concurring
03A01-9610-CV-00323

Plaintiff Mabel Donnelly (Donnelly) appealed the trial court’s denial of her motion to reconsider a grant of summary judgment to the defendants Dr.  Robert E. Walter (Dr. Walter) and Hermitage Nursing Home (Hermitage).  She presents for our review the question of whether the denial of her  motion to reconsider was an abuse of the trial court’s discretion. For their part, the defendants contend that Donnelly’s appeal should be dismissed because of her failure to serve a copy of the notice of appeal on the clerk of this court. We affirm.

Carter County Court of Appeals 06/05/97
Deborah Hendrix, v. First Tennessee National Corporation, D/B/A First Tennessee Bank
03A01-9701-CV-00032

This action for damages for defamation and outrageous conduct was dismissed on motion for summary judgment. The plaintiff presents the propriety of the dismissal for appellate review, which is de novo on the record with no presumption of correctness. Johnson v. EMPE, Inc., 837 S.W.2d 62, 68 (Tenn. App. 1992).

Court of Appeals 06/05/97
Richard Gause D/B/A Roofworks of Tennessee, v. Anice Cole, D/B/A Riverside Shop and Jerry Ogle
03A01-9707-CH-00001

This case originated as an action to enforce a lien for work and materials pursuant to  T. C. A. § 66- 11- 126. The plaintiff alleged that he had furnished equipment, labor, and materials which were used for improvements on the property which the defendant, Cole occupied as lessee and the defendant, Ogle, was an owner. The defendant, Ogle, filed an answer, generally stated that he owned an interest in the subject property, but was without sufficient knowledge or information to form a belief as to the truth of the allegations set forth in the complaint.

 

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Sevier County Court of Appeals 06/05/97
W. Dale Gordon v. Robbyn Gordon - Concurring
03A01- 9702- CV- 00054

This is a divorce case that comes to us in an unusual posture. The Husband filed his original complaint on April 3, 1996.  No answer was filed by the Wife.  A marital dissolution agreement was filed on June 12, 1996. The marital dissolution agreement provided for the division of  the parties' property and further contained the following provision:

The parties agree that they are equally responsible for the breakdown of  the marriage and respectfully request the court to declare them divorced rather than awarding a divorce to either party alone.

Scott County Court of Appeals 06/05/97
Jorge Ariel Sanjines, M.D., v. Ortwein and Associates, P.C., William H. Ortwein, J. Cris Helton, and John R. Morgan
3A01-9702-CV-00060

Plaintiff, incarcerated in prison, brought this action against this attorney for alleged malpractice in representing him in the charges brought against him for criminal conduct.

Hamilton County Court of Appeals 06/05/97
State of Tennessee vs. Michael D. Frazier
03C01-9602-CR-00084

The appellant, Michael Frazier, appeals from the sentencing judgment of the Criminal Court of Knox County. He was tried for attempt to commit murder in the first degree and was convicted of attempt to commit voluntary manslaughter, a Class D felony. The appellant received a sentence of four years as a standard (Range I) offender. On appeal the following issues are raised: (1) sentencing at the maximum time within the range and (2) the denial of probation.

Knox County Court of Criminal Appeals 06/04/97
Terri G. Bowers, v. Frederick Allan Bowers
03A01-9701-CV-00008

In this custody dispute, the Trial Judge granted custody of the parties' child to the father, and the mother has appealed.

Knox County Court of Appeals 06/04/97
Edward J. Eyring, M.D., v. Fort Sanders Parkwest Medical Center, Inc., and Fort Sanders Alliance, Inc.
03A01-9607-CV-00240

We are primarily called upon in this appeal to decide whether the Tennessee Peer Review Law of 1967 ( T. C. A. § 63-6-219) ( t he La w), grants immunity to hospitals for actions taken against physicians. 1. Parkwest Hospital was purchased by Fort Sanders Alliance in 1990 and became known as Fort Sanders Parkwest Medical Center. We hereafter refer to the hospital as "Parkwest". 2.  upon recommendations of peer review boards or committees.  For reasons hereinafter stated, we believe that the law was intended to, and does, grant hospitals such immunity. We affimr the judgment of the trial court.

Knox County Court of Appeals 06/04/97
Christopher Brian Minnich, v. Nancy Graves Roberson
03A01-9612-CV-00384

This is an appeal from the judgment of the trial court granting joint custody of the parties' minor children to the parties, with the husband having primary residential custody. For reasons hereinafter stated, we affirm the judgment of the trial court.

Court of Appeals 06/04/97
In Re: Estate of Carl Parrott; Wanda P. Patterson v. Jerry K Galyon - Concurring
03A01-9612-CH-00386

This is a declaratory action wherein the parties seek to have a portion of the will of Carl Parrot t, deceased, construed by the court. Carl Parrott died testate on February 20, 1990. His Last Will and Testament was executed on January 3, 1983, and named his attorney, Jerry K. Galyon, and his daughter, Wanda Parrott Patterson, co- executors.

Sevier County Court of Appeals 06/04/97
Hamblen County Board of Education v. Michael Jinks
03S01-9708-CH-00094

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The appellant contends the evidence preponderates against the trial court's finding that the battering of a school teacher in a school corridor by a student arose out of and in the course of the teacher's employment. The appellee insists the appeal is frivolous. As discussed below, the panel has concluded the judgment should be affirmed, but declines to award damages for a frivolous appeal.

Knox County Workers Compensation Panel 06/03/97
Jerry Williams v. Memphis Housing Authority and Mable Monday v. Memphis Housing Authority
02A01-9608-CV-00190

Defendant Memphis Housing Authority(MHA) appeals several orders entered by the trial court in favor of two of MHA’s former employees, Plaintiffs/Appellees Jerry D. Williams and Mable Monday (collectively, the Employees). In separate actions filed below, the Employees sued MHA for breach of employment contract. In both cases, the trial court entered orders granting the Employees’ motions for summary judgment based on the court’s conclusion that MHA’s Manual of Operations constituted part of the employment contract between the parties and, further, that MHA breached this contract by terminating the Employees without just cause. Amending the pleadings to conform to the proof in the records, the trial court’s foregoing orders also granted summary judgment to the Employees on their claims that, in terminating the Employees, MHA violated their rights to substantive and procedural due process.1 After conducting a subsequent hearing on the issue of remedies, the trial court entered final orders granting the Employees back pay and reinstatement to their former positions with MHA.2 Upon MHA’s motion, this court consolidated MHA’s appeals of the trial court’s judgments in favor of Williams and Monday because the appeals involve common questions of law and fact.3

Shelby County Court of Appeals 06/02/97
Iva Dell Brown McAlexander v. Kenneth Jackson McAlexander
02A01-9611-CH-00289

Following the trial court’s order granting the parties an absolute divorce, distributing the parties’ property, awarding custody of the parties’ four minor children to Iva Dell Brown McAlexander (the Mother), and ordering Kenneth Jackson McAlexander (the Father) to pay child support to the Mother pursuant to the Child Support Guidelines, Father appealed. The sole issue presented by the Father is whether the trial court erred in granting custody of the parties’ four children to the Mother. We affirm.

Madison County Court of Appeals 06/02/97
Harris v. Burlington
03S01-9606-CV-00069
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 appellant recognizes the established rule in this State that a second injury is not compensable unless there is evidence of an anatomical change, Cunningham v. Goodyear, 841 S.W .2d 888 (Tenn. 1991), but insists the rule should not have been applied in this case. The plaintiff alleged and testified that he injured his back on January 4, 1994 while lifting a heavy object during the course of his employment. He had injured his back in 1991, and was treated by chiropractic, but did not pursue a claim for benefits. Between 1991 and 1994 he denied a re-injury, but testified to a number of "flare-ups." The plaintiff insists that he suffered an aggravation of the 1991 injury and that he is entitled to benefits accordingly. Following the January 4, 1994 injury, he sought chiropractic treatment again, and was referred to Dr. Stephen Natelson, a neurosurgeon, who performed a hemilaminectomy. The plaintiff represented to Dr. Natelson that he had no previous back problems. He was initially seen by Dr. Natelson on November 14, 1994. The corrective surgery was performed on January 1, 1995. On January 5, 1994, the day after the plaintiff allegedly injured his back, he was seen by Dr. John L. Holbrook, an orthopedic surgeon, to whom he related a lengthy history of back problems. A comprehensive examination was made resulting in a final diagnosis of degenerative disc disease. He was seen again on May 24, 1994, complaining of back pain, and another examination resulted in the same findings as before. During all this time the plaintiff was also being treated by chiropractic. Dr. Holbrook testified that there were no anatomical changes in the plaintiff's lumbar spine between 1991 and 1994; i.e., that the plaintiff had not suffered a re-injury as claimed. Our review is de novo on the record, accompanied by a presumption of correctness of the findings of fact of the trial court unless the preponderance of 2
Washington County Workers Compensation Panel 06/01/97
Lowe v. Jefferson
03S01-9605-CV-00060
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. This appeal has been perfected by the employer, Jefferson City Zinc, later identified by stipulation as Savage, Inc., from a ruling by the trial court that the employee, Walter P. Lowe, was totally and permanently disabled as a result of a work-related accident which occurred on October 22, 1992. On appeal there are only two issues. First, the employer questions the trial court's determination of total disability and ordering benefits payable under T.C.A. _ 5-6-27(4) until the employee becomes sixty-five years of age. In the second issue, the employer contends the court was in error in apportioning the award of benefits under T.C.A. _ 5-6-28(a) causing the employer to be liable for 65% of the award and the state Second Injury Fund to be liable for 35% of the award. As to the first question, the employer concedes employee Lowe is totally disabled but argues the award should not be fixed at 1% disability because the medical impairment does not exceed 12% for the last injury and that T.C.A. _ 5-6- 241 limits disability awards to six times the medical impairment, which would be a 72% award. In support of this reasoning, it also contends employee Lowe meets three out of the four factors set out in T.C.A.. _ 5-6-242 and, therefore, the award of benefits would be payable for a period of four hundred weeks. The trial court heard conflicting evidence from several expert medical witnesses. All of this testimony was by deposition. Dr. Robert E. Finelli, a neurosurgeon who had treated the employee for the last injury and several prior injuries, gave a 12% medical impairment for the last injury. Dr. Mark McQuain testified to a 11% impairment. Dr. W illiam E. Kennedy, an orthopedic surgeon, gave a 2% impairment. In addition to this evidence, the court heard testimony from Dr. Kelley W alker, a psychiatrist, who was of the opinion the employee was suffering from a depressive disorder due to his last injury. She assessed his permanent disability as a Class 3, Moderate Impairment, which means his impairment level is compatible with some but not all useful functioning. She told the court the Third and Fourth Editions of AMA 2
Knox County Workers Compensation Panel 06/01/97
Rainey v. Oak Ridge
03S01-9607-CV-00077
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 alleged that on February 15, 1994, during the course of his employment as a janitor, he suffered a lumbar strain while lifting a trash barrel which resulted in permanent, partial disability. As the case unfolded it developed that the plaintiff had a job-related injury in 1979, requiring surgery, for which he received an award for 21.25 percent permanent partial disability. The medical proof established that the 1994 lifting incident aggravated a long- standing disc problem to the extent of causing some nerve irritation but no anatomical changes. The treating orthopedic physician, Dr. Fred Killeffer, testified that the plaintiff had a four percent impairment attributable to the 1994 accident, but opined that he should not continue to work as a painter or custodian. The defendant offered the plaintiff continued employment at the same wages, with an accommodation for the restrictions recommended by his physician. The plaintiff testified that he attempted to work but could not do so within the lifting restrictions. The trial judge found that the plaintiff was unable to return to his former employment and awarded him "six times his aggravation of a pre-existing condition which is 24 percent to the body as a whole." We assume this finding is intended to mean six times the impairment of four percent attributable to the 1994 injury. The plaintiff appeals, insisting that his entitlement should not have been limited to six times his impairment because he met three of the four criteria set forth in Tenn. Code Ann. _ 5-6-242 and thus should have been awarded a greater degree of disability. Pursuant to the provisions of Tenn. Code Ann. _ 5-6-242, a trial court may award an employee permanent partial disability benefits in excess of the maximum disability allowed by applying the multiplier but not to exceed 4 weeks. In such cases, there must be clear and convincing evidence to support at least three of the following four criteria: 2
Knox County Workers Compensation Panel 06/01/97
Evelyn Campbell, a/k.a Elvin Campbell, Erma Dorton and Edria Humphrey, vs. Union Planters Bank , Formerly Commerce Federal Savings Bank
E1999-01910-COA-R3-CV
In this action to recover on two certificates of deposit against the bank, the Trial Judge directed a verdict in favor of the plaintiffs after sustaining an objection to the bank's attempt to offer its business records in evidence. The bank has appealed, and we reverse and remand for a new trial.
Hamblen County Court of Appeals 05/31/97
Estate of Jane & John Doe vs. Vanderbilt Univ., et. al.
01A01-9609-CV-00429
Davidson County Court of Appeals 05/30/97
Gilley vs. Culpepper
01A01-9611-CH-00521
Davidson County Court of Appeals 05/30/97
Gilley vs. Culpepper
01A01-9611-CH-00521
Court of Appeals 05/30/97
Gregory Thompson vs. State
01C01-9506-CC-00180
Coffee County Court of Criminal Appeals 05/30/97
State vs. Terry Dominy
01C01-9512-CC-00404
Lawrence County Court of Criminal Appeals 05/30/97
State vs. Terry Dominy
01C01-9512-CC-00404
Lawrence County Court of Criminal Appeals 05/30/97