ALICE WILLIAMSON V. A.O. SMITH CORPORATION, ET AL.
Court:TSC - Workers Comp Panel
Attorneys:
Richard Murrell, Nashville, Tennessee, for the appellant, The Second
Injury Fund.
Bruce E. Williams, Roane Waring, III, Memphis, Tennessee, for the
appellant, A.O. Smith Corporation.
T. J. Emison, Alamo, Tennessee, for the appellee, Alice Williamson.
Judge: MCCOY
First Paragraph:
This workers' compensation appeal has been referred to the Special
Workers' Compensation Appeals Panel in accordance with Tenn.Code Ann.
S 50- 6-225(e)(3) for hearing and reporting findings of fact and
conclusions of law. In this appeal, the Second Injury Fund insists
that the trial court improperly allocated 90% of the disability award
to the Fund and further that the trial court erred in finding the
employee permanently and totally disabled. For the reasons set out
below, the panel has concluded that the evidence fails to preponderate
against the findings of the trial court. Judgment of the trial court
is affirmed with costs assessed against the Second Injury Fund.
http://www.tba.org/tba_files/TSC_WCP/2005/williamsona42805.pdf
J. STEPHEN AMISON, ET AL. v. JACK D. McCARTY, ET AL.
Court:TCA
Attorneys:
John C. Cavett, Jr., Chattanooga, Tennessee, for the appellants, Jack
D. McCarty and wife, Bertha B. McCarty.
J. Michael Sharp and D. Mitchell Bryant, Cleveland, Tennessee, for the
appellees, J. Stephen Amison and wife, Pamela G. Amison.
Judge: SUSANO
First Paragraph:
J. Stephen Amison and wife, Pamela G. Amison ("the plaintiffs"),
purchased a house from Jack D. McCarty and wife, Bertha B. McCarty
("the defendants"). Thereafter, the plaintiffs sued the defendants for
damages and, in the alternative, for rescission of the contract of
purchase. The plaintiffs alleged that, unbeknownst to them when the contract was
signed and when the sale subsequently was closed, the house was
infested with termites; that the defendants had prior knowledge of the
termite infestation; and that the defendants intentionally or
negligently misrepresented the true condition of the house. Following
a bench trial, the court decreed rescission, awarded the plaintiffs
discretionary costs, and denied the plaintiffs' request for their
attorney's fees. Both sides raise issue on appeal. We affirm.
http://www.tba.org/tba_files/TCA/2005/amisonj42805.pdf
JAMES EDWARD DUNN v. KNOX COUNTY SHERIFF'S DEPARTMENT MERIT SYSTEM
COUNCIL, ET AL.
Court:TCA
Attorneys:
MaryAnn Stackhouse, Deputy Knox County Law Director, Knoxville,
Tennessee, for the appellant, Knox County Sheriff's Department Merit
System Council.
Herbert S. Moncier and David S. Wigler, Knoxville, Tennessee, for the
appellee, James Edward Dunn.
Judge: SUSANO
First Paragraph:
Following a hearing, the Knox County Sheriff's Department Merit System
Council ("the Council") voted to uphold Sheriff Tim Hutchison's
termination of the plaintiff, James Edward Dunn. Dunn filed a petition
for writ of certiorari in the trial court. He also filed a separate
complaint in the same court alleging that the Council had violated the
Open Meetings Act. Each side filed a motion for summaryjudgment on
this latter issue. The trial court denied both motions. The trial
court then held that the Council's decision to uphold Dunn's
termination was supported by material evidence; but the court remanded
the case to the Council, because the court held that the Council had
failed to follow one of its procedural rules. Both parties have raised
issues on appeal. We affirm.
http://www.tba.org/tba_files/TCA/2005/dunnj42805.pdf
WALKER GRAY HAUN v. LOUIS EUGENE HAUN, JR.
Court:TCA
Attorneys:
David T. Black and Justin R. Martin, Maryville, Tennessee, for
Appellant Louis Eugene Haun, Jr. David R. Duggan and Lee Kull,
Maryville, Tennessee, for Appellee Walker Gray Haun.
Judge: LEE
First Paragraph:
This appeal involves a dispute between two brothers over the use of a
roadway that lies on their adjacent tracts of property. The issue
presented is whether Walker Gray Haun has an easement across the
property of his brother, Louis Eugene Haun, Jr. The trial court
granted Walker Gray Haun an easement either by prescription or by
implication which allowed him to use the roadway that had existed for
at least fifty years and provided the only vehicular access to a
rental house on his property. We hold that Walker Gray Haun did not
establish a prescriptive easement, but that his proof satisfied the
elements of an easement by implication, and therefore we affirm the
trial court's judgment.
http://www.tba.org/tba_files/TCA/2005/haunw42805.pdf
LEE KETCHERSID v. RHEA COUNTY BOARD OF EDUCATION
Court:TCA
Attorneys:
J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Lee
Ketchersid.
Robert G. Wheeler, Jr. and Deborah A.G. Smith, Nashville, Tennessee,
for the appellee, Rhea County Board of Education.
Judge: SUSANO
First Paragraph:
Lee Ketchersid, a tenured teacher in the Rhea County School System,
appealed her dismissal to the Rhea County Board of Education ("the
School Board"). Following a hearing, the School Board determined that
the evidence supported the charges against Mrs. Ketchersid of
insubordination, incompetence, and inefficiency under the Teachers'
Tenure Act, Tenn. Code Ann. S 49-5-501, et seq., and voted to
terminate Mrs. Ketchersid as a tenured teacher. Mrs. Ketchersid
appealed the School Board's decision to the trial court, which,
following a de novo review, held that her dismissal was supported by
sufficient evidence. Mrs. Ketchersid appeals, arguing that the trial
court erred in this determination. We affirm.
http://www.tba.org/tba_files/TCA/2005/ketchersidl42805.pdf
RICK KYLE v. EARL WILLIAMS, ET AL.
Court:TCA
Attorneys:
John A. Walker, Jr., Knoxville, Tennessee, and Van R. Michael,
Sweetwater, Tennessee, for the appellant, Rick Kyle.
H. Chris Trew, Athens, Tennessee, for the appellees, Earl Williams and
Michelle Williams.
Judge: SUSANO
First Paragraph:
Rick Kyle ("the plaintiff"), a contractor, entered into a contract
with Earl Williams and his wife, Michelle Williams (collectively "the
defendants") to build them a house. When the house was approximately
90% complete, a basement wall collapsed. The plaintiff proposed a plan
to remedy the problem. The defendants rejected the plaintiff's plan
and hired a new contractor to complete the construction. The plaintiff
brought this action for breach of contract. The defendants responded
with an answer, and coupled it with a counterclaim seeking their costs
incurred in connection with the completion of the project. The
defendants raised as an affirmative defense that the contractor was
not licensed during all of the time he was working on the house. On
interlocutory appeal to the Supreme Court, that court held that the
plaintiff was "unlicensed" under the provisions of Tenn. Code Ann. S
62-6-103(b) and was therefore only entitled to recover his "actual
documented expenses" under that statute. Followingremand, the trial
court, at a bench trial, awarded the plaintiff his "actual documented
expenses," less monies already paid to him by the defendants. It also
awarded the defendants the expenses incurred by them as a result of
the collapse of the wall. The plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/2005/kyler42805.pdf
DARRELL MASSINGALE v. YUNG GIL LEE, P.C., ET AL.
Court:TCA
Attorneys:
Dan Channing Stanley, Knoxville, Tennessee, for the Appellant, Darrell
Massingale.
Sharel V. Hooper and Timothy J. Millirons, Chattanooga, Tennessee, for
the Appellees, Yung Gil Lee, P.C. and Yung Gil Lee, M.D.
Judge: SWINEY
First Paragraph:
Rick Kyle ("the plaintiff"), a contractor, entered into a contract
with Earl Williams and his wife, Michelle Williams (collectively "the
defendants") to build them a house. When the house was approximately
90% complete, a basement wall collapsed. The plaintiff proposed a plan
to remedy the problem. The defendants rejected the plaintiff's plan
and hired a new contractor to complete the construction. The plaintiff
brought this action for breach of contract. The defendants responded
with an answer, and coupled it with a counterclaim seeking their costs
incurred in connection with the completion of the project. The
defendants raised as an affirmative defense that the contractor was
not licensed during all of the time he was working on the house. On
interlocutory appeal to the Supreme Court, that court held that the
plaintiff was "unlicensed" under the provisions of Tenn. Code Ann. S
62-6-103(b) and was therefore only entitled to recover his "actual
documented expenses" under that statute. Followingremand, the trial
court, at a bench trial, awarded the plaintiff his "actual documented
expenses," less monies already paid to him by the defendants. It also
awarded the defendants the expenses incurred by them as a result of
the collapse of the wall. The plaintiff appeals. We affirm.
http://www.tba.org/tba_files/TCA/2005/massingaled42805.pdf
IN RE: ESTATE OF LEWIS F. RHOADES
Court:TCA
Attorneys:
Hugh P. Taylor, White Pine, Tennessee, for the appellant, Donald L.
Rhoades, Executor.
No appearance on behalf of Geraldine Miller and Bobbie Matthews
Turner.
Judge: SUSANO
First Paragraph:
Donald L. Rhoades ("the Executor") filed to probate the will of Lewis
F. Rhoades ("the Testator"). The Testator was survived bythree
children - the Executor, Geraldine Miller, and Bonnie Matthews Turner.
Shortly after the death of the Testator in 1999, the Executor
"informally" distributed the Testator's property by dividing the
proceeds from a certificate of deposit held jointly in the names of
the Executor and the Testator, and by dividing the balance in a
checking account held jointly by the Testator and his two daughters.
Title to both assets was held in the joint names indicated with "right
of survivorship." It was not until 2003 that the Executor offered the
Testator's will for probate. At that time, he also sought a
declaration as to the ownership of the certificate of deposit and the
checking account, and further asked the court to order that the
previously-distributed proceeds from these assets be returned to the
estate. The trial court held that the proceeds could not be recovered
since the certificate passed to the Executor in his individual
capacity outside of probate. As for the checking account, the trial
court ordered that the distributed proceeds be returned to the estate
to satisfy the claims of creditors. The Executor appeals. We agree
with the trial court that the certificate of deposit passed by
operation of law to the Executor in his individual capacity and,
hence, passed outside of probate. Consequently, the proceeds
previously distributed by the Executor could not be recouped in the
probate court proceedings. However, we disagree with the trial court's
judgment that the checking account proceeds should be returned to the
estate, as we hold that this account also passed by operation of law
to the joint owners of the account and, consequently, cannot be
returned to the estate of which it was never a part. Accordingly, we
affirm in part and reverse in part.
http://www.tba.org/tba_files/TCA/2005/rhoadesl42805.pdf
STEPHANIE ANN TROGLEN v. VINCENT LAMAR TROGLEN
Court:TCA
Attorneys:
Christine Mahn Sell, Chattanooga, Tennessee, for the Appellant,
Vincent Lamar Troglen.
Richard B. Teeter, Chattanooga, Tennessee, for the Appellee, Stephanie
Ann Troglen.
Judge: LEE
First Paragraph:
The issues presented in this divorce case are whether the trial court
erred in calculating Mr.Troglen's child support obligation; and
whether the trial court erred in awarding Ms. Troglen transitional
alimony. The trial court established Mr. Troglen's monthly child
support obligation at $755. Additionally, the trial court ordered Mr.
Troglen to pay to Ms. Troglen transitional alimony in the amount of
$400 per month for a period of five years. We hold that the child
support was properly calculated at $755 per month and that the trial
court properly awarded Ms. Troglen alimony. However, we modify the
alimony award from $400 per month transitional alimony for five years
to $400 per month rehabilitative alimony for five years.
http://www.tba.org/tba_files/TCA/2005/troglens42805.pdf
JAY B. WELLS, SR., ET AL. v. STATE OF TENNESSEE
Court:TCA
Attorneys:
Dan C. Stanley, Knoxville, Tennessee, for the appellants, Jay B.
Wells, Sr., and others similarly situated.
Paul G. Summers, Attorney General; Michael E. Moore, Solicitor
General; Mary M. Bers, Senior Counsel, Nashville, Tennessee, for the
appellee, State of Tennessee.
Judge: SUSANO
First Paragraph:
The issues presented in this divorce case are whether the trial court
erred in calculating Mr.Troglen's child support obligation; and
whether the trial court erred in awarding Ms. Troglen transitional
alimony. The trial court established Mr. Troglen's monthly child
support obligation at $755. Additionally, the trial court ordered Mr.
Troglen to pay to Ms. Troglen transitional alimony in the amount of
$400 per month for a period of five years. We hold that the child
support was properly calculated at $755 per month and that the trial
court properly awarded Ms. Troglen alimony. However, we modify the
alimony award from $400 per month transitional alimony for five years
to $400 per month rehabilitative alimony for five years.
http://www.tba.org/tba_files/TCA/2005/wellsj42805.pdf
STATE OF TENNESSEE v. KENDRICK LAMONT BROOKS
Court:TCCA
Attorneys:
George Morton Googe, District Public Defender; and Stephen P.
Spracher, Assistant Public Defender, Jackson, Tennessee, for the
Appellant, Kendrick Lamont Brooks.
Paul G. Summers, Attorney General and Reporter; David E. Coenen,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Jody S. Pickens, Assistant District Attorney General, for the
Appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Kendrick Lamont Brooks, appeals the revocation of his
probation by the Madison County Circuit Court. On appeal, Brooks
argues that the trial court was without authority to revoke his
probation because the violation warrant was issued after his sentence
had expired. Finding this argument without merit, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/2005/brooksk42805.pdf
STATE OF TENNESSEE v. ROBERT WAYNE PRYOR
Court:TCCA
Attorneys:
Gregory D. Smith, Clarksville, Tennessee (on appeal) and Andrew
Jackson Dearing, III., Assistant Public Defender (at trial), for the
appellant, Robert Wayne Pryor.
Paul G. Summers, Attorney General and Reporter; Michael Markham,
Assistant Attorney General; W. Michael McCown, District Attorney
General; and Michael Randles and Ann Filer, Assistant District
Attorneys General, for the appellee, State of Tennessee.
Judge: MCLIN
First Paragraph:
The Appellant, Kendrick Lamont Brooks, appeals the revocation of his
probation by the Madison County Circuit Court. On appeal, Brooks
argues that the trial court was without authority to revoke his
probation because the violation warrant was issued after his sentence
had expired. Finding this argument without merit, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/2005/proyorr42805.pdf
With Memo Explaining Correction
http://www.tba.org/tba_files/TCCA/2005/pryorr42805_memo.pdf
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