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Howard H. Vogel
RUTH CANTRELL v. CARRIER CORPORATION, ET AL.
Bruce Timothy Pirtle, McMinnville, Tennessee, for the Appellant-Defendant, Carrier Corporation.
Barry H. Medley, McMinnville, Tennessee, for the Appellee-Plaintiff, Ruth Cantrell.
The plaintiff developed carpal tunnel syndrome in both arms while employed by the defendant. We
granted this appeal to determine whether an eight-week leave of absence during which the defendant
paid the plaintiff short-term disability benefits unrelated to the carpal tunnel syndrome should be
included in the average weekly wage calculation. We conclude that the days during which the
plaintiff was on leave of absence should be excluded from the average weekly wage calculation. We
further conclude that the record supports the trial court's permanent disability award of 50% to the
left arm and 45% to the right arm but that the separate awards should be combined and averaged to
equal 47.5% for the loss of two arms. Accordingly, the findings of the Special Workers'
Compensation Appeals Panel are adopted in part and rejected in part. The trial courtís judgment is
affirmed in part, modified in part, and reversed in part, and the case is remanded for further
proceedings in accordance with this opinion.
SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List
SANDRA DAVID v. SATURN CORPORATION
Richard A. House, Nashville, Tennessee, attorney for appellant, Sandra David.
Marcia McShane Watson, Nashville, Tennessee, attorney for appellee, Saturn Corporation.
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and
conclusions of law. Saturn's employer-funded disability plan paid the Plaintiff disability
benefits after reaching maximum medical improvement when she was placed out of work
because her physician-ordered restrictions could not be accommodated. The Plaintiff claims
error in the offsetting of these disability payments. The judgment of the trial court is affirmed.
Correction: Case corrected to remove Justice Clark from the judgment order as she did not participate in that decision.
ESTATE OF DENNIS MCFERREN v. INFINITY TRANSPORT, LLC
Keith M. Alexander, Southhaven, Mississippi, for the Plaintiff-Appellant, Estate of
Lori Dale Parish, Memphis, Tennessee, for the Defendant-Appellee, Infinity Transport,
This workers' compensation appeal has been referred to and heard by the Special
Workers' Compensation Appeals Panel of the Supreme Court in accordance with
Tennessee Code Annotated Section 50-6-225(e)(3) for hearing and reporting to the
Supreme Court of findings of fact and conclusions of law. We find that the trial court did
not have jurisdiction over the defendant in the first lawsuit due to insufficient service of
process pursuant to Tennessee Rule of Civil Procedure 4.03. The doctrine of prior suit
pending does not apply, and the second lawsuit was not barred. The trial court erred in
setting aside the default judgment against the defendant and dismissing the plaintiff's
complaint. Accordingly, we reverse the judgment of the trial court and remand the case
to the trial court for reinstatement of the default judgment against the defendant.
RANDALL BIRCHFIELD dba RANDALL BIRCHFIELD REAL ESTATE AND AUCTION v. MICHAEL L. PHILLIPS, ET AL.
Ronald D. Arnold, Johnson City, Tennessee, for the appellants, Jimmy B. Phillips and Judy H. Phillips.
Kathryn J. Dugger-Edwards, Elizabethton, Tennessee, for the appellee, Randall Birchfield dba
Randall Birchfield Real Estate and Auction.
Randall Birchfield (the auctioneer) operates a realty and auction business under the trade name
of Randall Birchfield Real Estate and Auction. He entered into a written contract (the auction
contract) with Jimmy B. Phillips and his wife, Judy H. Phillips (the sellers), by the terms of
which he agreed to sell at auction certain tracts of real property owned by the sellers. At the
auction, Michael L. Phillips, who is Jimmy's brother, along with Michael's wife, Elizabeth
Phillips (the buyers), were the successful bidders. The sellers and the buyers then executed a
contract entitled "Offer to Purchase with Acceptance" (the purchase contract), which contract
was also signed by the auctioneer. Despite the existence of a facially-valid contract, the buyers
failed to carry through with their contractual obligations. As a consequence, the sale did not
close. The auctioneer filed suit against the sellers and the buyers. The trial court held that the
sellers are liable to the auctioneer for the 10% commission specified in the auction contract and
for prejudgment interest at a rate of 2.25%. The auctioneer's claim against the buyers was
dismissed. The sellers appeal and both sides raise issues. We affirm the trial court's judgment
with respect to the auctioneer's commission, but vacate the trial court's determination that 2.25%
is the appropriate rate of prejudgment interest. On the subject of prejudgment interest, we
remand this case to the trial court with instructions.
TERRY L. HARRIS, ET AL. v. JEFFREY L. STOVER and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
Parks T. Chastain, David M. Hannah, Nashville, TN, for Appellant, Nationwide Mutual Fire
Randall N. Songstad, Cordova, TN, for Appellees.
In this appeal, we are asked to determine whether the chancery court properly granted the plaintiffs'
motion for summary judgment. In this case, a lessor and his insurance company brought a direct
action against a lessee and the lessee's insurance company seeking a declaration of the parties' rights
under the lease agreement and reimbursement to the lessor's insurance company for amounts paid
to the lessor for damages to the rental property as a result of a fire while the lessee resided on the
property. On appeal, the appellant argues that under the terms of the insurance policy maintained
by the lessee, no obligation to pay the lessor or his insurance company arose as a matter of law. We
reverse the decision of the chancery court and remand to the chancery court for the entry of an order
granting summary judgment to the appellant.
IN RE MEAGAN E.
Lloyd A. Levitt, Chattanooga, Tennessee, for the appellant, Heather E.
Paul G. Summers, Attorney General and Reporter, and Lauren S. Lamberth, Assistant Attorney
General, for the appellee, State of Tennessee Department of Children's Services.
Glenna M. Ramer, Chattanooga, Tennessee, for the appellee, Janice Beasley.
The trial court terminated the parental rights of Heather E. (Mother) to her child, Meagan E.
(DOB: March 28, 2000), upon finding, by clear and convincing evidence, that grounds for
termination existed and that termination was in the best interest of the child. Mother appeals.
We affirm in part and vacate in part.
CONNIE SUE CRAIG MILLS v. THOMAS V. MILLS
Marvin Berke and Megan C. England, Chattanooga, Tennessee for the Appellant, Thomas V.
William H. Horton, Chattanooga, Tennessee for the Appellee, Connie Sue Craig Mills.
Connie Sue Craig Mills (Wife) filed a Petition for Contempt and Complaint for Damages
against Thomas V. Mills (Husband) claiming, in part, that Husband had failed to disclose a
judgment lien and rent concessions due to a tenant on property that Husband was ordered to
transfer to Wife pursuant to the parties' marital dissolution agreement. Wife also claimed that
Husband tortiously interfered with a contract Wife had to refinance the property. After a bench
trial, the Trial Court found and held, inter alia, that Wife would have to pursue her claim for
repayment of the rent concessions in a separation action against the tenant, that Wife was entitled
to a judgment against Husband to recover the amount of the discount offered to Wife by the prior
note holder, and that Wife was entitled to an award of attorney's fees. Husband appeals claiming
that he was not in contempt of any court order and that Wife did not state a valid claim for, or
prove, tortious interference with contract. We reverse.
LATREAYL MITCHELL v. MICHAEL GREEN
Britton J. Allan, Memphis, TN, for Appellant.
Gail W. Horner, Germantown, TN, for Appellee.
In this appeal, we are asked to determine whether the juvenile court erred when it increased the
amount of child support the father was required to pay the mother for their child born out of
wedlock. The father originally filed a petition to modify child support seeking to decrease his child
support obligation based on the fact that he had another child with another woman that currently
resides with him. The juvenile court increased his child support obligation finding that he failed to
visit his child after the mother moved to Knoxville, Tennessee, including certain periods of time
when the mother brought the child to Memphis, Tennessee to visit the father. The father contends
that it was error for the juvenile court to increase his child support obligation because the mother was
in violation of the parental relocation statute, Section 36-6-108 of the Tennessee Code, and that the
father was prevented from visiting his child due to the distance and his medical condition. We
STATE OF TENNESSEE, ex rel. LINDA OAKES v. CHARLES J. WALDO
Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Charles J. Waldo.
Paul G. Summers, Attorney General and Reporter, and Juan G. Villase_or, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee ex rel. Linda Oakes.
This is a post-divorce case addressing the subject of child support. Charles J. Waldo (Father),
the obligor parent, appeals the trial court's order, which found him in contempt for willful failure
to pay child support and required him to pay an arrearage of $36,243 to the Central Child
Support Receipting Unit of the Department of Human Services (DHS). Father argues that the
trial court should have ordered the arrearage to be deposited in certificates of deposit titled
jointly in the name of Father and the child for whose benefit the support had been ordered. His
underlying argument is that that the arrearage should go to the child, not the obligee parent,
Linda Oakes (Mother). We affirm the trial court's judgment.
RONALD K. PENDERGRAPH v. JULIANA T. (BATES) PENDERGRAPH
Ronald K. Pendergraph, Pikeville, Tennessee, Pro Se Appellant.
Juliana T. (Bates) Pendergraph, Smithville, Tennessee, Pro Se Appellee.
Ronald K. Pendergraph (Husband) sued Juliana T. (Bates) Pendergraph (Wife) for a divorce
by filing a complaint in the Chancery Court for Bledsoe County (the Chancery Court). Wife
made no appearance in the case. Husband filed a motion for a default judgment and numerous
other motions. The Chancery Court dismissed the case for lack of venue. Husband appeals to
this Court claiming, in part, that the Chancery Court erred in dismissing his case and in failing to
rule on Husband's pending motions. We affirm.
BROOKE RATHNOW b/n/f/ RICH and DIANE RATHNOW v. KNOX COUNTY, ET AL.
With Concurring Opinion
Martha Haren McCampbell, Knoxville, Tennessee, for the appellants Knox County and the Knox
County Board of Education.
William S. Lockett, Knoxville, Tennessee, for the appellee Brooke Rathnow b/n/f Rich and
A high school student was injured when she fainted after viewing a first aid instructional video
depicting simulated wounds that was being shown in one of her classes. The student, through
her parents, sued Knox County and the Knox County Board of Education under the Tennessee
Governmental Tort Liability Act, alleging that the teacher supervising the class was negligent in
allowing her to leave the classroom unattended because it was foreseeable that she might be
suffering a physical reaction to the video and that she might faint. The trial court entered
judgment in favor of the plaintiff and awarded her damages in the amount of $30,000. The
defendants appeal, arguing that plaintiff's fainting was not foreseeable and that, even if the trial
court was correct in its finding of negligence, the trial court awarded excessive damages. Upon
our determination that the harm suffered by the student was not reasonably foreseeable, we
reverse the judgment of the trial court and dismiss this case.
GRENDA RAY HARMER v. STATE OF TENNESSEE
Douglas A. Blaze, Knoxville, Tennessee, for the petitioner, Grenda Ray Harmer.
Paul G. Summers, Attorney General and Reporter; Renee Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and John Halstead, Assistant District Attorney
General, for the appellee, State of Tennessee.
The petitioner, Grenda Ray Harmer, appeals the post-conviction court's denial of post-conviction
relief. On appeal, he alleges that (1) he received the ineffective assistance of counsel with respect
to his suppression hearing; and (2) his constitutional rights were violated by the loss and destruction
of evidence relevant to the suppression hearing. Following our review of the record and the parties'
briefs, we affirm the order of the post-conviction court.
GARY WAYNE SUTTON v. STATE OF TENNESSEE
Susan E. Shipley and Gerald L. Gulley, Knoxville, Tennessee, for the appellant, Gary Wayne Sutton.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Alice B.
Lustre, Senior Counsel; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant
District Attorney General, for the Appellee, State of Tennessee.
The petitioner, Gary Wayne Sutton, appeals as of right from the order of the Blount County Circuit
Court denying his petition for post-conviction relief from his 1992 conviction for first degree murder
and resulting death sentence. The petitioner claims (1) that he received the ineffective assistance
of trial counsel because counsel (a) lacked the necessary experience and qualifications to handle a
capital case, (b) were deficient in their choice of defense strategy and decision to share information
and responsibilities with counsel for the co-defendant, (c) failed to present a coherent defense, (d)
failed to obtain adequate expert assistance in his defense, and (e) failed to prepare adequately for the
penalty phase of his trial; (2) that he received the ineffective assistance of appellate counsel because
counsel (a) failed to challenge the trial court's denial of a requested jury instruction on residual doubt
at sentencing and (b) failed to provide a complete record for purposes of appellate review as to
whether the trial court complied procedurally with Tennessee Rule of Evidence 404(b) in admitting
evidence of another crime at trial; (3) that the prosecution failed to disclose exculpatory evidence
regarding another possible suspect; (4) that the failure to include in the indictment the aggravating
circumstance that the petitioner had a previous felony conviction involving violence invalidates his
death sentence; and (5) that the cumulative effect of errors at the trial violates his rights to due
process. We conclude no reversible error of law exists, and we affirm the judgment of the trial court
denying post-conviction relief.
| Legal News
|Trial begins for Roscoe Dixon
|The federal bribery and extortion trial of former state Sen. Roscoe Dixon began today as other Tennessee Waltz defendants anxiously watch to see how the proceeding unfolds. Seven of the 10 defendants have opted for jury trials rather than negotiate plea agreements. The Memphis Commercial Appeal explores possible trial tactics in the case.
|Read more here
|Bradley County bar officers named
|The Bradley County Bar Association has elected new leadership, which will take office on June 1. President is Douglas N. Blackwell II of Cleveland. John Kimball of Bell & Associates in Cleveland takes the reigns as vice president. M. Keith Roberts of Starnes, Roberts & Associates PLLC in Cleveland assumes the office of secretary and Joshua H. Jenne of Chattanooga's Spears, Moore, Rebman & Williams becomes secretary.
|650 boys participate in Supreme Court program
|Boys State delegates from high schools around the state will participate in the Supreme Court Advancing Legal Education for Students (SCALES) Program, an initiative designed to educate young Tennesseans about the judicial branch of government. The students will hear oral arguments in two actual Supreme Court cases on Wednesday as part of a weeklong program sponsored by the American Legion, the court announced today.
|U.S. Supreme Court rejects free speech protection for officials
|The nation's high court today made it harder for government employees to claim they were retaliated against for disclosing official misconduct. By a 5-4 vote, justices said the nation's 20 million public employees do not have unfettered free speech rights to disclose the government's inner-workings.
|Read more about the case in this AP story
|Hearing set for tomorrow in Knox County term limits case
|Knox County Chancellor John Weaver has agreed to speed up legal proceedings questioning the county's charter and application of term limits to certain officers. He has scheduled a hearing tomorrow but election watchers are wondering if the suit can be resolved in time for the Aug. 3 general election.
|Read more in the News Sentinel
|AG opinion allows deputy to seek office
| The Tennessee Attorney General has reversed a decades-old opinion, and said it's alright for sheriffs' deputies covered under civil-service guidelines to run for office, the Knoxville News Sentinel reports.
| Read how the ruling is affecting the Anderson County sheriff's race
|Memphis lawyer held in contempt
|On May 19, the Tennessee Supreme Court found Warner Hodges III in willful criminal contempt for practicing law while suspended. He was ordered to serve 10 days in jail, be fined $50 and pay the costs of the disciplinary proceeding. His jail time was suspended, however, pending compliance with a TLAP contract.
| Read the BPR's presss release
|Memphis attorney placed on disability
|On May 23, the Supreme Court transferred the law
license of Keith C. Kyles of Memphis to disability inactive status while he recovers from brain surgery.
|Read the BPR's notice