This case involves the violation of the Tennessee Consumer Protection Act (TCPA) in connection with a breach of a residential construction contract. Defendant, Bill Hayes, appeals the judgment of the trial court on a jury verdict awarding plaintiff, Linda Mires, $5,000.00 for 1Rufus and Linda Mires filed the original suit in April 1995 but took a voluntary nonsuit. Mr. Mires died after the suit was refiled, so Mrs. Mires amended the complaint to list herself as plaintiff, individually, and as the executrix of the estate of Rufus Mires. Since Mr. Mires was alive throughout the events that precipitated this suit, we use the plural “plaintiffs” throughout this opinion. 2 violation of TCPA and the trial court’s order awarding plaintiff $5,907.50 in attorney fees and expenses.
Jacob E. Carter v. Lumbermen's Underwriting 03S01-9610-CH-00095
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Frederick D. Mcdonald,
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. 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 findings, 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 court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The issues raised on appeal are: whether the evidence preponderates against the finding by the trial judge that the plaintiff is permanently and totally disabled; whether the trial court erred in apportioning the liability of the insurer at 25 percent and of the Second Injury Fund at 75 percent; and whether the trial court erred in limiting the insurer's liability to 25 percent of 4 weeks and imposing liability on the Second Injury Fund for the remainder of the weeks until the plaintiff reaches age 65. We affirm the findings of the trial court that the plaintiff is permanently and totally disabled and that the apportionment of this liability is on the basis of 25 percent to the insurer and 75 percent to the Second Injury Fund. We modify the apportionment of the liability at 25 percent of 4 weeks to the insurer and the remaining liability to the Second Injury Fund. We apportion the award in accordance with the holding of the Supreme Court in Bomely v. Mid-American Corp., ___ S.W.2d ___ (Tenn. 1998). The plaintiff has an extensive medical history as demonstrated by the medical evidence in this case, which consists of the depositions of five physicians, the report of physician, and the appearance of two physicians at trial. Additionally, the medical records of one physician were introduced by the Second Injury Fund. The medical evidence consists of physical evaluations and treatment, as well as a psychiatric evaluation. The plaintiff also presented a vocational expert's testimony at trial. 2
Carter
Workers Compensation Panel
James Walker Hurst v. Scruggs, Inc. 03S01-9703-CH-00032
Authoring Judge: John K. Byers, Senior Judge
Trial Court Judge: Hon. Frederick D. Mcdonald,
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. 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 findings, 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 court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). We find the record supports the finding that the plaintiff is permanently and totally disabled. We modify the apportionment of liability between the employer and the Second Injury Fund.1 The trial court found the plaintiff was injured within the scope of his employment with the defendant on June 17, 1994. The plaintiff had two previous compensable injuries. On June 6, 1983, he was found to have a 6 percent disability to the body as a whole, and on October 8, 1993, he was found to have a 7.5 percent disability as a result of an injury. The trial judge found the plaintiff was totally and permanently disabled from work following the injury of June 17, 1994 (this case). Further, the trial court found, and the record shows, the plaintiff met three out of four requirements for Tenn. Code Ann. _ 5-6-242, which would permit the trial court to exceed the multiplier caps of the statute and award recovery for 4 weeks. In this case, however, the trial court found the plaintiff was entitled to receive benefits until age 65 under the provisions of Tenn. Code Ann. _ 5-6-27(4). In fixing the disability between the employer and the Second Injury Fund, the trial court found that the employer was liable for 32.5 percent of the injury to the plaintiff and the Second Injury Fund was liable for 67.5 percent. At the time the 1 This case was filed March 13, 1997 and has awaited the Supreme Court's decision in Bomely v. Mid-America Corp., ___ S.W.2d ___ (Tenn. 1998), which was filed May 26, 1998. 2
Knox
Workers Compensation Panel
Donna Lee Stephen v. R. C. Leamon and Conditionaire Company, Inc. 03SO1-9707-CH-00091
Authoring Judge: Joe C. Loser, Jr., Special Judge
Trial Court Judge: Hon. Howell N. Peoples,
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 5-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. In this claim for death benefits, the claimants contend the evidence preponderates against the trial court's findings that the decedent was an independent contractor and that the defendant, Leamon, was not a statutory employer. At the conclusion of the trial, the chancellor made the following findings and conclusions: "The issue in this case is whether Mr. Stephens, Mr. Raymond Stephens, was an employee or independent contractor. In resolving that issue, the Court has placed primary reliance upon the testimony of Kim Ray, Leon Evans and WilliamLevon Stephens, because those are the witnesses who were most intimately involved in the work that was performed by Raymond Stephens. "It's undisputed, based on the testimony of these witnesses that Mr. Raymond Stephens did perform services for Conditionaire Company. In particular, he installed duct work for heating and air systems. He would perform that work in accordance with plans and specifications that were provided by Conditionaire. "He was not directly supervised in the performance of his work. There was no one on a daily basis, or even an hourly basis, who reviewed his work or the method in which he did his work. The work that he did was reviewed from time to time and, upon completion of the assigned work, was reviewed by Mr. Kim Ray and by Mr. Leon Evans on behalf of Conditionaire. The purpose of that review was to ensure that the work complied with the plans and specifications and with the applicable codes. "Mr. Stephens was at times provided with time frames within which the work was to be done, but he was not given a specific time to report to work each day and a specific time to terminate work each day. He was not directed as to when he could eat or when he could take breaks. Primarily, he provided his own tools; however he did from time to time use ladders and a vacuum cleaner that were provided by 2
