                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                    FEBRUARY 18, 2003 Session

                  JOE R. HALES v. SHELBY COUNTY, TENNESSEE

                      Direct Appeal from the Circuit Court for Shelby County
                            No. CT-002477-01     D’Army Bailey, Judge



                       No. W2002-01539-COA-R3-CV - Filed August 12, 2003


This appeal arises from a claim involving an injury sustained by a county employee. The trial court
awarded the plaintiff $216,400.00 for injuries sustained while working for Shelby County. The trial
court then denied Shelby County’s post-trial motion seeking a credit or offset for wage continuation
benefits already paid to the plaintiff. The parties raise multiple issues on appeal. For the following
reasons, we affirm.

       Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Carroll C. Johnson, Memphis, TN, for Appellant

Joseph Michael Cook, Memphis, TN, for Appellee


                                       MEMORANDUM OPINION1

                                       Facts and Procedural History

        On April 19, 2000, Joe R. Hales (“Mr. Hales”) was involved in an automobile accident
arising out of and in the course of his employment with Shelby County (“the County”). As a
consequence of this accident, Mr. Hales sustained a closed head injury which resulted in a substantial
and permanent loss of his mental faculties.


        1
            Rule 10 (Court of Appeals). Memorandum Opinion. - This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorand um opinion when a
formal opinion would have no precedential value. When a case is decided by memo randum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any reason in any unrelated
case.
       The County is not bound by the Tennessee Worker’s Compensation Act (“the Act”). Instead,
the County has an Injury (OJI) Leave Policy which is supplemented by the Act where the County’s
policy is silent. Pursuant to the County’s policy, Mr. Hales was paid disability payments in the
amount of his full salary for ninety (90) days. At the end of this ninety (90) day period, Mr. Hales
was paid sixty-six and two-third percent (66 2/3%) of his salary. These payments began on April 19,
2000 and ended on June 15, 2001.

        On April 19, 2001, Mr. Hales brought suit against the County seeking “such temporary-total,
permanent-partial and other job injury benefits to which he is entitled.” The County filed its answer,
alleging that it had paid Mr. Hales temporary disability to which he was entitled. Thereafter, Mr.
Hales filed a motion to amend his complaint, seeking to add a prayer for an award of prejudgment
interest. This motion was granted by order entered March 22, 2002. Mr. Hales also filed a motion
requesting that any amount awarded be commuted to a lump sum.

        Pursuant to Tennessee Code Annotated section 50-6-207(a)(ii)(ff) and the County policy, the
trial court awarded Mr. Hales permanent disability payments for 400 weeks at the maximum
compensation rate of $541.00 per week for a total award of $216,400.00. In its Final Judgment, the
trial court ordered that the $216,400.00 be paid in a lump sum, awarded prejudgment interest on the
amount of the award that had accrued up until the date of the trial, and provided that Mr. Hales’ right
to future medical benefits be left open.

        Thereafter, Shelby County filed a post-trial motion seeking a credit or offset for wage
continuation payments previously made to Mr. Hales. The County claimed that since the maximum
total of all benefits to which Mr. Hales was entitled was 400 weeks, the County should be able to
offset the amounts paid from April 19, 2000 until September 15, 2001. The trial court, finding that
the County was not entitled to a credit or offset, denied the motion. The County timely filed its
notice of appeal on June 13, 2002.

                                                Issues

       I.      Whether the County should be liable for on the job injury benefits in excess of the
               maximum total amount required to be paid under the County’s OJI policy as
               supplemented by the Tennessee Worker’s Compensation Act.

        II.    Whether the County’s stipulation of issues at trial prevents it from raising issues on
               appeal that were not presented at trial.

                                        Standard of Review

        The findings of fact made by a trial court are given a presumption of correctness that will not
be overturned unless the evidence preponderates against those findings. See TENN. R. APP . P. 13(d);
see also Bank/First Citizens v. Citizens and Assoc., 82 S.W.3d 259, 262 (Tenn. 2002). A trial


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court’s ruling on a matter of law, however, will be reviewed “‘under a pure de novo standard . . .
according no deference to the conclusions of law made by the lower court[].’” Bank/First Citizens,
82 S.W.3d at 727 (quoting Southern Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d
706, 710 (Tenn. 2001)).

                                         Law and Analysis

         We will first address Mr. Hales’ assertion that the County is bound by its trial stipulations,
as this is the dispositive issue. Mr. Hales asserts that the parties stipulated that there were two (2)
contested issues presented for the trial court to resolve - whether Mr. Hales was entitled to receive
the award in a lump sum and whether Mr. Hales was entitled to prejudgment interest. Mr. Hales
further asserts that these stipulations prevent the County from raising issues on appeal which were
not litigated at trial. We agree.

        At trial, counsel for Mr. Hales stated that “it’s my belief that there’s only really two real
issues, the lump sum issue and the issue of prejudgment interest.” In response, counsel for the
county stated “[i]t’s true, the issues are essentially as counsel has stated.” Counsel for the County
further stated, “[a]nd the issue, as I see it, boils down to whether or not we’re going to commute the
settlement or whether there is any prejudgment interest.” The parties also entered into the following
stipulations:

       (1)     the injury “arose out of and in the course and scope of his employment,”
       (2)     Mr. Hales was entitled to the maximum compensation rate of $541.00 per week,
       (3)     Mr. Hales was one-hundred percent (100%) totally disabled,
       (4)     a mental injury is a scheduled injury pursuant to Tennessee Code Annotated section
               50-6-207(ff),
       (5)     Mr. Hales was entitled to “an award of 400 weeks at the rate of $541.00 a week for
               the total award of $216,400.00 for the permanent impairment,”
       (6)     the nature of the injury requires that Mr. Hales future medicals be left open, and
       (7)     the last disability or wage continuation payments made by the County was on June
               15, 2001.

        At no time during the trial did the County assert that it was entitled to a setoff for amounts
previously paid to Mr. Hales. The County had the opportunity to assert that it was entitled to an
offset and chose not to. Instead, the County stipulated that there were only two contested issues,
those being whether Mr. Hales was entitled to prejudgment interest and whether the award should
be paid in a lump sum. Only after the trial court decided both issues in Mr. Hales’ favor did the
County raise the issue of an offset.

       As our Supreme Court stated in Bearman v. Camatsos, 385 S.W.2d 91(Tenn. 1964):
       We have recognized a number of times the validity of an oral stipulation made during
       the course of a trial. Shay v. Harper, 202 Tenn. 141, 303 S.W.2d 335. Further, an



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        open court concession by the attorneys in the case constitutes a binding stipulation
        in this State. Phelan v. Phelan, 43 Tenn. App. 376, 309 S.W.2d 387.

        When a party makes a concession or adopts a theory by stipulation and his cause of
        action is determined on this concession or theory, then that party must abide by his
        decision even on appeal by certiorari. Lewis & Sons v. Ill. Cent. R. Co., 150 Tenn.
        94, 259 S.W. 903; Stearns v. Williams, 12 Tenn. App. 427.

         These stipulations will be rigidly enforced by the courts of this State. State ex rel
         Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491; Tucker v. International Salt
         Co., 209 Tenn. 95, 349 S.W.2d 541.
Id. at 93. The rule that stipulations will be enforced applies “to stipulations regarding issues as well
as stipulations of fact.” Envtl. Abatement, Inc. v. Astrum R. E. Corp., 27 S.W.3d 530, 539 (Tenn.
Ct. App. 2000) (citing In the Matter of Property Seized On Or About November 14-15, 1989, 501
N.W.2d 482, 485 (Iowa 1993)). Our Supreme Court has also noted that the parties’ stipulations that
there were only two (2) controverted issues at the trial prevented the defendant “from questioning
the limited nature of the decree” on appeal. Aetna Cas. and Surety Co. v. Miller, 491 S.W.2d 85,
86 (Tenn. 1973). The County raises no question on appeal regarding either of the issues that were
stipulated to by the parties and adjudicated by the trial court. We find that the parties are bound by
the stipulations they made at trial and that these stipulations prevent the County from litigating issues
not presented at trial. We will not address the remaining issue as it was rendered moot by our
disposition of the stipulation issue.

                                              Conclusion

       Accordingly, we affirm. Costs on appeal taxed to the Appellant, Shelby County, for which
execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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