1 Rule 10 (Court of Appeals) . Memorandum Opinion. - This Court, with the concu rrence o f all judge s participati ng in t

he c as e, may affi rm, reverse or modify the act ions of the t

rial court by memorand um opinion when a formal opinion would have no precedential value. When a case is decided by memo randum opinion i t shal l be desi gnated “MEMORANDU M OPINION”, shal l not be p ublishe d, and shall not be ci ted or rel ied on for any rea son in a ny unr elat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON FEBRUARY 18, 2003 Session JOE R. HALES v. SHE LBY 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 employ

ee. The trial court awarded th e p la in ti ff

$2 16 ,4 00 .0 0 f or in

ju ri es su st ai ne d w hi le wo rk in g f or Sh el by C ou nt y. The trial court then denied Shelby County ’s post-trial motion seeking a credit or offset for wag e continuation benefit s alread

y pa id to the pla

intiff. Th e partie s 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
A LAN E. H IGHERS , J., de liver ed th e opi nion o f the

cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined. Carroll C. Johnson, Memphis, TN, for Appellant Joseph Michael Cook, Memphis, TN, for Appellee

MEMORAN

DUM OP

INION 1 Facts and Procedural History On April 19, 2 000, Joe R. H ales (“ Mr. Hale s ”) was involved in an automobile accident arising out of and in the course of his employ ment with Shelby County (“the County”). A s a consequenceof this accident, Mr. Hales sustained a closed head injury which resulted

in asubstantial and permanent loss of his mental faculties.-2-

The County is not

bound by the Tennessee Worker’s Compensation Act (“the Act”). Instead, the County has an

Injury (OJI) Le ave Policy which is supplemented by the Act whe

re the County’s policyis silent. Pur suant to the County ’s policy , Mr. Hale s was paid disability

pay ments in the amount of

his full sa

lary for nine ty (90) days. At the e

nd of this ninety (90) day period, Mr. H ales was paid sixty-six and two-third percent (66 2 / 3 %) of his salary . These pay ments began

on April 19, 2000 and ended on June 15, 2001. On April 19, 2001, Mr. Hales brough t suit ag ainst the C ounty

seeking “such te mporary -total, permanent-partialand other job injury benefits to which he is entitled.” The County filed its answer, alleging that it had

paid Mr. H ales temp orary disability to which he was en

titled. Thereaf

ter, Mr

. Hales filed a motion to amend his complaint, seeking to add a pray er for an award of prejudg ment 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 aw ard ed Mr. Hales permanent disability payments for 400 weeks at the maximum compensation rate of

$541.00 pe

r week f or a tota l award o f $216,40 0.00. I n its Final Judgment, the trial court or

dered th at the $21 6,400.00 b e 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, Shelb y Co unty filed a post -tria l mot ion s eekin g a credi t or of fset f or wage continuation pay

ments pre viously made toMr. Hale s. The Coun ty claimed that since the maximum total of all be

nefits to w

hich Mr. H ales wasentitle d was 400 week s, the Coun ty s hould be a

ble to offset the amoun

ts paid from April 19, 2000 until September 15, 2001. The trial court, finding that the Co unty was no t entitled to a cre dit or off

set, deni ed the mot

ion. The Co

unty timely filed its notice of appeal on June 13, 2002.
Issues
I. Whether

the County

should be l

iable fo r on the jo

b inju ry bene fits in excess of the maximum total amou

nt requir ed to be pa

id under t

h e County’s OJI policy

as suppleme nted by the Tennessee Wor

ker’s Com

pensatio n Act.
II. Whether

the County’s stipulation

of issuesat trial p

reventsit from raising issues on appeal t hat were not prese nted at tr ial. Standard of Review The findings of fact made by a trial court are given a presumption of correctness that will not be overtur

ned unles s the evid

ence pr eponder ates ag ainst those

findings. See

T ENN
. R. A PP
. P. 13(d); see also Bank/First Citizens v. Citizens and A ssoc ., 82 S. W.3d 259, 262 (Tenn. 2002). A trial-3-

court’s ruling on a matter of la w, 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 7 27 (qu otin g Southern Constructors, Inc. v. L oudon County Bd. of Educ ., 58 S.W.3d 706, 710 (Tenn. 2001)). Law and Analysis
We will first

addressMr. Hale s’ assertio n that the County is bound by

its trial st ipulations , as this is the dispositive issue. Mr. Hales asserts that the parties stipulated that there were two (2) contestedissues presented for the trial court to resolve - whethe r Mr. Hales was entitled to receive the award in

a lump sum a

nd whethe

r Mr. Hal es was e

ntitl ed to p rejudgment interest. Mr. Hales further asserts that

these stipulations prevent the County from raising issues on a ppeal which were not litigated at trial. We agree.
At trial, counsel for Mr. Hales stated that “it’s my belief tha t there’s onl y really two real issues, the lump sum issue and the issue of prejudgment interest.” I n response, counsel for th e 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’r e going to commute the settlement

or whether there is any

prejudgment interest.” The parties also enter ed into the following stipulatio ns: (1) the injury “ar

ose out of and in the course and scope of his employ ment,” (2) Mr. Hales was entitled to the maximum compensation rate of $541.00 per w eek, (3) Mr. Hales was one-hundred perc ent (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 wee ks 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 lef t open, and (7) the last disability or wage c ontinuation pay

ments made

by t he County

was on June 15, 2001. At no time during the trial did the County asse rt that it was entitled to a setoff for amounts previous ly

paid to Mr. Hales. The County ha d the opportunity to assert that it was entitled to a n offset and chos e not to. I

nstead, t he County

stipulate d th a t there w ere only two conte sted issue s, those being whether Mr. Hales was e ntitled to prejudgment interest and whether the awa rd should be paid in a lump sum. Only after the tr ial court dec ided both issue s in Mr. Hales’ favor did the County raise the issue of a n offset. As our Supreme Court stated in Bearman v. Camatsos , 385 S.W.2d 9 1(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-4-

open court co ncession

by t he attor ney s in the ca se constitute s a binding stipulation in this State. Phelan v. Phelan , 43 Tenn. App. 376, 309 S.W.2d 387. When a party make s a concessionor adoptsa theory by s tipulation

and his cause of action is determined on this concession or theory , then that par ty must abide

by h is decision even on appeal by certiorari. Lew is & Sons v. Ill. Cent. R. Co. , 150 Tenn. 94, 259 S.W. 9 03; Stearns v . Williams , 12 Tenn. App. 427. These stipulations will be rigidly enforc ed by the courts of this State. State ex rel Weldon v. Thomason , 142 Tenn. 527, 221 S.W. 49 1; Tucker v. In ternatio nal Salt Co. , 209 Tenn. 95, 349 S.W.2d 541. Id

. at 93. The

rule tha t stipulations willbe enfor ced app lies “to

stipulatio ns rega

rding is sues as w ell as stipulations of fact.” Envtl. Abatement, Inc. v. Astrum R. E. Corp ., 27 S.W.3d 530, 539 (Tenn. Ct. A pp. 20 00) (ci ting 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 appea l. Aetna Ca s. and Sur

ety Co. v. Mil l er , 491 S.W.2d 85, 86 (Tenn. 1973). The County raises no question on appe al regarding either of the issues that were stipulated to by the parties and a djudicated 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 notpresent

ed at tria l. We will no t addres s the remaini ng issue as it was rendered moot by our disposition of the stipulation issue. Conclusion Ac co rd in gl y, we affi

rm. Costs on appeal taxed to the Appellant, Shelby County , for which ex ec ut io n m ay i ss ue if

ne ce ss ar y.

___________________________________ ALAN E. HI

GHERS, JUDGE