In the matter of: T.L.M., T.L.J., and T.J.B, Jr.
W2004-00234-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Christy R. Little

The trial court terminated the parental rights of the Mother and alleged Fathers of two children under the age of 18. Mother appeals. We affirm.
 

In the Matter of C.M.S.: State of Tennessee Department of Children's Services v. Lisa Howell, et al.
W2004-00295-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Christy R. Little

This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Madison County, terminating her parental rights on the grounds of persistence of conditions. Specifically, Mother asserts that the termination of her parental rights is not supported by clear and convincing evidence in the record, and that termination is not in the best interest of the children. We reverse and remand.
 

Brian Deas, Administrator v. State of Tennessee
W2003-02891-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Nancy Miller-Herron, Commissioner

This case involves a wrongful death action filed against the State of Tennessee in the Tennessee Claims Commission pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). Appellant is the administrator of the estate of the deceased driver of an automobile involved in a collision with another vehicle on a state highway. Following a hearing, the Commissioner ruled that the state was negligent under section 9-8-307(a)(1)(I) in inspecting and maintaining the section of highway at issue, the shoulder of the highway did not constitute a dangerous condition under section 9-8-307(a)(1)(J), the Appellant failed to prove that the condition of the highway was the proximate cause of the decedent’s untimely death, and the Appellant was not entitled to recover because decedent’s negligence in causing the accident was at least fifty percent (50%). The Appellant filed a notice of appeal to this Court, arguing that the Commissioner’s findings constitute error. For the reasons stated herein, we affirm.
 

Tareco Properties, Inc. v. Steve Morriss
M2002-02950-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor R.E. Lee Davies

The assignee of a judgment rendered by a federal district court in Texas attempted to enforce that judgment in Tennessee. The trial court entered an order granting summary judgment to the plaintiff and enforcing the judgment. The defendant subsequently filed a Tenn. R. Civ. P. 60 motion for relief, arguing that the judgment of the federal court was void. The trial court agreed and set aside its previous order. After the Texas federal court that had rendered the original judgment reached the opposite conclusion, the plaintiff filed a Tenn. R. Civ. P. 60 motion asking the trial court to set aside its earlier order setting aside the summary judgment enforcing the Texas judgment. The trial court denied this motion. By final order, the trial court dismissed the plaintiff's action to enforce the Texas judgment. We reverse the trial court on this issue and also vacate the order of expungement granted to Mr. Morriss related to a holding of criminal contempt.

Crye-Leike. v. Estate of Kenneth Earp, et al.
M2003-00740-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Tom E. Gray

This case involves a dispute over whether a real estate listing contract was canceled by oral agreement prior to receipt of a full-priced offer from a buyer. Plaintiff real estate agents claim the contract was still in effect at the time of the offer entitling them to their sales commission when Defendant sellers refused to sell their property. The trial court found that the contract was canceled by oral agreement prior to receipt of the offer and dismissed Plaintiffs' complaint. Defendants counterclaimed for violations of the Tennessee Consumer Protection Act and the Tennessee Real Estate Broker's Licensing Act. Defendants counterclaims were also dismissed. We affirm the decision of the trial court.

Marcellus Hazelitt v. State of Tennessee
M2003-02542-CCA-R3-CO
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

This matter is before the Court upon the State's motion to dismiss the appellant's appeal, or in the alternative, affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant filed a motion for correction or reduction of sentence that the trial court denied without benefit of a hearing. After reviewing the record in this case, we find the State's motion to affirm the judgment of the trial court by memorandum has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State ex rel. Karl F. Dean v. John Aaron Nelson, et al.
M2004-02509-COA-R10-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Steve R. Dozier

This extraordinary appeal involves the efforts of the Metropolitan Government of Nashville and Davidson County to close an adult business where acts of prostitution and lewdness were allegedly occurring. At the City’s request, the Criminal Court for Davidson County issued an ex parte temporary restraining order immediately padlocking the business. Following a hearing one week later, the trial court entered a second order stating that the temporary restraining order would “remain binding and in effect pending a trial.” The owner of the adult business filed a Tenn. R. App. P. 10 application with this court. We have concluded that the trial court departed from the accepted and usual course of judicial proceedings in two respects. First, the court violated Tenn. Code Ann. § 29-3-106(a) (2000) by issuing the temporary restraining order without five days written notice. Second, the trial court violated Tenn. R. Civ. P. 65.03(5) by allowing the temporary restraining order to remain in effect pending the trial. Accordingly, we grant the owner’s Tenn. R. App. P. 10 application and vacate the order padlocking the premises.¹

State of Tennessee, Department of Children's Services v. Tammy Robbins
W2004-00487-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge James H. Bradberry

This is a termination of parental rights case. Tammy Robbins (“Ms. Robbins”) appeals from the order of the Juvenile Court of Weakley County terminating her parental rights. Specifically, Robbins asserts that the trial court erred the following five respects: in admitting the testimony of a certain expert witness; in disregarding the testimony of another expert witness; in disregarding the testimony of Robbins’s fact witnesses; in refusing to observe Robbins with her children; and in considering, in the termination proceeding, evidence of the State’s earlier removals of the children from Robbins’s custody. Because we find appellant’s assertions to be without merit, we affirm.
 

Christina K. Yeubanks v. Methodist Healthcare Memphis Hospitals, et al.
W2003-01838-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

Appellant, the mother of a nine year old girl who died after being seriously injured in an
automobile accident, challenges the trial court’s dismissal of her suit for failure to pay discretionary costs resulting from a prior trial of her suit (which ended with voluntary dismissal of some claims, and directed verdict for Appellees on other claims). Appellant contends that the trial court that originally heard the case displayed bias or prejudice in favor of Appellees during that proceeding. Appellant contends that, due to the court’s alleged bias in favor of defendants, the division of the circuit court in which she re-filed the case erred in transferring the case back to the original division in which it was heard. Appellant further contends that, upon the case being transferred back to the division in which it was originally heard, the trial court erred in not recusing itself due to its alleged bias or prejudice. Appellant also contends that, after failing to recuse itself, the trial court erred in dismissing her lawsuit for failure to pay discretionary costs assessed at the conclusion of the prior trial. We affirm the judgment of the trial court, and remand for determination of damages for the filing of a frivolous appeal.
 

State of Tennessee v. Franklin Howard
W2002-01680-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Dailey

Following a remand for a new trial on the charge of first-degree premeditated murder, see State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the defendant, FranklinHoward, was again convicted of first-degree premeditated murder and was also convicted of felony murder and sentenced to life in prison.  Now on appeal, he challenges the sufficiency of the convicting evidence, the admission of a codefendant’s statement, the failure of the trial court to bar the second trial based upon principles of double jeopardy, the trial court’s jury instructions, the failure to transfer the case to another trial judge for retrial, and the imposition of consecutive sentencing. We reverse the felony-murder convictions and dismiss those charges but otherwise affirm the defendant’s first-degree murder conviction and sentence.

State of Tennessee v. Michael A. Drake
M2003-02520-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John D. Wootten, Jr.

The appellant, Michael A. Drake, was indicted on two counts of vehicular homicide and two counts of aggravated vehicular homicide. A jury found the appellant guilty of two counts of vehicular homicide by intoxication. In the second phase of the trial, the jury found the appellant guilty of two counts of aggravated vehicular homicide based on one prior DUI conviction and a blood alcohol level of .20 or more at the time of the present offense. On appeal, the appellant challenges the sufficiency of the indictment by arguing that it only gave notice that the State sought to convict him of aggravated vehicular homicide based on two prior DUI offenses. We determine that the indictment is misleading and deprives the appellant of adequate notice of the charges against him in violation of the 6th amendment to the United States Constitution and Article 1, section 9 of the Tennessee Constitution. The indictment indicated that the State sought the aggravated vehicular homicide convictions solely on the basis of the appellant's two prior DUI convictions pursuant to Tennessee Code annotated section 39-13-218(1)(a), rather than one prior DUI and a blood alcohol of .20 or more at the time of the offense, pursuant to Tennessee Code Annotated section 39-13-218(3). Thus, we are forced to dismiss the aggravated vehicular homicide conviction, modify the conviction to vehicular homicide under Tennessee Code Annotated section 39-13-213 and remand the case for resentencing.

State of Tennessee Department of Children's Services v. B.B.M.
E2004-00491-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Mindy Norton Seals

This appeal involves the Juvenile Court's termination of the parental rights of B.B.M. ("Mother") to her four children. After a trial, the Juvenile Court held there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The Juvenile Court also concluded that DCS had proven by clear and convincing evidence that Mother's parental rights should be terminated on three separate grounds. Finally, the Juvenile Court held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. The record on appeal is lacking in many respects and does not contain even the permanency plans developed by DCS to assist Mother in the unsuccessful attempt to reunite her with her children. We conclude the record, such as it is, does not contain sufficient evidence to support the Juvenile Court's conclusion that there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The judgment of the Juvenile Court is, therefore, reversed.

Calvin Lee Sneed v. State of Tennessee
E2004-00051-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Calvin Lee Sneed, was convicted upon a jury verdict of first degree premeditated murder and sentenced to life imprisonment. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137 (Tenn. Crim. App., Knoxville, June 12, 1998). The Defendant subsequently filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel at trial. After a hearing, the trial court denied relief. The Defendant now appeals. We affirm the judgment of the trial court.

State of Tennessee v. Michael Trew
E2003-01915-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Eugene Eblen

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant, Michael Trew, was found guilty by jury verdict of driving under the influence of an intoxicant (DUI), a Class A misdemeanor, and violating the implied consent law. The Defendant was sentenced to eleven months and twenty-nine days, with seven days to be served in the county jail; fined $400; and had his driver's license suspended for one year. The Defendant now appeals, claiming that the evidence at trial was insufficient to support his DUI conviction beyond a reasonable doubt. We affirm the judgment of the trial court.

Ronald Hugh Parchman v. Brenda Parchman
W2003-01204-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Joe C. Morris

This case involves the validity of a final divorce decree entered by the trial court which incorporated an agreement reached by the parties regarding alimony and property division. The wife subsequently filed a motion for a new trial, or in the alternative to alter and amend the judgment, alleging that the final divorce decree was invalid. The wife alleged that, at the time she entered into the agreement with her husband, she was not mentally competent. The trial court denied the wife’s motion. On appeal, the wife alleges that the trial court erred in denying her post-trial motion, as well as in its division of marital property and award of alimony in the final decree. For the reasons contained herein, we affirm.
 

Max Deberry v. Ed Gore, et al.
W2003-02679-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Clayburn L. Peeples

This case involves an inmate’s petition for a writ of mandamus filed against the Tennessee Department of Correction following an increase in his release eligibility date. The inmate filed the petition asking the trial court to order the department to enforce the sentencing range set forth in the judgment entered as a result of his plea agreement. The department filed a motion to dismiss which the trial court granted. We affirm.
 

R&J of Tennessee, Inc., v. Blankenship-Melton Real Estate, Inc., and Walden Blankenship, Individually
W2004-00185-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Roy B. Morgan, Jr.

This case involves a lawsuit filed by a secured party against a guarantor seeking a deficiency judgment following a foreclosure sale. The guarantor argued that the secured party was not entitled to a deficiency because he was given inadequate notice and the salewas conducted in a commercially unreasonable manner. Following a hearing, the trial court awarded the secured party a deficiency judgment. We reverse and remand to the trial court for further action consistent with this opinion.
 

Lee Ann Braswell v. Leslie Graves, et al.
W2004-00204-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Kay S. Robilio

Plaintiff/Appellant appeals from the trial court’s grant of Defendants/Appellees’ Tenn. R. Civ. P. 12 Motion to Dismiss for failure to secure service of process. Finding that Defendant/Appellees’ evidence clearly and convincingly rebuts the process server’s testimony, we affirm.
 

Monica White Mueller v. David Edmond Mueller
W2004-00482-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Martha B. Brasfield

This appeal concerns the trial court’s findings regarding child custody and rehabilitative alimony in a divorce action. Following a bench trial, the chancery court ruled that the mother would be the minor child’s primary residential parent. The father was awarded standard visitation pursuant to the Permanent Parenting Plan. The chancellor also awarded the mother rehabilitative alimony for a period of three years. The father has appealed the rulings of the chancery court to this Court. For the following reasons, we affirm.
 

Mary Allene Story v. Malcolm Eugene Lanier
W2003-02194-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. Steven Stafford

This case primarily involves a dispute over the proper characterization of property held by the parties during a thirty year relationship. The parties lived together during their relationship, but never married. Mary Story filed suit against Malcolm Lanier, alleging that a marriage by estoppel existed between the parties, or in the alternative, that an implied partnership was created, justifying the equal division of all bank accounts, personal property, and real property owned by the parties. The chancellor granted Mr. Lanier’s Motion to Dismiss Ms. Story’s marriage by estoppel claim but allowed her to proceed on an implied partnership theory. Following a bench trial, the chancellor found that an implied business partnership existed in a restaurant purchased by Mr. Lanier in 1974 but not in any real property or bank accounts. Both parties have appealed the chancellor’s rulings regarding the division of the parties’ assets. Ms. Story also appeals the chancellor’s denial of prejudgment interest, the finding that no resulting or constructive trusts existed as to the real property and bank accounts, and a ruling regarding Mr. Lanier’s pleadings. For the reasons stated below, we affirm the decisions of the chancery court.

Conlee Engine Rebuilders, Inc. v. City of Memphis
W2003-0216-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

This appeal arises out of an inverse condemnation action brought by Appellant against Appellee. Appellee filed a motion to dismiss for failure to state a claim upon which relief can be granted, contending that Appellant’s claim was time barred by the applicable statute of limitation. The trial court granted Appellee’s motion, and Appellant now seeks review by this Court. For the following reasons, we reverse.
 

Linda Kurts (Parrish) v. Gregory Parrish
W2004-00021-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves the trial court’s denial of an upward deviation in child support. The chancery court issued a final decree of divorce which incorporated the Permanent Parenting Plan approved by the parties. Pursuant to the plan, the mother was designated the primary residential parent and the father was given overnight visitation. The plan also ordered the father to pay the mother child support pursuant to the Tennessee Child Support Guidelines. When the father failed to make child support payments and exercise his visitation rights under the plan, the mother filed a petition for contempt. She also asked the trial court for an upward deviation in child support due to the father’s failure to exercise his rights to overnight visitation. The mother also asked the chancellor to award her litigation costs associated with bringing the petition. The father filed a counter-petition, asking the court for a downward deviation in his child support obligation due to his recent loss of income. The trial court originally granted a downward deviation to the father finding that a significant variance existed, but subsequently reinstated the original child support award. The mother filed this appeal, alleging the chancellor erred in refusing to grant her an upward deviation in child support and in not awarding her litigation expenses. For the reasons contained herein, we reverse in part and affirm in part the decision of the chancery court.
 

In the Matter of the Estate of Lizzie Tomlin Daughrity, Deceased
M2003-02244-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. B. Cox

This case involves a claim filed by the Tennessee Bureau of TennCare against the estate of an elderly decedent to recover certain benefits paid to the decedent to cover nursing home expenses during her lifetime. The executor filed an exception to the claim arguing that it was filed outside the four (4) month limitations period found in sections 30-2-306(c) and 30-2-307(a) of the Tennessee Code. The chancery court issued an order barring the bureau's claim on the grounds that is was untimely filed. For the reasons stated herein, we reverse.

Estate of Jason Jenkins
M2003-01561-COA-R3-CV
Authoring Judge: Judge William B. Cain

This is a suit for personal injuries brought by the mother of a mentally challenged 17 year old boy occurring when his teacher attempted to transfer him from one chair to another and tripped over a nearby rocker. Neither his teacher nor the Defendant Nurse who immediately attended to him after the accident detected the fractured leg. Young Jason Jenkins died from causes unrelated to the accident, and his suit was revived against Defendants, Metropolitan Government of Nashville, Davidson County, Mary Ann Armbrister, and Lisa Morrow. The case was voluntarily dismissed as to Defendant teacher Ms. Armbrister, and a settlement was reached between Plaintiff and Metropolitan Government of Davidson County. The trial court sustained a Motion for Summary Judgment on behalf of Ms. Morrow from which Plaintiff appeals. We affirm the action of the trial court.

State of Tennessee v. Gary Lee Johnson
M2003-02060-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jim T. Hamilton

Following a jury trial, the defendant, Gary Lee Johnson, was convicted of aggravated assault, assault,¹ and resisting arrest. He was sentenced as a Range I, standard offender to six years in the Department of Correction for the aggravated assault and eleven months, twenty-nine days for each of the assault and resisting arrest convictions. All sentences were to be served concurrently. He appeals only the aggravated assault conviction, arguing that the evidence is insufficient to support the conviction. After review, we affirm the convictions but remand for entry of corrected judgments in Counts 1 and 2.