City of Cookeville, Tennessee v. Tennessee Water Quality Control Board, et al.
M2003-02476-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal concerns the rule-making authority of the Tennessee Department of Environment and Conservation under the Tennessee Uniform Administrative Procedures Act. The City of Cookeville, seeking to expand its treatment works facility, obtained a permit from the Tennessee Department of Environment and Conservation which placed nitrogen limits on the City's effluent emissions into Pigeon Roost Creek in Putnam County, Tennessee. The city filed a declaratory judgment action with the Chancery Court of Davidson County asking the court to find as follows: (1) the section 303(d) list created by the Tennessee Department of Environment and Conservation, which listed Pigeon Roost Creek as organically enriched, amounted to an improperly promulgated rule in violation of the Tennessee Uniform Administrative Procedures Act, and (2) the organic enrichment criteria contained in the section 303(d) list amounted to an improperly promulgated Water Quality Standard, which in turn constitutes an improperly promulgated rule, that the Tennessee Department of Environment and Conservation used to impose restrictions on the city's permit. The parties each filed motions for summary judgment with the chancery court. The chancellor granted the city's motion, finding that the section 303(d) list containing the organic enrichment criteria amounted to improperly promulgated rules as a matter of law. The state appealed the chancellor's ruling to this Court and, for the reasons contained herein, we dismiss this case as non-justiciable.

Susan Daugherty v. State of Tennessee
M2003-03053-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant has appealed the trial court's order summarily dismissing the appellant's petition for writ of habeas corpus. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Steven Ray Chance
M2004-01729-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Burch

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant has appealed the trial court's order summarily dismissing the appellant's "Affidavit of Specific Negative Averment." In that document the petitioner apparently desired to set aside his guilty plea because it failed to comply with certain provisions of the Uniform Commercial Code. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the "Affidavit of Specific Negative Averment" and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Jo Ann Harris v. Billy Harris
W2003-02112-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a petition to modify alimony. The parties were married for over forty-one years. In 1998, the wife filed a petition for legal separation. In October 1998, the trial court entered a final decree of legal separation, incorporating the terms of the parties’ property settlement agreement. In that agreement, the husband agreed to pay the wife alimony in futuro of $1,300 per month. In October 2001, the husband filed a petition to modify his alimony payments, based on the deterioration in his health, which hindered his ability to pay, as well as the wife’s receipt of social security benefits and income from investments that diminished her need for alimony. The trial court concluded that, since the 1998 decree, there had been no substantial or material change in circumstances that was not foreseeable when the decree was entered. Consequently, the husband’s petition to modify alimony was dismissed. The husband now appeals. We affirm.
 

Woodrow Jerry Hawkins v. Mary Burton, et al.
W2003-02617-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

Following an unlawful detainer action in general sessions court, Appellant was lawfully evicted pursuant to a writ of possession. Appellant did not appeal the judgment. Appellant filed a subsequent action in general sessions court alleging wrongful eviction. The general sessions court dismissed the action. Plaintiff appealed to circuit court, which affirmed dismissal based on the doctrine of res judicata. We affirm.
 

Crye Leike, Inc. et al., v. Richard Scott Over
W2003-02590-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor James F. Butler

This case arises out of the sale of real estate located in Madison County, Tennessee. Appellants filed this action to recover a real estate commission under a theory of unjust enrichment. The trial court below granted Appellee’s motion for summary judgment, and Appellants now seek review by this Court. For the following reasons, we affirm.

Michael Wayne Howell v. State of Tennessee
W2003-01056-SC-R11-PD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge W. Otis Higgs, Jr.

This case comes before us on a motion to reopen a petition for post-conviction relief. The
petitioner alleges that he is mentally retarded as defined in Tennessee Code Annotated section 39-13- 203(a) (2003), and therefore ineligible for the death penalty under State v. Van Tran, 66 S.W.3d 790  that the petitioner failed to make a prima facie showing of mental retardation sufficient to support reopening his post-conviction proceeding, and the Court of Criminal Appeals affirmed the denial. We reverse the Court of Criminal Appeals, holding that under the specific facts of this case, in which a petitioner is able, for the first time in his motion to reopen his petition for post-conviction relief, to claim ineligibility for the death penalty due to mental retardation under Van Tran or Atkins, the motion should be considered under the “colorable claim” evidentiary standard rather than the “clear and convincing” standard. We also hold that Tennessee Code Annotated section 39-13-203(a) (2003) clearly and unambiguously requires the defendant to have an I.Q. of seventy or below to be considered mentally retarded. We conclude that the petitioner’s motion to reopen his postconviction hearing set out a colorable claim, thus entitling him to an evidentiary hearing, without a jury, on the issue of mental retardation.

Michael Wayne Howell v. State of Tennessee - Concurring and Dissenting
W2003-01056-SC-R11-PD
Authoring Judge: Justice Frank F. Drowota
Trial Court Judge: Judge W. Otis Higgs, Jr.

Michael Wayne Howell v. State of Tennessee - Concurring and Dissenting
W2003-01056-SC-R11-PD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: W. Otis Higgs, Jr.

State of Tennessee ex rel. Margaret Estelle Mitchell v. Ray Allen Lea State of Tennessee ex rel. Katherine A. Yarbrough v. William R. Johnson
W2003-01650-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Special Judge Harold W. Horne

This is a consolidated appeal involving two Title IV-D child support cases. In each case, the mother had custody of the children, and the father was subject to a court order requiring monthly child support payments. The mother in each case received State assistance, and consequently the father was required to make the child support payments through the State’s central collection and disbursement unit. Years later, after significant child support arrearages had accrued, the father in each case filed a motion to modify the child support order and requested that the court terminate his child support obligation. Each mother joined in the father’s request, confirming that she no longer wanted the State to enforce the father’s child support obligation. In each case, the State objected, asserting that the mother had assigned to the State her right to the child support payments when she accepted public assistance benefits. The trial court dismissed each case and forgave each father’s outstanding child support arrearage. The State now appeals. We reverse, in both cases, concluding that the trial court erred in retroactively modifying its child support orders and in terminating the cases before the State had been reimbursed for public assistance benefits received by the mothers.

Rose Construction Company, Inc. v. Raintree Development Company, L.L.C.
W2003-01845-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

This is the second appeal of this case. In June 1999, an arbitration panel determined Rose Construction was entitled to damages under the parties’ contract. The trial court vacated the arbitration award. On appeal, this Court reversed and confirmed the arbitration award in its entirety. The Tennessee SupremeCourt denied Raintree Development’s application for permission to appeal, issued a mandate, and remanded the case to the trial court for entry of judgment. The trial court entered judgment for Rose Construction as ordered by this Court. Raintree Development again appeals. We affirm. We also hold this appeal frivolous and award Rose Construction damages for a frivolous appeal.
 

Samuel L. Giddens v. State of Tennessee
M2003-02827-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert L. Holloway

Following a jury trial, the Defendant, Samuel L. Giddens, was convicted of facilitation of possession of heroin with the intent to sell or deliver and possession of cocaine with the intent to sell or deliver. In this appeal as of right, the Defendant raises the following four issues: (1) whether the trial court erred by allowing law enforcement officers to testify regarding factual indications that a person possesses drugs with the intent to sell, rather than for personal use; (2) whether the trial court erred by admitting testimony regarding prior drug transactions conducted by the Defendant; (3) whether the evidence is sufficient to sustain his two convictions; and (4) whether he was entitled to a mistrial due to a statement made by the prosecutor during closing argument. We affirm the judgment of the trial court.

Sammie L. Taylor v. State of Tennessee
M2003-02954-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert L. Holloway

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition the petitioner sought a writ of habeas corpus to release him from his conviction for especially aggravated robbery. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Michael McCormick
E2003-02689-CCA-R9-DD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Douglas A. Meyer

The Defendant, Michael Lee McCormick, was convicted in 1987 of the first degree murder of Donna Jean Nichols. The Defendant was sentenced to death for the murder. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. McCormick, 778 S.W.2d 48 (Tenn. 1989). Subsequently, the Defendant filed for post-conviction relief on the grounds of ineffective assistance of counsel and a new trial was awarded. See Michael Lee McCormick v. State, No. 03C01-9802-CR-00052, 1999 WL 394935 (Tenn. Crim. App., Knoxville, June 17, 1999). In conjunction with the new trial, defense counsel filed a motion to suppress statements the Defendant made to police officers prior to his 1987 arrest. The trial court granted the Defendant's motion. The State now appeals by permission. See Tenn. R. App. P. 9. We affirm in part and reverse in part.

State of Tennessee v. Jeremy Davis
E2003-02214-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Douglas A. Meyer

A Hamilton County Criminal Court jury convicted the defendant of the attempted first degree murder of a police officer, and the defendant pled guilty to twenty-nine charges, including multiple counts of car burglary, felony theft, and misdemeanor theft. The trial court sentenced him as a Range I, standard offender to twenty-five years for the attempted murder conviction and as a Range II, multiple offender to an effective sentence of six years for the remaining convictions. The trial court ordered that the twenty-five-year and six-year sentences be served consecutively to each other and consecutively to a six-year revoked probation sentence. The defendant appeals, claiming that the trial court erred (1) by refusing to dismiss a juror for cause; (2) by refusing to compel the state to provide the defense with the police department's written use-of-force policy; (3) by refusing to allow the defense to cross-examine police officers about the use-of-force policy; (4) by refusing to allow an expert to testify about the victim's excessive use of force against the defendant; (5) by refusing to instruct the jury on deadly force; and (6) by ordering consecutive sentencing. We affirm the judgments of the trial court.

Charles Speed v. Kevin Myers, Warden, State of Tennessee
M2004-00764-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jim T. Hamilton

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition the petitioner alleges that the indictment charging the petitioner with one count of felony murder and one count of first degree murder is void because the counts therein fail to allege sufficient facts to vest jurisdiction in the trial court. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Pickwick Electric Cooperative v. Alcorn County Electric Power Assication (sic)
W2003-02699-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Dewey C. Whitenton

This is an appeal from the trial court’s grant of an injunction against Appellant to remove its electrical lines and facilities from McNairy County. The trial court found that Appellant was a “nonconsumer owned electric system” and, as such, subject to injunction under T.C.A. §65-34-103. Finding that Appellant is, in fact, an “electric and community service corporation,” we hold that Appellant is not subject to injunction under T.C.A. §65-34-103. We reverse and remand.
 

Michael S. Holmes v. State of Tennessee
W2003-02712-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Michael S. Holmes, was convicted in 1997 of aggravated robbery, aggravated assault, aggravated kidnapping, felony escape, burglary of a vehicle, and theft of property over $1000. His convictions were affirmed on direct appeal. Subsequently, he filed a petition for post-conviction relief alleging ineffective assistance of counsel and improper jury instructions on lesser-included offenses. After a review of the affidavits submitted by the petitioner, the post-conviction court denied the petition, and this appeal followed. We affirm the order of the post-conviction court denying the petition.

Dwayne S. Byrd, Julie Dichtel Byrd, J. Wilson Roop, Jr. - Getwell West Residents Assoc. v. City of Memphis, et al.
W2003-01943-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This case involves a dismissal for failure to prosecute. In January 1988, the plaintiff residents filed this lawsuit against the defendant municipal officials for allegedly enacting an unconstitutional and unreasonable annexation ordinance. In 2003, after the case had been on the trial court’s docket for fifteen years with little activity, the trial court clerk filed a motion to dismiss for lack of prosecution. In June 2003, the trial court granted the clerk’s motion and dismissed the case. The plaintiff residents now appeal. We affirm, finding that the trial court did not abuse its discretion in dismissing the case. The caption of the case lists 17 Plaintiffs. However, the first 1 two named Plaintiffs, Dwayne and Julie Byrd (“the Byrds”), are now counsel to the Plaintiffs and are not real parties in interest. The suit was originally filed when the Byrds were law students and residents of Getwell West. Subsequently, the Byrds moved out of Getwell West, but entered appearances on behalf of the other Plaintiffs after they became licensed to practice law. 2On November 14, 1995, the trial court entered an order dismissing the case for lack of prosecution. Apparently, however, that order was inadvertently entered, and two weeks later the trial court set that order aside. -2- Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed.

Gary L. Turnage v. Judith Washka Turnage
W2003-02790-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Robert L. Childers

This is a child support case involving the allocation of private school tuition. The trial court ordered the father to pay one-half of the minor children’s private school tuition. We affirm.
 

State of Tennessee v. Stephen L. Denton
E2000-02615-SC-R11-CD
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge R. Steven Bebb

The defendant, a physician, was charged in three separate indictments with a total of twenty sexual offenses involving eleven different victims. The counts charged in the indictments were alleged to have occurred over a time span of six years. The trial court denied the defendant's pre-trial motion to sever the counts for separate trials and granted the State's motion to consolidate all three indictments for a single trial. The defendant was subsequently found guilty of one count of sexual battery by an authority figure, six counts of sexual battery, and three counts of assault. He was acquitted on three counts of rape and three counts of sexual battery. The defendant then presented several issues on appeal, including: (1) that the trial court erred in denying the motion to sever the offenses; and (2) that the defendant was improperly convicted of sexual battery by an authority figure. The Court of Criminal Appeals held, among other things, that the trial court erred in denying the motion to sever. However, the Court found this error to be harmless and therefore affirmed the convictions. The Court of Criminal Appeals also held that the defendant's conviction for sexual battery by an authority figure was proper as a physician fell within the ambit of the applicable statute. For the reasons stated herein, we hold that the failure to sever the counts against the defendant was reversible error, and therefore we reverse the convictions. Further, we hold that a physician is not an authority figure as contemplated under Tennessee Code Annotated section 39-13-527 (2003) and therefore the defendant's conviction under this statute was improper. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the case remanded for new trials.

Adrian Wilkerson v. State of Tennessee
M2003-01385-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Adrian Wilkerson, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Paul Moss v. Board of Probation and Parole
M2003-02125-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Claudia C. Bonnyman

This action arises out of Appellant's parole hearing proceedings. Subsequent to his original parole hearing, Appellant filed a petition for writ of certiorari with the Davidson County Chancery Court. Upon Appellant's motion for summary judgment and Appellee's motion to dismiss, the trial court granted Appellee's motion to dismiss and denied Appellant's motion for summary judgment. For the following reasons, we affirm.

Michael Keith Kennedy v. State of Tennessee
M2003-02059-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Michael Keith Kennedy, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Ricky H. Krantz v. State of Tennessee
M2003-02819-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Holloway

The Petitioner, Ricky H. Krantz, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.