J. Howard Johnson, et al., v. Michael R. Allison, et al.
M2003-00428-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. Mccoy

The parties entered into an option contract for the sale and purchase of a piece of land. The bargained-for option had a limited duration, with the buyer entitled to extend the option for additional consideration if it exercised that right within an agreed-upon time frame. The buyer paid for several extensions, but did not exercise the option before the final option deadline had passed. The sellers subsequently refused to sell, and the buyer sued for breach of contract and specific performance. The sellers filed a motion for summary judgment, which the trial court granted. We affirm the trial court.

State of Tennessee v. Bobby Northcutt
M2003-02805-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Bobby Northcutt, pled guilty to two counts of rape of a child, and the trial court sentenced him to twenty-five years in prison on each count, ordering the sentences to run consecutively. The Defendant appeals his sentence, contending that the trial court: (1) improperly failed to apply one mitigating factor; (2) improperly applied two enhancement factors; and (3) erred when it ordered that his sentences run consecutively. Finding that reversible error exists, we reverse the judgments of the trial court and remand the case for resentencing.

State of Tennessee v. Bryant Dunn
E2003-02526-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Bryant Dunn, pled guilty to theft over one thousand dollars, a Class D felony, and the Sullivan County Criminal Court sentenced him to two years incarceration in the Department of Correction. The defendant appeals, claiming that the trial court erred by denying him probation or alternative sentencing. We affirm the trial court.

Susan Begley v.State of Tennessee and Tennessee Department of Transportation
E2004-00202-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

In May of 2000, a car being driven eastbound on Interstate 40 (“I-40”) in Knox County by Jeremy Roark left the travel lane and crossed the rumble strips onto the inside shoulder of the road where it collided with a Tennessee Department of Transportation (“TDOT”) truck parked during routine litter pick-up. Mr. Roark was killed in the accident and the TDOT employee operating the truck that day, Kenneth Siler, was injured. Susan Begley, Mr. Roark’s mother (“Plaintiff”), brought suit against the State of Tennessee. The case was transferred to the Claims Commission (“the Commission”) and was tried. The Commission held, inter alia, that a reasonable person standard applied and that it was not reasonable for the TDOT truck to be parked on the shoulder. The Commission assessed 45% of the fault for the accident to Mr. Roark and 55% to the State and awarded Plaintiff a judgment for $300,000. The State appeals claiming the Commission lacked jurisdiction, there was insufficient evidence that each element of the negligence cause of action had been met, and there was insufficient evidence to support a finding that Mr. Roark was less than 50% at fault. We affirm.
 

Susan Begley v.State of Tennessee, and Tennessee Department of Transportation - Dissenting
E2004-00202-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

Assuming arguendo that the State’s parked vehicle was a contributing proximate cause of the accident, the Commissioner’s and the majority’s approach by focusing almost exclusively on the defendant’s parked vehicle and its location, led them in my view to the wrong conclusion. The majority is unable to point to any specific regulatory or statutory violations by the defendant. In contrast, the deceased violated numerous statutes, as well as common law violations. See Tenn. Code Ann. § 55-8-101 et seq., Operation of Vehicles - Rules of the Road.

State of Tennessee v. Robbie Chet Walley
W2003-02987-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree, Jr.

The defendant, Robbie Chet Walley, was convicted of possession of drug paraphernalia and was sentenced to eleven months, twenty-nine days, all suspended except for sixty days. On appeal, he argues that the trial court erred in denying alternative sentencing. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Jonathan Campbell
E2003-01315-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The defendant was convicted of driving under the influence ("DUI"), first offense, and sentenced to eleven months, twenty-nine days in the county jail, with all but forty-eight hours suspended and the balance to be served on probation. In addition, his driver's license was suspended for one year and he was ordered to pay a fine of $350. In his appeal, the defendant argues that the trial court should not have allowed the jury to compare his signature from the morning of the arrest with his signature from another day for the purpose of inferring impairment. Following our review, we affirm the judgment of the trial court.

C. Dwight Graham, et al., v. The General Sessions Court of Franklin County, et al.
M2003-02231-COA-R3-CO
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Thomas W. Graham

Professional bondsmen sued the general sessions court, the general sessions judge, and the sheriff, seeking a declaratory judgment that an order of the general sessions court concerning bonds for some offenses is invalid as contrary to the statutes of the State of Tennessee and the Tennessee Constitution. The trial court entered judgment for the defendants, and plaintiff appeals. We reverse.

State of Tennessee v. Larry F. Litton
E2003-00782-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

The appellant, Larry F. Litton, was indicted on charges of rape in violation of Tennessee Code Annotated section 39-13-503. A jury found the appellant guilty of the lesser-included offense of sexual battery and recommended a $3,000 fine. The appellant was sentenced to a one-year sentence as a Range I Standard Offender, but the trial court ordered the appellant to serve two years on probation in lieu of incarceration. The trial court also imposed the $3,000 fine recommended by the jury. After the denial of a motion for new trial, this appeal ensued. The appellant challenges: (1) the trial court's decision to allow the testimony of Dr. Scott Levine in which he recounted a conversation with the victim that occurred several weeks after the incident; (2) the trial court's instruction to the jury that a tape-recorded conversation between the victim and the appellant was an "alleged admission;" and (3) the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court.

Gary Montgomery v. Sonja K. Schedin
E2003-02600-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

Gary Robert Montgomery ("Plaintiff") and Sonja K. Schedin ("Defendant") were engaged to be married. After the engagement ended, Plaintiff filed a Writ of Possession in the General Sessions Court claiming Defendant refused to allow him to retrieve his personal property. At issue in the General Sessions Court was who was entitled to a boat and trailer, an ATV, an engagement ring, a trailer, and a 1998 Chevy pick-up truck. Plaintiff claimed Defendant bought the ATV for him as a gift, and that she also gave him $13,500 as a gift to buy the truck. After the General Sessions Court entered its judgment concluding, among other things, that the money was loaned to Plaintiff and was not a gift, Plaintiff appealed to the Circuit Court. The Circuit Court likewise concluded the money was loaned to Plaintiff and was not a gift. Plaintiff appeals. We modify the judgment of the Circuit Court and affirm the judgment as modified.

Vickery Transportation, Inc. and Grammer Industries, Inc. v. Hepaco, Inc.
W2003-01512-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor George R. Ellis

This case arises out of an action seeking declaratory relief concerning the validity of an arbitration clause in a contract between the parties. Appellee filed a complaint in the Chancery Court at Haywood County for a determination of whether a contract, and, therefore, the arbitration clause in the contract, were invalid because the contract was one of adhesion or executed under duress. The trial court, upon Appellees’ motion to stay arbitration, ordered that the arbitration proceedings should be stayed because there was no agreement to arbitrate. Appellant filed its appeal to this Court, and, for the following reasons, we reverse and remand this case for further proceedings consistent with this opinion.
 

William Anthony Bacigalupo v. Mary Darlene Raines Blacknall Bacigalupo
W2003-01578-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Lee Moore

This case arises from the divorce proceedings of Husband and Wife. Husband filed for a divorce from Wife, citing inappropriate marital conduct and irreconcilable differences as grounds for a divorce. Wife filed her answer and counterclaim, stating she was entitled to a divorce on the basis of inappropriate marital conduct and adultery. The trial court granted Wife a divorce, established Wife as the primary residential parent of Child, divided the parties’ marital property, set alimony payments Husband must pay to Wife, imposed a lien on Husband’s property to secure the property division and support payments, and awarded Wife a portion of her attorney’s fees incurred as a result of the proceedings. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
 

Steven R. Ouzts v. Michael L. Womack, Victoria A. Raub, Frank Donato, Remax-Elite, Steven Boysen, Crye-Leike, Inc., and McAnally Inspection Svc., Inc.
W2003-01502-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This case involves alleged fraud in the sale of real estate. The sellers completed a residential disclosure statement indicating that the subject property had no flooding problems. The sellers then bargained to include language in the deed disavowing any previous representations concerning the property’s condition. The buyer accepted these terms. After the buyer took possession, the property flooded. The buyer filed suit against the sellers, alleging fraudulent concealment and misrepresentation. The sellers filed a motion for summary judgment, which was granted. We affirm, holding that the buyers are bound by the unambiguous terms of the contract for sale and the deed.

Monte Panitz, et al., v. F. Perman & Company, Inc., et al.
W2003-01958-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Shareholders seek to inspect certain records of corporation of which they are shareholders, as well as records of two other corporations (“the subsidiaries”): a second corporation which is the wholly-owned subsidiary of the corporation in which Plaintiffs hold shares, and another that is the wholly owned-subsidiary of the second corporation. Defendants maintain that plaintiffs do not have any right to inspect the records of corporations in which they are not shareholders, but agreed to allow inspection of limited records of two subsidiaries as a courtesy, contingent upon plaintiffs signing a confidentiality agreement. Plaintiffs maintain that they have an unqualified right to inspect records of all three corporations under T.C.A. 48-26-102. The trial court found that the confidentiality agreement was reasonable and entered an order requiring defendants to produce certain records, dating back to 1991, for inspection and copying. It further held that, in light of defendants’ agreement to allow limited inspection of records of subsidiaries, it need not rule on issue of whether plaintiffs were entitled to inspect records of subsidiaries. We affirm as modified herein.

James Arthur Ratledge v. Clifford Hampton
E2003-02323-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Lawrence H. Puckett, Judge
The plaintiff suffered a tear of the rotator cuff in his right shoulder. The dispositive issue is when did the tear occur? The medical proof revealed that the tear occurred one or two years before the date of injury alleged in the complaint. The trial judge held that the plaintiff failed to prove his case by a preponderance of the proof. The plaintiff appeals, and presents for review the issue of whether he failed to prove that he sustained a compensable injury. Our review is de novo on the record. We presume the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P.

Wanda Lynch, et al. v. Cf Industries, Inc.
E2003-02166-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: W. Frank Brown III, Chancellor
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. This is a death case. The decedent was diagnosed with mesothelioma, an ultimately fatal disease, but an autopsy revealed that he died of congestive heart failure. Death benefits were not awarded. The surviving widow appeals, claiming that the preponderance of the proof established that her husband died of mesothelioma which was job-related. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed WILLIAM H. INMAN, SR. J., in which E. RILEY ANDERSON, J., and ROGER E. THAYER, SP. J., joined. A. Christian Lanier and Jimmy F. Rogers, Chattanooga, Tennessee, attorneys for appellant, Wanda Lynch, individually and as surviving spouse of Louis E. Lynch. Robert J. Uhorchuk, Chattanooga, Tennessee, attorney for appellee, CF Industries, Inc., formerly known as Central Farmers, Inc., and Farmers Chemical Cooperative of Tennessee. MEMORANDUM OPINION This action began as one seeking workers' compensation benefits for mesothelioma. Six months after the complaint was filed, Mr. Lynch died and the complaint was amended appropriately. The defense centered, inter alia, on the issue of the cause of death since an autopsy revealed that Mr. Lynch died of congestive heart failure. Much expert testimony was presented, either in open court or by deposition, including the testimony of Dr. Stanton C. Kessler, a board- certified pathologist. The trial judge filed a detailed opinion setting forth his findings of fact and conclusions of law. One of his findings _ that Mr. Lynch died of congestive heart failure _ is assailed as contrary to the preponderance of the evidence. The dispositive issue on appeal is whether the trial judge erred in concluding that Mr. Lynch's death was not attributable to his employment. The Plaintiff also presents issues involving (1) the refusal of the trial court to impose sanctions for the alleged violation of Rule 26, Tenn. R. Civ. P., (2) the alleged restriction of the cross- examination of one of the Defendant's expert witnesses, and (3) the denial of discretionary costs. The Medical Proof Dr. Yune-Gill Jeong, who is board-certified in internal medicine and pulmonology, testified that he initially saw Mr. Lynch on July 25, 2. His suspicion that Mr. Lynch was suffering from mesothelioma, a malignancy of the lung lining, was confirmed by a biopsy. He `observed' that the disease either caused or contributed to Mr. Lynch's death, and that any heart problem was aggravated by the disease. He twice saw Mr. Lynch and on neither occasion did he find evidence of a heart problem, but believed that Mr. Lynch's complaints of back and chest pain related to the lung disease and not to his heart. He had x-rayed Mr. Lynch on July 25, 2 and saw no evidence of an enlarged heart, although there were arteriosclerotic changes in the aorta. His last examination of Mr. Lynch was about eighteen months before his death. Although he testified that Mr. Lynch died of mesothelioma, he conceded that an autopsy is the accepted medical procedure to determine the cause of death, and that he did not review tissue samples, autopsy photographs or microscopic slides that were available to him. He also conceded that Mr. Lynch could have died from some other cause. Dr. Dwight A. Hamilton, who is board-certified in cardiovascular-thoracic surgery, reviewed an EKG and the medical history of Mr. Lynch which revealed no evidence of heart disease other than arrhythmia. He concluded that Mr. Lynch died of mesothelioma, but conceded on cross-examination that the EKG revealed two electrical conduction problems. Dr. Stanton Kessler performed an autopsy on January 26, 22. He is board- certified and the medical examiner for Hamilton County, and serves on the faculty of Harvard Medical School. Dr. Kessler saw and examined the mesothelioma tumors. He testified that these tumors were not significant or sizable enough to cause death, and were not restricting the lungs to the point where they were incapable of sustaining life, and had not metastasized or spread to any other organ such as the heart, liver, spleen or any other areas. He testified that he found no signs of wasting or cachexia that would be indicative of an individual who died from cancer or mesothelioma, but found substantial evidence that the cause of death was the result of arteriosclerotic cardiovascular disease, or congestive heart failure. According to the pathologist, the internal findings that confirmed death by congestive heart failure included hypertrophied or enlarged heart, enlarged spleen and liver that were consistent with heart failure, and terminal arteriosclerotic disease that included severe stenotic changes in all vessels in the heart. Along with these finding, Dr. Kessler confirmed that his review of treatment medical records of Mr. Lynch within the appropriate year and one-half before death documented abnormal -2-

Steve Edward Leach v. State of Tennessee
M2002-02194-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James O. Bond

The petitioner, Steve Edward Leach, entered pleas of guilt to first degree murder and rape of a child. The trial court imposed consecutive sentences of life imprisonment without the possibility of parole and 25 years, respectively. There was no direct appeal of the conviction or sentence. Later, the petitioner was denied his application for post-conviction relief. This court affirmed. Steven Edward Leach v. State, No. M1999-00774-CCA-R3-PC (Tenn. Crim. App., at Nashville, Feb. 16, 2001). Counsel for the petitioner failed to make a timely application for permission to appeal to the supreme court and our supreme court denied a request to waive the 60-day period of limitation as prescribed by Tennessee Rule of Appellate Procedure 11. By motion, the petitioner then applied for relief in the post-conviction court. The post-conviction court found that the petitioner was not at fault for failing to timely file a Rule 11 application but denied relief based upon lack of jurisdiction. In this appeal, the petitioner has asked this court to vacate and re-enter its judgment filed February 16, 2001, in Cause No. M1999-00774-CCA-R3-PC. Because our supreme court has ruled under similar circumstances that the petitioner was not entitled to the effective assistance of counsel and was not denied due process of law, the judgment is affirmed.

Kenneth Morgan Johnson v. Dorothy Lynn Johnson (Holt)
M2003-00866-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John W. Rollins

Kenneth Morgan Johnson (“Father”) and Dorothy Lynn Johnson (“Mother”) were divorced in 1998. The parties have two minor children and initially agreed to equal co-parenting time and that neither party would seek child support from the other. A house owned by Father was severely damaged if not destroyed by fire, and the proceeds from a fire insurance policy were deposited with the Trial Court in a separate lawsuit. After Father was sentenced to be incarcerated for seven years for federal drug violations, Mother filed a petition claiming entitlement to the insurance funds being held by the Trial Court because the minor children were in need of support. The Trial Court concluded Mother should be paid $1,034 per month out of the fire insurance proceeds as child support for the parties’ two minor children. Father appeals claiming the Trial Court erred in determining the amount of child support he should be required to pay each month out of the fire insurance proceeds. We affirm the decision of the Trial Court.

Kenneth Morgan Johnson v. Dorothy Lynn Johnson (Holt) - Concurring
M2003-00866-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John W. Rollins

I agree completely with the majority opinion. I write separately to express my opinion that the statement in State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244 (Tenn. Ct. App. 2000) that “[s]etting child support is a discretionary matter,” id. at 248, should not be broadly read. For example, it is clear to me that a trial court has “limited discretion” to deviate from the amount of child support determined by applying the rules set forth in Tenn. Comp. R. & Regs., ch. 1240-2-4- .03. See Jones v. Jones, 930 S.W.2d 541, 544-45 (Tenn. 1996). However, I agree with the majority that the Kaatrude principle set forth above applies to the facts of this case. Finding no abuse of discretion in the trial court’s judgment, I concur.

State of Tennessee v. Gregory Fairbetter
M2004-00594-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Monte D. Watkins

The defendant, Gregory Fairbetter, was charged with driving under the influence and violating the implied consent law. The defendant filed a motion to dismiss, arguing that because the videotape of his arrest had been destroyed by the state, he could not receive a fair trial. The trial court agreed and dismissed the driving under the influence charge. In this appeal, the state asserts that the trial court erred. The judgment of the trial court is reversed and the cause is remanded.

David L. Buck and Christopher L. Buck v. James W. Avent and Wife, Bernadine Avent, and Timmy Avent
W2003-00934-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Martha B. Brasfield

This is an action to establish an easement. The plaintiffs’ property adjoins the northern boundary of the defendants’ property. The plaintiffs’ property is landlocked. To access the property, the plaintiffs historically used an old logging road on the northeastern corner of the defendants’ property. In 1998, the defendants made improvements that effectively blocked the plaintiffs’ passage over the old logging road. The plaintiffs filed this lawsuit to establish an easement over the old logging road and to enjoin the defendants from further impeding their use of the easement. After a bench trial, the trial court determined that the plaintiffs had established prescriptive easement and an implied easement over the defendants’ property. The trial court directed the plaintiffs’ expert, a surveyor, to establish the exact property lines between the parties’ properties, and ordered the defendants to restore the plaintiffs’ property to its original state according to those boundaries. From that order, the defendants now appeal. We affirm the trial court’s conclusion that the plaintiffs established a prescriptive easement and an implied easement, and reverse in part and remand for the trial court to allow the parties an opportunity to submit further evidence on the exact boundary line between their properties.

Robert Hunley v. Moore's Lumber & Building Supplies, Inc.
E2003-02193-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: Daryl R. Fansler, Chancellor
The trial court awarded the employee twelve and one-half (12 1/2) percent permanent disability as a result of a back injury and ruled the award was capped by the two and one-half times the five (5) percent medical impairment because the employee rejected a reasonable offer to return to work. The judgment is affirmed.

State of Tennessee v. Randy David Miles
M2003-01492-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Curtis Smith

The defendant, Randy David Miles, was convicted by a Franklin County Circuit Court jury of two counts of aggravated rape, a Class A felony, and aggravated kidnapping, a Class B felony, for his participation with a codefendant, Gary Allen Phillips, Jr., in grabbing a woman from the street in Northern Alabama and transporting her by car to the defendant's grandmother's abandoned farmhouse in Huntland, Tennessee, where the defendant raped her while his codefendant watched. The defendant was sentenced by the trial court as a Range I, standard offender to concurrent terms of eleven years, nine months for the aggravated kidnapping conviction and twenty-four years, six months for each of the aggravated rape convictions, for an effective sentence of twenty-four years, six months. His Tennessee sentences were ordered to be served concurrently to his Alabama sentence for kidnapping. On appeal, he challenges the sufficiency of the evidence, the State's failure to make a proper election of offenses, and the sentences imposed by the trial court. Following our review, we conclude that one of the aggravated rape convictions is invalid because the facts upon which the State relied to support the separate convictions constitute only one offense. Accordingly, we reverse one of the defendant's convictions for aggravated rape. We affirm the judgments as to the other aggravated rape conviction and the aggravated kidnapping conviction but modify the sentences to twenty-two years and nine years, respectively.

State of Tennessee v. Zina Beth Finnell
M2003-01997-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

This is a direct appeal from a conviction of facilitation to commit felony murder. The defendant, Zina Beth Finnell, was indicted for felony murder by a Davidson County Grand Jury in connection with the murder of her step-father during the commission of an aggravated burglary. A jury convicted the defendant of facilitation to commit felony murder, and the trial court sentenced her to 21 years. On appeal, the defendant argues two issues: (1) the trial court erred in denying the defendant's motion to suppress her statement to the police, and (2) there was insufficient evidence to find the defendant guilty of facilitation to commit felony murder. We affirm the judgment of the trial court.

State of Tennessee v. Randal Todd Kemper
M2004-00219-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Randal Todd Kemper, was convicted of driving under the influence. The trial court imposed a sentence of eleven months, twenty-nine days, with all but forty days suspended. In this appeal of right, the defendant complains that the trial court erroneously admitted the results of his blood alcohol test because the accompanying certificate bore a rubber-stamped signature. The judgment of the trial court is affirmed.