Prime Company and Jerry Salemi v. Wilkinson & Snowden, Inc. and Eugene Woods
W2003-00696-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves a claim for procurement of breach of contract. The plaintiff real estate firm sued the defendant real estate firm for procurement of breach of a real estate listing contract. A bench trial was conducted. At the close of the plaintiffs’ proof, the defendants moved to dismiss the plaintiffs’ claims. The trial court noted that, in order to prove procurement of breach of contract, the plaintiffs were required to prove that the defendants acted with “malice.” In order to prove “malice,” the trial court held that the plaintiffs were required to prove that the defendants were “motivated by ill will, hatred or spite.” The trial court found that the plaintiffs had not submitted evidence that the defendants were motivated by ill will, hatred or spite, and therefore held that the plaintiffs could not prove that element of their claim. The plaintiffs’ claim for procurement of breach was dismissed. The plaintiffs now appeal. We reverse, finding that in order to prove malice in this context, the plaintiffs were not required to prove ill will, hatred or spite.

State of Tennessee v. Worley K. Henry
E2003-02630-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller

On May 1, 2003, the defendant, Worley K. Henry, was convicted by a Sullivan County jury of theft of property valued at less than $500, possession of a Schedule IV controlled substance, and tampering with evidence. The trial court sentenced him to eleven months and twenty-nine days each for the theft and possession convictions and six years for the tampering with evidence conviction. The theft and evidence tampering sentences were to run concurrently to each other, but consecutively to the possession sentence. The defendant appealed his convictions for theft of property valued at less than $500 and tampering with evidence. He has alleged that the evidence is insufficient to support verdicts of guilty for these offenses. We affirm the judgments of the trial court.

Raymond Jones v. State of Tennessee
E2003-00580-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Robert E. Cupp

Petitioner, Raymond Roger Jones, appeals the Washington County Criminal Court's dismissal of his pro se combined motion to reopen his post-conviction petition, petition for writ of error coram nobis, and petition for DNA analysis. Petitioner was convicted by a jury in the Knox County Criminal Court of two counts of first degree murder. He received consecutive life sentences. This Court affirmed Defendant's convictions and sentences on direct appeal. See State v. Jones, 735 S.W.2d 803 (Tenn. Crim. App. 1987). Petitioner filed a petition for post-conviction relief in the Washington County Criminal Court. The trial court dismissed the petition, and this Court affirmed. See Raymond Roger Jones v. State, No. 03C01-9102-CR-00068, 1991 Tenn. Crim. App. LEXIS 584, (Tenn. Crim. App. at Knoxville, July 26, 1991), perm. to app. denied (Tenn. 1992). On June 22, 2001, Petitioner filed a pro se motion to reopen his post-conviction petition, alleging that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), established a new rule of constitutional law requiring retroactive application to his case. Petitioner subsequently filed a supplemental request for DNA analysis. The trial court dismissed the motion and denied Petitioner's request for DNA Analysis. Petitioner appeals. After reviewing the record, we affirm the judgments of the trial court.

In Re: Estate of Barsha Ella Royston
E2004-00963-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Richard E. Ladd

Appellant has appealed before final judgment was entered. We dismiss the appeal.

State of Tennessee v. Larry Allen Blaylock
W2003-02436-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed McGinley

The defendant appeals his conviction for Class A misdemeanor assault and the refusal of the trial court to impose an alternative sentence of judicial diversion or full probation. After review, we reverse the conviction for the trial court’s failure to instruct on self-defense. In the event of further appellate review, we have considered all issues raised on appeal. The cause is remanded for a new trial.

Ron Searcy, D/B/A Restoration Contractors v. John Herold
M2003-02037-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge C. L. Rogers

This appeal involves a dispute between a homeowner and a contractor over the validity of an arbitration award. After the arbitrator awarded the contractor $52,725, the contractor filed a complaint in the Circuit Court for Sumner County to confirm the award and to recover the costs of the arbitration. The homeowner challenged the award on the ground that he had not been afforded a hearing. The contractor filed a motion for summary judgment, a motion to dismiss the homeowner's counterclaim, and a motion for attorney's fees under the arbitration agreement. The trial court, granting the contractor's motions, confirmed the $52,725 arbitration decision and awarded the contractor $500 in arbitration expenses and $2,205 in attorney's fees. The homeowner has appealed. We have determined that the arbitration award must be vacated because of the arbitrator's failure to provide the parties a hearing before rendering his decision.

Anthony D. Cuttle v. State of Tennessee
W2003-00684-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. McLin

The petitioner appeals the denial of his petition for post-conviction relief, arguing that the postconviction court erred in finding he received effective assistance of counsel and in denying his request to represent himself at the post-conviction proceeding. Following our review, we affirm the denial of the petition.

Anthony D. Cuttle v. State of Tennessee - Concurring
W2003-00684-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. C. McLin

I concur in the majority opinion. I have chosen to write separately to express concern over two issues that appear from the record and that are not addressed by either party. Admittedly, the record is unclear but the majority opinion concludes that the petitioner originally filed a pro se petition for post-conviction relief, that counsel was appointed, and that the petition was summarily dismissed in August of 1998. In February of 2001, the petitioner again filed a pro se motion to reopen his post-conviction petition, which was granted by the post-conviction court. I found nothing in the record that would support the reopening of the petitioner's original post-conviction relief petition. Next, it appears that the petitioner was appointed counsel and on the second day of the hearing, the petitioner filed a pro se amended petition for post-conviction relief and was allowed an additional day in which to present evidence. This procedure appears to be in conflict with the holdings of our supreme court in State v. William Lee Burkhart, 541 S.W.2d 365. The petitioner in the instant case did not have a constitutional right to participate in propria persona and, simultaneously, be represented by participating counsel.

Vincent Hatch v. State of Tennessee
W2003-02821-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Vincent Hatch, appeals the trial court's denial of his petition for post-conviction relief alleging that he was denied the effective assistance of counsel. The judgment of the post-conviction court is affirmed.

State of Tennessee v. Ambreco Shaw
W2003-02822-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Ambreco Shaw, was convicted by a Shelby County Criminal Court jury of second degree murder, a Class A felony, for shooting a man to death at a Memphis public housing development. The trial court sentenced him as a standard, violent offender to twenty-four years in the Department of Correction, applying four enhancement factors to increase his sentence from the presumptive twenty-year midpoint in the range. In a timely filed appeal to this court, the defendant raised as his sole issue whether the evidence was sufficient to sustain his conviction. However, following the United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. ___ , 124 S. Ct. 2531 (2004), which was released during the pendency of this appeal, the defendant sought and received permission from this court to raise as an additional issue the impact of the Blakely decision on the sentencing imposed in his case. Based on our review of the record, the parties’ briefs, and applicable law, we conclude that the evidence was sufficient to sustain the defendant’s conviction and that two of the four enhancement factors were appropriately applied under Blakely. We further conclude that the applicable factors justify the enhanced sentence in the case. Accordingly, we affirm the judgment of the trial court.

State of Tennessee v. Gregory Robinson
W2001-01299-SC-R11-DD
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge James C. Beasley, Jr.

We granted the State’s application for permission to appeal to determine whether the Court of Criminal Appeals erred by reversing the defendant’s conviction for premeditated first degree murder and his sentence of death. Upon review, we hold that the Court of Criminal Appeals erred in reversing the defendant’s conviction and sentence. In particular, we conclude that the trial court did not err by failing to instruct the jury on facilitation and solicitation or by permitting the medical examiner to display the victim’s cleaned and reconstructed skull as a demonstrative aid during his testimony; that the prosecution did not present inconsistent theories and evidence in the separate trials of the defendant and co-defendant Prentiss Phillips; and that the sentence of death is not disproportionate considering the circumstances of the crime and the defendant. Having reinstated the defendant’s conviction and sentence, we have also reviewed and considered all other errors alleged by the defendant and conclude that none warrants relief. With respect to issues not herein specifically addressed, we affirm the decision of the Court of Criminal Appeals. Relevant portions of that opinion are published hereafter as an appendix. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part, affirmed in part, and the judgment of the trial court is reinstated.

State of Tennesee v. Gregory Robinson - Concurring and Dissenting
W2001-01299-SC-R11-DD
Authoring Judge: Justice Adolpho H. Birch, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

Jeffrey K. Boyce v. Dab Plumbing, Inc. and Oak River
M2003-01903-WC-R3-CV
Authoring Judge: John A. Turnbull, Sp. J.
Trial Court Judge: Hon. J.B. Cox, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer contends that the trial court erroneously: (1) awarded payment of unauthorized medical expenses, (2) refused to apply the statutory cap allowed by Tenn. Code Ann. _ 5-6-241(a)(1) to the permanent partial disability award, and (3) granted excessive permanent partial disability benefits in light of the employee's vocational factors. The issues turn on witness credibility and findings of fact. The Panel defers to the trial court and finds that the trial court opinion should be affirmed in all respects. Tenn. Code Ann. _ 5-6-225(e)(3) Appeal as of Right; Judgment of the Circuit Court Affirmed. John A. Turnbull, Sp. J., in which Frank F. Drowota, III, Chief Justice, and James L. Weatherford, Sr, Sp. J., joined. Clancy F. Covert and Michael W. Jones, Wimberly Lawson Seale Wright & Daves, Nashville, TN, for the appellants, DAB Plumbing, Inc. and Oak River Insurance Co. Joseph L. Mercer, Nashville, TN, for the appellee, Jeffrey K. Boyce. MEMORANDUM OPINION Facts Jeffrey Boyce ("Jeffrey")1, the appellee, was employed by DAB Plumbing, Inc. ("DAB"), which is owned by his brother David Boyce ("David") and his sister-in-law Debbie Boyce ("Debbie"). Jeffrey was a "plumbers' helper" who carried materials to and from a job site and performed the physical "grunt work" necessary to enable the plumber to do his job. On May 31, 22, Jeffrey injured his back when he stooped to walk under a chain as he returned from the truck carrying materials. Debbie took Jeffrey to the emergency room that day. He was told to return to see another doctor if he was still in pain in a few days. Jeffrey never saw the recommended doctor but instead returned to work. After Jeffrey had returned to work for over three months, he and David had an argument over a personal matter on September 9, 22. Jeffrey claims that David terminated his employment at that time in a fit of anger. David claims that he never terminated Jeffrey's employment, but assumed Jeffrey had quit because he did not return to work. However, on appeal David claims that he did terminate Jeffrey for misconduct (not reporting to work on September 9). At some time following the day of the argument, David retrieved Jeffrey's company truck, which was Jeffrey's only vehicle. Jeffrey claims that he repeatedly told David and Debbie of his continued back pain, although David and Debbie deny being aware that Jeffrey needed to see a doctor. Neither party asserts that Jeffrey directly requested to see a doctor. Jeffrey claims he was afraid to see or request to see a doctor because requesting medical attention would jeopardize his employment. There is no evidence that Jeffrey had any prior medical problems with his back. Debbie testified that a workers' compensation report was filed with the insurance company following Jeffrey's injury. Jeffrey was never contacted by a representative from DAB's insurance company, and DAB did not comply with the Tennessee statute requiring it to furnish Jeffrey with a panel of doctors to consult. Jeffrey was referred to Dr. Walter W. Wheelhouse by his attorney. Dr. 1 The first names of the parties are used throughout this opinion, not out of disrespect for the parties, but to better identify the parties since they all have the same family name.

Melly L. Lee v. Saturn Corporation
M2003-00390-WC-R3-CV
Authoring Judge: Rita L. Stotts, Sp. J.
Trial Court Judge: J. B. Cox, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with the Tennessee Code Annotated section 5-6- 225(2)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case the trial court found that the employee gave actual notice of her neck injury and that the injury was work related. The employee's award was based on a permanent partial impairment rating of 18%. The employer raises the following issues: 1) Whether the trial court erred in concluding that the union representative had apparent authority to receive notice of employee's work-related injury; 2) Whether the trial court erred in concluding that the employee gave the employer actual notice of her injury; and 3) Whether the trial court erred in concluding that employee's injury was work related. We find no error and affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (23 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed RITA L. STOTTS, SP. J., in which ROGER A. PAGE, SP. J., and ADOLPHO A. BIRCH, JR., J., joined. Thomas H. Peebles, IV and Stephen Zralek, Columbia, Tennessee, for the appellant, Saturn Corporation. Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Melly L. Lee. MEMORANDUM OPINION STANDARD OF REVIEW In Tennessee, appellate review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). The reviewing Court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Synthia M. Hopkins v. Victor L. Hopkins
M2002-02233-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Carol A. Catalano

The issue in this case is whether child support may be awarded when neither party has been designated the primary residential parent. The Court of Appeals modified the trial court’s judgment to award equal parenting time between the parties. Neither party contests this modification. We hold that the Court of Appeals erred, however, in awarding child support to one party when neither party was designated the primary residential parent. We remand to the trial court for the designation of a primary residential parent, for the consideration of the amount of child support to be paid, and for entry of a parenting plan.

Synthia M. Hopkins v. Victor L. Hopkins - Dissenting
M2002-02233-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Chancellor Carol A. Catalano

In RE: Zaylen R.
M2003-00367-COA-R3-JV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert P. Hamilton

This appeal involves a dispute over the custody of a non-marital child. The child's father requested the Wilson County Juvenile Court to designate him as the child's primary residential parent because of the mother's history of substance abuse. Following a bench trial, the juvenile court designated the mother as the child's primary residential parent and established a visitation schedule for the father. The court also ordered the father to pay child support and to maintain insurance for the child. The father asserts on this appeal (1) that the juvenile court's findings of fact were insufficient, (2) that the evidence does not support designating the mother as the child's primary residential parent, and (3) that the court based its decision on the outmoded tender years doctrine. We affirm the juvenile court's order.

Wayne Davidson v. Ricky Bell, Warden
M2003-01128-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Barbara N. Haynes

The petitioner, Wayne Davidson, was convicted in the Meigs County Criminal Court of second degree burglary. Upon being found by a jury to be an habitual criminal, the petitioner was sentenced to life imprisonment. Subsequently, the petitioner filed in the Davidson County Circuit Court a pro se petition for writ of habeas corpus, alleging that the statutes under which he received a life sentence were unconstitutional. The trial court summarily dismissed the petition, and the petitioner timely appealed. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Mark Godsey
E2003-02141-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Rebecca J. Stern

Defendant appeals the trial court's dismissal of his petition for writ of habeas corpus in Case No. 242704 in which Defendant alleged that the municipal ordinance supporting his conviction for reckless driving was unlawfully enacted. Defendant also appeals the trial court's order declaring him to be an habitual motor vehicle offender in Case No. 239641. After a thorough review of the record, we affirm the trial court's judgments in Case Nos. 242704 and 239641.

State of Tennessee v. Billy Wayne Quillen
E2004-00417-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James E. Beckner

The defendant, Billy Wayne Quillen, pled guilty to two counts of attempt to obtain a controlled substance by fraud and was placed on judicial diversion for two years. His diversion was subsequently revoked, and the trial court reinstated his original two-year sentence to be served at 100%. On appeal, the defendant argues that the trial court erred in ordering him to serve his sentence at 100% without release eligibility, and the State agrees. Based upon our review, we modify the defendant's sentence to reflect release eligibility after service of 30% of the two-year sentence.

Donavan Edward Daniel v. State of Tennessee
W2003-02511-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge William B. Acree, Jr.

Petitioner, Donavan Edward Daniel, filed a pro se petition for post-conviction relief alleging, as amended, that his trial counsel provided ineffective assistance of counsel by failing (1) to raise the legality of Petitioner’s detention as an issue in his motion to suppress; (2) to demonstrate a particularized need for expert services and timely present the affidavit of the proposed expert to the trial court; and (3) to request a mistrial or curative instruction when two prospective jurors stated during voir dire that they were familiar with Petitioner’s juvenile record and family background.  Following an evidentiary hearing, the post-conviction court denied Petitioner’s request for post-conviction relief. After a thorough review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Frankie E. Casteel
E2003-01563-CCA-R3-CD-
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James L. Weatherford

Defendant was indicted on three counts of first degree murder, and a jury found Defendant guilty on all counts. On appeal, this Court reversed Defendant’s convictions and remanded for a new trial because of the inappropriate admission of certain evidence and the prosecutor’s reliance on the inadmissable evidence during closing argument. State v. Frankie E. Casteel, No. E1999-00076- CCA-R3-CD, 2001 WL 329538 (Tenn. Crim. App., Knoxville, April 5), perm. to appeal denied (Tenn. 2001). At the conclusion of the second trial, the jury again found Defendant guilty of three counts of first degree murder. On appeal, Defendant argues that (1) the Hamilton County District Attorney’s Office should have been disqualified from prosecuting Defendant in this case; (2) the evidence is insufficient to support Defendant’s convictions; (3) the trial court erred in allowing certain testimony; and (4) the trial court erred in admitting Defendant’s adopted admission through Marie Hill’s testimony. Following a thorough review of the record in this matter, we affirm the judgments of the trial court.

George G. Faulkner v. Howard Carlton, Warden, and the State of Tennessee
E2004-00387-CCA-R3-HC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The petitioner, George G. Faulkner, appeals the order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Stanley Craig Hughes
E2004-00105-CCA-R3-CD-
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carroll L. Ross

Defendant, Stanley Craig Hughes, was indicted for one count of second degree murder, one count of aggravated assault, two counts of reckless endangerment, and one count of unlawful possession of a weapon. The State entered a nolle prosequi on the unlawful possession of a weapon charge, and Defendant was tried on the other charges. Defendant’s first trial ended in a mistrial. At the conclusion of Defendant’s second trial, the jury found Defendant guilty of aggravated assault and not guilty of the charge of second degree murder and both counts of reckless endangerment. Following a sentencing hearing, the trial court sentenced Defendant to six years in the Tennessee Department of Correction. On appeal, Defendant argues that the evidence was insufficient to support his conviction for aggravated assault, and that the trial court improperly applied enhancement factors and failed to consider mitigating factors in determining the length of Defendendant’s sentence. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Wayne Bostic
W2003-03082-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jon Kerry Blackwood

Following a jury trial, Defendant, Wayne Bostic, was convicted of one count of delivery of cocaine, a Schedule II controlled substance. The trial court sentenced Defendant to five years confinement as a Range I, standard offender. Defendant does not appeal his sentence. Defendant does, however, appeal the sufficiency of the convicting evidence. Following a review of the record, we affirm the trial court’s judgment.