Eric D. Jones v. David Mills, Warden
W2004-00855-CCA-R3-HC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph H. Walker, III

The Petitioner, Eric D. Jones, appeals the trial court's denial of his petition for habeas corpus relief. 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 Petitioner fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

James R. Morrissett, Jr. v. Robbie Claire McKee Morrissett
W2003-01052-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Joe C. Morris

This is a divorce case. The parties were married in 1972. In 2001, the husband filed for divorce based on inappropriate marital conduct and irreconcilable differences, and the wife counterclaimed for divorce on the basis of inappropriate marital conduct. After the March 2002 trial, some of the parties’ main assets were sold in foreclosure. In October 2002, the trial court granted a divorce to the wife on the grounds that the husband had committed adultery. The divorce decree resolved all of the property issues between the parties. The trial court also found implicitly that the wife could not be rehabilitated, based on a letter from the wife’s physician, and awarded alimony in futuro. Two weeks later, the husband filed a motion for reconsideration, based in part on the interim sale of some of the parties’ assets and the husband’s consequent inability to fulfill his obligations under the decree. In April 2003, the trial court denied the husband’s motion to reconsider. From that order, the husband now appeals and challenges many of the trial court’s rulings. We affirm the trial court’s division of the marital property and its allocation of the marital debts. We find, however, that the letter from the physician was inadmissible hearsay, and consequently reverse the trial court’s award of alimony in futuro and remand for an award of rehabilitative alimony and for other proceedings.
 

Marcus Brooks v. State of Tennessee
W2003-02188-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Marcus Brooks, appeals the trial court's denial of his petition for post-conviction relief. 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. A review of the record supports the State’s position. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Mike Settle v. State of Tennessee
W2003-01261-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roger A. Page

The Petitioner, Mike Settle, appeals the trial court's denial of his petition for post-conviction relief. 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. After review, we conclude that thePetitioner has failed to establish a ground for which post-conviction relief may be granted. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

In Re: D.L.L. & R. H. F.
M2003-02736-COA-R3-PT
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Ken Witcher

The trial court terminated the parental rights of a mother to her two teenage sons on the grounds of abandonment, failure to comply with the permanency plan, and failure to remedy the conditions that led to the children being removed from her custody. After thoroughly examining the record, we agree with the trial court that all those grounds have been proved by clear and convincing evidence and that it is in the best interest of the children that the mother's parental rights be terminated. We also find that the Department of Children's Services made reasonable efforts to assist the mother, but that her own lack of honest effort rendered that assistance ineffective. We accordingly affirm the trial court.

Terrance Lowdermilk v. State of Tennessee
E2004-00282-CCA-R3-HC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern

The petitioner, Terrance Lowdermilk, appeals the trial court's dismissal of his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petition is barred by the statute of limitations and does not establish that the petitioner is alternatively entitled to relief by a writ of habeas corpus. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Amelia Swafford v. Bobby M. Johnson
M1999-00463-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Tom E. Gray

The instant appeal was stayed in 1999 by this Court's order upon suggestion of bankruptcy. The stay has been lifted, and the case proceeds on Amelia Swafford's appeal from the trial court's order in favor of the defendants Bobby and Betty Johnson and Old Hickory Engineering & Machine Co., Inc. ("OHEMCO"). We reverse the trial court.

Dan Johnson v. Howard Carlton, Warden
E2003-03010-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Dan Bill Johnson, sought habeas corpus relief, asserting that his five-year robbery sentence had expired. Although not granting the relief sought by the petitioner, the trial court determined that his life sentence had expired and identified the date at which he began serving his robbery sentence, with the Department of Correction then to determine his release date. Both the petitioner and the State appealed. Following our review, we reverse the order of the trial court and dismiss the petition for writ of habeas corpus. The petitioner is to be returned to custody.

Melvin L. Bookout v. Knox County Board of Zoning Appeals, et al.
E2003-02490-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor Sharon J. Bell

This is a zoning case. The principal issue is whether a rezoning amendment must explicitly designate the maximum density approved with reference to ancillary documentation.

Ailene Standifer Craft v. Claiborne County
E2003-01806-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge James B. Scott, Jr.

The initial judgment declared that Standifer Lane was a public road for one-tenth mile only. Sixteen (16) months after the judgment was entered, the County filed a Rule 62.02 motion alleging that "one-tenth mile" was a mistake because all concerned had agreed upon two-tenths mile. The judgment was amended to provide that Standifer Lane is a public road for a distance of 950 feet or to an existing driveway. The Rule 62.02 motion is untimely.

Sherri Dyer Kendall v. Lane Cook, M.D.
E2003-02227-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Harold Wimberly

Sherri Dyer Kendall (“Plaintiff”) sought treatment for bipolar disorder from a psychiatrist, Lane Cook, M.D. (“Defendant”). Defendant prescribed Topamax for Plaintiff. Less than one week later, Plaintiff began to experience loss of vision, severe headache, and severe vomiting. Plaintiff was diagnosed with acute angle closure glaucoma and underwent several surgical procedures to control or correct the problem. When Defendant prescribed Topamax to Plaintiff, it was unknown in the medical community that a potential side effect of Topamax was acute angle closure glaucoma. That acute angle closure glaucoma was a potential side effect was discovered later by the medical community, and Plaintiff1 sued Defendant2 for medical malpractice. At the close of Plaintiff’s proof at trial, Defendant moved for a directed verdict, which the Trial Court granted. Plaintiff appeals. We affirm.

Linda Ottinger, et. al v. Shelly Evans Ottinger - Concurring
E2003-02893-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline E. Schulten

I concur completely in Judge Swiney’s opinion. I write separately to emphasize what the majority opinion expressly states, i.e., that the Defendant in the instant case did not challenge the constitutionality of Tenn. Code Ann. § 36-6-306 (2001 & Supp. 2003). I continue to have some doubt that the deprivation of a relationship with grandparents can form the basis for the type of substantial harm contemplated by the Supreme Court’s decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). See Dugan v. Myers, C/A No. E2001-00281-COA-R3-JV, 2001 WL 1117514, at *2 (Tenn. Ct. App. E.S., filed September 24, 2001), no perm. app. requested (Susano, J., concurring). However, since that issue is not before us in this case, we do not need to reach it.

Linda Ottinger, et al. v. Shelly Evans Ottinger
E2003-02893-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Jacqueline E. Schulten

Linda Ottinger and Marion Ottinger (“Plaintiffs”) are the paternal grandparents of H.O. (“the Child”). The Child’s father died in 2000. Plaintiffs sought visitation with the Child. This visitation was opposed by the Child’s mother, Shelly Evans Ottinger (“Defendant”). Plaintiffs filed a petition to obtain grandparent visitation under Tenn. Code Ann. § 36-6-306. After trial, the Trial Court held, inter alia, that the Child has had a significant existing relationship with the Plaintiffs and the loss of that relationship presents the danger of direct and substantial harm to the Child. The Trial Court granted Plaintiffs visitation. Defendant appeals. We reverse.
 

Ricky D. Watkins, Sr. v. State of Tennessee, Department of Human Services, ex rel, Dorothy M. Prather, et al.
W2003-02577-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Steve Hornsby

This case involves an order for child support for three children of three different mothers. The Juvenile Court of Hardeman County consolidated the three matters into one cause. The trial court ordered Father to pay the child support amount for three children under the Child Support Guidelines and divided the amount equally into thirds. The State of Tennessee Department of Human Services filed this appeal. We reverse and remand for further proceedings consistent with this opinion

Rickey Hogan v. David G. Mills, Warden
W2004-00182-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner filed a petition for habeas corpus relief claiming that the judgments entered are void. He contends that he was on parole when the current offenses were committed; therefore, the concurrent sentences that he received are illegal. We conclude that in order to receive relief, the fact that the petitioner was on parole when he pled guilty must be proved by satisfactory proof contained in the record or proceedings underlying the convictions sought to be set aside. We reverse the trial court’s summary dismissal and remand for appointment of counsel and a hearing to determine whether the record of the underlying convictions or proceedings contained satisfactory proof that the petitioner was on parole at the time he committed second degree murder and robbery with a deadly weapon.

State of Tennessee v. Andre Baldwin
W2003-02253-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: JudgeW. Otis Higgs, Jr.

The Defendant, Andre Baldwin, was convicted by a jury of first degree premeditated murder. The Defendant was subsequently sentenced to serve a life sentence of imprisonment. In this direct appeal, the Defendant challenges the sufficiency of the evidence. Finding the evidence legally sufficient to support the Defendant’s conviction, we affirm the judgment of the trial court.

Lenita Oatsvall v. Baptist Memorial
W2003-02474-WC-R3-CV
Authoring Judge: William B. Acree, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
The employer, Baptist Memorial Hospital-Huntingdon appeals a judgment awarding the employee benefits based upon a permanent partial impairment of fifty (5%) percent to the body as a whole. The hospital contends that the judgment should be reversed and dismissed because the employee failed to give proper notice of the accident and because her injury was a preexisting condition rather than an injury caused by a job-related accident. Alternatively, the employer insists that the award of fifty (5%) percent permanent partial disability to the body as whole should be modified and reduced. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Joseph Cox v. Mcclane Food Service, Inc.,
W2003-01465-WC-R3-CV
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Trial Court Judge: D.J. Alissandratos, Chancellor
This is a scheduled injury case in which the trial court awarded the Employee a recovery based on a disability rating of five percent (5%) to the Employee's right lower extremity. The Employee appealed. The issue raised on appeal is whether the trial court's findings with regard to the Employee's proper anatomic impairment rating and vocational impairment rating were contrary to the preponderance of the evidence. We remand the case to the trial court for clarification.

J.C. King, et al., v. Gatlinburg Sportsman's Club, Inc.
M2002-02949-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Lessors, who are descendants of the original lessor, filed suit against the Gatlinburg Sportsman's Club, Inc., to declare that the real estate lease had been breached by the Club due to its failure to build a clubhouse as required by the lease. The Club argued that it built a clubhouse that satisfied the lease for the lease did not contain specifications for the type or size of clubhouse. It further argued that it was not in breach for the lessors had extended the deadline indefinitely to build a more substantial clubhouse. The Club also argued that the lessors' claim was barred by the six-year statute of limitations, equitable estoppel, waiver and laches and that the lessors' violated the Club's right of first refusal to purchase the property by not selling the property as the decedent's will directed and for making transfers of partial interests in the property amongst the beneficiaries and descendants of the original lessor. The trial court ruled that the parties mutually suspended the deadline by which the Club was to build a clubhouse, that the Club failed to build a clubhouse, that the Club was in material breach and, therefore, the lease was terminated. We reverse in part finding that the parties did not mutually suspend the obligation or deadline to build a clubhouse, that the completion date for the clubhouse was June 30, 1990, and that the lessors did not file suit until May 5, 2000; therefore, the lessors are barred by the six-year statute of limitations. We affirm the trial court's ruling that the lessors did not violate the Club's right of first refusal to purchase the property, finding that the inter-family transfers did not violate the Club's right of first refusal.

Barbara D. Lowe v. Ruth F.Chenevert, A/K/A Ruth Robertson
M2003-00450-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John W. Rollins

This case arises from an automobile accident in which Ms. Lowe was injured by an uninsured motorist. Ms. Lowe and her husband filed suit against the motorist and were awarded a total of $25,000 in damages, which they sought to have satisfied by Tennessee Farmer's Mutual Insurance Company under the terms of their uninsured motorist insurance policy. Tennessee Farmer's refused to pay the claim, asserting that Ms. Lowe had already signed a complete release in exchange for a settlement in excess of $5,000. In the ensuing litigation, the trial court granted Tennessee Farmer's motion for summary judgment, finding that Ms. Lowe had, indeed, signed a release as part of a settlement with Tennessee Farmer's. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

State of Tennessee v. Ben Thomas Dowlen
M2003-00508-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

In this action which originated as a post-conviction proceeding seeking the grant of both a delayed appeal and a new trial due to ineffective assistance of counsel, Ben Thomas Dowlen appeals. We affirm the lower court's ruling on the sentencing issue raised in the delayed appeal, and we likewise affirm the lower court's denial of post-conviction relief.

Crystal Jill Cunningham v. John W. Gill
M2003-01374-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Vernon Neal

Plaintiff filed a complaint seeking a reversion of Defendant's mineral interests in Plaintiff's land, alleging that Defendant had abandoned the interests. The trial court held that the mineral interests had not been abandoned because Defendant had made use of the mineral interests by paying taxes on the mineral interests. We affirm.

Randall Mills v. State of Tennessee
M2003-01770-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge W. Charles Lee

The petitioner, Randall Mills, appeals the denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

State of Tennessee v. Harold David Haney, Sr.
M2003-01821-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Buddy D. Perry

Following a bench trial, the defendant, Harold David Haney, Sr., was convicted of violation of a motor vehicle habitual offender ("MVHO") order and DUI, second offense. He was sentenced as a Range I, standard offender to two years for the MVHO violation and eleven months, twenty-nine days for the DUI conviction, to be served concurrently in the Department of Correction. In addition, he was fined a total of $1100 and his driver's license was revoked for two years. On appeal, he argues that the State failed to establish venue. After review, we affirm the judgments of the trial court.

Patricia Albright v. Lloyd A. Button, et al
E2003-01591-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William H. Russell

This case involves the construction of a will. Lloyd A. Button, a widower (“the Deceased”), executed his last will and testament on April 1, 2002, while hospitalized at Parkwest Hospital in Knoxville. Under the heading “Conditional Bequest to Patricia Albright,” the Deceased left Ms. Albright his Loudon County residence, one of his automobiles, and “all . . . tangible personal property,” except the property mentioned in a specific bequest in the will. The Deceased died one week later, on April 8, 2002, having never left the hospital.1 Ms. Albright sued the personal representatives of the Deceased’s estate (“the Personal Representatives”) seeking to establish her entitlement to the property left to her in the will. On cross motions for summary judgment, the trial court granted summary judgment to Ms. Albright. The Personal Representatives, who are the Deceased’s son2 and Shirley Reno, a residuary beneficiary under the will, appeal. We reverse and dismiss Ms. Albright’s complaint.