Opinions

Arfken & Associates, P.A. vs. Simpson Bridge Company, Inc.
E2000-02780-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jerri S. Bryant

Arfken & Associates, P.A. vs. Simpson Bridge Company, Inc.
E2000-02780-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jerri S. Bryant

Karen Mountjoy vs. City of Chattanooga
E2001-02017-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Howell N. Peoples

Karen Mountjoy vs. City of Chattanooga
E2001-02017-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Howell N. Peoples

Doug Jones vs. Eddie Gillette, Sr., et al
E2001-01499-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Samuel H. Payne
The defendants/appellants, Eddie Gillette, Sr., and Vivian Gillette, the maternal grandparents of A.B.J., contend that the trial court abused its discretion when it granted custody of A.B.J. to her father, the plaintiff/appellee, Doug Jones. The Gillettes further contend that the trial court abused its discretion when it denied their oral motion to stay enforcement of its judgment pending appeal and when it denied their oral motion to award them visitation pending appeal. We affirm the judgment of the trial court.

James Randall Slaughter, et al. v. Duck River Electric Membership Corporation, et al.
M2000-00453-COA-R3-CV
Authoring Judge: Chancellor Vernon Neal
Trial Court Judge: Robert L. Holloway
This is an appeal from an order of the trial court granting a motion for summary judgment in favor of the defendant, Duck River Electric Membership Corporation and the third-party defendant, Osborne Electrical Contractors, Inc., on the ground that Duck River Electric Membership Corporation was a statutory employer for the purposes of the Tennessee Workers' Compensation Act at the time the plaintiff, James Randall Slaughter, received a severe electrical shock resulting in massive injuries. For the reasons herein stated, we affirm the judgment of the trial court and remand.

State of Tennessee v. Michael D. Wright
M2001-00793-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

In this appeal, Defendant raises the following issues: (1) whether the trial court incorrectly applied two enhancement factors, thereby causing his sentences to be excessive, and (2) whether the trial court erred by ordering that certain of his sentences run consecutively. Following a thorough review of the record, we affirm the judgment of the trial court.

Elizabeth Petty vs. State
E2001-02124-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Vance W. Cheek
In this action, the Commission found no contract between the parties and dismissed the claim. On appeal, we affirm.

City of Collegedale vs. Hamilton County Water Treatment
E2001-02041-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Samuel H. Payne
This is a suit brought by the City of Collegedale, seeking a declaration that Hamilton County Wastewater and Wastewater Treatment Authority is required to arbitrate a dispute between them in connection with the City annexing certain property served by the Authority. The complaint also sought a declaration that in the event the City prevails the Authority would not be entitled to prosecute a suit to condemn and re-acquire the facilities in question. The Trial Judge found in favor of the City on both issues and the Authority appeals. We affirm in part and vacate in part.

Jamie Mason vs. Charles Mason, Jr.
E2001-02208-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
This appeal from the Chancery Court of Cocke County questions whether the Trial Court erred in failing to grant Mr. Mason standard visitation with his minor son. We affirm the judgment of the Trial Court.

Peggy Gaston vs. Tennessee Farmers Mutual Ins.
E2001-01487-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Lawrence H. Puckett
This appeal from the Circuit Court of McMinn County questions whether the Trial Court erred in granting a directed verdict in favor of Tennessee Farmers Mutual Insurance Company because it refused to pay its policyholder, Peggy Gaston, under the uninsured motorist provision of her policy which covered Peggy Gaston. We vacate and remand.

Peggy Gaston vs. Tennessee Farmers Mutual Ins.
E2001-01487-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Lawrence H. Puckett
This appeal from the Circuit Court of McMinn County questions whether the Trial Court erred in granting a directed verdict in favor of Tennessee Farmers Mutual Insurance Company because it refused to pay its policyholder, Peggy Gaston, under the uninsured motorist provision of her policy which covered Peggy Gaston. We vacate and remand.

Services v. C.S.M. And L.M.M.
2000-02806-COA-R3-JV
Trial Court Judge: Darryl W. Edmondson

2000-02521-COA-R3-CV
2000-02521-COA-R3-CV
Trial Court Judge: James B. Scott, Jr.

2001-02185-COA-R3-CV
2001-02185-COA-R3-CV
Trial Court Judge: William E. Lantrip

M.P.P.,al vs. D.L.K. In Re: C.E.P.
E2001-00706-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: William E. Lantrip
The stepfather, M.P.P. ("Stepfather"), and the biological mother, A.P.P. ("Mother"), of a minor child ("Child") filed a petition to terminate the parental rights of the Child's biological father, D.L.K. ("Father"), so that Stepfather could adopt the Child. When the Child was 17 months old, Father received a 130-month prison sentence. The Trial Court granted partial summary judgment as a matter of law to Mother and Stepfather and terminated Father's parental rights. Father appeals. We affirm, in part, and vacate, in part, and remand.

Walter Fletcher v. Deanna M. Fletcher,
E2001-01223-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John K. Wilson

State of Tennessee v. Charles Damien Darden
W2001-01833-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Lee Moore Jr.
The Appellant, Charles Damien Darden, proceeding pro se, appeals as of right from an order of the Lake County Circuit Court denying his petition for the writ of habeas corpus. After a review of the record, we reverse the judgment of the trial court and remand for the appointment of counsel.

State of Tennessee v. Antonio Dewayne Carpenter
W2001-00580-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Jon Kerry Blackwood

The defendant, Antonio Dewayne Carpenter, was indicted for premeditated murder, felony murder, especially aggravated kidnapping, and especially aggravated robbery. The state filed notice seeking the death penalty. The defendant was convicted on each count of the indictment and the trial court merged the felony murder conviction with the premeditated murder conviction. At the conclusion of the penalty phase of the trial, the jury imposed a sentence of life without the possibility of parole. The trial court ordered concurrent twenty-year sentences for especially aggravated kidnapping and especially aggravated robbery. All of these sentences were ordered to be served consecutively to three life sentences for federal convictions stemming from the same incident. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the dual sovereignty doctrine, which permits successive federal and state prosecutions for the same acts, should be abandoned. The judgments are affirmed.

Judith Silvey vs. Darrel Silvey
E2001-02007-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
In this divorce action the Trial Court granted divorce ordered rehabilitative alimony, child support and divided the marital property. Issues on appeal include the valuation, classification and division of marital property and the award of alimony. We affirm in part, vacate in part and remand.

Lynn Hall, et al vs. Mark Bookout
E2001-01172-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Samuel H. Payne
Lynn and Lillian Hall, the maternal grandparents ("Grandparents") of the minor child ("Child"), filed a Petition for Custody seeking permanent custody of the Child, naming the Child's biological father ("Father"), Mark Bookout, as the defendant. The Grandparents had temporary custody of the Child pursuant to an ex parte order. At the close of proof at trial, the Trial Court found that the Father was not unfit. In its Order, however, the Trial Court made no specific finding regarding the risk of substantial harm if the Child was placed in Father's custody. The Trial Court denied the Grandparents' petition but did not order the Child returned to Father's custody by any set date but instead provided only that the "ultimate goal" was for the Child to be returned to Father. Father appeals. We affirm, in part, and modify, in part, and remand.

Mark Graham vs. Michael J. Mohr
E2001-00824-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
These consolidated cases arise out of a two-vehicle accident. The jury returned a verdict in favor of Mark Graham, assigning 51% of the fault to Michael J. Mohr and 49% to Graham. Mohr appeals, raising issues pertaining to the propriety of the trial court's ruling excluding the testimony of the police officer who investigated the accident. We affirm.

State of Tennessee v. Timothy Johnson
M2001-01362-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

Pursuant to a plea agreement, the Defendant pleaded guilty to one count of possessing with intent to sell less than 0.5 grams of a substance containing cocaine, and the trial court sentenced him as a Range I standard offender to five years incarceration in the workhouse. The trial court suspended the sentence and placed the Defendant on probation for five years. Approximately four months later, a warrant was issued against the Defendant alleging that he had violated the terms and conditions of his probation. The warrant alleged that the Defendant had been arrested for evading arrest and aggravated assault, that the Defendant had failed to report these arrests to his probation officer, and that the Defendant had failed to report to his probation officer after being released from jail. Following a hearing on the warrant, the trial court revoked the Defendant's probation and ordered him to serve the remainder of his sentence in confinement. The Defendant now brings this appeal, in which he challenges the trial court's order requiring him to serve the remainder of his sentence in confinement. Because we conclude that the trial court did not abuse its discretion, we affirm the judgment of the trial court.

State of Tennessee v. Kenneth Herring
M2001-00751-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stella L. Hargrove

The Defendant was convicted in Wayne County Circuit Court of five counts of rape of a child and two counts of aggravated sexual battery. The Defendant received an effective sentence of seventy-five years incarceration. This Court subsequently reversed the five rape of a child convictions and remanded the case to the trial court to determine whether the remaining two twelve-year sentences for aggravated sexual battery should be served consecutively or concurrently. The trial court determined that the sentences should be served consecutively for an effective sentence of twenty-four years incarceration. The Defendant now appeals, arguing that the trial court erred in ordering that the Defendant's sentences for aggravated sexual battery run consecutively. Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Reginald Merriweather
W1999-02050-CCA-R3-CD
Authoring Judge: Special Judge Cornelia A. Clark
Trial Court Judge: Judge John Franklin Murchison

This case returns to this court after remand by order of the Tennessee Supreme Court. The defendant appeals his jury convictions of attempted second degree murder, aggravated assault, and especially
aggravated robbery. He raises the following issues: (1) whether the trial judge erred in denying defendant’s request for a mistrial based on a juror’s response during voir dire; (2) whether the trial court erred in directing a witness to answer questions on cross-examination; (3) whether the evidence was sufficient to support his convictions; and (4) whether the trial court erred in failing to instruct the jury as to certain lesser-included offenses. This court initially reversed the appellant’s
conviction for aggravated assault, based on double jeopardy considerations, and affirmed the judgment of the trial court on all other issues. See State v. Reginald Merriweather, No. W1999-
2050-CCA-R3-CD, 2001 WL 242570 (Tenn. Crim. App., Jackson, March 6, 2001) (perm. to appeal granted). On June 5, 2001, the Supreme Court released its decision in the case of State v. Curtis
Jason Ely and State v. Laconia Lamar Bowers, 48 S.W.3d 710 (Tenn. 2001). In Ely and Bowers, the Court announced new standards regarding the duty to instruct on lesser-included offenses. In
light of the decision in Ely and Bowers, the Supreme Court remanded the case to this court to determine whether error in not instructing facilitation was harmless. See State v. Reginald Merriweather, No. W2001-02206-CCA-RM-CD, Madison County (Tenn., September 10, 2001).  After revisiting this issue under the standards announced in Ely and Bowers, we reverse the defendant’s convictions and remand this matter for a new trial. 

Because Ely and Bowers involve the issue of lesser-included offenses only, the remand does not alter the analyses in our original opinion as to other issues. However, the necessity of a new trial does render premature our earlier determination to dismiss the conviction for aggravated assault. So as to avoid confusion, sections I and II from our original opinion will be restated in their entirety.  Sections III and IV, dealing with the conviction for aggravated assault and the issue of lesser-included offenses, have been changed.