Opinions

State of Tennessee v. Thomas L. Jones
W2000-01028-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John P. Colton, Jr.

The appellant was convicted by a jury in the Shelby County Criminal Court of second degree murder and was sentenced as a violent offender to twenty-one years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence was sufficient to convict the appellant of second degree murder; and (2) whether the trial court erred by refusing to grant a mistrial because of improper jury instructions characterizing the appellant's statement as a confession. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Dawn A. Dugan v. Elliott R. Myers (Deceased),
E2001-00281-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John L. Kiener

State of Tennessee v. Thomas E. Cowan, Jr.
E2000-02705-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Lynn W. Brown

The defendant, Thomas E. Cowan, Jr., was found guilty of contempt. The trial court imposed a jail sentence of 10 days, six of which were suspended. In this appeal of right, the defendant argues that the evidence was insufficient; that the trial judge should not have acted as a witness; and that the sentence was excessive. Because the evidence was insufficient, the judgment is reversed and the cause dismissed.

State of Tennessee v. Neil Friedman
E2000-02877-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Lynn W. Brown

The defendant, Neil Friedman, was convicted of driving under the influence, third offense, and driving on a revoked license. The trial court imposed a sentence of 11 months and 29 days, six months of which was to be served in the county jail, for driving under the influence. A consecutive sentence of six months, 30 days of which was to be served, was imposed for driving on a revoked license. This court affirmed the judgment on direct appeal. State v. Neil M. Friedman, No. 03C01-9704-CR-00140 (Tenn. Crim. App., at Knoxville, Apr. 14, 1998). The application for permission to appeal to the supreme court was denied December 21, 1998. In a hearing conducted on the following day, the trial court reduced the DUI sentence to 120 days, which the defendant has since served, followed by seven months and 29 days of probation. Over one year later, the trial court revoked the probation and ordered service of the remainder of the sentence. In this appeal, the defendant contends that the trial court no longer had authority to revoke the probation. Because the sentence had been fully served and the probationary term had ended when the probation revocation warrant was issued, the judgment must be reversed and the cause dismissed.

Dawn A. Dugan v. Elliott R. Myers (Deceased), Et Al.
E2001-00281-COA-R3-JV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John L. Kiener

Mary Ellen Barnes v. Yasuda Fire and Marine Insurance
W2000-02559-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Kay S. Robilio, Judge
In this appeal, the employee insists the evidence preponderates against the denial of workers' compensation benefits and asks this tribunal to determine the extent of her vocational impairment. As discussed below, the panel has concluded the judgment of dismissal should be reversed, the conditional award of permanent partial disability benefits based on 3 percent to the body as a whole affirmed, and the cause remanded with instructions.

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State of Tennessee v. Matthew Patrick Frontera, a/k/a Matthew Anthony Frontera, a/k/a Patrick Matthew Foster, a/k/a Derrick Joshua Foster
M2000-02747-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald P. Harris

The Defendant, Matthew Patrick Frontera, pleaded guilty to criminal impersonation, a Class B misdemeanor. Sentencing was left to the discretion of the trial court. As part of his plea agreement, the Defendant attempted to reserve the right to appeal a certified question of law relating to the legality of his stop, detention and questioning by police officers. In this appeal, the Defendant asserts that the trial court erred by refusing to suppress the evidence obtained against him due to an unlawful stop and detention. He also argues that the trial court erred by sentencing him to serve six months in the county jail with release eligibility at seventy-five percent. Because the Defendant failed to properly reserve his issue concerning his stop and detention, we are unable to reach the merits of that issue. We affirm the sentence imposed by the trial court.

State of Tennessee v. Marvin W. Hill, Jr.
E2000-02789-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge D. Kelly Thomas, Jr.

In July 1999, the Defendant pled guilty to evading arrest and possession of marijuana, both Class A misdemeanors, and received concurrent sentences of eleven months and twenty-nine days supervised probation. In December 1999, the Defendant was indicted for assault and aggravated criminal trespass, both of which are also Class A misdemeanors. In January 2000, a violation of probation warrant was issued against the Defendant, alleging that he had violated his probation in the first two cases. In March 2000, the Defendant pled guilty to the assault and aggravated criminal trespass charges, and a combined sentencing hearing and probation violation hearing was held by the trial court. The trial court revoked the Defendant's probation in the first two cases and imposed concurrent sentences of eleven months and twenty-nine days incarceration. The court also imposed sentences of eleven months and twenty-nine days incarceration in the second two cases, to run concurrently with each other but consecutively to the sentences imposed in the first two cases. On appeal, the Defendant argues that the trial court erred in imposing sentences of incarceration in each case. Because our review of the record reveals that the sentences were proper, we affirm the judgment of the trial court.

Lori Castle vs. Jeffrey Baker
E2000-02772-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John S. Mclellan, III
These parties were divorced in May 1992. Custody of their daughter, Brittany, then 5 years old, was awarded to Mother pursuant to an Marital Dissolution Agreement [MDA] which obligated Father to pay $575.00 monthly support. About three months after the divorce was granted, the custodial care of Brittany was transferred to Father, by agreement of the parties and without recourse to the Court. In June 1998, Mother sought contempt liability against Father alleging that he was in arrears with his child support obligation in the amount of $40,800.00: at trial, the amount was stipulated to be $36,800.00. Father responded by filing a petition for change of custody, alleging that Brittany had resided with him for several years, a material change in circumstances. He also sought forgiveness of the arrearage. The Trial Court found a change in circumstances and awarded custody of Brittany to her father who was also credited with the monetary value of the necessities he furnished Brittany from August 1992 through February 1997. Mother appeals. We affirm.

Ben Doubleday vs. Larry Hargrove
M2000-02648-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Tamra L. Smith
This is an action to recover the balance due on a contract for the sale of timber. The purchaser's defense was impossibility of performance, because the seller had allegedly destroyed access. The seller testified that the purchaser cut and removed 95 percent of the timber, while the purchaser said he removed only about 40 percent owing to lack of access. The trial judge awarded the seller a judgment for the balance owing less some off-sets not relevant here. We affirm.

King David Johnson v. State of Tennessee
M2000-02756-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Jim T. Hamilton

The petitioner, King David Johnson, appeals the trial court's denial of his petition for post-conviction relief. The issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

Parks Properties, et al vs. Maury County, et al
M1997-00235-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: William B. Cain
Parks Properties and Columbia Warehouses, Inc. have filed a petition pursuant to Tenn. R. App. P. 39 requesting a rehearing of this court's August, 17, 2001 opinion. We requested and have now received an answer to this petition on behalf of Maury County and Judy Langsdon. Parks Properties and Columbia Warehouses insist that our conclusion that they lacked a protectable property interest in constructing the two warehouses without installing the automatic required sprinkler systems is based on our "misunderstanding that the warehouses would have contained tobacco or other combustible products." They assert that "there was never any evidence before the trial court that the warehouses would be used to store tobacco or other combustible products." This argument misses the point. The lynchpin of our opinion is that the record contains no evidence (1) that the Parks family ever told any county official that tobacco and other combustible materials would not be stored in these warehouses and (2) that the Parks family never sought a waiver of the automatic sprinkler requirements under Section 402.4.1 exception

Tomkats Catering, Inc. vs. Ruth E. Johnson, Commissioner of Revenue, State of TN
M2000-03107-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Carol L. Mccoy
This is a sales tax case. The tax period is from December 1, 1990 through January 31, 1994. During this period TomKats, a catering business, charged its customers a fixed, per unit price for food, but provided optional services for an additional charge, which was billed separately. The Commissioner ruled that such optional services were a "part of the sale," and assessed a tax deficiency which TomKats paid and filed this action for a refund which was unavailing. The judgment is reversed.

Dolores E. Rossello vs. Michael Magill, Commissioner
M2001-00113-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Irvin H. Kilcrease, Jr.
The judgment of the Chancery Court is affirmed pursuant to Rule 10, Rules of the Court of Appeals.

Venelsia Stephens vs. Shelby Co. Govt.
W2000-01353-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: D'Army Bailey
County employee sued county for on-the-job injury benefits resulting from carpel tunnel syndrome. Employee filed suit over one year after the county denied her claim for benefits. After a nonjury trial, the trial court dismissed plaintiff's case with prejudice as barred by the one-year statute of limitations. Employee appeals. We affirm.

Terri Jackson vs. Danny Jackson
W2001-00302-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This appeal involves the calculation of an obligor parent's net income for purposes of determining whether a decrease in child support obligations is warranted. Appellant's motion to decrease child support obligations was overruled by the lower court based on a finding that no significant variance existed between the guidelines and the amount of support currently ordered. In calculating the guidelines amount, the court refused to decrease Appellant's gross income by temporary living expenses he accrued because of his job assignment. Appellant appealed alleging that the deduction in his gross income should be allowed. For the following reasons, we affirm.

State of Tennessee v. Terry A. Rogier
W2001-00551-CCA-R9-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Donald H. Allen

The appellant, Terry A. Rogier, by means of an interlocutory appeal seeks review of the trial court's decision affirming the district attorney general's denial of pre-trial diversion. Rogier was indicted by a Madison County Grand Jury for the offenses of reckless endangerment, a class E felony, and reckless driving, a class B misdemeanor. After review, we find that the prosecutor failed to consider all the relevant factors in denying diversion. Accordingly, we reverse the trial court's finding that the prosecutor did not abuse his discretion and remand to the trial court for further proceedings.

Chemical Residential vs. Donna Hodge
W2000-02958-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Donald H. Allen
This case involves the negligent impairment of a security interest. Plaintiff Chemical Residential Mortgage Corporation held a note and deed of trust on the subject real property. Subsequently, defendant Commercial Credit, Inc., negligently executed and filed a release deed on the property. Later, defendant Southern Financial made a second loan to the debtor secured by the same property. After Chemical Residential realized that its deed had been released in error, it brought the instant declaratory judgment action against Southern Financial and Commercial Credit, seeking a declaration that its deed was senior to that of Southern Financial. Southern Financial filed a cross-claim against Commercial Credit for the impairment of its security interest. The trial court found in favor of Chemical Residential and Southern Financial against Commercial Credit, and held that Chemical Residential's deed was senior to that of Southern Financial. On the cross-claim, the trial court awarded Southern Financial damages against Commercial Credit in an amount equal to the total amount due on the secured note. Commercial Credit now appeals, arguing, inter alia, that the trial court's measure of damages was erroneous. We reverse on the issue of damages and remand for a redetermination of those damages.

Darin Shaffer vs. Shelby Co.
W2000-02215-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Childers
This appeal involves an accident in which a mother and son were hit by an automobile. The mother received fatal injuries in the accident. The survivors brought an action against Shelby County for the wrongful death of the mother and for negligent infliction of emotional distress with respect to the son. A jury found Shelby County liable for $12,039,049.01. The award was reduced in accordance with the Governmental Tort Liability Act (the GTLA) to $260,000.00 plus discretionary costs of $5,434.55. The plaintiffs appealed the reduction of liability alleging that the GTLA violated the Tennessee Constitution and should be judicially abrogated. The plaintiffs further allege that even if the GTLA is upheld, liability should be capped at $350,000.00 as opposed to $260,000.00. Shelby County also raises several issues in this appeal. First, Shelby County alleges that it was performing a discretionary function, which immunizes it from liability. Shelby county also contends that the proof shows the mother to be at fault and fails to show that the son suffered a serious emotional injury. In addition, Shelby County argues that the verdicts were excessive and were tainted by inappropriate arguments made during the plaintiffs' closing. Finally, Shelby County alleges that the trial court erred by assessing discretionary costs, which caused the award to exceed the GTLA's statutory cap on damages. For the following reasons, we reverse the trial court's award of discretionary costs and affirm the trial court in all other respects.

Kelvin A. Taylor v. State of Tennessee
W2001-00166-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree

The Appellant, Kelvin A. Taylor, appeals from the dismissal of his petition for post-conviction relief by the Weakley County Circuit Court. Pursuant to a negotiated plea agreement, Taylor entered a "best interest" plea to class D felony child abuse, and was sentenced to six years in the Department of Correction as a range II offender. In this collateral attack of his conviction, Taylor presents two issues for our review: (1) whether the general sessions court's revocation of his bond without a hearing and the resulting confinement prior to indictment violated double jeopardy and due process rights; and (2) whether trial counsel was ineffective. After a review of the record, we affirm the judgment of the post-conviction court.

Marta Monzon vs. Miguel Angel Monson
E2000-03155-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
The appellant, Marta Monzon, filed her notice of appeal more than 30 days after the entry of the trial court's final judgment. As a consequence of this late filing, we are without jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

Marta Monzon vs. Miguel Angel Monson
E2000-03155-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: L. Marie Williams
The appellant, Marta Monzon, filed her notice of appeal more than 30 days after the entry of the trial court's final judgment. As a consequence of this late filing, we are without jurisdiction to hear this appeal. Accordingly, the appeal is dismissed.

State of Tennessee v. Scott Ray Anderson
E2000-03040-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant appeals the judgment entered by the Circuit Court of Blount County revoking his community corrections sentence. The sole issue on appeal is whether the court abused its discretion in ordering the defendant to serve the remainder of his sentence in the penitentiary. After careful review, we affirm the trial court's judgment.

State of Tennessee v. Charles R. Francis
E2000-02599-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen

In an indictment returned by the Morgan County Grand Jury, defendant, Charles R. Francis, was charged with fourth offense DUI. Count 1 of the indictment alleged that the triggering offense of DUI occurred on December 10, 1998. Count 2 of the indictment alleged that he had previously been convicted of DUI on three separate occasions in Morgan County, Tennessee. The defendant entered a "blind plea" to DUI, fourth offense, and sentencing was submitted to the trial court for a later hearing. At the sentencing hearing, the trial court ruled that defendant was convicted of the Class E felony of DUI, fourth offense, ordered a sentence of two (2) years, with service by split confinement of 150 days in the county jail, and the balance of the sentence to be served in the Community Corrections program. Asserting that he should have been sentenced for commission of a Class A misdemeanor DUI, fourth offense, rather than a Class E felony, defendant has appealed. The original judgment entered by the trial court reflected conviction of a Class A misdemeanor, but the judgment was later amended to reflect conviction of a Class E felony, in accord with the trial court's ruling at the conclusion of the sentencing hearing. We affirm the amended judgment of the trial court.