Opinions

Ella McCain, Conservator
W2000-02218-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Jon Kerry Blackwood
This is a personal injury case arising from a vehicle/pedestrian accident. A pedestrian wandered from the nursing home at which he resided and began walking alongside a roadway. The defendant driver saw the pedestrian as he was driving on the roadway. As the driver approached, the pedestrian suddenly stepped into the roadway and was struck by the defendant's truck. The pedestrian suffered significant injuries. The pedestrian's daughter, as his conservator, filed suit against the defendant driver. At the conclusion of the plaintiff's proof, the defendant driver moved for a directed verdict on the grounds that there was insufficient evidence that the defendant driver was negligent. The trial court granted a directed verdict for the defendant driver and the plaintiff now appeals. We affirm, finding that the plaintiff failed to adduce evidence from which a reasonable jury might conclude that the defendant driver was negligent.

Comm. DOT vs. Frances Patrick & Frank Duncan
W2001-00397-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: C. Creed Mcginley
This appeal involves the owner of an undivided five-sixths interest in property acquiring the remaining one-sixth interest from her co-tenants under the doctrine of title by prescription. The circuit court made finding of facts indicating that the prescriptive holder of the property held the property exclusively and uninterrupted for more than a twenty year period. Further, the circuit court found that no co-tenants were under a disability to assert their rights during the twenty year period and that no permission was given to the prescriptive holder to possess the property. Based on these findings of fact, the circuit court ruled that under the doctrine of title by prescription, the prescriptive holder had acquired full title in the property. For the following reasons, we affirm the decision of the circuit court.

Reginald Webb v. State of Tennessee
W2000-01895-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Bernie Weinman

Petitioner appeals the denial of post-conviction relief by the Shelby County Criminal Court. He contends he received ineffective assistance of counsel at his jury trial where he was convicted of second degree murder. We affirm.

Carrie Marsh vs. Christopher Sensabaugh
W2001-00016-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. Roland Reid
This is a child custody case involving the child's natural father and a third-party, the maternal aunt. The trial court held in favor of the maternal aunt, upon a determination the father was an unfit parent. The court based its decision on the father's previous charge of contempt for failure to pay child support, previous visitation practices, and lack of knowledge regarding the child's educational status, such as her teachers, grades and attendance at parent-teacher conferences. Father appeals the trial court's decision. For the reasons below, we affirm the ruling of the trial court.

Philip Owens vs Bristol Motor Speedway, Inc.
E2000-02667-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard E. Ladd
In this putative class action suit, the plaintiff, Philip Owens, alleges that the defendant, Bristol Motor Speedway, Inc. ("Bristol Speedway"), engaged in a conspiracy to fix the prices of souvenirs sold at its racetrack. The trial court denied certification of the alleged class and granted Bristol Speedway's motion for summary judgment as to the plaintiff's individual claims. We affirm.

Jeanne Alice Gabel vs. Todd Edward Gabel
E2000-02585-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
The trial court entered a default judgment against the defendant in this divorce case even though the defendant had filed an answer within the time frame set forth in Rule 12.01. We conclude that entry of the default judgment was not appropriate when the defendant timely filed an answer, and, therefore, vacate the judgment of the trial court.

Barbara Gaskins vs. Roger Gaskins
E2000-02915-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben K. Wexler
This appeal from the Circuit Court of Greene County questions whether the Trial Court erred in awarding Ms. Gaskins alimony for a seven year period. Mr. Gaskins appeals the decision of the Circuit Court of Greene County. We affirm the decision of the Trial Court as modified and remand for further proceedings consistent with this opinion. We adjudge costs of the appeal against the Appellant, Roger Arthur Gaskins, and his surety.

In re: Estate of J. Crawford Murphy vs. Robert A. Murphy, et al.
E2001-01112-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jeffrey D. Rader
In this case the Probate Court held that the personal representative of the Estate of Mae Thompson Murphy did not have authority to dissent from the will of her husband, J. Crawford Murphy, and thereby take an elective share of his estate. We find that T.C.A. 31-4-105 gives the personal representative this right and reverse the judgment of the trial court.

State of Tennessee v. George E. Ratliff
E1999-01214-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Lynn W. Brown

The defendant, George E. Ratliff, was convicted by a jury of rape of a child. In this consolidated appeal, Defendant alleges various errors by the trial court, challenges his sentence, and appeals the dismissal of his petition for writ of error coram nobis on the ground of untimely filing. After a review of the record and applicable law, we reverse the trial court's summary dismissal of the petition for writ of error coram nobis based on the recent decision of our supreme court in Workman v. State, 41 S.W.3d 100 (Tenn. 2001). We remand this matter to the trial court for a hearing on the merits of the petition for writ of error coram nobis. Pursuant to State v. Mixon, 983 S.W.2d 661 (Tenn. 1999), appellate proceedings on Defendant's appeal as of right from his conviction are stayed, pending the trial court's ruling on the error coram nobis petition.

Howard Zoldessy vs. Ingrid Davis, et al
E2000-02526-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: William E. Lantrip
Upon the application of Howard Zoldessy, a temporary injunction was issued by the trial court against the defendants, Ingrid Davis and Arthur Davis. The Davises are the parents of Zoldessy's deceased wife and the grandparents of Zoldessy's daughter, Rachel. The injunction in question prohibits the defendants "from coming about [Howard Zoldessy] and his daughter, Rachel Zoldessy, or contacting him in any manner whatsoever." Following a bench trial, the trial court found that both defendants had committed willful criminal contempt by "coming about [Zoldessy's] residence on October 4, 1999." Each defendant was sentenced to 48 hours imprisonment for their contempt. Mr. Davis was also found in contempt for sending letters to Zoldessy and was sentenced to an additional term of imprisonment of 48 hours. The defendants appeal the trial court's findings of contempt, as well as the sentences imposed. We affirm the finding of contempt as to the letters sent to Zoldessy; however, we reverse the finding of contempt for the defendants' purported "coming about" Zoldessy and his daughter.

State of Tennessee v. Charles R. Blackstock
E2000-01546-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Charles R. Blackstock, pled guilty to especially aggravated kidnapping and two counts of rape of a child. See Tenn. Code Ann. §§ 39-13-305, 39-13-522. The trial court imposed 25-year sentences on each offense. The sentences were ordered to be served consecutively, for an effective sentence of 75 years. The sentence for especially aggravated kidnapping and the consecutive sentencing order are affirmed. Because the trial court erroneously applied certain enhancement factors to each of the sentences for rape of a child, the terms are modified to 23 years.

G. Kline Preston vs. Garrett Realty Service, Inc.
M2000-02350-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Walter C. Kurtz
Davidson County -This matter comes to us on appeal from summary judgment granted due to Tennessee's lack of personal jurisdiction over Defendant. Plaintiff attempted to rent a condominium in Florida and sued Defendant in Tennessee for breach of contract after Defendant discovered a mistake in the quoted price and refused to rent the condo to Plaintiff for the quoted price. The circuit court determined that Tennessee had no personal jurisdiction over Defendant and dismissed the case. We affirm.

James Fristoe v. Citizens Utilities Company,
M2000-01736-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.,
Trial Court Judge: John A. Turnbull, Judge
The defendants appeal the judgment of the trial court awarding the employee, a telephone lineman, 95% vocational disability for injuries he sustained falling off a telephone pole. The defendants assert that the trial court erred in determining Mr. Fristoe's vocational disability rating by failing to give appropriate consideration to the findings of the treating physician in this case. For the reasons set out in this opinion, We affirm the judgment of the trial court.

United States Pipe & Foundry Company v. Steven L. Camp
E2000-01198-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: L. Marie Williams, Circuit Judge
The trial court found the employee had sustained a temporary injury to his back and awarded medical benefits to treat his symptoms. On appeal the employee insists his injury was of a permanent nature. Judgment of the trial court is affirmed.

Ryder Driver Leasing, Inc. v. Wilson
E2000-00905-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Dale Workman, Circuit Court Judge
The trial court found the plaintiff had a compensable psychiatric injury. We affirm the findings of the trial court.

Of The Evidence Is Otherwise. T
E1997-00276-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Billy J. White, Chancellor
The trial court found the plaintiff sustained a 4 percent vocational disability to the body as a whole as a result of exposure to formaldehyde which caused permanent respiratory injury. The trial judge found the plaintiff failed to show by a preponderance of the evidence that he sustained any psychiatric injury as a result of the accident. We affirm the judgment of the trial court.

Ronald Scott Revis v. Roane County, Tennessee,
E2000-01709-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Russell E. Simmons, Jr., Circuit Judge
The trial court dismissed the complaint finding the injury did not arise out of and in the course of employment. On appeal it was determined the injury arose out of employment but did not occur in the course of employment. Judgment of the trial court is affirmed.

Ricky Brown Sr. vs. C.O.I. Majors
W2001-00536-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dewey C. Whitenton
This appeal arises from the dismissal of the Appellant's petition for writ of certiorari seeking review of disciplinary action and the confiscation of property. The Circuit Court of Hardeman County dismissed the Appellant's petition for writ of certiorari for the Appellant's failure to comply with section 41-21-801, et seq. of the Tennessee Code, for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted. The Appellant appeals the dismissal of his petition for writ of certiorari. For the reasons stated herein, we affirm the trial court's decision.

Elizabeth Hickman vs. Celia Jordan
W2000-03070-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Roger A. Page
This dispute stems from an accident in a restaurant parking lot in which a pedestrian, the plaintiff, was struck by a vehicle driven by the defendant, who was backing-up through the parking lot. The jury in this case found the defendant driver not at fault. We affirm.

Emmett Dunlap vs. Nancy Davis
W2001-00894-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jon Kerry Blackwood
Plaintiff-inmate, acting pro se, filed a petition for writ of certiorari to review a judgment of the general sessions court dismissing his case. The trial court denied plaintiff's petition and he appeals. We affirm.

Charles Shelton v. State of Tennessee
E2000-02805-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Lynn W. Brown

The appellant, Charles Shelton, appeals the dismissal of his habeas corpus petition by the Johnson County, Tennessee, Criminal Court. Following a review of the petition and the record herein we find that the judgment of the trial court should be AFFIRMED.

Shepard Barbash vs. Monty Bruell & Anthony Smith
E2005-00387-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Howell N. Peoples

State of Tennessee v. Sheron Lampton
W2000-01583-CCA-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Roger A. Page

The Defendant was convicted of second offense driving under the influence and violation of the open container law. The trial court sentenced her to eleven months, twenty-nine days incarceration for the DUI conviction, suspended after service of ninety days, and to thirty days incarceration, suspended, for violation of the open container law. In this appeal as of right, the Defendant argues that the evidence presented at trial was insufficient to support her convictions. Having reviewed the record, we conclude that sufficient evidence was presented to support the jury’s findings of guilt and therefore affirm the judgment of the trial court.

State of Tennessee v. Stella Rodifer
E2001-00034-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Robert E. Cupp

The defendant, Stella Rodifer, was convicted of forgery, a felony; six counts of worthless checks under $500.00, misdemeanors; and one count of worthless checks over $1,000.00, a felony. The defendant was sentenced to consecutive terms of two and four years, respectively, on each of the felonies. The trial court imposed concurrent sentences of 11 months and 29 days on each misdemeanor, two of which were ordered to be served consecutively for an effective sentence of seven years, 11 months, and 27 days. The trial court granted probation on the misdemeanors and sentenced the defendant to a Community Corrections program on the felonies. Four months later, the trial court revoked the alternative sentences and ordered the defendant to serve four years for forgery; eight years for felony worthless checks; and 11 months and 29 days (two consecutive) for each of the six counts of worthless checks, for an effective sentence of 13 years, 11 months, and 27 days. In this appeal of right, the defendant argues that the trial court erred by revoking her alternative sentences and by imposing lengthier, consecutive sentences. The judgments are affirmed.

State of Tennessee v. Bobby Gene Tucker
E2001-00017-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lillie Ann Sells

The defendant, Bobby Gene Tucker, appeals from the revocation of his probation received for his conviction for driving under the influence of an intoxicant (DUI) after having served fifteen days in confinement. He contends (1) that the revocation warrant and affidavit are void, thereby voiding his probation revocation and (2) that the trial court abused its discretion in sentencing him to serve the maximum term of eleven months, twenty-nine days with credit for time served. We affirm the trial court.