Opinions

State ex rel Elizabeth Durrant vs. Brittain Howard
E2000-02072-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Carey E. Garrett
In this custody dispute, the Trial Court gave custody to the father. The mother appealed. We affirm.

State of Tennessee v. David Scarbrough
E1998-00931-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Ray L. Jenkins

The defendant, David Scarbrough, was convicted of two counts of felony murder, two counts of theft, and aggravated burglary. The trial court imposed sentences of life imprisonment with the possibility of parole for each of the murders, a sentence of six years for the aggravated burglary and sentences of 11 months, 29 days for each of the thefts. All sentences are to be served consecutively. In this appeal of right, the defendant presents the following issues for review: (1) Whether the evidence was sufficient to support the convictions; (2) whether the defendant's statement to police was made knowingly and voluntarily; (3) whether the trial court erred by denying the defendant's challenge for cause of a juror; (4) whether the trial court erred by denying defendant's motion for continuance; (5) whether the trial court erred by refusing a jury instruction on facilitation of felony murder; (6) whether the trial court erred by admitting photographs of the crime scene; (7) whether the trial court erred by refusing to permit a private investigator to testify; (8) whether the trial court properly refused to allow the testimony of a psychologist during the guilt phase of trial; (9) whether the sentences were excessive; and (10) whether the trial court erred by denying the defendant's motion for a writ of error coram nobis based on newly discovered evidence. Because the trial court erred by failing to instruct on the lesser included offense of facilitation of felony murder and because such error was not harmless beyond a reasonable doubt, the felony murder convictions are reversed and the causes are remanded for a new trial. The remaining convictions are affirmed.

State of Tennessee v. Kelly Layne
M1998-00746-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Thomas W. Graham

The defendant, Kelly Layne, appeals his conviction for selling a counterfeit controlled substance, a Class E felony, for which he was sentenced to one year, eight months, all but ninety days to be served in a community corrections program, and fined $2,500. He contends that venue was not proven and that his sentence is excessive. We affirm the conviction and sentence, except we reduce the fine to $1,500.

Pamela Wright (Quillen) vs. Dale M. Quillen
M2000-01852-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert E. Corlew, III
This appeal arises from the trial court granting a Rule 60 motion to suspend the judgment in a divorce action and allow a new trial. Husband and Wife were divorced in 1994. At that time, Wife was awarded the entirety of Company upon the condition she pay Husband $500,000 for the portion of Company awarded to him in the property division. Shortly after Wife paid Husband the money, Company sold an asset previously believed to be worthless for $1.7 million. Husband filed a Rule 60 motion in 1998 to set aside the trial court's 1994 property division on the basis that Wife had fraudulently valued the asset at $0 during the divorce hearing. The trial court granted the Rule 60 motion, setting a new trial to redetermine the value of Company at the time of the divorce. We reverse.

John Floyd vs. Carolyn Floyd
M2000-02344-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Royce Taylor
When husband and wife divorced, they signed a marital dissolution agreement which was incorporated into the Final Decree of Divorce providing, inter alia, that husband would have visitation rights with wife's daughter by a previous marriage and husband would in turn pay college tuition and expenses for the child and would leave to the child by Will one-fourth of his estate. A dispute arose as to the extent of visitation, and husband filed a petition to establish visitation rights. Wife filed a petition to require husband to continue his obligations expressed in the marital dissolution agreement. The trial court felt that there was no meeting of the minds between the parties with regard to the visitation issue; therefore, there was no valid contract. Husband appeals. We reverse and remand.

Dee Woolman v. Earl Woolman
M2000-02346-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
The Appellant and the Appellee are the parents of three minor children. Following the Appellant and the Appellee's divorce, they shared joint legal and physical custody of the children. The Appellant filed a Petition for Modification of Custody in the Circuit Court of Williamson County seeking to relocate with the children to Illinois. Following the close of the Appellant's proof at the hearing on the Petition, the Appellee made a Motion to Dismiss. The trial court granted the Motion to Dismiss and awarded attorney's fees to the Appellee. The Appellant appeals the order entered by the Circuit Court of Williamson County granting the Motion to Dismiss and awarding attorney's fees to the Appellee. For the reasons stated herein, we affirm in part and reverse in part the trial court's decision. We remand the case to the trial court for further proceedings consistent with this opinion.

Patricia Gore v. George Gore
M2000-02412-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal arises from a complaint for divorce filed by the Appellee in the Circuit Court of Williamson County. The trial court awarded the Appellee a divorce on the grounds of inappropriate marital conduct and adultery. The trial court divided the marital property and ordered the Appellant to pay the Appellee alimony in futuro and child support for the parties' two minor children. The trial court ordered the Appellant to maintain life insurance to secure the alimony and child support obligations. Additionally, the trial court entered a permanent injunction restraining the Appellant from taking the children in the presence of the Appellant's girlfriend.

Alexander Baxter v. Dept. of Correction
M2000-02447-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Carol L. Mccoy
This case involves a petition for writ of certiorari based on a prison disciplinary proceeding. The inmate was found guilty of a disciplinary infraction by the prison disciplinary board. After his appeal to the prison warden was denied, the inmate filed a petition for a writ of certiorari, alleging numerous violations of his due process rights. The trial court dismissed the petition and Baxter now appeals. We affirm, finding that the sanctions imposed for the infraction did not rise to the level of interfering with the inmate's protected liberty interest and, therefore, did not trigger due process protections.

Warren Restoration Co. vs. Northgate Shopping Center vs. State Auto Ins. Cos.
M2000-02402-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Charles D. Haston, Sr.
This is a dispute regarding the valuation of a strip mall for purposes of determining the applicability of a co-insurance penalty clause in Northgate Shopping Center's casualty insurance policy. In a bench trial, the trial court found the witness for Northgate to be more credible than the witness for State Auto Insurance Companies, and found the replacement cost of the building to be $3,068,000. Since the building was insured for $3,100,000, the co-insurance penalty did not apply. The trial court awarded Northgate judgment of $73,637.56, less a $1,000 deductible. This judgment included prejudgment interest of $16,107.00 assessed against Northgate and awarded to Plaintiff Warren Restoration, which had repaired areas of the mall damaged by fire. On appeal, State Auto challenges the trial court's acceptance of the valuation as determined by witnesses for Northgate, contends that the co-insurance penalty clause is applicable, and challenges the award of prejudgment interest. For the reasons set forth below, we affirm the trial court in all respects.

James Hill, et ux vs. Charles Lamberth
M2000-02408-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Walter C. Kurtz
In this negligence action, plaintiff and his wife sued defendants, county school board and parents of several juveniles, for damages resulting from an eye injury he sustained when he was struck by a rock while attending a high school football game. The trial court granted summary judgment to defendant school board. Plaintiff appeals. We affirm.

Martin Herrick, et ux vs. Mike Ford Custom Builders, LLC
M2000-02569-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
The Herricks entered into a sales agreement with Mike Ford for the construction of a home. The sales agreement provided that the deposit paid by the Herricks became non-refundable upon the presentation of a loan commitment letter. The Herricks presented Mike Ford with a loan commitment letter from Southeastern Mortgage Company which was conditioned upon proof of employment. Mr. Herrick was terminated from his employment, and, as a result, Southeastern denied the Herricks' loan application. The Herricks demanded Mike Ford return their deposit. Mike Ford refused, contending that the deposit became non-refundable at the time the Southeastern loan commitment letter was presented. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of the Herricks. We reverse and remand.

State of Tennessee v. Daniel Thomason
M2000-01164-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery “by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm.

State of Tennessee v. William J. Clouse - Concurring
M2000-00436-CCA-R9-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Norma McGee Ogle

I join with Judge Ogle in concluding that the Appellant's double jeopardy rights were not violated. I would also make the observation that, similar in purpose to the DUI statute, the stated public policy purpose in enacting the Motor Vehicle Habitual Offender Act was to remove from the highways those offenders who have "demonstrated their indifference to the safety and welfare of others." Tenn. Code Ann. § 55-10-602(2).

Daniel M. Banks v. State of Tennessee
E2000-02620-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Phyllis H. Miller

The petitioner, Daniel M. Banks, appeals the trial court's denial of his petition for post-conviction relief. Because the petitioner was provided the effective assistance of counsel and knowingly and voluntarily entered his pleas of guilt to possession of marijuana with intent to sell, possession of over 0.5 grams of cocaine with intent to sell, and possession of drug paraphernalia, the judgment is affirmed.

Ruth Wilson v. Landon Snapp, Jr.
E2001-00172-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
In this suit the Trial Court held a purported deed from Ruth N. Wilson to Landon Haynes Snapp, Jr., and Gene L. Snapp was champertous and void. The Snapps appeal, contending this holding was in error. We affirm.

E2001-00069-COA-R3-CV
E2001-00069-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell

Yolannda Solomon vs. Brad Hager, et al
E2000-02586-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II
This lawsuit finds its genesis in the construction of a residence. The plaintiff, Yolanda Solomon, filed suit against Allstate Insurance Company, alleging breach of contract and seeking damages and a bad faith penalty for Allstate's failure to pay her claim under a builder's risk policy covering her under-construction residence. Solomon later amended her complaint to seek additional damages under the Tennessee Consumer Protection Act. By way of a special verdict, the jury found (1) that the insurance policy provided coverage for Solomon's loss; (2) that Allstate had acted in bad faith in denying her claim; and (3) that Allstate had violated the Consumer Protection Act. As modified by the trial court, Allstate was ordered to pay $101,098, the full amount of the plaintiff's coverage less the deductible; a 25% bad faith penalty; $1,500 under the Consumer Protection Act; attorney's fees; discretionary costs; and prejudgment interest. Allstate appeals, challenging, among other things, the jury's finding of coverage, the assessment of the bad faith penalty, evidentiary and jury instruction rulings, and the amount of damages. We affirm.

Gerald Williams vs. Cora Williams
E2000-02782-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Steven C. Douglas
In this divorce action, Gerald B. Williams ("Plaintiff") appeals the Trial Court's award of alimony in futuro in the amount of $800 per month to Cora Rita Williams ("Defendant"). The parties were married thirty-eight years. While Plaintiff earns approximately $32,000 per year, Defendant's income is substantially less at approximately $11,220. The Trial Court specifically found that Defendant could not be rehabilitated. Plaintiff contends on appeal that the Trial Court erred in awarding any alimony to Defendant because the proof at trial did not establish Defendant's need for financial support and Plaintiff's ability to pay alimony. Plaintiff also argues that if the award of alimony is appropriate, the amount is excessive. We modify the alimony from $800 to $600 per month, and affirm the judgment as modified.

Shelton vs. Tidwell
E2000-02913-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants sold plaintiff equipment which had been stolen. The Trial Court entered a Judgment for plaintiff for the purchase money. On appeal, we affirm.

James Jones vs. Pierce Garrett, a/k/a Perry Garrett
E2000-00196-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Kindall T. Lawson
This is a suit wherein James Lee Jones, III, and his wife seek a determination that Pierce Brandon Garrett, a/k/a Perry Garrett, has abandoned his son so that they may adopt him. The Trial Judge found by clear and convincing evidence that abandonment had occurred, but did not make any finding as to the best interest of the child. We affirm the finding as to abandonment and remand the case for a determination as to best interest.

State of Tennessee v. James L. Hunsaker
E2000-02419-CCA-R9-CO
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, James L. Hunsaker, was charged with ten counts of rape of a mentally defective victim, Class B felonies, in violation of Tenn. Code Ann. § 39-13-503. The defendant filed a motion to dismiss the first nine counts of the indictment, involving offenses alleged to have occurred between the autumn of 1992 and the spring of 1994, as barred by the statute of limitations. The trial court ruled that concealment was inherent in the victim’s mental defect and that the statute of limitations was tolled. See Tenn. Code Ann. § 40-2-101. The defendant filed a motion for interlocutory appeal to this court. Because the first nine counts of the indictment are barred by the statute of limitations, the judgment of the trial court is reversed. Each of the nine counts is dismissed.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

Alvin Bates vs. Dr. Joseph Metcalf
E2001-00358-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.

State, Ex Rel, Pernie Barger, et al vs. City of Huntsville , State ex rel, George Brawner, Sr., et al vs. City of Huntsville
E2001-00395-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court held service of process on the City's Mayor under Tenn. R. Civ. P. 4.04(8) was insufficient. On appeal, we affirm.