Michael Shropshire v. Betty Roach
M2007-02593-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Ross H. Hicks

A home seller appeals a jury verdict finding that she intentionally misrepresented water conditions in the basement in connection with the sale of her home. According to the seller, the jury verdict was against the weight of the evidence and the trial court erroneously allowed opinion testimony from the contractor who repaired the water damage. We affirm, finding that material evidence supports that the jury verdict and that the trial court did not err in allowing the testimony.

State of Tennessee v. Carmi Binkins
W2007-02403-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

Following a jury trial, Defendant, Carmi Binkins, was convicted of two counts of attempted second
degree murder, a Class B felony; two counts of especially aggravated kidnapping, a Class A felony; and one count of aggravated assault, a Class C felony. The trial court merged the aggravated assault conviction with one of the attempted murder convictions and sentenced Defendant as a Range I, standard offender to twelve years for each of the attempted second degree murder convictions and to twenty-four years at 100 percent for each of the especially aggravated kidnapping convictions. The court ordered that the especially aggravated kidnapping convictions be served concurrently with the attempted murder convictions but consecutively to each other, for an effective sentence of fortyeight years at 100 percent in the Department of Correction. On appeal, Defendant argues that (1) his right to confrontation was violated when a crying victim was allowed to display his injuries to the jury despite being found incompetent to testify; and (2) the trial court provided erroneous instructions on the elements of especially aggravated kidnapping when answering a question from the jury. The State argues that the defendant has waived the issues by failing to include an adequate record on appeal and that the trial court’s jury instructions were proper. After a thorough review of the record, we affirm Defendant’s convictions but remand to the trial court for entry of corrected judgment forms to reflect that count four is to be served concurrently with count two and that Defendant’s especially aggravated kidnapping sentences are to be served at 100 percent release eligibility.

W&T, Inc., et al. v. Carol Ham, et al.
M2006-01617-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Laurence M. Mcmillan, Jr.

Defendants appeal the trial court’s grant of summary judgment to plaintiffs under the Uniform Enforcement of Foreign Judgments Act, based on the trial court’s holding that the judgment rendered in Massachusetts was enforceable in Tennessee. Since Massachusetts had personal jurisdiction over defendants and the alleged fraud upon the court was not sustainable, we find no ground under Tenn. R. Civ. P. 60 that constitutes a defense to domestication of the judgment rendered in Massachusetts. The grant of summary judgment is affirmed.

U.S. BANK, N.A., as Servicer for the Tennessee Housing Development Agency v. Tennessee Farmers Mutual Insurance Company
W2006-02536-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Clayburn L. Peeples

The issue presented in this case is whether the commencement of foreclosure proceedings constitutes an increase in hazard for notice purposes under a standard mortgage clause in an insurance policy. The parties to this dispute are the bank that loaned funds to a homeowner for the purchase of a house and the insurance company that issued a personal fire and extended coverage insurance policy on the premises. After the homeowner became delinquent on her payments, the bank began foreclosure proceedings by notifying the homeowner of its intent to foreclose on the house. No notification of the foreclosure was given to the insurance company which insured the house against fire loss. Before the foreclosure process was complete, the homeowner filed for bankruptcy, which stayed the foreclosure proceedings. Thereafter, the house was destroyed by fire. The insurance company refused to pay the insurance proceeds to the bank on the theory that the commencement of foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company under the policy. The bank filed suit against the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act  The trial court granted partial summary judgment to the bank, concluding that the bank’s failure to give the insurer notice of the foreclosure proceedings did not invalidate the insurance coverage. The Court of Appeals reversed, finding that the bank’s initiation of foreclosure proceedings amounted to an increase in hazard under the policy and the bank’s failure to provide notice precluded coverage. After careful review, we conclude that commencement of foreclosure proceedings does not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, no notice was required to be given to the insurance company. Accordingly, we reverse the judgment of the Court of Appeals.

George Lockard v. Estes Express Lines, Inc.
W2007-01570-WC-R3-WC
Authoring Judge: Senior Judge David G. Hayes.
Trial Court Judge: Chancellor James F. Butler

The employee worked as a long-haul truck driver for the employer, a carrier of motor freight. While operating a truck, the employee was struck in the rear of his trailer by another vehicle. Medical treatment was not deemed necessary at the time of the collision. Shortly thereafter, the employee reported pain in his neck and lower back. The trial court awarded 90% permanent partial disability.
On appeal, the employer raises the following issues: (1) whether the employee’s medical condition is causally connected to the vehicular accident; (2) whether the employee has sustained permanent impairment; (3) whether the employee is 90% disabled; and (4) whether the trial court’s award for the payment of medical expenses to Dr. Curlee, an unauthorized medical provider, is proper. The employee also appeals arguing that he is totally and permanently disabled. After review, the judgment of the trial court is affirmed.1

James Condra and Sabra Condra vs Bradley County, Tennessee
E2007-01290-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John B. Hagler, Jr.

Plaintiffs brought this action against Bradley County, alleging the county was negligent in failing to properly maintain a defective, unsafe and dangerous condition at the intersection of two county roads, which caused an accident wherein plaintiffs were injured. The county filed a Motion for Summary Judgment which the trial court granted on the grounds the county was immune. On appeal, we hold the record before us does not support the judgment granted by the trial court as a matter of law. We reverse and remand for further proceedings.

Sonja Filson, et al. v. Seton Corporation d/b/a Baptist Hospital, et al.
M2006-02301-COA-R9-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta Shipley

A mother who had recently given birth was given someone else’s child to nurse, but realized the mistake after a short time. The mother and father filed suit against the hospital alleging, among other things, negligent infliction of emotional distress. The hospital admitted a breach of the standard of care, but argued on summary judgment that there was no genuine issue of material fact regarding the mother’s lack of emotional injuries as required by Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). The trial court granted partial summary judgment to the defendant hospital by limiting the mother’s claim for damages to those suffered within ten days of the hospital’s error while the couple awaited confirmation that the baby they brought home was their biological child. We affirm the trial court in part and reverse in part.
 

Amber Hobbs, et al. v. Seton Corporation d/b/a Baptist Hospital, et al.
M2006-01548-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta Shipley

This is a companion case to Filson v. Seton Corp. d/b/a Baptist Hospital, No. M2006-02301-COA-R9-CV. Both cases were brought by mothers of newborns against the hospital where the babies were born, and both arose from the same incident. Employees of the hospital mistakenly brought the wrong infant to a mother for feeding. In the case before us, Ms. Hobbs, the mother of the child who was mistakenly taken to the wrong mother, claimed emotional distress on her own behalf and negligence and battery on behalf of her child. The hospital admitted a breach of the standard of care, but argued that the plaintiffs did not suffer any actual damages because the mistake was corrected within a very short time after it was made. The trial court dismissed all the claims on summary judgment. Ms. Hobbs argues on appeal that the trial court erred in dismissing the claims for negligence and battery that she filed on behalf of her infant child. We affirm the trial court.

Ricky Lee Wilson and Kimberly Wilson, as guardians and next friends of Brandon Wilson, a minor v. The Metropolitan Government of Nashville and Davidson County, Tom Maddox, Timothy John McKnight, and Justin Lejuan Dunnigan
M2008-00327-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Thomas W. Brothers

The minor plaintiff and his parents sued for damages for serious bodily injury resulting from an assault, and at the conclusion of the trial the trial judge held the defendants liable for the injuries and awarded damages. The defendants have appealed, insisting the assault was not foreseeable. We affirm the judgment of the trial court.

Elizabeth Diaz Graham vs. Christopher Scott Graham
E2008-00180-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The parties to this action were divorced in Bradley County, Tennessee, and the mother then moved to Florida with the children as the custodial parent under the agreed Parenting Plan. The father brought this action, charging the mother with contempt of court and petitioned the Court to modify the existing Parenting Plan by awarding the father custody of the minor children. Among the defenses raised by the mother was the lack of subject matter jurisdiction in this State, but the Trial Judge held that courts in Tennessee had subject matter jurisdiction over the issues in dispute. On appeal, we reverse on the basis that the courts of Tennessee do not have subject matter jurisdiction over the issues, and remand for transfer of the matter to the appropriate Florida court.

Almeer K. Nance v. State of Tennessee
E2008-00857-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Kenneth F. Irvine

The petitioner, Almeer K. Nance, appeals the judgment of the Knox County Criminal court denying post-conviction relief. The petitioner was convicted of felony murder, especially aggravated robbery, two counts of especially aggravated kidnapping, and three counts of aggravated robbery. He subsequently accepted an agreed sentence of life plus twenty-five years in the Department of Correction. On appeal, the petitioner argues that he was denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that trial counsel was ineffective by: (1) erroneously advising him not to testify at trial, which he asserts effectively deprived him of his constitutional right; and (2) failing to raise the issues of sufficiency of the evidence and severance on direct appeal. After a thorough review of the record before us, the judgment of the post-conviction court is affirmed.

State of Tennessee v. James Peebles
M2008-00240-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.

The defendant, James D. Peebles, was convicted by a Rutherford County jury of one count of sale of a Schedule II drug, cocaine, under .5 grams (a Class C felony). Following a sentencing hearing, he was sentenced, as a Range II offender, to a term of ten years in the Department of Correction. On appeal, he raises the single issue of sufficiency of the evidence. Following review of the record, we affirm the judgment of conviction.

William A. Baker II v. Homer J. Johnson, Sr.
M2007-01992-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

Shortly after the parties entered into a contract for the sale of a piece of real estate, the seller refused to transfer possession and informed the buyer that he did not intend to close on the property. The buyer filed suit for breach of contract and demanded specific performance. The seller denied that the contract of sale was valid or enforceable and presented a number of different and inconsistent allegations to support his contention. The trial court granted summary judgment to the buyer. We affirm.

John Whatley v. State of Tennessee
M2008-01192-CCA-R3-PC
Authoring Judge: Judge David H. Welles

The Appellant, John Whatley, appeals the trial court's dismissal of his petition for post-conviction and/or habeas corpus relief. The Appellant previously filed a post-conviction petition which was decided on the merits and the claim presented in the instant petition does not warrant reopening the prior petition. Moreover, the Appellant fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Kenneth L. Davis
W2008-00226-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald H. Allen

The Defendant, Kenneth L. Davis, was convicted by a Madison County jury of possession of methamphetamine with the intent to sell and/or deliver, possession of unlawful drug paraphernalia, reckless driving, and driving on a canceled, suspended, or revoked license. He received an effective ten-year sentence for these convictions, with said sentence to be served consecutively to a prior sentence. In this appeal, the Defendant argues that the trial court erred by denying his pretrial motion to suppress the evidence discovered during the search of his automobile and that the evidence was insufficient at trial to establish that he possessed the contraband. Finding no error, we affirm the judgments of conviction.

State of Tennessee v. Jim Gerhardt
W2006-02589-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

In October 2005, a Madison County grand jury indicted the defendant, Jim Gerhardt, on one count of child abuse and neglect, a Class A misdemeanor. Following a July 2006 jury trial, the defendant was acquitted of the offense as charged in the indictment but convicted of attempted child abuse and neglect, a Class B misdemeanor. Following a sentencing hearing, the defendant received a six month sentence, with the defendant to serve sixty days in the county jail and the balance of the sentence on probation. As part of the defendant’s probation, the trial court instituted a 8:00 p.m. to 7:30 a.m. curfew, ordered the defendant to have no contact with the victim, and required that the defendant receive counseling. On appeal, the defendant argues that: (1) the evidence produced at trial was insufficient to support his conviction; (2) the trial court erred by failing to require the state to elect offenses; (3) the trial court erred by failing to answer a question posed by the jury during its deliberations; (4) the trial court erred by allowing the prosecuting attorney to ask the defendant and his wife whether a particular witness was lying; (5) the trial court erred by allowing the prosecuting attorney to make improper statements during the state’s closing argument; (6) the trial court improperly denied the defendant the transcript of the sentencing hearing; (7) the trial court imposed an excessive sentence; (8) the defendant received the ineffective assistance of counsel at trial; and (9) the cumulative effect of these and other errors prejudiced him. After reviewing the record, we conclude that the defendant’s issues are without merit and affirm the judgment of the trial court.

Curtis Tate v. State of Tennessee
W2007-02509-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Curtis Tate, appeals from the Shelby County Criminal Court’s order denying hispetition for post-conviction relief. The Petitioner was convicted by a jury of second degree murder and, thereafter, sentenced to twenty years in the Department of Correction. On appeal, he argues that the denial of post-conviction relief was error because he did not receive the effective assistance of counsel at trial. He submits that trial counsel failed to call several crucial witnesses to establish his self-defense claim and that trial counsel was impaired during trial because of alcohol use. Following our review of the record and the parties’ briefs, we conclude that the Petitioner has not shown that he is entitled to relief. The judgment of the post-conviction court is affirmed.

Fred Zonge v. State of Tennessee
W2008-01930-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge William B. Acree

The petitioner, Fred Zonge, appeals the Obion County Circuit Court’s summary dismissal of his petition for post-conviction relief as time-barred. On appeal, the petitioner argues that due process tolled the statute of limitations based upon our supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II”), which the petitioner claims announced a new rule of  constitutional law, and the United States Supreme Court’s holding in Danforth v. Minnesota, ___ U.S. ___, 128 S. Ct. 1029 (2008), which changed the standard for determining if new rules of law were entitled to retroactive application. The State has filed a motion requesting that this court affirm the post-conviction court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the petitioner has failed to establish that the petition was timely filed or that a recognized exception to the rule applies, we grant the State’s motion and affirm the judgment of the Obion County Circuit Court.

Ricky Northern v. Stephen Dotson, Warden
W2008-01321-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, Ricky Northern, appeals the trial court’s denial of his petition for habeas corpus relief. This is the petitioner’s second attempt to secure habeas corpus relief. The State has filed a motion requesting that this court affirm the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. After review, we conclude that the petitioner has failed to allege any ground which would render the judgment of conviction void. We grant the State’s motion and affirm the judgment of the trial court in accordance with Rule 20.

Danny Ray Gibbs, Sr. v. Saturn Corporation, et al.
M2007-02263-WC-R3-WC
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge R.E. Lee Davies

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008)
for a hearing and a report of findings of fact and conclusions of law. It involves the efforts of a retired employee of an automobile manufacturer to obtain workers’ compensation benefits for an injury to his right shoulder that was diagnosed after his retirement and also to obtain reconsideration of an earlier award of workers’ compensation benefits for a work-related injury to his left shoulder. Following a bench trial, the Circuit Court for Williamson County concluded that the retired employee had sustained a compensable injury to his right shoulder and awarded him benefits based on a thirty-two percent permanent partial disability to the body as a whole. The trial court also determined that the employee was ineligible for reconsideration of the award for the injury to his left shoulder. On this appeal, the employer takes issue with the award for the injury to the employee’s right shoulder, and the employee takes issue with the trial court’s refusal to reconsider the award of benefits for the injury to his left shoulder. We have determined that the trial court properly declined to reconsider the award for the injury to the employee’s left shoulder. We have also determined that the evidence does not preponderate against the trial court’s conclusion that the injury to the employee’s right shoulder was work-related. However, we have determined that the trial court erred by failing to limit the award of benefits for the injury to the right shoulder to the cap in Tenn. Code Ann. § 50-6-241(d)(1)(A) (2008).

Southern Cellulose Products, Inc. v. Stephen Defriese
E2008-00184-WC-R3-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge W. Jeffrey Hollingsworth

After the employee suffered an employment-related injury to his right extremity, for which he was entitled to workers' compensation, the employer filed suit contesting any award of benefits for the employee's claim that the injury aggravated his pre-existing bipolar disorder. The trial court awarded compensation for the injury to the right extremity, capped at 1.5 times the impairment rating, but denied compensation for aggravation of the pre-existing condition. The employee  appealed. The appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a  hearing and a report of findings of fact and conclusions of law. The cause is remanded with instructions for a determination of whether the trial court had subject matter jurisdiction.

James A. Dellinger v. State of Tennessee - Order
E2005-01485-SC-R11-PD
Authoring Judge: Chief Justice Janice M. Holder

On August 13, 2008, James A. Dellinger, the petitioner, filed a Motion for Disclosure of Evidence Favorable to the Appellant Pursuant to Brady v. Maryland and the Federal and State Constitutions Regarding State Witness Charles Harlan. The State filed a response to the motion on August 22, 2008. This Court denied Dellinger’s motion in an order dated August 26, 2008.

James A. Dellinger v. State of Tennessee
E2005-01485-SC-R11-PD
Authoring Judge: Chief Justice Janice M. Holder
Trial Court Judge: Judge D. Kelly Thomas, Jr.

We granted this appeal to decide an issue of first impression: whether a freestanding claim of  actual innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post- Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through -122. We have also chosen to discuss the petitioner’s ineffective assistance of counsel claims and the burden of proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief.  The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct burden of proof to the petitioner’s ineffective assistance of counsel claims; and (3) the petitioner was not denied the effective assistance of counsel. We hold that a claim of actual innocence based on new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the Court of Criminal Appeals’ denial of relief, however, because the petitioner has not met his burden of proof to support such claim. We also hold that the post-conviction trial court applied the correct burden of proof to the petitioner’s ineffective assistance of counsel claims. To provide clarity in the law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally, we hold that the petitioner was not denied the effective assistance of counsel. We affirm the judgment of the Court of Criminal Appeals in all other respects.

Jefferson Lee Young vs. Enerpac
E2008-00069-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John B. Hagler, Jr.

Plaintiff filed this action after the statute of limitations had run, and defendant moved to dismiss. Plaintiff attempted to invoke the discovery rule, claiming that his injuries had required surgery and he was sedated for a few days following the accident. The Trial Court granted the defendant summary judgment and plaintiff has appealed. We affirm the Trial Court on the grounds that the discovery rule was not applicable to the circumstances of this case.

Betty L. Graham v. Board of Director Lake Park Condo-Signal View
E2008-00606-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jacqueline E. Bolton

Betty L. Graham (“Plaintiff”) sued the Board of Director Lake Park Condo-Signal View^₁ (“Defendant”) in General Sessions Court for Hamilton County. The General Sessions Court granted summary judgment to Defendant on eight of Plaintiff’s ten claims and later dismissed the remaining two claims with prejudice. Plaintiff appealed to the Circuit Court for Hamilton County. The Circuit Court granted partial summary judgment to Defendant on the same eight claims as the General Sessions Court had but did so on the sole basis that the appeal to the Circuit Court was untimely as to those eight claims and, subsequently granted Defendant’s motion to dismiss the remaining two claims. Plaintiff appeals to this Court. We reverse the grant of partial summary judgment on the eight claims, and affirm the dismissal of the other two claims.