State of Tennessee v. Richard Gastineau
W2004-02428-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

The appellant, Richard Gastineau, pled guilty in the Shelby County Criminal Court to reckless driving, and the trial court sentenced him to a six-month suspended sentence and fined him five hundred dollars. The trial court also sua sponte ruled that the appellant had violated the implied consent law and revoked his driver’s license for one year. In this appeal, the appellant claims that the trial court erred by finding that he violated the implied consent law and by revoking his driver’s license. Upon review of the record and the parties’ briefs, we conclude that the trial court lacked jurisdiction over the implied consent law violation and reverse the judgment of the trial court. We also remand the case to the trial court in order for it to clarify on the record whether the appellant should receive judicial diversion for the reckless driving conviction.

Patsy C. Cate v. James Daniel Thomas
W2005-00028-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor J. Steven Stafford

This case arises out of an ejectment action filed by Appellee against Appellant. Appellee claims ownership of the disputed property under a 1990 Warranty Deed and Appellant asserts that this Deed should be set aside due to fraud. The trial court found that the 1990 Deed was valid and that Appellant was a tenant at will on the property. The trial court further found that Appellant was in arrears on rent and that Appellee had a right to possession of the property and rents. We affirm.

Derrick Lawrence, et al. vs. Trees N Trends
E2005-01365-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John B. Hagler, Jr.

Derrick Lawrence and Kim Lawrence ("Plaintiffs") sued Trees-N-Trends (the "Store") alleging outrageous conduct and/or negligent infliction of emotional distress. While Plaintiffs were shopping at the Store, a customer reported to the Store's manager that Plaintiffs had a gun and intended to commit a robbery. The Store's assistant manager, Whitney Finnell ("Finnell"), called 911 indicting there was a possible armed robbery but then clarifying that the report was based solely on information provided by a customer. Plaintiffs purchased some items and were confronted by police officers as they exited the store, made to lie on the pavement, and were handcuffed while the officers ascertained whether Plaintiffs were armed. Plaintiffs were not armed. The Trial Court granted summary judgment to the Store, and Plaintiffs appeal claiming there are genuine issues of material fact. We affirm.

Richard Petersen, Individually and as a Natural Parent of the Minor Child, Rachel Petersen, Deceased et al. v. Genesis Learning Centers and Therapeutic Interventions, Inc.
M2004-01503-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge C. L. Rogers

This is an action to enforce a settlement agreement. In the underlying lawsuit, the plaintiffs filed a complaint against the defendant foster care provider for the wrongful death of their daughter. The defendant had an insurance policy with “withering” limits, in which the policy limits are reduced by the amount expended in defending the lawsuit. The week before trial, counsel for the defendant sent a letter to counsel for the plaintiffs offering to settle the case for the remaining policy limits which, at the time, were $575,000. The plaintiffs asked the defendant to allow the offer to remain open for forty-eight (48) hours. The defendant agreed, but the defendant’s trial preparation continued. Two days later, the plaintiffs accepted the defendant’s offer. By that time, the policy limits had eroded to $450,000. The plaintiffs filed a motion to enforce the settlement agreement in the amount of $575,000. The trial court granted the motion. The defendant now appeals. We reverse, concluding that the parties’ correspondence does not reflect a meeting of the minds on the settlement amount.

Christine V. Jones v. Cullen A. Ray
M2004-02629-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Barbara N. Haynes

The plaintiff and the defendant were riding double on a motorcycle with the defendant in front. The parties were proceeding south on the Natchez Trace Parkway in Williamson County when a deer came from the left and struck the side of the motorcycle, causing the plaintiff to sustain multiple fractures of her left leg. The plaintiff’s uninsured motorist carrier, who was served with process in the case, moved for summary judgment with respect to the plaintiff’s suit. The trial court granted summary judgment and dismissed the suit. The plaintiff appeals, arguing that there are genuine issues of material fact which preclude summary judgment. We affirm.

State of Tennessee v. Victor L. Powell
W2004-02375-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Roger A. Page

The defendant, Victor Powell, was convicted of two counts of vehicular homicide (by recklessness and by intoxication), three counts of vehicular assault, and two counts of driving under the influence.  The conviction for vehicular homicide by recklessness was merged into the conviction for vehicular homicide by intoxication. In addition, both convictions for driving under the influence were merged into the conviction for vehicular homicide by intoxication. The trial court imposed consecutive sentences of twelve years for vehicular homicide and four years for each vehicular assault conviction.  In this appeal, the defendant asserts that the evidence was insufficient and that the trial court erred by refusing to grant a second mental evaluation. The judgments of the trial court are affirmed.

Sidney Porterfield v. State of Tennessee
W2005-00549-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge W. Otis Higgs, Jr.

The Petitioner, Sidney Porterfield, was convicted of first-degree murder and sentenced to death. The Petitioner has exhausted his direct appeals and has previously pursued post-conviction relief. The Petitioner filed the instant habeas corpus petition asserting several claims regarding the validity of his sentence. The trial court summarily denied the petition. We affirm the judgment of the trial court.

State of Tennessee, Department of Children's Services v. D.M.E. and R.W.E., in the Matter of: R.W.E., Jr., A.E.E. and D.D.E., Children Under 18 Years of Age
E2005-00274-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge James F. Watson

The Trial Court terminated the parental rights of both parents to the three minor children. On appeal, we affirm.

State of Tennessee v. Sheri Lynn Cox, alias
E2005-00240-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mary Beth Leibowitz

The appellee, Sherri Lynn Cox, was charged by presentment with theft of property valued between $1,000 and $10,000. The appellee moved to dismiss the presentment against her because a portion of the evidence against her had been lost. The trial court granted the motion, and the State appeals. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

Carolyn Wooster v. State of Tennessee
M2005-01217-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Burch

A Dickson County jury convicted the Petitioner, Carolyn Wooster, of aggravated child abuse and neglect and she was sentenced to fifteen years in prison. This court affirmed the conviction on direct appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel, and the post-conviction court dismissed her petition. The Petitioner appeals, contending that her trial counsel rendered ineffective assistance of counsel at trial by failing to adequately investigate her case. After thoroughly reviewing the record and the applicable law, we conclude that there exists no reversible error. Accordingly, we affirm the judgment of the post-conviction court.

State of Tennessee v. Donte Collins
M2004-02564-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte D. Watkins

The Defendant, Donte Collins, was convicted of driving under the influence ("DUI") and DUI per se. The trial court found that the Defendant had three previous DUI convictions and sentenced him for DUI, fourth offense, a Class E felony. The Defendant now appeals, contending that: (1) that the evidence contained in the record is insufficient to sustain his convictions for DUI and DUI per se; (2) the trial court erred when it allowed a police officer to testify about "clues" he gleaned from field sobriety tests because that was improper scientific testimony; (3) the trial court erred when it allowed the State to impeach the Defendant with his prior conviction for "a felony involving theft"; and (4) the trial court erred when it instructed the jury that it could infer that the Defendant was intoxicated based solely on his blood alcohol level. Finding no reversible error, we affirm the judgments of the trial court.

Tony Duane Wade v. State of Tennessee
M2005-00617-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John H. Gasaway, III

In three separate cases, the Defendant, Tony Duane Wade, pled guilty to two counts of forgery and two counts of aggravated burglary. In accordance with a plea agreement, the trial court sentenced the Defendant to an effective sentence of ten years, to be served on community corrections. Subsequently, the trial court found that the Defendant had violated his community corrections and ordered him to serve ten years. The Defendant now appeals contending that the trial court abused its discretion when it revoked his community corrections sentence. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v.Jonathan D. Tears
M2005-01269-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Charles Lee

A Marshall County jury convicted the Defendant of possession of .5 grams of cocaine with intent to sell, possession of .5 grams of cocaine with intent to deliver and possession of marijuana. The trial court merged the cocaine convictions into a single conviction for possession of cocaine with intent to sell and sentenced the Defendant to twelve years for that offense and to a concurrent sentence of eleven months, twenty-nine days for possession of marijuana. On appeal, the Defendant asserts that the evidence was insufficient to support his convictions and that the trial court erred when it denied him alternative sentencing. We find no error, thus, we affirm the judgements of the trial court.

Jerry Faulkner a/k/a Joseph Faulkner v. State of Tennessee
W2004-02354-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

On January 27, 2004, the Shelby County Criminal Court accepted the guilty pleas of Jerry Faulkner, also known as Joseph Faulkner, the petitioner, on three counts of aggravated robbery and a single count of aggravated rape. The effective 20-year sentence was imposed to run concurrently with another state sentence and “all Federal convictions.”  On April 13, 2004, the petitioner, who was incarcerated in a federal facility in Memphis, filed a petition in the conviction court for a writ of habeas corpus. Because the petitioner was in federal custody, the habeas corpus court dismissed the petition, and the petitioner appealed. Following our review, we affirm the order of the habeas corpus court.

Allstate Insurance Company v. Arveal Drummer d/b/a Tripplite
W2005-00894-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge C. Creed McGinley

Allstate brought this subrogation action to recover amounts it paid to its insured for damages to a computer and printer following a power surge against which a surge protector manufactured by TrippLite allegedly failed to protect. The trial court denied TrippLite’s Rule 41.02 motion for involuntary dismissal and entered judgment for Allstate. TrippLite appeals. We affirm.

Consumer Financial Services (Management) Inc., G. Ronald Hall, and Jacquelene O'Rourke Hall v. Consumer Financial Services Management, L.L.C. and Gabriel, L.L.C.
M2003-02030-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor R.E. Lee Davies

This is a contract action. The sellers sold to the purchasers a loan company dealing in sub-prime residential loans and mortgages and third-party finances, as well as equity interests in a related limited liability company. After closing the transaction, numerous financial and operational problems became apparent. The purchasers attempted to rescind the transaction, as the business foundered. Eventually, the sellers took back the business and sued the purchasers for breach of contract. The purchasers filed a counter-complaint, alleging that the sellers fraudulently induced the contract through multiple oral and written misrepresentations. After a bench trial, the trial court found that the sellers had committed fraud in inducing the contract. The purchasers were granted rescission of the sale agreement, as well as compensatory damages. The trial court dismissed the sellers' breach of contract complaint. The sellers appealed. We affirm.

State of Tennessee v. Delores Christina Armstrong
E2004-02957-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The appellant, Delores Christina Armstrong, was convicted of child abuse and neglect, and she received a sentence of four years. The trial court ordered the appellant to serve her sentence in community corrections. Subsequently, the appellant's community corrections sentence was revoked, and the appellant was ordered to serve the balance of her sentence in confinement. On appeal, the appellant challenges the revocation of her community corrections sentence and the imposition of a term of confinement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

In Re: D.A.J.
M2004-02421-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Raymond Grimes

Romina Jessica Clifton (“Mother”) and Dwight Cain Jemison (“Father”) are the parents of a six year old daughter. In 2004, Father filed a petition to modify custody of the child by seeking to be designated the child’s primary residential parent. Following a hearing, the Juvenile Court concluded that there had been a material change in circumstances and that it was in the child’s best interest to designate Father the primary residential parent. The Juvenile Court also set forth Mother’s coparenting schedule as well as her monthly child support payments. Mother appeals challenging the propriety of the Juvenile Court’s decision to designate Father the primary residential parent as well as the amount of her child support. We affirm the designation of Father as the primary residential parent but modify the amount of Mother’s monthly child support.

Deane Elizabeth Church v. Thomas Neal Church
M2004-02390-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Donald P. Harris

The Trial Court granted the parties' divorce, divided the marital property, awarded alimony and fees. Issues on appeal are division of marital property, alimony award and fees. We affirm the Trial Court's Judgment, with modifications.

Annette Hale v. Lincoln County, Tennessee et al.
M2004-01963-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Franklin Lee Russell

In this appeal we are called upon to review a trial court's grant of summary judgment to a county in a lawsuit filed by an injured motorist pursuant to section 29-20-203 of the Tennessee Governmental Tort Liability Act. The trial court concluded that the plaintiff was unable to prove, as a matter of law, that the county had actual and/or constructive notice of the condition of the roadway at the time of the plaintiff's accident. The plaintiff appealed to this Court. We hold that the plaintiff established that genuine issues of material fact exist as to whether the condition of the roadway constituted a defective, unsafe, or dangerous condition, and whether the county had actual and/or constructive notice of such condition. Accordingly, we reverse the decision of the trial court and remand this case for further proceedings.

Kaitlyn Calaway, ex. rel. Kathleen Calaway v. Jodi Schucker, M.D. - Dissenting
M2004-02856-SC-R23-CQ
Authoring Judge: Justice Janice M. Holder & Justice E. Riley Anderson
Trial Court Judge: Judge J. Daniel Breen

JANICE M. HOLDER, J., with whom E. RILEY ANDERSON, J., joins, dissenting
I write separately to express my view that the minority provisions of Tennessee’s legal
disability statute, Tennessee Code Annotated section 28-1-106 (2000), toll the three-year medical
malpractice statute of repose provided in Tennessee Code Annotated section 29-26-116(a)(3) (2000).

Kaitlyn Calaway ex rel. and Kathleen Calaway v. Jodi Schucker, M.D.
M2004-02856-SC-R23-CQ
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge J. Daniel Breen

Pursuant to Rule 23, we accepted four certified questions of law from the United States District
Court for the Western District of Tennessee. The third certified question is the central question of
the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice
in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled
during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical
malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language
of the statute and finding no exception for minority among the two express exceptions in it—and
cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs
in their minority are bound by the three-year medical malpractice statute of repose. However, in
order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and
lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute of repose.
 

Kaitlyn Calaway, ex rel. and Kathleen Calaway v. Jodi Schucker, M.D.
M2004-02856-SC-R23-CQ
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge J. Daniel Breen

Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it—and cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose. However, in order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute of repose.
 

In the Matter of: E.B., T.B., T.B., and R.B.
W2004-02821-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Dewey C. Whitenton

This is a dependency and neglect action. The four children at issue were in the custody of a nonparent.  The Department of Children’s Services filed a petition in juvenile court for protective custody of the children, alleging physical abuse. After an evidentiary hearing, the Juvenile Court concluded that the children were dependent and neglected, and transferred custody to the children’s biological mother. The non-parent temporary custodians appealed to the circuit court. The circuit court determined that the evidence was insufficient to conclude that the children were dependent and neglected. The circuit court then ordered that custody of three of the four children should remain with the biological mother, and that custody of the remaining child should be transferred back to the non-parent custodians. The biological mother appealed. We conclude that, once the circuit court found that the children were not dependent and neglected, it no longer had subject matter jurisdiction to determine the custody of the children. Therefore, we vacate the custody determination of the circuit court.

James Emmett Moses, Jr., v. State of Tennessee
W2005-01071-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, James Emmett Moses, Jr., pleaded guilty to aggravated burglary, two counts of robbery, and theft of property under $500, for which he received an effective 26-year incarcerative sentence. On direct appeal, the petitioner unsuccessfully challenged his sentences as excessive. See
State v. James Emmett Moses, Jr. v. State, No. W1999-01509-CCA-R3-CD (Tenn. Crim. App., Jackson, Mar. 7, 2000) (hereinafter Moses I). The petitioner then sought and was denied post-conviction relief. See James Emmett Moses, Jr. v. State, No. W2001-01394-CCA-R3-PC (Tenn. Crim. App., Jackson, Feb. 22, 2002) (hereinafter Moses II). The petitioner subsequently filed a habeas corpus petition alleging that he received an illegal sentence pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the habeas corpus court summarily dismissed the petition. The petitioner now brings the instant appeal challenging that denial, and after a thorough review of the record and applicable law, we affirm the judgment of the lower court.