Cortez Bennett v. State of Tennessee
M2004-02640-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

A jury convicted the Petitioner, Cortez Bennett, of first degree premeditated murder, felony murder, attempted first degree murder, and two counts of especially aggravated robbery. This court affirmed the convictions on direct appeal and the Tennessee Supreme Court denied review. The Petitioner filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. The Petitioner appeals, contending that his trial counsel rendered ineffective assistance of counsel at trial. 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.

Harold Bernard Schaffer v. State of Tennessee
W2004-02212-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Lee Moore

The petitioner pled guilty to one count of failure to appear in case number 00-99 stemming from the terms included in a previous guilty plea in case number 99-228. The petitioner then filed a petition for post-conviction relief stating he was afforded ineffective assistance of counsel in case number
00-99. The post-conviction court denied this petition. On appeal, the petitioner argues that he was afforded ineffective assistance of counsel in his guilty plea for case number 00-99 and that his guilty plea for case number 99-228 is unenforceable because it lacks clarity. We affirm the denial of the petition by the post-conviction court.

Ashley Nesbitt v. State of Tennessee
W2004-02360-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. C. Mclin

A Shelby County jury convicted the petitioner of several crimes including first degree murder, attempted first degree murder, attempted first degree premeditated murder and aggravated robbery.  On direct appeal, we reversed and dismissed the conviction for attempted first degree premeditated murder. The petitioner then filed a petition for post-conviction relief alleging several grounds. The post-conviction court denied his petition in a written order. We affirm the post-conviction court’s
judgment.

Martin Edward Malone vs. Lynettte Diane Berger Malone
E2004-02614-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The Trial Court, while finding a material change in circumstances, refused to change custody of the minor child on the ground that it would not be in the best interest of the child.

Joe Davis Martin, Jr. v. State of Tennessee
E2005-00439-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Joe Davis Martin, Jr., appeals from the trial court's denial of his pro se petition for habeas corpus relief. In that petition, the petitioner sought a writ of habeas corpus to release him from his sentences for attempted first degree murder, first degree murder, and attempted second degree murder based on what he alleged was the trial court's improper interpretation and application of Tennessee Code Annotated section 40-35-115(a). We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

City of Memphis, a Municipal Corporation v. The Civil Service Commission of the City of Memphis, et al.
W2005-00091-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The City of Memphis terminated the employment of Jack Vincent, a police officer. The Civil Service Commission reversed, and Memphis appealed to the Shelby County Chancery Court under a writ of certiorari. The chancery court affirmed the decision of the Commission, and Memphis appeals. We reverse.

Mark Jay Scott McLean v. Bourget's Bike Works, Inc.
M2003-01944-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal involves a dispute arising from the sale of a used motorcycle. After discovering that the motorcycle was not new, the purchaser filed suit and then settled with the dealer from whom he had purchased the motorcycle. Later, the purchaser filed suit against the motorcycle's manufacturer in the Circuit Court for Davidson County alleging that the motorcycle's aluminum frame was defective. The trial court granted the manufacturer's summary judgment motion and dismissed the purchaser's products liability and Tennessee Consumer Protection Act claims. The purchaser has appealed. We have determined that the manufacturer was entitled to a summary judgment on grounds other than those relied upon by the trial court.

State of Tennessee v. Roberto Vasques, Luis D. Vidales Romero, Kevin Joel Hernandez, Luis Martin Vasquez, Hector Alonzo, and Victor Hugo Garza
M2004-00166-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County Criminal Court jury convicted the defendants of conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone, a Class A felony, and the trial court sentenced each of them to fifteen years confinement at one hundred percent in the Department of Correction. The defendants appealed their convictions, with various defendants claiming that the evidence was insufficient, that the Tennessee Drug Free School Zone Act was unconstitutional, that the trial court erred in instructing the jury, that the state's continued reference to the defendants' ethnicity was overly prejudicial, that the state's introduction of evidence concerning the presence of weapons was irrelevant and overly prejudicial, and that the jury's verdict lacked unanimity. However, before oral argument, this court stayed the appellate proceedings based upon the defendants filing petitions for coram nobis relief in the trial court. The trial court thereafter granted the petitions for coram nobis relief and vacated the defendants' convictions, and the state now appeals, claiming the trial court improperly granted coram nobis relief to each defendant. In these consolidated cases, we affirm the trial court's coram nobis judgment as to the defendants Luis Vasquez and Victor Garza but reverse the judgment as to the other defendants. On direct appeal of the underlying convictions, we hold the trial court erred in not instructing the jury about facilitation but that the error did not affect a substantial right of Roberto Vasques, Luis D. Vidales Romero, Kevin Joel Hernandez, or Hector Alonzo, and we affirm their convictions.

John E. Carter v. State of Tennessee
E2005-01296-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Lynn W. Brown

The petitioner, John E. Carter, appeals from the trial court's order construing his untitled pleading as one for writ of habeas corpus and denying relief. The state has filed a motion requesting that  his court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed to establish that he is entitled to habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

Gary Edwin Bennett, et al. v. Trevecca Nazarene University
M2004-01287-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Walter C. Kurtz

Plaintiffs, certified low voltage electricians, filed a personal injury action against university for negligently informing them that university's switchgear cabinet was low voltage, when in fact, it was high voltage, for failing to provide a conspicuous high voltage warning sign on the high voltage switchgear and for obscuring the manufacturer's identifying product plate. Plaintiffs suffered injuries as a result of university's alleged negligence. The Circuit Court of Davidson County, Tennessee, Judge Walter C. Kurtz granted university's motion for summary judgment and Plaintiffs appealed. The decision of the trial court is reversed and case remanded.

Clifford W. Russell, et al. v. Susan I. Russell
M2004-01767-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Randy Kennedy

This case involves the contest of a will on the grounds of lack of testamentary capacity. The Probate Court, Davidson County, found that the evidence failed to establish that the Testator lacked the requisite testamentary capacity to execute his will. We affirm.

State of Tennessee v. John L. Wright
M2004-02174-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Jones

The Defendant, John L. Wright, was convicted of driving under the influence ("DUI"), fifth offense, and of violating the implied consent law. The Defendant now appeals, contending that: (1) the trial court erred when it denied his motion to suppress statements the Defendant made to the police; (2) the trial court improperly concluded that the Defendant's arrest was lawful; and (3) the evidence is insufficient to sustain his DUI conviction. Finding that there exists no reversible error, we affirm the judgments of the trial court.

Erick Bailey v. State of Tennessee
M2005-00181-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, Erick Bailey, was found guilty of second degree murder and felony murder. His conviction of second degree murder was merged into his conviction of felony murder, and he was sentenced to life imprisonment. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel were ineffective. The post-conviction court denied the petition, and the petitioner appeals. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Robert L. Gibson
M2005-00100-CCA-R9-CO
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge J. O. Bond

The Wilson County Grand Jury indicted the defendant, Robert Louis Gibson, on one count of sexual battery, a Class E felony. The defendant filed an application for pretrial diversion, which the prosecutor denied. On petition for writ of certiorari, the trial court affirmed the prosecutor's decision to deny pretrial diversion. In this interlocutory appeal, the defendant contends that the prosecutor abused his discretion in denying his application for pretrial diversion by improperly and unfairly weighing the factors used to determine whether diversion should be granted. Based upon our review, we affirm the order of the trial court.

In Re C.K.G., C.A.G., & C.L.G. - Dissenting
M2003-01320-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch
Trial Court Judge: Judge Lonnie R. Hoover

In Re C.K.G., C.A.G., & C.L.G.
M2003-01320-SC-R11-CV
Authoring Judge: Chief Justice Frank F. Drowota, III
Trial Court Judge: Judge Lonnie R. Hoover

This controversy involves a maternity dispute. An unmarried, heterosexual couple had three children by obtaining eggs donated from an anonymous third-party female, fertilizing the eggs in vitro with the man’s sperm, and implanting the fertilized eggs in the woman’s uterus. The couple intended to rear the children together as father and mother. When the couple’s relationship deteriorated, the woman filed a parentage action seeking custody and child support. In response, the man claimed that the woman had no standing as a parent because, lacking genetic connection to the children, she failed to qualify as a parent under Tennessee’s parentage statutes. On this basis, the man  sought sole and exclusive custody. Employing a broadly-framed test that looks to the parties’ pre-conception intent to determine maternity, both the juvenile court and the Court of Appeals held that the woman was the children’s legal mother. Alternatively, the Court of Appeals held that the man, based on his representations and conduct which induced detrimental reliance by the woman, is estopped to deny the woman’s status as mother. We vacate the adoption of the intent test by the court below and also vacate the holding of the Court of Appeals that the man is estopped to deny the woman’s maternal status. However, we affirm on separate grounds the holding of the courts below that the woman is the children’s legal mother with all the rights and responsibilities of parenthood. Our holding in this regard is based on the following factors: (1) prior to the children’s birth, both the woman as gestator and the man as the genetic father voluntarily demonstrated the bona fide intent that the woman would be the children’s legal mother and agreed that she would accept the legal responsibility as well as the legal rights of parenthood; (2) the woman became pregnant, carried to term, and gave birth to the children as her own; and (3) this case does not involve a controversy between a gestator and a female genetic progenitor where the genetic and gestative roles have been separated and distributed among two women, nor does this case involve a controversy between a traditional or gestational surrogate and a genetically-unrelated intended mother. Our holding today is tailored narrowly to the specific controversy now before us. Having concluded that the woman is the children’s legal mother, we also affirm in full the judgments of the juvenile court and Court of Appeals concerning comparative fitness, custody, child support, and visitation

State of Tennessee v. Halbert Varnell
E2004-02918-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rebecca J. Stern

A Hamilton County jury convicted the Defendant, Halbert Varnell, of driving under the influence ("DUI"). The Defendant admitted that he had three previous DUI convictions, and the trial court sentenced him for DUI, fourth offense, a Class E felony. The Defendant now appeals, contending that: (1) insufficient evidence was presented at trial to support his DUI conviction; and (2) the trial court erred by permitting improper closing argument by the State. Finding no reversible error, we affirm the judgments of the trial court.

Barbara McKeever, et al. v. Roy Matlock, et al.
M2004-01846-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

Former lessee appeals grant of summary judgment dismissing her wrongful ouster lawsuit against former landlord. We affirm.

State of Tennessee v. Lorenzo Bene Ware
M2004-02472-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Lorenzo Bene Ware, was convicted by a Davidson County jury of two counts of sexual battery by an authority figure, class C felonies. The trial court denied the defendant's request for probation and sentenced him to serve concurrent terms of three years in confinement. On appeal, the defendant argues that the trial court erred in denying his request for probation. After considering the record and the relevant authorities, we conclude the defendant has waived this issue and affirm the judgments of the trial court.

Kevin Jerron Cook v. State of Tennessee
M2004-02413-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

In this post-conviction action the petitioner contends that: (1) trial counsel was ineffective in failing to advise him of the effect his plea would have on his eligibility for rehabilitative programs and less restrictive forms of confinement during his federal sentence; and (2) his plea was involuntary and unknowing. Following our review, we conclude that counsel was not ineffective for failing to advise the petitioner of a collateral consequence of his plea and that his plea was knowingly and voluntarily entered. Therefore, we affirm the denial of post-conviction relief.

Phyllis I. Suits v. M & M Mars
E2004-02368-WC-R3-CV
Authoring Judge: Special Judge Roger E. Thayer
Trial Court Judge: Chancellor Jerri S. Bryant

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) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded plaintiff 25 percent disability to the body as a whole as a result of sustaining a neck injury but dismissed plaintiff’s claim for depression and a lung injury. On appeal plaintiff contends the court was in error in determining she had made a meaningful return to work and the award for the neck injury should have been larger. Plaintiff also cites error for dismissing the lung and depression claims. We affirm the judgment.

Judi Richardson v. George Kevin Spanos
M2003-01139-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge C. L. Rogers

This appeal involves a dispute between the parents of an eleven-year-old boy over child support and private school tuition. The child’s mother filed a petition in the Circuit Court for Sumner County seeking to obtain an increase in child support and to hold the father in contempt for failing to pay medical bills. The father responded by filing a petition seeking a deduction in child support because of reduced earnings. Following a bench trial, the trial court reduced the father’s child support and denied the mother’s request to require the father to pay the child’s private school tuition. The child’s mother has appealed. We have concluded that the trial court properly decreased the father’s base child support obligation because of his reduced income. However, we have also concluded that the trial court erred by failing to require the father to pay a reasonable portion of the child’s private school tuition.

Laschinski T. Emerson v. Oak Ridge Research, Inc. a/k/a Oak Ridge Realty Holding, Inc. and Nathaniel Revis
E2004-01974-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge James B. Scott, Jr.

Plaintiff sued defendants for sexual harassment, assault and battery and retaliatory discharge. A jury returned a verdict for various damages, as well as punitive damages. The Trial Judge, acting as 13th juror, essentially approved the jury’s verdict, but reduced the punitive damages from $500,000.00 to $150,000.00, and awarded plaintiff attorney’s fees in the amount of $282,964.50, as well as discretionary costs. On appeal, we affirm in part, vacate in part and remand with instructions.

Laschinski T. Emerson v. Oak Ridge Research, Inc. a/k/a Oak Ridge Realty Holding, Inc. and Nathaniel Revis - Concurring and Dissenting
E2004-01974-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

I find it necessary to dissent, respectfully, as to two parts of the majority’s Opinion.  I concur with the majority’s Opinion except as further expressed herein.

State of Tennessee v. Brandon Miller Waire
M2004-02577-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Brandon Miller Waire, was convicted of possession of cocaine with intent to resell and possession of marijuana with intent to resell. The trial court imposed Range I sentences of six years and two years, respectively, which were ordered to be served consecutively to each other and consecutively to a previously imposed sentence. The defendant was fined two-thousand dollars in each case and ordered to serve his sentence on intensive probation. Later, the probation was revoked and the defendant was ordered to serve his sentence in the Department of Correction. The single issue presented for review is whether the trial court properly revoked probation. The judgment is affirmed.