Belinda Kullman Rhoads v. Christopher Kullman
M2002-02716-COA-R3-CV
Authoring Judge: Sr. Judge James L. Weatherford
Trial Court Judge: Chancellor Leonard W. Martin

In this custody case, the mother appeals the denial of her Tenn. R. Civ. P. 60.02 Motion for Relief from Judgment and Motion for New Trial. The mother’s trial counsel withdrew on the day of the final hearing and the mother failed to appear at the final hearing. After hearing testimony from the father, the trial court found a significant and material change of circumstances had occurred and that it was in the best interest of the parties’ minor children for custody to be changed to the father. The mother contends that her failure to appear at the custody hearing was due to excusable neglect or inadvertence because her attorney had informed her “that the matter should be continued to allow her to obtain new counsel for further litigation in this matter.” For the reasons set out in this opinion, we affirm the judgment of the trial court.
 

Kenneth Herring v. State of Tennessee
M2003-01731-CCA-R3-PC,
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Stella Hargrove

The Appellant, Kenneth Herring, appeals as of right from the judgment of theWayne County Circuit Court denying his petition for post-conviction relief. Herring was convicted in 1999 of two counts of aggravated sexual battery. On appeal, Herring first argues that his right to due process was violated when the trial court failed to exclude a confession obtained as a result of a “coercive and deceitful” environment during interrogation and that trial counsel was ineffective for failing to seek suppression on this ground. He next contends that trial counsel was ineffective for failing to file a motion to sever the seven indicted offenses, which resulted in his two convictions. After review of the record, dismissal of the petition is affirmed.

Anthony Reid v. State of Tennessee
E2003-01953-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carroll L. Ross

A Bradley County jury convicted the Petitioner, Anthony Reid, of first degree felony murder, especially aggravated robbery, aggravated robbery, attempted aggravated robbery and evading arrest. The trial court imposed an effective sentence of life plus twenty-five years. On direct appeal, this Court affirmed the convictions, and the Tennessee Supreme Court denied the Petitioner's application for permission to appeal. The Petitioner then sought post-conviction relief in the trial court, alleging that he was denied effective assistance of counsel on direct appeal because his counsel failed to raise the issue of the sufficiency of the convicting evidence. Following a hearing, the post-conviction court dismissed the petition. In this appeal, the Petitioner contends that it was "per se" ineffective assistance of counsel for trial counsel to fail to raise the issue of the sufficiency of the convicting evidence on direct appeal. Finding no error, we affirm the trial court's dismissal of the petition.

Evelyn Marie Abercrombie v. Stephen Eugene Abercrombie
E2003-01226-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howell N. Peoples

Stephen Eugene Abercrombie ("Father"), the custodian of the parties' two minor children, filed a complaint against his former wife, Evelyn Marie Abercrombie ("Mother"), seeking to modify the trial court's January 19, 2000, order awarding him custody. That order had directed that, if Father decided to enroll the children in private school, Mother would pay one-half of the children's tuition and other private school expenses. The same order, however, recited that Mother was not required to pay any general child support to Father. In his post-divorce complaint, Father asked the trial court to set a sum certain to be paid by Mother to Father as general child support under the Child Support Guidelines ("the Guidelines"). The trial court declined to modify its previous order and dismissed Father's complaint "on the ground[] that the guidelines currently do not show any . . . child support due." Father appeals, arguing that Mother should be required to pay a set amount of general child support in addition to her obligation to pay one-half of the children's private school tuition and related expenses. We reverse and remand with instructions.

Darron Clayton v. State of Tennessee
W2003-01473-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Arthur T. Bennett

A Shelby County jury convicted the Petitioner, Darron Clayton, of second degree murder, and the trial court imposed a twenty-year sentence. On appeal, this Court affirmed the conviction and the sentence, and the Tennessee Supreme Court denied the Petitioner’s application for permission to appeal. The Petitioner filed a pro se petition for writ of habeas corpus, and the trial court dismissed the petition without a hearing. Three months later, the Petitioner filed a second petition for writ of habeas corpus raising the same issues as in his first petition, and the trial court again dismissed the petition. On appeal, the Petitioner contends that the trial court erred in dismissing his petition because his sentence is illegal. Finding no reversible error, we affirm the trial court’s judgment.

Bonnie Gross v. St. Thomas Hospital,
M2002-02107-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Irvin Kilcrease, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. Section 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, employee, appeals from a judgment in favor of the defendant, employer, which found employee's present medical condition and injury to her cervical spine was not a continuation of her original injury of January 18, 1999. The court, therefore, denied employee's claim for medical benefits and an increase in vocational disability. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (2 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed ALLEN W. WALLACE, SR. J., in which ADOLPHO A. BIRCH, JR., J. and JOE C. LOSER, JR., SP. J., joined. Gregory Lee Groth, Cookeville, Tennessee, for appellant, Bonnie Gross David Randall Mantooth, Nashville, Tennessee, for appellee, St. Thomas Hospital MEMORANDUM OPINION FACTS On January 18, 1999, employee, a Licensed Practical Nurse, injured her neck when she helped a patient into a wheelchair. As a result of this injury, she was treated by Dr. Stanley Chunn and Dr. M. Robert Weiss operated on the C6-7 level only, and did not perform surgery on the C5-6 level. On August 19, 1999, employee and employer, St. Thomas Hospital, filed a joint petition in the trial court seeking approval of a workers' compensation settlement agreement. Under the agreement, employee received a 2% permanent partial disability benefit and future authorized, necessary, and reasonable medical benefits relating to the injury. Employee continued to have neck pain and on a scale of 1 to 1, her pain was approximately a 4. These were left side symptoms about 5 months after reaching maximum medical improvement. She then went to work with Home Care Solutions, and was doing repetitive work and her pain increased to 1 on a scale of 1 to 1. This was in March, 2. Employer denied her application for benefits, and she then went back to Dr. Chunn who referred her to Dr. Leonardo Rodriquez Cruz, who performed surgery on C5-6 which relieved her pain and she went back to a pain level of 4 on a scale of 1 to 1. This controversy has developed into differences among medical experts. Dr. Chunn, Dr. James B. Talmage and Dr. Cruz testified that the employee's medical condition is a continuation of her injury of January 18, 1999. Dr. Chunn is Board certified in internal medicine, and employee is employed as a nurse in his office. Dr. Cruz and Dr. Weiss are neurosurgeons. Dr. Talmage is also a neurosurgeon, and performed an independent medical evaluation on employee. Dr. Weiss opined that employee's condition was not related to her injury of January 18, 1999, but was the result of a new injury or some other cause. ANALYSES Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Kokomo Grain Company, Inc., v. Randy Collins, et al.
M2003-00376-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This is a dispute between the former tenant of a grain storage facility and the new owners of the premises who acquired the property at a foreclosure sale. The issues in dispute are whether the tenant was a bailor or a holdover tenant following foreclosure and the fair market storage or rental value of the premises. The trial judge ruled that the former tenant was a holdover tenant and that the previous rental rate was the fair market rental value for the holdover period. We affirm.

State of Tennessee v. Frederick T. Pointer
M2003-00893-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald P. Harris

The defendant pled guilty in the Williamson County Circuit Court to sexual battery by an authority figure and incest, Class C felonies. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to concurrent sentences of four years for each conviction to be served as eleven months, twenty-nine days at seventy-five percent in the county jail and the remainder on supervised probation. The defendant appeals, claiming that the trial court erred by denying his request for full probation. We affirm the judgments of the trial court.

Larry D. Upshaw v. State of Tennessee
E2003-02071-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Ray L. Jenkins

The petitioner appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that the post-conviction court erred in finding that his trial counsel provided effective assistance at trial and on appeal. Following our review, we affirm the denial of the petition.

Terrance L. Turner and Jermaine Montez Bradford v. State of Tennessee
M2002-02429-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

Petitioner Terrance L. Turner was convicted in the Davidson County Criminal Court of two counts of attempted second degree murder and one count of especially aggravated kidnapping. Turner received a total effective sentence of twenty-eight years incarceration in the Tennessee Department of Correction. Subsequently, Turner filed for post-conviction relief, alleging that he received the ineffective assistance of counsel. Petitioner Jermaine Montez Bradford was convicted of especially aggravated kidnapping and was sentenced to twenty-three years incarceration. Thereafter, Bradford filed for post-conviction relief, alleging that he received the ineffective assistance of counsel because counsel denied him the right to testify at trial. The post-conviction court denied both petitions and the petitioners timely appealed. Upon our review of the record and the parties' briefs, we affirm the judgments of the post-conviction court.

James Peck v. State of Tennessee
M2003-00486-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner appeals the lower court's denial of his post-conviction relief petition. The petitioner entered a plea of nolo contendere to aggravated assault as a Range II offender, for which he was sentenced to ten years' incarceration at 35 percent. He contends on appeal that his trial counsel was ineffective for failing to properly investigate his case and that his plea was entered involuntarily. We affirm the judgment of the post-conviction court.

State of Tennessee v. James Dale Walker
E2003-01372-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, James Dale Walker, pled guilty in the Blount County Circuit Court to aggravated sexual exploitation of a minor, a Class C felony, and sexual exploitation of a minor, a Class E felony. Pursuant to the plea agreement, the defendant received concurrent sentences of six and two years, respectively, as a Range I, standard offender. The manner of service of the sentences was to be determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his sentences in total confinement. On appeal, this court reversed and remanded, ordering that the trial court reconsider a sentencing alternative to confinement in the Department of Correction (DOC). See State v. James Dale Walker, No. E2002-00263-CCA-R3-CD, Blount County (Tenn. Crim. App. Oct. 18, 2002). After a second sentencing hearing, the trial court ordered that the defendant serve six months in confinement and the remainder of his sentences on supervised probation. The defendant appeals, claiming that he should have received full probation. We affirm the judgments of the trial court.

State of Tennessee v. Daniel Andrew Decker
E2003-00922-CCA-R10-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Daniel Andrew Decker, appeals the trial court's order removing Assistant District Public Defender Karla Gothard as his counsel. Because the trial court did not abuse its discretionary authority, the judgment is affirmed.

State of Tennessee v. Daniel Andrew Decker - Dissenting
E2003-00922-CCA-R10-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Rebecca J. Stern

I respectfully dissent. I do not believe the record justifies removing counsel from representing the defendant. I see no design or scheme in place by which Ms. Gothard sought to thwart justice or its proper administration. Nor do I view the case as one by which she made material misrepresentations or disobeyed trial court orders. Rather, I find material discrepancies between the trial court’s findings, upon which the majority opinion is based, and the transcript of trial court proceedings. For example, the majority opinion specifies counsel’s failing to comply with the trial court’s “directive” to have her expert witness in court to support her request for a continuance.  However, the trial court did not order counsel to produce the expert nor did counsel defy any such order.

State of Tennessee v. Jay Chambers
E2002-01308-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Jay Chambers, was convicted of one count of rape. The trial court imposed a Range I sentence of ten years. In this appeal, the defendant asserts that a former sheriff's deputy should not have been permitted to sit as a juror; that the trial court erred by permitting members of the jury to separate during a break; and that he was denied the effective assistance of counsel. Because the defendant's motion for new trial was untimely and the issues, even if meritorious, would not warrant a dismissal of the charge, the interests of justice do not require waiver of the timely filing of the notice of appeal. Accordingly, the appeal is dismissed.

State of Tennessee v. Jay Chambers - Concurring
E2002-01308-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton

I concur in the results reached in the majority opinion. I believe, however, that the failure to file a motion for new trial does not foreclose our acting on plain error which affects substantial rights of the defendant. See Tenn. R. Crim. P. 52(b). For example, courts have reversed convictions and granted new trials based upon plain error because of the failure to instruct on lesser included offenses even though the issue was not preserved by the motion for a new trial. See, e.g., State v. Terry, 118 S.W.3d 355 (Tenn. 2003); State v. Walter Wilson, W2001-01463-CCA-R3-CD, Shelby County (Tenn. Crim. App. Sept. 4, 2002); State v. Jason Thomas Beeler, W1999-01417-CCA-R3-CD, Obion County (Tenn. Crim. App. Nov. 22, 2000). Thus, we should not necessarily limit our consideration to whether the defendant’s claims would result in dismissal.

Sparkle David Munsey v. State of Tennessee
E2002-02929-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge O. Duane Slone

The petitioner, Sparkle David Munsey, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, he contends that (1) he did not knowingly, voluntarily, and intelligently waive his right to counsel and (2) his sentence should be vacated because the trial court failed to advise him of his right to appeal pursuant to Federal Rule of Criminal Procedure 32(A)(2). The judgment of the trial court is affirmed.

Ernest B. Eady v. State of Tennessee
E2002-03111-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Ernest B. Eady, was convicted of second degree murder and sentenced to confinement for twenty years. His conviction and sentence were affirmed by this court and application for permission to appeal was denied by the supreme court. He filed a petition for post-conviction relief, alleging that trial counsel was ineffective for not raising as an issue on appeal that the jury had not been properly instructed as to murder second degree. Following a hearing, the post-conviction court granted the petition, and the State appealed. We reverse the order of the post-conviction court and remand for an order dismissing the petition for post-conviction relief.

Cher Lynn Hogue v. Joseph Hogue
M2002-02500-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor R.E. Lee Davies

Chancellor found father of minor child, who told child he is gay, in contempt for violating restraining order which prohibited father "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle." Father appeals, asserting the restraining order was overbroad and/or vague, not issued pursuant to Tenn. R. Civ. P. 65.03, and had expired prior to the alleged offense. While we find the restraining order was issued properly and not overly broad, we find the father's act of telling child he is gay did not violate the restraining order as written.

State of Tennessee v. David C. Beats
M2002-02710-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, David C. Beats, was convicted of theft over $10,000.00 and received a ten-year suspended sentence. After a positive drug screen, the trial court revoked probation and ordered service of the original sentence. In this appeal of right, the defendant argues that the trial court abused its discretion by revoking his probation. The judgment is affirmed.

James Wilkerson v. Ifeatu Ekelem
M2002-00841-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Elmer Davies

This case involves a dispute between a Williamson County property owner who decided to oversee the construction of his own house and the masonry contractor he hired to do the brick work on the project. The brick mason filed suit in the Williamson County Chancery Court claiming the property owner had breached the parties' oral agreement by failing to pay the balance due under the agreement. The property owner responded by claiming it was the brick mason who had breached the contract, accusing the brick mason of failing to finish the work in a professional manner, and charging the brick mason with slander. The trial court found in favor of the brick mason on his breach of contract claim, rejected the property owner's claims, and entered a $29,268.99 judgment in favor of the brick mason. The property owner appealed. We concur with the trial court's finding that the property owner breached the contract and, therefore, affirm the judgment.

State of Tennessee v. Wilbur Deck, Jr.
M2003-02334-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Burch

A Dickson County jury convicted the Defendant, Wilbur Leon Deck, Jr., of Driving Under the Influence of an Intoxicant ("DUI"), second offense. The trial court sentenced the Defendant to eleven months and twenty-nine days in the county jail, which it suspended after the Defendant served ninety days in jail. On appeal, the Defendant contends that the trial court erred when it failed to dismiss the presentment because the caption of the presentment stated the incorrect term of the grand jury. Finding no reversible error, we affirm the trial court's judgment.

Charles Phillips. v. United Services Automobile Association
E2003-00850-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

Charles C. Phillips, Jr. sued United Services Automobile Association ("USAA") under his homeowners insurance policy. His suit was prompted by USAA's denial of coverage for water damage to the plaintiff's house. The plaintiff claims that the damage was due to water seepage as a direct result of the faulty design or negligent installation of the synthetic stucco system applied to the exterior of his house. The plaintiff amended his complaint, seeking class certification for all other USAA insureds who had sustained similar losses caused by the failure of synthetic stucco material and whose claims had been denied by USAA. Following a bench trial on the issues of coverage and class certification, the trial court determined that the plaintiff's policy provided coverage for the water damage that ensued as a result of water penetrating the stucco exterior. In addition, the trial court ordered that a class of plaintiffs be conditionally certified. USAA appeals the finding of coverage. We affirm.

Danny R. Blalock v. Carolyn S. Blalock
E2003-01151-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Rex Henry Ogle

A mediated agreement provided that Husband would sell his one-half interest in Pigeon Forge property to Wife for $500,000.00, but if the purchase price was not paid in one year, the property would be sold at auction and the net proceeds divided. The property was sold at auction for $244,429.00, net. Wife claims this amount plus $255,271.00 and the trial court agreed.

Fred M. Leonard v. Knox County, Tennessee, et al.
E2003-02255-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Wheeler A. Rosenbalm

This is an inverse condemnation claim brought by Fred M. Leonard ("Plaintiff") against the City of Knoxville (the "City") and Knox County (the "County"). Plaintiff sought damages to his property resulting from flooding which occurred during and after construction to Gleason Road in Knoxville. The Trial Court granted the County's motion for summary judgment because the County had no involvement with the road construction and because the construction occurred solely within the City's limits on a city street. The Trial Court granted Plaintiff's motion seeking to prohibit the City from introducing evidence at trial pertaining to the deed between the City and Plaintiff's predecessor in title, which the City claimed estopped Plaintiff from pursuing this litigation. The jury returned a verdict for Plaintiff for $50,000 and concluded that Plaintiff's action was not barred by the applicable one year statute of limitations. We affirm the grant of summary judgment to the County and the jury's verdict that this action was filed timely. We conclude, however, that the Trial Court erred when it prohibited the City from introducing the deed and evidence concerning whether that deed operated to estop Plaintiff from pursuing this action.