Bankers Trust y vs. Timothy Collins
E2002-02109-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Daryl R. Fansler
In this declaratory judgment action, the Trial Court held that recorded trust deeds and notes had priority over unrecorded trust deeds and notes and dismissed the action. We affirm.

KHB Holdings vs. Mark Duncan
E2002-02062-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Daryl R. Fansler
KHB Holdings, Inc. ("KHB") sued Mark A. Duncan and Tina L. Duncan ("the Duncans"), alleging that the Duncans had terminated KHB's contract to construct a residence for them. The trial court found that KHB's corporate charter had been revoked two years prior to the date on which KHB ostensibly contracted with the Duncans; denied KHB's motion to substitute its sole shareholder, Kenneth H. Boyd ("Boyd"), for the corporation; and held that KHB had failed to establish it was entitled to recover based upon a theory of quantum meruit. We affirm.

In The Matter of : Estate of J.C. Qeener
E2002-02311-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William H. Russell
Trial Court entered Judgments against Estate for claimants on theories of resulting and/or constructive trusts, finding decedent's intent from a draft copy of Will never executed. On appeal, we affirm in part and reverse in part.

Fred Slaughter vs. Laura Slaughter & Daniel Crowe
E2002-02477-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: G. Richard Johnson
The Trial Court gave Judgments for plaintiffs against defendants and cross-defendant Slaughter was given Judgments for compensatory and punitive damages against co-defendant Crowe and her deed to Crowe was voided. On appeal, we affirm all Judgments except for the Judgment for punitive damages which is remanded for trial on damages.

Willis Edwards vs. Katherine Heckmann
E2002-02292-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Billy Joe White
This appeal involves a boundary line dispute between Willis Edwards and Wendall Edwards ("Plaintiffs") and Katherine and Gregory Heckmann ("Defendants"). Plaintiffs and Defendants presented proof from their respective surveyors regarding the appropriate boundary line for the disputed area of land. The surveyors testified in detail regarding the natural and artificial landmarks, etc., they relied upon in arriving at their differing conclusions. The Trial Court concluded Defendants' surveyor was accurate and entered judgment accordingly. Plaintiffs appeal. We affirm.

Big Nine Productions vs. International Creative Management
E2002-02452-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
DLLP, LLC, dba Big Nine Productions ("DLLP") sued International Creative Management, Inc., aka ICM ("ICM") and Rock On Tours, Inc. (collectively "the defendants") for damages and other relief arising out of the alleged failure of the defendants to follow through with a concert featuring the defendants' principal, a musical group known as the Moody Blues. The defendants moved the court to compel arbitration under an alleged agreement providing for arbitration in New York City. The trial court ordered arbitration, but decreed that it would be conducted in Chattanooga. The defendants appeal, arguing that the trial court was without authority to order arbitration other than in New York City. By way of a separate issue, the appellee, DLLP, contends that the trial court ordered "non-binding" arbitration and that it erred in doing so in the absence of the parties' consent, said consent being required by Tenn. Sup. Ct. R. 31, Sec. 3(d). It seeks an outright reversal of the court's order. We hold that the trial court ordered "binding" arbitration; that such arbitration was required under the terms of the parties' agreement; and that the trial court erred in failing to order that the arbitration would be conducted in New York City. Accordingly, we modify the trial court's order. As modified, the order is affirmed.

State of Tennessee v. Julia M. Ward
E2002-01381-CCA-R9-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant, a teacher, was indicted for three counts of assault against one of her students. She offered to enter a plea of nolo contendere on Count II in exchange for judicial diversion and the dismissal of the remaining two counts. The State rejected the Defendant's plea of nolo contendere and maintained that the Defendant would have to plead guilty in order to receive judicial diversion. The Defendant refused the offer and requested pretrial diversion. The State denied the Defendant's request. The Defendant filed a petition for writ of certiorari to the Knox County Criminal Court. The trial court denied the petition. The trial court then filed an order permitting interlocutory appeal to this Court. This Court granted the Defendant's application for interlocutory review. In this appeal, the Defendant argues that the State abused its discretion by denying the Defendant pretrial diversion. We affirm the judgment of the trial court.

Gloria Chambliss vs. DennisStohler
E2002-02413-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Neil Thomas, III
Gloria Jean Chambliss saw Dennis L. Stohler, M.D. ("Defendant") for medical care and treatment for problems related to her right knee. Ms. Chambliss was dissatisfied with the results of Defendant's treatment. Ms. Chambliss and her husband, Willie Chambliss ("Plaintiffs") sued Defendant for medical malpractice. Defendant filed a motion for summary judgment, which the Trial Court granted. Plaintiffs filed a Tenn. R. Civ. P. 59.04 motion to alter or amend the judgment and also a motion to allow the filing of an amended affidavit of Plaintiffs' expert. The Trial Court denied the motions to alter or amend. Plaintiffs appeal. We affirm.

Bryan Pearson v. State of Tennessee
E2002-02817-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Buddy D. Perry

The pro se appellant appeals from the summary dismissal of his petition for the writ of habeas corpus. Finding that summary dismissal was appropriate under the circumstances of this case, we affirm the judgment of the lower court.

Melvin E. Beard v. State of Tennessee
M2002-02140-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Petitioner, Melvin E. Beard, appeals from the denial of his petition for post-conviction relief. In his appeal, Petitioner alleges that his trial counsel rendered ineffective assistance of counsel in connection with the negotiation and entry of Petitioner's best interest plea to the charge of sale and delivery of cocaine, that his best interest plea was involuntary, and that the factual basis presented by the State was insufficient to support his plea. After a careful review of the record in this matter, we conclude that the evidence does not preponderate against the trial court's findings of fact. We therefore affirm the judgment of the trial court.

State of Tennessee v. Terrance W. Price
M2002-00991-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl A. Blackburn

Pursuant to a negotiated plea agreement, Defendant, Terrance W. Price, pled guilty to fifteen counts of money laundering, a Class B felony, and one count of conspiracy to commit money laundering, a Class C felony. He pled guilty reserving the right to appeal a certified question of law pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The certified question of law on appeal is whether Tennessee Code Annotated sections 39-14-901, - 903, Money Laundering Act of 1996, violates Article XI, Section 8 or Article I, Section 8 of the Tennessee Constitution by exempting from its application violation of gambling laws, found in Tenn. Code Ann. § 39-17-501 et seq. After a careful review, we conclude that the statutes do not violate the Tennessee Constitution, and therefore affirm the judgments of the trial court.

State of Tennessee v. Mark A. Bales
E2001-01075-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

The defendant, Mark Anthony Bales, pled guilty to attempted second degree murder. After accepting his plea, the trial court sentenced the defendant to serve eleven years as a Range I standard offender. The defendant now appeals his sentence arguing that the trial court erred (1) by finding that when the defendant committed the instant crime, he treated the victim with exceptional cruelty; (2) by giving insufficient weight to two applicable mitigating factors, the defendant's excellent social history and his lack of a criminal record; and (3) by sentencing the defendant to a term of years that made him ineligible for consideration for an alternative sentence. After a thorough review of the record, we find that none of the defendant's allegations merit relief and accordingly affirm his sentence.

State of Tennessee v. Kenneth Michael Byrd, alias
E2002-01589-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ray L. Jenkins

Issue: Whether the issuance of a capias tolls the expiration of a probationary sentence. Upon this record, we conclude it does not. We reverse the revocation of the defendant's probation, concluding his probationary sentence had expired.

State of Tennessee v. Dennis Pylant
M2001-02335-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Allen W. Wallace

The appellant, Dennis Pylant, was found guilty in the Cheatham County Circuit Court of felony murder committed in the perpetration of aggravated child abuse. The appellant received a sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant raises several issues for our consideration, namely the sufficiency of the evidence, evidentiary issues, and a complaint regarding the jury instructions. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

John Doe, et al. v. Board of Professional Responsibility of the Supreme Court of Tennessee, et al.
M2002-02076-SC-R23-CQ
Authoring Judge: Justice William M. Barker
Trial Court Judge: Judge Julia Smith Gibbons

Pursuant to Tennessee Supreme Court Rule 23, we accepted certification of questions of law from the United States District Court for the Western District of Tennessee. We are asked by the federal district court to construe Rule 9, section 25 of the Rules of the Supreme Court of Tennessee. Specifically, we are asked to determine whether Richard Roe, a layperson (i.e., a non-attorney), may be charged with contempt for disclosing that he filed a complaint with the Tennessee Board of Professional Responsibility against an attorney in violation of the confidentiality provision embodied in Rule 9, section 25, and if so, by whom and before what tribunal? For the reasons given herein, we answer that the confidentiality requirement of Rule 9, section 25 applies to non-lawyers and lawyers alike. The appropriate sanction for a violation of Rule 9, section 25 is an action of contempt. Contempt proceedings may be initiated by the attorney against whom the complaint has been filed, the complainant, the Board of Professional Responsibility, or this Court. Finally, we hold that such a petition for contempt should be filed in this Court, whereupon assignment shall issue to a special master to conduct an evidentiary hearing. The record and findings of fact of the special master shall then be sent to this Court whereupon a determination of guilt and punishment, if any, will follow.

State of Tennessee v. Kenneth Jordan
M2002-01010-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Kenneth Jordan, entered pleas of guilt to aggravated burglary and aggravated assault. The trial court imposed Range I sentences of six years for each offense to be served concurrently. At the conclusion of a sentencing hearing, the trial court imposed a sentence of one year with split confinement. The defendant was given the choice of serving one year with work release and the balance on probation, or participating in a Lifeline Therapeutic Community Program with the opportunity to apply for early release. In this appeal of right, the defendant argues that the trial court failed to adequately consider the statutory guidelines and should have granted probation. The judgments of conviction are affirmed and the effective sentence is modified to require 90 days in jail with work release followed by supervised probation.

John Wayne Gray v. State of Tennessee
M2001-03090-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Buddy D. Perry

The petitioner, John Wayne Gray, appeals the Franklin County Circuit Court's denial of post-conviction relief from his conviction for the sale of a Schedule II controlled substance. On appeal, the petitioner claims that he received ineffective assistance of counsel. Following a review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Michael W. Carpenter v. State of Tennessee
M2002-02187-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Seth W. Norman

The petitioner appeals the dismissal of his petition for post-conviction relief, in which he alleged he received ineffective assistance of counsel at his community corrections revocation and resentencing. The post-conviction court found post-conviction relief was unavailable to one challenging a community corrections revocation proceeding. We conclude that although the post-conviction process may not be used to collaterally attack a probation revocation, it is available to attack a community corrections revocation/resentencing. Thus, we reverse and remand for further proceedings.

Michael S. Sanders v. Diane H. Sanders
M2001-02694-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Chancellor Tom E. Gray

The Chancery Court of Sumner County declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the wife argues that since her conservator executed her counterclaim for divorce, the court had no jurisdiction to award her a divorce. She also contests the amount and duration of the alimony awarded to her. We affirm the divorce, but we reverse the award for rehabilitative alimony and modify the award to alimony in futuro. We remand for a hearing as to the amount.

Lisa Putman Mencer v. State of Tennessee
M2002-00715-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge William Charles Lee

The petitioner appeals after being denied post-conviction relief. She pled guilty to one count of aggravated burglary and ten counts of forgery. Pursuant to her plea agreement, she received an effective sentence of twenty years as a Range III offender. Her post-conviction relief petition alleged she received ineffective assistance of counsel and that she did not enter her plea knowingly and voluntarily. We conclude the evidence does not preponderate against the post-conviction court's findings. We affirm the judgment of the post-conviction court.

Kay Baker Wright, et al., v. 304 Broadway, L.L.C.
M2002-00952-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Carol L. Soloman

The Circuit Court of Davidson County granted summary judgment to the owner of a building in a slip and fall case. We concur with the trial court in its conclusion that the defendant did not owe the plaintiff a duty to make its premises safer and that the plaintiff's own negligence was more than 50 percent of the cause of the accident. We affirm.

Rutherford County v. Martha Jordan Wilson, et al.
M2000-01382-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Don R. Ash

This appeal arises out of a condemnation proceeding brought by Rutherford County against the appellees. The appellant, claiming an interest through her deceased husband in the property to be condemned, filed a motion to intervene in the proceeding. The trial court denied the appellant's motion to intervene and dismissed her cross-claim for declaratory judgment, finding that she held no interest in the property under the provisions of the granting instrument. The Court of Appeals affirmed the judgment of the trial court, holding that the granting instrument conveyed a contingent remainder to each member of the class. As such, the conveyance to the appellant's husband lapsed when he predeceased the life tenant, leaving appellant without an interest in the property. We granted review, and we now hold that each class member held a vested, transmissible interest in the property prior to the death of the life tenant and that the appellant holds no interest in the property. We remand this cause to the trial court for proceedings consistent with this opinion.

Clois Junior Clark v. Peterbilt Motor Company
M2002-00452-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: C. L. Rogers, Judge
The plaintiff filed this compensation complaint in which he alleged he sustained injury to both arms as a result of continuing repetitive use thereof while working as a welder for the plaintiff. The trial judge found in favor of the plaintiff and awarded him temporary total disability benefits and found he had sustained a 30 percent permanent partial impairment to both arms. The defendant contends the trial judge erred in finding the plaintiff's medical problems arose out of and in the course of his employment and that the award of 30 percent impairment to each arm was excessive. We affirm the judgment of the trial court.

Byron M. Edwards v. State of Tennessee
E2002-00343-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Byron M. Edwards appeals the denial of his petition for post-conviction relief attacking his jury conviction for aggravated robbery and for which he was sentenced to 30 years. He argues that he received ineffective assistance of counsel in connection with a plea offer by the state that he rejected. Following our review, we affirm the post-conviction court's denial of the petition.

City of Red Bank, Tennessee, et al. v. Kimilla R. Cofer
E2002-00192-WC-R3-CV
Authoring Judge: Byers, Sr. J.
Trial Court Judge: Jackie Schulten, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The City of Red Bank brought this suit against Kimilla Cofer, a police officer, to determine if it was liable under the provisions of the Workers' Compensation Act for injuries sustained by her in an automobile accident. The trial court found the injuries suffered by Cofer did not arise out of or in the course of her employment with the City. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed BYERS, SR. J., in which ANDERSON, J. and THAYER, SP. J., joined. W. Gerald Tidwell, Jr., Chattanooga, Tennessee, for the appellant Kimilla R. Cofer. David R. Hensley, Chattanooga, Tennessee, for the appellees, City of Red Bank, Tennessee and Tennessee Municipal League Risk Management Pool. MEMORANDUM OPINION Officer Kimilla R. Cofer was a police officer with the City. She was assigned by the City as the D.A.R.E. (Drug Abuse Resistance Education) Officer and she also performed normal patrol duty. Officer Cofer taught D.A.R.E. classes at three schools. In addition to teaching these classes, she would attend D.A.R.E. functions away from the school. If she attended D.A.R.E. functions outside the time of her normal duty hours, she would receive compensated time off instead of payment. On March 6, 1997, Officer Cofer worked her regular shift from 7: a.m. until 3: p.m. When she finished her shift, she drove to her home, donned a D.A.R.E. shirt, and waited for a skating party sponsored by the D.A.R.E. group to start. She left her home driving her own car, and was driving to the event when she was involved in an accident.1 There was evidence in the record that Cofer was expected to attend social functions of the students in the D.A.R.E. program such as the skating event on the day of the accident. She was permitted to drive a D.A.R.E. vehicle which was under the control of the city after her shift to these events if she obtained permission from her superior for its use. However, at the time of the accident she was driving her own vehicle. Cofer acknowledges that as a general rule an employee is not acting within the course of her employment unless the injury occurs on the employer's premises. Howard v. Cornerstone Medical Associates, 54 S.W.3d 238 (Tenn. 21); Lollar v. Wal-Mart Stores Inc., 767 S.W.2d 143 (Tenn. 1989). Under the holdings in these cases, an employee driving to her place of employment is not in the course of her employment. Cofer insists, however, that she as a police officer is always on duty because officers often make arrests or engage in other police-type investigations, etc,. while off duty. She relies on the cases of City of Gallatin v. Anderson, 354 S.W.2d 84 (Tenn. 1962), and Mayor and Alderman of the Town of Tullahoma v. Ward, 114 S.W.2d 84 (Tenn. 1938), in support of this position. We do not find these cases to support Cofer's claim for compensation. In Ward, the officer was walking along a street in Tullahoma on his way to his home. He was in uniform and carrying a weapon at the time. Ward was run down by a drunken driver. Ward later found and arrested the driver. The court held that Ward was in the course of his employment at the time because he was on the streets of his employer at the time and as such was entitled to coverage under the Workers' Compensation Act. The court's rationale was that Ward was on the premises of his employment, and still under all the obligations of his employment, in uniform, carrying his badge and weapon of office. The court concluded that because of this, Ward was patrolling the streets at the time and his destination was not controlling. In Anderson, the officer was off duty and on a personal mission. He attempted to make an arrest and was injured. The court held that the evidence showed that Anderson was acting in his capacity as an officer at the time of the injury. In this case, Cofer was not traveling on the streets of the city. She was not in uniform, she 1 The defendant received injuries in the accident but these are not at issue at this time in this case. -2-