State of Tennessee v. Richard D. Batey
M2001-02958-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Richard D. Batey, pled guilty in the Davidson County Criminal Court to one count of possession of more than .5 grams of a substance containing cocaine with intent to sell, a Class B felony. The trial court sentenced the appellant to eight years split confinement, with one year to be served in confinement and the remaining seven years to be served in the community corrections program. Pursuant to the plea agreement, the appellant reserved the right to appeal as a certified question of law the trial court's denial of his motion to suppress. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Phetsamay Inthavong
M2001-03005-CCA-R9-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. O. Bond

In this interlocutory appeal, the defendant challenges the trial court's upholding of the district attorney general's denial of her application for pretrial diversion. She argues that the district attorney general erred in not considering all required factors in the diversion denial and the trial court erred in taking testimony, upon which it relied in upholding the denial of diversion. Based upon our review, we reverse the order of the trial court denying pretrial diversion and remand for a reconsideration by the district attorney general of the defendant's diversion application.

Ethan Rider v. Laurie Rider
M2002-00556-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal, from a grant of summary judgment, involves the imposition of a constructive trust on life insurance proceeds. The lower court imposed the constructive trust, for the benefit of Father's son from his first marriage, on proceeds distributed to Father's second wife. The basis for the constructive trust arose from Father's obligation, under the decree of divorce dissolving his first marriage, to maintain life insurance benefitting his minor son. For the following reasons, we reverse the ruling of the lower court.

Brian Bacardi v. Bd. of Registration in Podiatry
M2002-00558-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Ellen Hobbs Lyle
This is an appeal from a final order, upholding the validity of a settlement agreement. Appellant, a podiatrist, entered into a settlement agreement with the Tennessee Board of Registration in Podiatry. The settlement agreement contained a provision whereby Appellant voluntarily relinquished his right to reapply for a podiatry license in Tennessee. Upon discovering that loss of the right to apply for license barred participation in all federal health care programs, Appellant sought to have the provision excised from the agreement on the basis that the Board had no statutory authority to mandate a bar on application for a license. The trial court upheld the validity of the settlement agreement. We affirm.

Estate of John Acuff v. Brenda Olinger
M2002-01629-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Jeffrey F. Stewart
This is an appeal from the granting of appellee's motion for discretionary costs. For the following reasons, we find that the motion was not timely filed and reverse the court below.

State v. Delinquent Taxpayers
M2002-00718-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This case involves the question of whether the statutory right of redemption enjoyed by the owner of property sold to recover delinquent taxes may be conveyed to a third party who may then exercise that right and redeem the property. We affirm the decision of the trial court, finding that the statutory right of redemption may be conveyed.

Jose & Gioconda Matus, et al v. Nashville General Hospital
M2002-01407-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Carol L. Soloman
This is a medical malpractice case against a municipal hospital pursuant to the Governmental Tort Liability Act. Originally, the defendants included a private physician and two nurse employees of the hospital. Plaintiffs alleged, among other things, that the two nurse employees were partially at fault, and their negligence attributed to the hospital was a cause of the damages alleged. Prior to the trial date, a settlement was reached by the plaintiffs with the private physician and the two nurse employees. Over defendants' objection, plaintiffs were allowed by motion on the eve of trial to amend their complaint to allege that previously un-named nurse employees of the hospital were negligent, which contributed to the damages alleged for which the hospital was responsible. Defendants also filed a motion for summary judgment asserting that, because the two nurse employees were no longer liable and thus their liability could not be attributed to the hospital, the hospital was entitled to summary judgment because there was no allegation of negligence on the part of other employees of the hospital. The trial court granted plaintiffs' motion to amend the complaint and denied the hospital's motion for summary judgment. At the conclusion of a nonjury trial, the hospital was assigned a percentage of fault for the damages incurred, and judgment was entered accordingly. Hospital appeals. We affirm.

State of Tennessee v. Darrell W. Smith
M2002-00735-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Curtis Smith

The appellant, Darrell W. Smith, pled guilty in the Franklin County Circuit Court to evading arrest and operating a motor vehicle in violation of the Motor Vehicle Habitual Offenders Act, both Class E felonies. The parties agreed that the appellant would be sentenced on each conviction to one year and one day with the sentences to be served consecutively. The manner of service of the sentences was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the appellant to serve 120 days in the county jail, with the balance of the sentences to be served in the community corrections program. On appeal, the appellant challenges the period of confinement. After reviewing the record and the parties' briefs, we affirm the judgments of the trial court.

Delbert Lee Harris v. State of Tennessee
M2002-00777-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert E. Burch

The petitioner, Delbert Lee Harris, was convicted in the Dickson County Circuit Court of aggravated assault, rape, rape of a child, and attempted sexual battery. The petitioner was ultimately sentenced to an effective sentence of thirty-two years incarceration in the Tennessee Department of Correction.  Subsequently, the petitioner filed a petition for post-conviction relief, complaining that he received the ineffective assistance of counsel and that several errors occurred during trial. The postconviction court partially granted the petition and dismissed the remainder of the petitioner’s issues.  The petitioner and the State timely appealed. Upon review of the record and the parties’ briefs, the judgment of the post-conviction court is affirmed in all respects except for the dismissal of the rape conviction.

Ginger Sweeton v. Angela Orange, et al.
M2002-00211-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jeffrey F. Stewart
This is a dispute between two adjoining property owners concerning the location of the common boundary between their respective properties. A survey of the line indicates that the land in question is property of Appellees. Appellant contends that, due to actions taken by her predecessors in interest, she has claim to the property by virtue of adverse possession. The trial court found that the land in question, with the exception of certain buildings used for storage, is the property of Appellees. Appellant appeals. We affirm.

Shirley Barlow v. Jarvis Barlow
M1999-00749-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Clara W. Byrd
These parties were married for twenty-seven years before the wife abandoned the marriage and sought a divorce which was uncontested. She was awarded one-half of the net marital estate, and rehabilitative alimony. Wife appeals, claiming that because of her illness she is entitled to more than 50 percent of the marital property, is entitled to alimony in futuro rather than rehabilitative alimony, and is entitled to attorney fees. We affirm the trial court's judgment, except as to the period of spousal support, which is extended from three years to five years. We also remand this case to the trial court for a determination of whether the post-judgment facts alleged by the husband warrant a further modification of the alimony award.

State of Tennessee v. Justin Genel Hill
W2001-01274-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge William B. Acree

An Obion County grand jury indicted the defendant, Justin Genel Hill, of two counts of first degree murder and one count of conspiracy to commit first degree murder. In a separate indictment, Clarence Carnell Gaston, Miqwon Deon Leach, and Mario Deangelo Thomas were also charged with crimes arising out of the same criminal episode. The defendant and these three men were tried in a single jury trial. The jury found Gaston, Leach, and Thomas guilty of conspiracy to commit first degree murder, second degree murder, and first degree felony murder and found the defendant guilty of facilitation to commit second degree murder. See State v. Clarence Carnell Gaston, No. W2001-02046-CCA-R3-CD, 2003 WL 261941, at *1 (Tenn. Crim. App. at Jackson, Feb. 7, 2003). For the defendant's conviction, the trial court sentenced him to serve a ten-year sentence in the Department of Corrections. The defendant now brings this appeal of his conviction, alleging that the evidence introduced at trial is insufficient to support his conviction. After reviewing the record and applicable law, we find that the defendant's allegation lacks merit and accordingly affirm the defendant's conviction.

State of Tennessee v. Keith Dwayne Guthrie - Order
W2001-01910-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith

In this appeal the appellant was convicted of theft of property over $500 and sentenced to two (2) years on community corrections. Approximately three (3) months later he was convicted of vandalism of property valued under $500. At the time of his arrest on the vandalism charge the appellant was intoxicated. As a result of his conduct while on community corrections his sentence to this program was revoked. He was re-sentenced to one (1) year of continuous incarceration followed by one (1) year of community corrections.

Elizabeth A. Mcbroom v. Owens-Corning Corp.
W2002-01146-SC-WCM-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, 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. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer questions the trial court's findings with respect to causation, permanency and extent of disability. As discussed below, the panel has concluded the evidence fails to preponderate against the trial court's findings. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. W. Stephen Gardner and Robert Joseph Leibovich, Memphis, Tennessee, for the appellant, Owens- Corning Corp. Scott G. Kirk, Jackson, Tennessee, for the appellee, Elizabeth A. McBroom MEMORANDUM OPINION The employee or claimant, Ms. McBroom, initiated this civil action to recover workers' compensation benefits for a gradual injury to both arms. At the conclusion of the trial on October 17, 21, the trial court awarded, among other things, permanent partial disability benefits based on 25 percent to both arms. The employer has appealed. 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.

Darrell Wentzel v. State of Tennessee
M2002-00799-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

On December 6, 1996, the petitioner was convicted of armed robbery, aggravated burglary, and aggravated kidnaping. On direct appeal, those convictions were affirmed. The Tennessee Supreme Court denied permission to appeal on May 10, 1999. On June 21, 2001, the petitioner filed, pro se, a document titled "motion for extraordinary relief." The trial court dismissed the motion, characterizing it as a petition for post-conviction relief, and barred by the one-year statute of limitations. We affirm the dismissal from the trial court.

State of Tennessee v. Timothy Roberts
M2002-00806-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier

The defendant originally pled guilty pursuant to a plea agreement to various theft and forgery offenses as a Range II multiple offender for an effective six-year sentence, most of which would be served on community corrections. At the time of the plea, he agreed his sentence would be increased to ten years if he violated the community corrections program. He was subsequently revoked and ordered to serve an effective ten-year sentence in the Department of Correction. On appeal, he contends the trial court failed to make sentencing findings and imposed illegal sentences above the authorized Range II punishment. We agree and, therefore, reverse and remand for a new sentencing hearing.

Glenn A. Saddler v. State of Tennessee
M2002-00597-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. O. Bond

The petitioner was convicted of second degree murder and sentenced to imprisonment for twenty-five years as a Range I offender. Following an evidentiary hearing and the dismissal of his petition for post-conviction relief, the petitioner argues on appeal that prosecutorial misconduct and ineffective assistance at his trial merit a new trial. We affirm the post-conviction court's dismissal of the petition.

Jesse Fitts v. Donald Arms, d/b/a McMinnville Orthopedic Clinic
M2002-00655-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Charles D. Haston, Sr.
This appeal arises from a medical malpractice proceeding. The trial court granted summary judgment for both physicians, finding that Aapellants' expert affidavits failed to raise a genuine issue of material fact. For the following reasons, we affirm the ruling of the trial court.

Scott Hartman v. State
M2002-01430-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Student-athlete entered into athletic scholarship with University under which University agreed to furnish medical treatment for any injuries incurred during athletic competition. Student-athlete suffered catastrophic injury during competition. At the time of his injury, student-athlete was an enrolled Eligible Dependent under an insurance plan father purchased through his employer. Pursuant to this plan, and the subrogation provision contained within, employer paid a significant portion of student-athlete's medical expenses for a specific three-year period. Employer ratified original contract action of student-athlete and parents against University and State, and sought to recover medical expenses paid pursuant to the plan's subrogation provision. Claims Commission granted summary judgment in favor of employer, ruling that employer was entitled to recover medical expenses from University. Commission denied claimants' request for prejudgment interest. University appeals Commission's summary judgment ruling, and claimants appeal Commission's denial of prejudgment interest. We affirm.

Janis Turner v. Andre Yovanovitch
M2002-01164-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Muriel Robinson
This is a child support modification case. The father's net monthly income was in excess of $10,000 per month. The trial court, stating that it was in the child's best interest and welfare, included father's income in excess of $10,000 in calculating his child support obligation. On appeal, the father asserts that the mother failed to prove by a preponderance of the evidence that the child support based on income greater than $10,000 per month was reasonably necessary to provide for the needs for the minor child, as contemplated in Tennessee Code Annotated section 36-5-101(e)(1)(B). We affirm.

Ethel Carmical v. Mary Jane Kilpatrick
M2002-00613-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Timothy L. Easter
This is a challenge to an award of attorney's fees in a partition action. The testatrix left 500 acres of land in Perry County to her then-living heirs. Some of the heirs filed this action to partition and sell the land. After several years, the land finally sold. The trial court awarded 10% of the sale proceeds, approximately $100,000, as attorney's fees for the three attorneys who provided legal services in the partition action. One of the heirs now appeals that award, claiming that it was excessive. The appellant filed neither a transcript of the proceedings nor a statement of the evidence pursuant to Tennessee Rule of Appellate Procedure 24(c). We must affirm the trial court's award, because the issues raised by the appellant would require a review of the proceedings below, and without a transcript of the trial proceedings or a statement of the evidence, we must assume that the trial court properly exercised its discretion in light of the evidence.

Titan Trucking v. American Home Assurance & Beers Construction
M2002-01747-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert E. Corlew, III
This case involves the interpretation of a performance payment bond. The city contracted with a construction company to make improvements to a public project. The construction company entered into a performance payment bond with the surety to protect the city. The public project required excavation of soil, and the contract allowed the construction company to either relocate the dirt or remove it. A third party purchased the dirt. The purchaser's subcontractor hired a trucking company to move the dirt for the purchaser. The trucking company was never paid for its services. The trucking company sued the construction company and the surety under the terms of the performance payment bond. The trial court granted summary judgment in favor of the construction company and the surety. The trucking company appeals. We affirm, finding that the services provided by the trucking company were not covered under the terms of the performance payment bond because the construction company was not obligated to pay the third party purchaser for removal of the dirt.

State of Tennessee v. Colico Walls
W2002-00191-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Chris B. Craft

The defendant, Colico Walls, was convicted of aggravated robbery and aggravated assault. The trial court imposed a Range I sentence of 11 years for the aggravated robbery and a Range II sentence of 10 years for the aggravated assault. The sentences were ordered to be served consecutively. In this appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed as to the aggravated robbery. The aggravated assault is modified to simple assault, a Class A misdemeanor, having an 11-month, 29-day sentence. The sentences, as modified, shall be served consecutively.

Dudley Eastbourne vs. Roger Brumitte
E2002-00068-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
In this appeal from the Chancery Court for Loudon County the Appellant, Roger Brumitte d/b/a Roger Brumitte Construction, argues that the Trial Court erred in awarding the Appellees, Dudley C. Eastbourne and wife Barbara A. Eastbourne, damages for defects in the construction of their home. We affirm the judgment of the Trial Court as modified and remand for enforcement of the judgment and collection of costs below.

State of Tennessee v. Vickie Swift
E2002-01093-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Vickie Swift, was convicted of one count of theft over $1000. The trial court imposed a sentence of three years to be served on probation. Later, probation was revoked. In this appeal, the defendant asserts that the trial court erred by revoking her probation and ordering her incarcerated for the balance of her sentence.