John Moore vs. Teresa Moore
E2001-03028-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ben K. Wexler
John Paul Moore appeals a judgment in a divorce proceedings, complaining that the Trial Court should have awarded him primary parenting rather than shared parenting with the child's mother, Teresa Ann Moore. He also complains that the Court erred in awarding an attorney fee to Ms. Moore in the amount of $300. Our standard of review as to both issues is whether the Trial Court abused its discretion. We find the Trial Court properly exercised its discretion and affirm.

State of Tennessee v. Jeffrey Smith
E2002-01147-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Jeffrey Smith, pled guilty to three counts of aggravated burglary, one count of aggravated robbery, one count of attempted robbery, and one count of theft under $500. The trial court imposed sentences as follows: six years for two of the aggravated burglaries and three years for the remaining aggravated burglary, twelve years for aggravated robbery, two years for attempted robbery, and eleven months and twenty-nine days for theft under $500. The trial court ordered that the twelve-year sentence for aggravated robbery be served consecutively to the sentence for aggravated burglary in Count 1 of case number 238391. The effective sentence is, therefore, eighteen years. In this appeal, the defendant complains that the sentence is excessive. Because consecutive sentences were not warranted, the judgments must be modified to reflect that all the sentences are to be served concurrently.

Jamie Robinson v. Donald Sundquist
M2001-01491-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: James E. Walton
The trial court dismissed this action for failure to state a claim. We affirm.

Sandra Hensley v. Daniel Scokin, M.D.
M2002-00922-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Marietta M. Shipley
This is a medical battery case. The patient was scheduled to undergo a hysterectomy. Because of prior medical problems, she told the anesthesiologist that she needed him to use nasal intubation instead of oral intubation to anesthetize her for the surgery. The anesthesiologist told her that he would use the type of intubation that he thought was best for her. Ultimately, when the hysterectomy was performed, the patient was intubated through an oral pathway. The patient sued the anesthesiologist for medical battery. The anesthesiologist filed a motion for summary judgment. The trial court found that the patient knew that the anesthesiologist might use oral intubation, and that she authorized the procedure both by signing a consent form prior to the surgery and by not stopping the procedure when she became aware that the anesthesiologist might use oral intubation. Consequently, summary judgment was granted in favor of the anesthesiologist. We reverse, finding that a question of material fact exists as to whether the patient authorized the use of oral intubation.

In Re: M.L.J. and R.R.J., et al
M2002-02213-COA-R3-JV
Authoring Judge: Judge David R. Farmer
The Juvenile Court for Sequatchie County terminated respondents' parental rights. We affirm.

Michael Warden v. Thomas Wortham/Jerry Tidwelll v. Michael Warden
M2002-00364-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Donald P. Harris
This case involves specific performance of a real estate contract. The first buyer and the seller entered into a contract for the sale of certain land. The contract did not state a time of performance. After the first buyer failed to perform within the time period understood by the seller, the seller sold the property to the second buyer. The first buyer did not discover the sale to the second buyer until approximately ten months after the second contract was signed and seven months after the transfer. The first buyer filed a lawsuit against both the seller and the second buyer, seeking specific performance of the original contract. The trial court found that the first buyer failed to tender performance within a reasonable time, and granted the second buyer's motion for directed verdict. The first buyer appeals. We affirm, in agreement with the reasoning of the trial court.

Ferguson Harbour v. Flash Market
M2002-00750-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: C. L. Rogers
This case involves a dispute over the validity of a contract. Appellant claims that its signature on the contract was obtained through economic duress and that the contract is, therefore, void. The trial court found for Appellee, awarding compensatory damages and attorney's fees. Appellee contends that the award of attorney's fees was unreasonably low. We affirm the trial court's award of compensatory damages. On the issue of attorney's fees, we reverse the order of the trial court and remand this case for a determination of reasonable attorney's fees consistent with this opinion.

Jonathan Thornton v. State of Tennessee
E2003-00393-CCA-R8-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James Edward Beckner

The petitioner, Jonathan Thornton, appeals the trial court's denial of his petition for habeas corpus relief, alleging that the sentence imposed by this court on direct appeal is illegal. Because the sentence imposed by this court upon direct appeal is in direct contravention of a statute, the judgment of the trial court is reversed and the petitioner's sentence is modified. With regard to the petitioner's felony conviction, we modify the sentence to a term of split confinement, with 7.2 months to be served in the local jail and the balance to be served on probation. The sentence for the misdemeanor sentence remains the same, 11 months and 29 days with thirty percent to be served in confinement.

Narrowly Tailored To Withstand Strict Scrutiny Under United States v. O'Brien, 391 U.S. 367 (1968).
02273-COA-R3-CV
Trial Court Judge: Michael R. Jones

Russell Lipsey vs. Protech Sys.
W2001-01785-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Karen R. Williams
This is a negligence case. The owner of a three-story historic building was remodeling it. He called a fire sprinkler company to move a sprinkler pipe. The repairman cut one of the sprinkler pipes and, thinking it was a "dead pipe," pushed it behind some sheetrock without capping it. The sprinkler system was regulated by an air compressor that filled the pipes with pressurized air until the system was triggered to allow water to flow through the pipes. The repairman left before the compressor completely charged the system, that is, before the air pressure reached the required level to hold the water back. Two days later, water began rushing out of a sprinkler pipe, causing extensive damage to the building. The owner sued the fire sprinkler company for damage to the building and its contents as well as for interruption of his business. At the trial, there was conflicting testimony about whether the water came out of the pipe that the repairman cut or whether it came out of another pipe. The jury found that both parties were zero percent responsible; thus, the owner recovered no damages. The owner moved for judgment notwithstanding the verdict or for a new trial. Both motions were denied. The owner appeals, and we affirm.

State of Tennessee v. Joseph B. Thompson
E2002-00061-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge R. Jerry Beck

The defendant, Joseph B. Thompson, was convicted of aggravated robbery and aggravated kidnapping. The trial court imposed consecutive sentences of twenty years for each offense for an effective sentence of forty years. In this appeal of right, the defendant asserts (1) that the trial court erred by denying his motion for judgment of acquittal; (2) that his convictions for both aggravated robbery and aggravated kidnapping violate the rule established in State v. Anthony; (3) that a pretrial photographic array was unduly suggestive; (4) that the trial court erred by the admission of photographs of the victim; (5) that the trial court erred by denying his motion for mistrial; (6) that the offenses should have been severed for trial; (7) that the trial court erred by refusing to dismiss the indictment when the state failed to disclose exculpatory information; (8) that the trial court erred by admitting a receipt that was not properly authenticated; (9) that the trial court impermissibly limited closing argument to forty minutes; and (10) that the sentence is excessive. The judgments of the trial court are affirmed.

Joann Gail Rosa v. State of Tennessee
E2002-00437-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner appeals the dismissal of her petition for post-conviction relief from her conviction for first degree murder, arguing that the post-conviction court erred in finding that she received effective assistance of trial counsel. After a thorough review of the record, we conclude that the petitioner failed to demonstrate either a deficiency in counsel's performance or a resulting prejudice to her case. Accordingly, we affirm the dismissal of the petition.

21st Mortgage ,formerly 21st Century Mortgage Corp. vs. Capitol Homes, LLC
E2002-02670-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: G. Richard Johnson
Ms. Stella Ford ("Ford") purchased a manufactured home from Capitol Homes, LLC ("Capitol Homes") and contractually agreed to make monthly payments. At the same time, Capitol Homes assigned its rights under the contract with Ford to 21st Mortgage Corp. ("Plaintiff") through an Assignment by Seller ("Assignment"). Capitol Homes made twelve express warranties in the Assignment. The Assignment further provided it would be with limited recourse for two months. After the two months expired, Plaintiff sued Capitol Homes and James Hurst ("Hurst")(collectively referred to as "Defendants"). Hurst had personally guaranteed the debt of Capitol Homes. Plaintiff alleged, among other things, that Capitol Homes had breached several of the express warranties. Defendants filed a motion to dismiss claiming the two month limited recourse provision also applied to any claim for breach of express warranty. The trial court agreed, and dismissed the lawsuit. Plaintiff appeals, and we reverse.

Elizabeth Ann Croley v. Levi Strauss & Co.
M2001-01481-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Jeffrey S. Bivins, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this case, the employee slipped and fell on a wet floor as she was entering the workplace. The chancellor, who had presided over the trial in this matter, left office before rendering a decision. The employee contends that the chancellor did not have jurisdiction to decide the case because the 6 day time period provided under Tennessee Code Annotated _ 17-1-34(b) for judges who have vacated office to conclude pending cases had expired prior to the entry of an order by the Chief Justice of the Tennessee Supreme Court ordering the former chancellor to conclude the case. The employee also contends that the trial court erred: 1) in finding that the plaintiff failed to prove that her work-related accident caused a permanent right shoulder injury; and 2) by designating a faxed copy of an order as the original. We hold that the evidence does not preponderate against the trial court's finding as to causation. We also find that the trial court did have proper jurisdiction in this case and did not err in designating a faxed copy of an order as the original when the original order was lost. Accordingly, the panel has concluded that the judgment of the trial court should be affirmed. Tenn. Code Ann. _ 5-6-225(e)(1999) Appeal as of Right; Judgment of the Chancery Court Affirmed. JAMES L. WEATHERFORD, SR.J., in which JANICE M. HOLDER, J. and JOE C. LOSER, JR., SP.J., joined. Wm. Landis Turner, Hohenwald, Tennessee, for the appellant, Elizabeth Ann Croley. Patrick Alan Ruth, Nashville, Tennessee, for the appellee, Levi Strauss & Co. MEMORANDUM OPINION Mrs. Elizabeth Ann Croley was 62 years old at the time of trial. She completed the 8th grade in school and had no vocational training. She is married with grown children and has legal custody of a grandchild. She had not worked outside the home for 8 or 9 years prior to starting work for Levi Strauss on March 22, 1993, where she operated a machine that placed rivets on blue jeans. On September 9, 1993, Mrs. Croley slipped and fell on a wet floor as she was entering the Levi Strauss plant. According to Mrs. Croley, she reported to the nurses' station where she told the plant nurse her shoulder, elbow, and neck were hurting. She signed an Employee Report of Injury form indicating primary injuries to her right elbow and hip with secondary injuries to her back and neck. She did not indicate an injury to the shoulder on the form. She chose Dr. Jeffrey T. Adams, orthopedist, from a panel of three physicians offered by Levi Strauss. Later that same day, Dr. Adams examined her and found neck pain and tenderness in her lower back. She had a normal neurologic exam of her upper and lower extremities. When asked whether there was any concern about Mrs. Croley's shoulder in the course of his examination, Dr. Adams responded: "No, she had full motion of her shoulders at that time. She really _ her main complaint was in her neck and in her lower back, [those were] her two areas of peak complaints." Dr. Adams prescribed muscle relaxers, physical therapy and placed her on work restrictions. Mrs. Croley continued working for Levi Strauss until November 7, 1993, when she took sick leave for unrelated medical problems. On April 28, 1994, Levi Strauss terminated her employment when she did not return to work after being released to return to work by her gynecologist. Dr. Adams treated Mrs. Croley until September 8, 1994. During that time she underwent a Functional Capacity Evaluation which indicated symptom magnification, MRIs, an EMG conduction study and a psychological evaluation. According to Dr. Adams, she initially started getting better and then "her symptoms suddenly changed gear and got progressively worse and markedly magnified." He concluded based on these tests that there was a psychological component that carried her symptoms to this point. Dr. Adams stated that the only reference to shoulder pain during his treatment of Mrs. Croley did not involve the shoulder joint, but referred to the back of the neck and shoulder blade. In Dr. Adams' opinion, Mrs. Croley did not sustain a rotator cuff tear or other significant shoulder trauma from the September 9, 1993 fall: No. She had no signs of a rotator cuff tear. I saw her hours after her injury, and she could pick her arm up all the way over her head (indicating). With a complete rotator cuff tear, you are extremely -2-

Wylie B. Dowlen v. Gary Matthews
M2001-03160-COA-R3-CV
Authoring Judge: Judge Stella L. Hargrove
Trial Court Judge: John H. Gasaway, III
This appeal arises from a police officer's lawsuit against a Clarksville resident for assault, defamation, and intentional infliction of emotional distress after the officer responded to a noise complaint at the resident's home. The trial judge directed a verdict for the defendant. We affirm the trial court.

Michael Anthony Scruggs v. State of Tennessee
M2002-00875-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Timothy L. Easter

The petitioner, Michael Anthony Scruggs, pled guilty to forgery and theft under $500. The trial court ordered concurrent sentences of six years for the forgery and eleven months, twenty-nine days, for the theft. No appeal was taken. Later, the petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, finding that the petitioner had failed to prove that his appointed counsel fell below the required level of competency. The judgment of the post-conviction court is affirmed.

William Roger Shelton v. ADS Environmental Services, et al
M2002-00186-SC-R9-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Robert E. Corlew, III
This workers' compensation case is before this court on interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. We granted interlocutory appeal in this case, as well as in the companion case of McCall v. National Health Corp., to determine whether the trial court has the authority to initiate temporary workers' compensation benefits prior to trial. In accordance with the reasoning and holding in McCall, we find that the trial court has this authority.

State of Tennessee v. Mario C. Estrada
M2002-00585-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Jones

The Appellant, Mario C. Estrada, appeals the sentencing decision of the Maury County Circuit Court imposing a sentence of twelve years incarceration in the Department of Correction. The sentence arose from guilty pleas by Estrada to one count of arson, eight counts of aggravated assault, and one count of possession of a prohibited weapon. The indictment returned against Estrada charged him with one count of aggravated arson, eight counts of attempted first degree murder, and one count of possession of a prohibited weapon. In this appeal, Estrada raises the issue of whether the trial court erred by ordering that his sentence be served in total confinement. After review, we find that plain error dictates that the convictions be vacated and the case remanded for further proceedings because aggravated assault is not a lesser included offense of attempted first degree murder.

Michael Lynn Walton v. State of Tennessee
M2002-00586-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman
Petitioner, Michael Lynn Walton, appeals the trial court's denial of relief under his post-conviction petition. Petitioner alleged he received ineffective assistance of counsel at trial based on counsel’s failure (1) to adequately advise Petitioner of the consequences of proceeding to trial; (2) to adequately cross-examine the victim; (3) to require the State to elect which offenses it was relying upon to support Petitioner’s convictions; and (4) to appeal the State’s failure to make an election.  Based upon a thorough review of the record, we affirm the judgment of the post-conviction court denying Petitioner’s claim for relief based on counsel’s failure to adequately advise Petitioner about the potential consequences resulting from two rape convictions and failure to specifically address the victim’s inconsistent statements at the second trial. However, we disagree with the post-conviction court’s finding that counsel’s failure to require an election of offenses was not deficient conduct and that Petitioner was not prejudiced by such conduct. Accordingly, the judgment is reversed, Petitioner is granted post-conviction relief, and the case is remanded to the trial court for retrial on the two counts of rape.

Sharon R. Hurt v. State of Tennessee
M2002-00900-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, Sharon R. Hurt, was convicted by a jury of first degree murder and conspiracy to commit first degree murder. The trial court sentenced Petitioner to serve consecutive sentences of life imprisonment and twenty-four years. On direct appeal, this court affirmed Petitioner's convictions and sentences. State v. James Murray, Marcie Murray and Sharon R. Hurt, No. 01C01-9702-CR-00066, 1998 Tenn. Crim. App. LEXIS 1323, 1998 WL 934578 (Tenn. Crim. App., filed at Nashville, Dec. 30, 1998), perm. to app. denied (Tenn., June 28, 1999). On September 4, 2001, Petitioner filed a petition for post-conviction relief, in which she alleged the existence of new scientific evidence establishing her actual innocence. The State sought to dismiss the petition. The trial court dismissed the petition, finding that Petitioner failed to show the existence of new scientific evidence, and the petition was therefore barred by the statute of limitations. After a review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Cindy Gentry
M2002-00415-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Burch

The defendant was convicted of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to three years in the Department of Correction, with the sentence to be suspended and the defendant placed on probation after one year in the county workhouse. She raises two issues on appeal: (1) whether the evidence was sufficient to support her conviction; and (2) whether the trial court erred in ordering that she serve one year of her sentence in the county workhouse. Based on our review, we affirm the judgment of the trial court.

Regionol L. Waters v. State of Tennessee
M2002-01712-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Reginol L. Walters, was convicted of aggravated robbery, aggravated burglary, and two counts of aggravated rape and, while his direct appeal was pending, filed a petition pursuant to Tennessee Code Annotated section 40-30-403 requesting forensic analysis of DNA evidence. The post-conviction court dismissed the petition, as well as a petition to reconsider, concluding that the petitioner could not proceed with his petition while his direct appeal was pending. Following our review, we conclude that the applicable statute does not prohibit the petitioner from proceeding simultaneously with a direct appeal and a petition for analysis of DNA evidence. Accordingly, we reverse the order of the post-conviction court and remand for consideration of the petition.

Carolyn Mitchell Brown vs. John Hilyee Watson, Jr.
E2004-01229-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Daryl R. Fansler
The Trial Court annulled Brown's marriage at the insistence of her conservator. On appeal, we affirm.

State of Tennessee v. Jason R. Garner
W1999-01679-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Carolyn Wade Blackett

The Appellant, Jason R. Garner, appeals his conviction by a Shelby County jury of second degree murder and especially aggravated robbery. The convictions arose from Garner's involvement in the robbery and shooting of Charles Bledsoe. Garner received consecutive sentences of twenty years for second degree murder and twenty years for especially aggravated robbery. On appeal, Garner argues that: (1) the evidence was insufficient to sustain his convictions; (2) the convictions are "irreconcilable;" (3) the trial court erred by allowing the State to file untimely notice of sentence enhancements; (4) the trial court erred by failing to submit an instruction with regard to accomplice testimony to the jury; and (5) his sentences were excessive and the imposition of consecutive sentences was error. After review, we find these issues without merit. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Eric Gene Island
W2002-00816-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge William B. Acree

An Obion County jury convicted the defendant, Eric Gene Island, of attempt to commit robbery and conspiracy to commit robbery. The trial court sentenced him to concurrent sentences of four years for each conviction. On direct appeal, the defendant contends: (1) trial counsel was ineffective in failing to investigate the case and secure witnesses; and (2) he was denied his right to testify at trial. Upon reviewing the record, we conclude the failure to conduct a Momon hearing to determine whether the defendant personally waived his right to testify was plain error. Therefore, we remand the case to the trial court for a full hearing on the issue.