Opinions

State of Tennessee v. Christopher A. Davis
M2001-01866-CCA-R3-DD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Appellant, Christopher A. Davis, was found guilty by a jury of two counts of first degree murder, two counts of especially aggravated robbery, and two counts of especially aggravated kidnapping. The jury sentenced the Appellant to death for each of the first degree murder convictions. The Appellant presents the following issues in this appeal as of right: (1) The trial court erred by not granting the Appellant's motion to disqualify the Davidson County District Attorney General's office from prosecuting the case; (2) the trial court erred by not granting the Appellant's motion to prohibit the State from relying upon the Appellant's prior murder conviction as an aggravating circumstance, because the conviction was for a crime committed while the Appellant was a juvenile; (3) the trial court erred by not suppressing the statement the Appellant made to police; (4) the trial court erred by denying defense counsel's motion to be allowed to withdraw from representing the Appellant; (5) the trial court erred by granting the State's motion to require the Appellant to supply the State information concerning mental health expert testimony to be presented during the sentencing phase of the trial; (6) the trial court erred by allowing a physician who did not perform the autopsy to testify concerning the autopsy and evidence obtained in connection therewith; (7) the trial court erred in allowing victim impact evidence to be introduced; (8) that the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt; (9) that the evidence presented was insufficient to support the jury's finding that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt; (10) that the evidence presented was insufficient to support a finding that the aggravating factors were established beyond a reasonable doubt; (11) that Tennessee's death penalty statutory scheme is unconstitutional in several instances; (12) that the trial court erred in allowing certain cross-examination of defense witnesses; and (13) that the cumulative effect of errors made at trial denied the Appellant a fair trial in violation of his due process rights. Based on our review of the record on appeal, we affirm both the Appellant's convictions and the sentences imposed.

Sam Thomas Burnett v. Board of Professoinal Responsibility
M2002-01281-SC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: J. S. Daniel
This appeal involves the petition of Sam Thomas Burnett for reinstatement to the practice of law pursuant to Tennessee Supreme Court Rule 9, section 19. The sole issue on appeal is whether the petitioner has the competency and learning in law required to practice law in this State. Both the hearing committee and the trial court found the petitioner to be morally fit to practice law in this State and determined that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice or subversive to the public interest. The Board has not challenged these findings on appeal. Petitioner argues that the Chancery Court erred by conditioning the reinstatement of his license to practice law upon successful completion of the Tennessee bar examination. The Board of Professional Responsibility ("Board") responds that the Chancery Court properly applied Board of Professional Responsibility v. Davis, 696 S.W.2d 528 (Tenn. 1985), which requires successful completion of the essay portion of the Tennessee bar examination as a condition of reinstatement in cases, such as this one, where the petitioner has not practiced law for a period of ten years. We are constrained to disagree. While Davis created a presumption that generally requires successful completion of the essay portion of the bar examination for persons seeking reinstatement who have not practiced law for ten years or more, this presumption may be overcome with clear and convincing proof that the petitioner has taken specific steps during the course of the suspension to maintain competency and knowledge of Tennessee law. The petitioner has offered evidence sufficient to overcome the presumption. Specifically, the record reflects that the petitioner obtained the required number of continuing legal education courses throughout his suspension, that he reviewed the advance sheets reporting Tennessee appellate decisions throughout his suspension, that he worked in law-related fields throughout his suspension, both while incarcerated and after his release, that following his release from prison he assisted two of his children in their law school studies and in their preparations for the bar examination, and that he discusses legal issues and legal developments on a regular basis with his children and other attorneys and also on a radio talk show in Nashville. We hold that the petitioner has offered clear and convincing evidence of his "competency and learning in law" which overcomes the presumption requiring successful completion of the essay portion of the Tennessee bar examination as a condition to reinstatement. Having satisfied the criteria, the petitioner is reinstated without condition. The judgment of the Chancery Court granting the petition for reinstatement therefore is affirmed as modified.

Ben Wilson vs. Kate Wilson Ward
E2001-02177-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
The Trial Court, exercising its equitable powers, ordered property sold and proceeds distributed in accordance with the terms of a Will in an estate closed in 1982. On appeal, we affirm.

State of Tennessee v. Christopher G. Greenwood
M2002-01349-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of driving under the influence of an intoxicant with a blood alcohol content of .10% or more, third offense. On appeal, he contends: (1) the trial court erred in denying his motion for a mistrial after the jury heard evidence of other crimes committed by the defendant; (2) the trial court erred in barring testimony of the arresting officer that he opined the defendant's blood alcohol content was rising at the time of the blood withdrawal; and (3) the evidence was insufficient to support the conviction because the state presented no evidence extrapolating his .12% test result back to the time he was driving. We affirm the judgment of the trial court.

Robert Dallis Payne v. State of Tennessee - Order
M2002-01389-CCA-R3-PC
Authoring Judge: Judge David G. Hayes

The Appellant, Robert Dallis Payne, appeals the order of the Hickman County Circuit Court summarily dismissing his motion to reopen his petition for post-conviction relief. Upon review of the record before this Court, we conclude that the Appellant has failed to perfect his application for permission to appeal in accordance with the applicable statutory provisions and, therefore, the appeal should be dismissed.

State of Tennessee v. Robert Johnson
W2001-02611-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. C. Mclin

The appellant, Robert Johnson, was found guilty in the Shelby County Criminal Court of forgery and was sentenced to six years incarceration. On appeal, the appellant contests evidentiary rulings of the trial court and the sufficiency of the evidence supporting his conviction. Concluding that the appellant's arguments have no merit, we affirm the judgment of the trial court.

In Re: Shiann Horner
E2002-00588-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas J. Wright
This appeal focuses on the trial court's guardianship decree regarding Shiann Marie Horner (DOB: November 18, 1996) ("the child"). When the child's mother died, she moved in with her father, Charles E. Horner ("the father"), in Greene County. Following the father's incarceration as a result of his second arrest for driving under the influence of an intoxicant ("DUI"), the child started living full-time with her weekend caregivers, Ralph L. Hensley and Diana Hensley ("the Greeneville couple"), a married couple who are not related to the child by blood or marriage. The child's maternal aunt, Lori Lynn Kopsi, a resident of Menominee, Michigan ("the Michigan aunt"), filed a petition seeking custody of the child. The Greeneville couple responded with their own petition for custody. Following a hearing on the competing petitions, the trial court determined that it was in the child's best interest that the Greeneville couple should serve as the child's guardian. The Michigan aunt appeals, challenging the trial court's judgment. We affirm.

Gurkin'S Drive-In Market v. Alcohol And Licensing
CH-01-2581-1
Trial Court Judge: Walter L. Evans

State of Tennessee v. Leon J. Robins and Tabatha R. White
M2001-01862-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Walter C. Kurtz

The defendants, Leon J. Robins and Tabatha R. White, both were convicted of first degree premeditated murder and sentenced to life imprisonment. In their appeals, they argue that the evidence was insufficient to sustain their convictions for first degree murder; the trial court should have instructed as to the lesser offenses of voluntary manslaughter and facilitation to commit voluntary manslaughter; evidence of a photographic lineup was improperly admitted; and the trial court improperly admitted Robins' mugshots as exhibits and improperly limited the cross-examination of a prosecution witness as to prior bad acts. Based upon our review of the record, we affirm the judgments of the trial court.

State v. All Parties with an Interest in the Property /Map 158, Parcel 34
M2002-01137-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ellen Hobbs Lyle
This is a case involving the proposed disinterment of Indian burial grounds. The Appellants urge this Court to consider numerous issues. Having determined that the only issue properly before this Court is the propriety of the trial court's denial of Appellants' motion to intervene, we affirm the trial court's denial of intervention.

James Corbin v. Tom Lange Co.
M2002-01162-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves a noncompetition agreement. An employee signed a noncompete agreement when he began working for an employer. The employee resigned and began working for a competitor of the employer. The employee sought a declaratory judgment that the noncompete agreement was unenforceable. Approximately eighteen months into the two-year noncompetition period, the trial court issued a ruling that the agreement was not enforceable. The employer appeals. We affirm, finding that neither the training provided to the employee nor the employee's relationship with the employer's customers created a business interest that warranted the protection of a noncompetition agreement.

Gabriel Bryan Baggett v. State of Tennessee
M2002-00591-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Gabriel Bryan Baggett, pled guilty to second degree murder and especially aggravated robbery, receiving sentences of fifty years and twenty-five years, respectively, at 100%. He filed a petition for post-conviction relief, alleging ineffective assistance of counsel and that his pleas of guilty were involuntary. Following a hearing, the post-conviction court dismissed the petition, and this appeal followed. We affirm the order of the post-conviction court dismissing the petition.

Donald Curlee v. State Auto Mutual
M2002-01627-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Marietta M. Shipley
This case involves the interpretation of a permit bond. The contractor and a surety entered into a permit bond relating to work the contractor was to perform for a metropolitan government. The bond was written in favor of the metropolitan government as well as property owners whose property was damaged due to the contractor's violation of certain metropolitan government codes. In the underlying lawsuit, a property owner was awarded a judgment against the contractor. In this lawsuit, the property owner sued the surety for failing to pay the judgment against the contractor. The trial court granted the surety's motion to dismiss, finding that there was no contractual relationship between the property owner and the surety on which a claim could be based, nor was the property owner a third-party beneficiary of the permit bond. The property owner appeals. We review the trial court's decision as a motion for summary judgment and affirm, finding that the record does not show that the property owner was among the parties protected under the language of the Bond.

Daniel Bills v. Conseco Insurance
M2002-01906-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray

Daniel Bills v. Conseco Insurance
M2002-01906-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Tom E. Gray

R.P. Industries v. United States Aluminum
M2002-00897-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Carol L. Soloman
This appeal arises from a dispute over an agreement to issue joint checks. The trial court found that the parties had an agreement whereby the general contractor was to issue checks jointly payable to the sub-contractor and the materials supplier, which the general contractor breached when it issued single payee checks. The court awarded the materials supplier $17,500.00. The parties raise two issues on appeal. For the following reasons, we affirm in part, reverse in part, and remand.

State v. Travis Thompson
M2001-02354-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves the Tennessee Health Club Act. The defendant/appellees purchased a health club and failed to obtain a certificate of registration. Three months later, the health club owners obtained a certificate of registration. The State of Tennessee, through the Attorney General, filed a lawsuit against the health club owners alleging violations of the Tennessee Consumer Protection Act and the Health Club Act seeking injunctive relief, substantial fines, and several hundred thousand dollars in restitution. The trial court granted partial summary judgment to the health club owners, holding that the remedies under the Health Club Act were available only to consumers, not the State, and that there was no proof of an "ascertainable loss" under the Tennessee Consumer Protection Act. The trial court also granted the health club owners' request for attorney's fees and costs. The State appeals. We affirm in part and reverse in part, finding, inter alia, that the State may seek remedies under the Health Club Act on behalf of consumers, affirming the trial court's ruling that proof of an ascertainable loss is required, and affirming the award of attorney's fees.

Randall Cook v. Frank Hanner
M2002-01083-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Ross H. Hicks
Robertson County -This case involves allegations of an improper verdict form and jury instructions. As Appellants failed to make timely objections concerning these issues, and failed to file a motion for a new trial based on these perceived irregularities, we affirm the judgment of the trial court.

State of Tennessee v. Jerry Lee Miller, Sr.
E2002-01921-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Phyllis H. Miller

Jerry Lee Miller, Sr. appeals from the Sullivan County Criminal Court's imposition of incarcerative sentencing for his effective five-year sentence for two counts of statutory rape. Miller pleaded guilty to the offenses as a Range II offender, and the manner of service of the sentence was reserved for the lower court's determination. Miller posits on appeal that he should have been afforded a sentence involving either split confinement or straight probation. We disagree, however, and affirm.

E2002-01156-COA-R3-CV
E2002-01156-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dale C. Workman

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. Edwin Nelson Lunceford
M2001-01207-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge John H. Gasaway, III

A Montgomery County jury convicted the Defendant of robbery, and the trial court sentenced him to ten years' incarceration. In this appeal as of right, the Defendant argues (1) that the trial court erred in instructing the jury by failing to limit the definition of "property" in its instruction to the jury; (2) that the trial court erred by admitting into evidence at the sentencing hearing a transcript of a prior trial; and (3) that his sentence is excessive. Finding no error by the trial court, we affirm the judgment of the lower court.

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.

State of Tennessee v. John Winston McMurry
M2001-03117-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant's probation was revoked after his house was searched and a twelve-gauge shotgun was found inside. The defendant contends there was insufficient evidence to revoke his probation. The defendant contends the rules of probation and a police report were improperly admitted into evidence. Because the trial court is only required to find a violation of probation by a preponderance of the evidence, we affirm the trial court's revocation of probation.

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.