State of Tennessee v. Walter Byers
E2001-00361-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Walter Byers, appeals from the Blount County Circuit Court's revocation of his community corrections sentence imposed upon his guilty plea to delivery of one-half gram or more of cocaine. The defendant contends that the trial court abused its discretion in revoking his community corrections sentence and sentencing him to confinement. We affirm the judgment of the trial court.

James Burks v. Williams Typesetting, Inc.
E2001-00252-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Lawrence H. Puckett, Circuit Judge
The trial court found the employee was permanently and totally disabled. The employee appealed insisting the award should be fixed as a permanent partial award payable for a period of 4 weeks. The judgment of the trial court is affirmed as to the 1 percent award of permanent and total disability, the denial of attorney's fees on unpaid medical expenses and the commutation of a lump-sum award for payment of attorney's fees. The judgment is reversed as to allowing a credit against the total disability award and the commutation of benefits in favor of the employee. The case is remanded for the purpose of amending the judgment to allow additional temporary total benefits and for further hearing on the employee's application for commutation benefits.

Charles Watson v. Margaret Ashley
M2001-00668-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Graham
In this action to set aside a deed, the Circuit Court of Franklin County held that the deed had been procured by persons in a confidential relationship with the grantor and that the presumption of undue influence had not been rebutted by clear and convincing evidence. We affirm the trial court's action in setting aside the deed.

Charles Chapman v. Kathy Kelley
M2001-00928-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Stella L. Hargrove
This is an appeal from the trial court's dismissal of an action filed by Plaintiff against the Maury County Circuit Court Clerk and the Maury County Deputy Circuit Court Clerk. This case concerns the application of the qualified judicial immunity defense and the related question of whether the trial court abused its discretion in refusing to allow the Plaintiff to amend the original complaint under Rule 15 of the Tennessee Rules of Civil Procedure. The gravamen of Plaintiff's original complaint is that the Plaintiff suffered damages as a result of negligence of the Deputy Court Clerk by her alleged negligent administration of the criminal court docket that ultimately led to the wrongful arrest and incarceration of the Plaintiff based on a capias issued by the judge. The Defendant Maury County Circuit Court Clerk, who was sued for negligent supervision, interposed the defense of qualified judicial immunity and upon a motion to dismiss, the trial judge dismissed the case against the Maury County Circuit Court Clerk. A Maury County Deputy Circuit Court Clerk was originally sued as Jane Doe for negligent administration of the criminal court docket; when the Deputy Clerk's identity was revealed, the Plaintiff amended his complaint to specifically name her. Subsequently, a second motion to dismiss was filed by the Maury County Deputy Circuit Court Clerk, likewise interposing the defense of qualified judicial immunity. The Plaintiff filed a motion to alter or amend the original dismissal as to the Maury County Circuit Court Clerk and the Plaintiff also filed a second motion to amend the original complaint to allege reckless conduct on the part of the Clerk and the Deputy Clerk. The trial court overruled the motion to alter or amend the original dismissal of the action against the Maury County Circuit Court Clerk , granted the motion to dismiss as to the Maury County Deputy Circuit Court Clerk, and denied Plaintiff's motion to amend. For reasons stated below, the court affirms the action of the trial court.

Sue Ann Bowser v. John Bowser
M2001-01215-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
Prior to a determination on a complaint for divorce filed by Ms. Bowser, the trial court found the parties to be married pursuant to the common law of Ohio after their first divorce in that state in 1984. The trial court then classified and distributed the marital property and denied Ms. Bowser's request for rehabilitative or in futuro alimony. We affirm the decision of the trial court finding that a common law marriage existed, affirm the trial court's distribution of property, modify the alimony decision and remand the cause for further proceedings consistent with this opinion.

C.J.H. v. A.K.G
M2001-01234-COA-R3-JV
Trial Court Judge: John P. Damron
In this appeal the mother and father of a young child appeal the order of the trial court denying the termination of the father's parental rights. An order establishing the father's paternity had been entered after the child's birth, and the father was ordered to pay child support and granted visitation. While the father has met his monetary obligations, he has not seen his daughter since her birth, or attempted to see her, and has no interest in establishing a relationship with his daughter. The mother and father submitted a joint petition to terminate the father's parental rights, and the trial court denied this petition, finding that termination was not in the best interest of the child. The parties appeal that denial to this court. We affirm.

Steven Jameson v. Katrina Redmund
M2001-01108-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Robert F. Corlew Iii
This is an appeal from the trial court's final order denying appellant's petition for a change of the sole care, custody and control of the parties' three minor children and the trial court's order denying appellant's alternative petition for an increase in visitation. We hold that the trial court properly denied a change of the sole care, custody and control and properly denied appellant's alternative petition for increased visitation. Counsel for the appellee has petitioned this court for attorney's fees assessed for the hearings in the trial court and for attorney's fees in the immediate appellate case contending that the appeal is frivolous. We decline to award attorney's fees.

Jeri Vincent v. CNA Insurance
M2001-02213-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Russell Heldman
After being injured in an auto accident, Jeri Vincent entered into negotiations with CNA Insurance Company, the insurer of the driver of the other vehicle, attempting to settle her property damage and personal injury claim. The property damage claim was settled. Ms. Vincent filed a civil action against CNA Insurance to protect her personal injury claim from the statute of limitations. Later, Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the cause of action. We reverse and remand the decision of the trial court because we find that Ms. Vincent complied with the requirements of Tenn. R. Civ. P. 15.03.

Tennsco Corp. v. Elias Attea
M2001-01378-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: R.E. Lee Davies
This is a complaint to remove a cloud on the title to two parcels of property. The Chancery Court of Williamson County granted summary judgment to the plaintiff, holding that as a matter of law a restrictive covenant in a prior deed in the plaintiff's chain of title did not run with the land and did not create an equitable servitude. We affirm.

Leslie Sweatt v. Michael Sweatt
M2000-02537-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's denial of her motion to set aside what she characterizes as a "default judgment" awarding custody of the parties' minor children to the Father. Because the Mother's procedural due process rights were protected by the trial court, and the trial court heard evidence regarding factors which must be considered by a court in making custody modifications, we affirm.

State of Tennessee v. Tommy G. Benham
M2000-02357-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Tommy G. Benham, was convicted of two counts of attempted aggravated robbery, a Class C felony. The trial court sentenced the defendant as a Range III, persistent offender to eleven years on each count, to be served concurrently. In this appeal of right, the defendant argues that the state failed to provide notice that it would seek enhanced punishment, as required by Tennessee Code Annotated section 40-35-202(a). The judgments of the trial court are affirmed.

State of Tennessee v. Tommy G. Benham - Dissenting
M2000-02357-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Because I believe the majority opinion essentially reduces the requirements of Tennessee Code Annotated section 40-35-202 (a) to a superfluity, I must respectfully dissent.

Maurice Schwegman v. Shelby Howard
M2001-00845-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Irvin H. Kilcrease, Jr.
Maurice Schwegman filed a complaint alleging claims for breaches of fiduciary duty by appellees, Shelby D. Howard and Malcolm L. Greeno, in their capacity as shareholders with Schwegman in a closely held corporation, breaches of fiduciary duty by Howard and Greeno in their capacity as officers and directors of the closely held corporation, and for breach of contract between Howard and Schwegman with respect to the assignment of an interest in another closely held company. The chancellor granted the appellees' motion for summary judgment and dismissed the case. We reverse as to the breach of contract issue and affirm as to all other issues.

George Hamilton, V v. Stardust Theatre
M2001-00678-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A singer/songwriter brought a copyright infringement suit against a country music theater, its manager and its owner. The defendants admitted to the unlicenced use of the plaintiff's trademark, but argued that the plaintiff did not suffer any damages from their infringement. The trial court did not agree, and awarded the plaintiff over $90,000. We reverse in part, because we believe that the evidence preponderates against the court's award of damages.

Gordon McCammon v. William Gifford
M2001-01357-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a guest of two residents of a campground who was badly burned when a can of paint thinner ignited in his hosts' camper. The guest filed a negligence action in the Circuit Court for Davidson County against his hosts and the owner of the campground. The trial court dismissed the claims against the owner of the campground on summary judgment after concluding that the owner's duty to render aid ended once the guest's brother undertook to provide this assistance. We affirm the summary judgment because the record contains no evidence that the guest's brother was incompetent to come to his aid.

State of Tennessee v. Alda Michelle Paetz
M2001-01012-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Burch

The Defendant entered a plea of nolo contendere to vehicular homicide by reckless driving. Pursuant to her plea agreement, the Defendant received a four-year sentence, with the manner of service of the sentence to be determined by the trial court. Following a sentencing hearing, the trial court ordered that the Defendant serve her entire four-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that she should have received some form of alternative sentencing. We conclude that the record supports the trial court's denial of alternative sentencing and therefore affirm the judgment of the trial court.

Tammy Pierce v. Michael Pierce
M2001-01727-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
In 1994, a father, who had failed to comply with a child support order, was sentenced to jail for six months or until he paid the arrearage of $23,800. A month later the trial court suspended the sentence upon the defendant's promise to pay $10,000 immediately and to pay the balance by October 15, 1995 in quarterly installments. The order provided that if the defendant failed to meet the conditions in the suspension order the suspended sentence would be revoked if the mother filed an appropriate motion. In 2001, the trial court found the defendant guilty of criminal contempt and ordered him to serve the balance of the six month sentence for failing to comply with the 1994 suspension order. We reverse the order finding the defendant in criminal contempt.

Exxon Corporation v. Metropolitan Government Of
M2000-00614-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Carol L. Mccoy

Jerry Huddleston vs. Ramsdale O'Deneal
W2001-02064-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Roy B. Morgan, Jr.
Plaintiff sued defendant for legal malpractice seeking compensatory and punitive damages. The Circuit Court of Madison County, Tennessee found defendant liable to the plaintiff for compensatory damages in the amount of $100.00, but dismissed plaintiff's claim for punitive damages. Plaintiff has appealed. We affirm.

State of Tennessee v. Ross Burger
E2001-00941-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

Defendant appeals the trial court's denial of placement in the Community Corrections Program. Denial of placement in Community Corrections Program for untruthfulness and failure to report to begin sentence of incarceration was not abuse of discretion. We affirm.

State of Tennessee v. Carolyn Wheeler
M2001-00337-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

The appellant was sentenced on November 24, 1997 for two convictions, theft of property valued in excess of $10,000 and forgery. Two concurrent three year sentences were imposed with incarceration for one year followed by two years of community corrections. Restitution was not ordered until the appellant's sentenced had expired, and she brings this appeal maintaining that the trial court lacked jurisdiction to impose restitution following the expiration of her sentence. The State concedes that the restitution order in this case was entered following the expiration of the appellant's sentence and is therefore in contravention of Tennessee Code Annotation section 40-35-304(g)(2). We agree and reverse the order of restitution entered in this case.

Victoria Henry v. Timothy Goins
M2000-02663-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Hamilton V. Gayden, Jr.
The suit of the plaintiffs was dismissed for failure to prosecute. The judgment did not provide that the dismissal was without prejudice. More than thirty days after entry of the Order of Dismissal, the plaintiffs filed a Rule 60.02 Motion that the Order of Dismissal be set aside. Their failure to file a timely motion was attributed to the asserted excusable neglect of a paralegal who assumed that a motion filed by a cross-claimant sufficed for the plaintiffs as well. The trial judge set the Order of Dismissal aside. We hold that the conduct of the paralegal cannot be treated as excusable neglect. A defendant, Robert Orr-Sysco Food Systems Company ["Robert Orr-Sysco"], incurred reporting expenses before a non-suit was taken by the plaintiffs. The defendant moved for discretionary costs which were disallowed. We reverse.

Nelda Age v. HCA Health Svcs. dba Centennial Medical Center
M2001-01286-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Hamilton V. Gayden, Jr.
This is an action for damages for personal injuries to a patient who claims that her injuries resulted from the ordinary negligence of the Hospital's employees, as contrasted to their medical malpractice. The trial judge concluded, in ruling on the motion of the Hospital for summary judgment, that the event described by the plaintiff, if actionable, sounded in malpractice, thus requiring expert proof. We agree. The motion of the appellee to recover discretionary costs was denied without elaboration. We find that certain costs identified in Rule 54.04(2) are properly recoverable.

Charles Ivey v. Pat Hamlin
M2001-01310-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Robert E. Burch
This is an action for damages for the deliberate killing of a dog by a Deputy Sheriff. The owner of the dog claims damages under 42 U.S.C. Section 1983 for the alleged violation of his 14th Amendment rights, the witnesses to the shooting sue for damages for the infliction of emotional distress. The motion of the Deputy and the County for summary judgment was denied.

Carolyn Stovall v. Lois Clarke
M2001-00810-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Russell Heldman