Richard Thomas Bogan v. Doris Mae Bogan - Concurring/Dissenting
E1998-00060-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor John S. McLellan, III

I write separately in this case to address a single issue of paramount significance here: the decision to retire and just how much scrutiny it should receive in the factual context of the case under submission. Assuredly, I concur in the result reached by the majority, which reinstates the trial court’s reduction of Bogan’s support obligation. I disagree, however, with the breadth of the reasoning used to reach that result. In my view, the decision to retire, particularly among workers nearing the ends of their careers, is personal, private, and nearly sacrosanct. Thus, I am compelled to clarify that I would limit the majority analysis to those cases involving obligors who have not yet reached the age for Social Security eligibility, presently age 62. In cases involving obligors who decide to retire after age 62, I would not subject the retirement decision to  analysis embraced by the majority

Terry Lee Matthews v. Larry Outland,
M1998-00578-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: Robert E. Burch, Judge
This workers' compensation appeal has been referred to theSpecial 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. The plaintiff, a logger employed by L&L Logging Co. who was injured when a tree fell on him, appeals the judgment of the trial court in which the trial court found: 1) that Waverly Wood Products, a sawmill, was not a statutory employer under Tennessee Code Annotated _ 5-6-113 and 2) the plaintiff had sustained a 1% permanent partial disability to the body as a whole. After a complete review of the entire record, the briefs of the parties, and the applicable law, 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. JAMES L. WEATHERFORD, SR.J., in which ADOLPHO A. BIRCH, JR.,J., and JOE C. LOSER, JR., SP.J., joined. Joe Bednarz and Joe Bednarz, Jr., Nashville, Tennessee, for the appellant Terry Lee Matthews. Blakeley D. Matthews and Kristen Murphy Anderson, Nashville, Tennessee, for the appellee Waverly Wood Products, Inc. MEMORANDUM OPINION Mr. Terry Lee Matthews was 34 years old at the time of trial and had an eleventh grade education. His employment history includes gunneling boats and working in fast food restaurants and construction. In the late 198's to early 199's, Mr. Matthews went to work for Mr. Larry Outland and L&L Logging Company. His job duties included cutting logs to specified lengths, working on equipment, picking up parts and doing other errands as needed for Mr. Outland. Mr. Outland had had a long history of business dealings with Mr. James Richardson. Mr. Richardson, owner of Waverly Stave Co. and Richardson Lumber Co., had been in the lumber business for many years. In August 1992, Todd Richardson, son of James Richardson, started Waverly Wood Products, Inc., a sawmill, with a loan from Richardson Lumber Co. Waverly Wood Products also leased its operating equipment from Richardson Lumber Co. Todd Richardson was the president and sole shareholder of the corporation and James Richardson was employed as secretary-treasurer receiving an annual salary of $18,. Waverly Wood Products bought logs from more than 2 different vendors. In 1993, Richardson Lumber Co. bought the property where the accident occurred and later sold it to a Jack and Margaret Johnson for $119,1 while retaining the timber rights. Richardson Lumber Co. thereafter sold the timber rights to L&L Logging Co. and LarryOutland for $44,556.6 on December 7, 1993. On December 31, 1993, L&L Logging and Mr. Outland, individually, purchased logging equipment from Richardson Logging Company for $77, via a purchase money promissory note in favor of Waverly Wood Products, Inc., and a corresponding security interest in said equipment to Richardson Lumber Co. A sub-clause in each of the financing and security documents stated that Larry Outland and L&L Logging would sell logs to Waverly Wood and repayment amounts would be calculated at $2.5 per ton of logs and pulpwood with a minimum payment of $2, per month. The subclause also provided that if such deliveries ceased, the full loan amount would be due within 3 days of the date of the last delivery. According to Mr. Outland, payment was taken out of each of his deliveries to WaverlyWood Products. It was his understanding that so long as he paid $2, per month he could sell the wood to another company and make the payments. He did not sell logs to any other company besides Waverly Wood Products in 1994. Mr. Outland saw Mr. Richardson as a creditor. Mr. Outland determined where to cut the timber and what type of trees would be cut. He had exclusive control over the hiring and firing of his employees.2 Mr. Outland provided all the equipment and set his employees' wages. He also determined to whom to sell his logs and pulpwood based upon which sawmill was "paying the most." 1The contract provided that Richardson Lumber Co. would convey title to the property via general warranty deed upon payment in full of the purchase price to be paid in monthly installments of $894.1. 2 He had fired Mr. Matthews in the past for marijuana use on the job. He later re-hired him after Mr. Matthews informed him he had stopped using marijuana. -2-

State of Tennessee v. Michael Hill
W2000-02291-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant, Michael Hill, pled guilty to driving under the influence of an intoxicant, and submitted sentencing for determination by the trial court. Included within the sentencing was a determination by the trial court as to whether or not Defendant's prior convictions for DUI could be used to sentence him as a multiple DUI offender pursuant to Tennessee Code Annotated section 55-10-403. The trial court determined that at least two of the prior DUI convictions could be used to sentence Defendant as a multiple third DUI offender. Defendant was sentenced to 11 months and 29 days, with all but 180 days suspended, and he was fined $3,500.00. On appeal, Defendant argues that all of the prior convictions for DUI were imposed more than ten years prior to his conviction for DUI in this case, and that he should be sentenced as a first offender. We agree, and reverse the judgment of the trial court and remand this case for a sentencing hearing as a DUI first offender.

State of Tennessee v. Colico Walls
W2000-03008-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Colico Walls, was convicted of attempted aggravated robbery. The trial court imposed a Range III sentence of 15 years. In this appeal of right, the defendant challenges the sufficiency of the evidence as to identity. The judgment is affirmed.

State of Tennessee v. Joseph E. Skelton
E2000-02255-CCA-R10-CO
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Following Defendant’s conviction for aggravated assault, this Court granted his application for extraordinary appeal pursuant to Tenn. R. App.  P. 10 to determine whether a second trial on the matter of guilt for attempted first degree murder, an offense charged in Defendant’s first trial but upon which the jury could not reach a unanimous verdict, would violate principles of double jeopardy. After a review of the facts and relevant law, we dismiss the count of the presentment charging attempted first degree murder and remand this case for sentencing on his conviction for aggravated assault.

Danny W. Hobbs v. State of Tennessee
E2000-03182-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Phyllis H. Miller

The Petitioner/Appellee, Danny W. Hobbs, filed a petition for post conviction relief in the Criminal Court of Sullivan County. The petition was filed after expiration of the applicable statute of limitations. The trial court granted post-conviction relief and the State appeals. After review, we reverse the judgment of the trial court.

State of Tennessee v. Nicholas J. Johnson
M2000-03162-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Timothy L. Easter

The Appellant, Nicholas J. Johnson, presents for review a certified question of law. Johnson pled guilty to two counts of possession of Schedule I drugs for resale, one count of possession of Schedule IV drugs for resale, and simple possession. Johnson received an effective ten (10)-year Community Corrections sentence, and was ordered to serve one hundred and fifty (150) days, day for day, in the Williamson County Workhouse. As part of his plea, Johnson explicitly reserved, with the consent of the trial court and the State, a certified question of law challenging the trial court's denial of his motion to suppress. After review, we find that the question was not properly certified because it fails to clearly identify the scope and limits of the legal issue reserved. Accordingly, the appeal is dismissed.

State of Tennessee v. Richard W. Herrell, a.k.a. Ricky Herrell
M1998-00767-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, Richard W. Herrell, a.k.a. Ricky Herrell, was indicted by a Dickson County Grand Jury for vandalism resulting in personal property damage of $500 to $1,000. Following a bench trial, Herrell was found guilty of the indicted charge and received a two-year suspended sentence. On appeal, Herrell raises one issue for our review: Whether the evidence presented at trial was sufficient to support his conviction. After review, we find no error and affirm the judgment.

State of Tennessee v. Daniel O. Connelly
M2000-01914-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Allen W. Wallace

The defendant, Daniel O. Connelly, appeals from his conviction of driving under the influence of an intoxicant (DUI) imposed after a bench trial in the Dickson County Circuit Court. He claims on appeal that the evidence is insufficient to support his conviction and that the trial court erred in overruling a pretrial motion to suppress any evidence that the state garnered following the defendant's warrantless arrest. After hearing oral arguments and reviewing the record, the parties' briefs, and the applicable law, we affirm the conviction.

Sue S. Plemmons v. Mike Graves, et al.
E2001-00733-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Lawrence H. Puckett

This case involves whether Mike and Bonnie Graves d/b/a/ GRESCO ("Defendants" or "Lessees") breached a commercial lease with Sue S. Plemmons ("Plaintiff" or "Lessor"). The lease was entered into in 1983 and permitted the installation of a billboard on Plaintiff's property. Plaintiff claims Lessees breached the lease when they paid the rent for 1999 late and when they refused to pay an increase from $250 to $1,500 in the annual rent. The Trial Court held that Lessees did not breach the lease and dismissed the case. We affirm.

Ronald Strickland v. Tami M. Franklin
M2001-00331-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge William S. Vinson

This appeal involves the custody of a child born out of wedlock to a mother who was at all times married to another man. The trial court awarded the mother custody. The father of the child now appeals. We have determined that the trial judge did not err in failing to recuse himself and properly awarded custody to the mother. Accordingly, we affirm.

Yona Boyd, et al. v. Donald Bruce, M.D., et al.
M2000-03211-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Brothers

This appeal arises from the third effort of the plaintiffs to obtain compensation and other employment benefits from their former employer. The same claims were first filed in Chancery Court against the doctor and his management company, and the complaint was dismissed for failure to state a claim upon which relief can be granted and failure to join an indispensable party. Thereafter, the plaintiffs filed suit in Chancery Court against the company which supplied the employee handbook and other services to the doctor. That case was dismissed on a motion for summary judgment. The plaintiffs then again filed suit against the doctor-employer in Circuit Court. The Circuit Court dismissed the case by converting the doctor-employer's motion for Rule 11 sanctions into a motion to dismiss on the basis of res judicata. The plaintiffs now appeal that dismissal to this court. We affirm the trial court's dismissal.

Arthur L. Rawlings, Jr. v. The John Hancock Mutual Life Insurance Company, et al.
M2000-03191-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. Soloman

This appeal involves a dispute between a decedent’s estranged husband and brother over the proceeds of a $12,000 life insurance policy. When he discovered that his deceased wife had removed him as the beneficiary of her policy, the husband filed suit in the Circuit Court for Davidson County seeking to invalidate the change of beneficiary form. Following a bench trial, the trial court found that the decedent lacked the capacity to change the beneficiary on her life insurance policy and that the decedent’s brother had procured the change through undue influence. Accordingly, the trial court awarded the decedent’s husband the proceeds of her life insurance policy as well as $350 that his brother-in-law had removed from a joint account using a power of attorney he obtained from the decedent. We have determined that the evidence does not support the trial court’s conclusion that the decedent lacked capacity to change the beneficiary of her life insurance policy and that the decedent’s husband never asserted an undue influence claim in the trial court. Accordingly, we reverse the judgment and remand the case with directions to award the proceeds of the life insurance policy to the decedent’s brother.

El-Shabazz Ahkeen v. Donal Campbell, et al.
M2000-02411-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

A state prisoner appeals the trial court's dismissal of his petition for writ of certiorari seeking judicial review of sanctions imposed in prison disciplinary proceedings. He asserts the proceedings denied him due process and that the board's failure to follow Department of Correction policies and procedures constituted an illegality under state law grounds for common law writ of certiorari. We affirm the trial court and hold (1) the sanctions imposed did not trigger due process protections, (2) the alleged failure to follow specific procedures did not amount to failure to follow the essential requirements of the law in the context of prison disciplinary proceedings, and (3) there was evidence to support the board's finding.

Ricky Riddle, et al. v. Heartland Nursery Company
M2000-02190-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Buddy D. Perry

In this action to collect the purchase price for the sale of nursery stock, the buyer alleged that the goods did not conform to the contract and that the number of units delivered was significantly short of the number specified in the invoice. The buyer also filed a counterclaim for the damage to its professional reputation resulting from the seller's breach. The Circuit Court of Franklin County resolved all the issues in favor of the seller and rendered judgment for the balance of the purchase price. Because we find that the buyer had accepted the goods and failed to carry his burden of proving that they were defective, we affirm.

Lucious Allen v. State of Tennessee
W2000-02320-CCA-OT-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Bernie Weinman

The petitioner, Lucious Allen,¹ pled guilty in the Shelby County Criminal Court to four felony offenses and was sentenced to a total effective sentence of eight years with the sentence running concurrently to a previously imposed federal sentence. Subsequently, the petitioner filed for post-conviction relief, alleging involuntary guilty pleas and that the trial court was without jurisdiction to impose concurrent sentencing. On appeal, the petitioner disputes the summary dismissal of his petition for post-conviction relief without the appointment of counsel and without an evidentiary hearing. Upon review of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and remand this case to the post-conviction court for appointment of counsel and further proceedings consistent with this opinion.

State of Tennessee v. Charles E. Jones
W2000-02606-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasely

The appellant, Charles E. Jones, was convicted by a jury in the Shelby County Criminal Court of first degree murder and was sentenced to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence is not sufficient for a jury to find him guilty of first degree murder. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Elesa D. McDaniels
E2000-02790-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Curtis Smith

The defendant was convicted of aggravated robbery and sentenced to eight years imprisonment. In this appeal, the defendant alleges (1) the evidence was insufficient to sustain her conviction, and (2) the trial court erroneously failed to charge simple robbery as a lesser-included offense of aggravated robbery. We conclude that the evidence was sufficient to support the conviction, and the defendant affirmatively acquiesced in the trial court's failure to charge simple robbery. We affirm the judgment of the trial court.

Roger E. White vs. K. David Myers, et a l
E1999-02642-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White
The Plaintiff, Roger E. White, filed suit seeking damages, attorney's fees, and court costs for multiple violations of the Fair Debt Collection Practices Act against two attorneys. Defendant K. David Myers was voluntarily dismissed with prejudice from the suit. Union County Chancery Court granted a motion for summary judgment on behalf of Defendant-Appellee, Roger D. Hyman. The court also granted Mr. Hyman's motion for sanctions against Mr. White and his attorney, J. Philip Harber. Mr. White did not appeal. Mr. Harber filed a notice of appeal as to the award of sanctions and also the amount of the sanctions. We affirm the decision of the trial court.

Edna Cooksey, et al vs. HCA Health Services of TN
M2001-00303-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Hamilton V. Gayden, Jr.
The only question in this appeal is whether the injury a patient suffered during post-operative care resulted from a medical procedure and, therefore, required expert proof to establish the hospital's liability. The Circuit Court of Davidson County held that the complaint sought damages for professional negligence and that since the plaintiff did not rebut the hospital's motion for summary judgment with any expert proof, the complaint must be dismissed. We affirm.

William Hood vs. Patsy Hood
M2001-00206-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: J. Curtis Smith
The parties executed a marital dissolution agreement pursuant to divorce, which required the wife to transfer her interest in a 36 acre tract of marital property to the husband, and the husband to sell the tract, with the net proceeds to be divided between the parties. The wife subsequently quitclaimed her interest in the property, and the trial court incorporated the marital dissolution agreement into the Final Decree of Divorce by reference. When the wife filed a motion to enforce the agreement, the trial court ruled that any lien on the property the wife had acquired by virtue of the agreement was extinguished when she signed the quitclaim deed. We reverse the trial court.

State of Tennessee v. Stephen E. Cline
M2000-01674-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lillie Ann Sells

The appellant, Stephen E. Cline, pled guilty in the Overton County Criminal Court to four counts of obtaining a controlled substance by forgery, and the trial court imposed concurrent sentences of four years incarceration in the Tennessee Department of Correction. The trial court granted the appellant judicial diversion and placed him on probation for four years. Subsequently, the appellant was arrested for driving under the influence (DUI) and failing to comply with the implied consent law. A warrant for revocation of probation and judicial diversion was issued alleging the foregoing offenses and contending that the appellant had fraudulently obtained a controlled substance. Pursuant to a hearing, the trial court revoked the appellant's probation and entered judgments of conviction for all four counts of obtaining a controlled substance by forgery. On appeal, the appellant raises the following issues for our review: (1) whether there was sufficient evidence for the trial court to find that the appellant violated his probation and judicial diversion; (2) whether the trial court violated the appellant's right to confrontation in admitting hearsay statements during the hearing; (3) whether the trial court violated the appellant's due process rights by failing to bifurcate the probation revocation proceedings; and (4) whether the trial court erred in failing to consider all of the proof before forming an opinion on the case. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

W2000-02162-COA-R3-CV
W2000-02162-COA-R3-CV
Trial Court Judge: Harold W. Horne

Elizabeth Ramsey vs. Larry Henson
W2000-02162-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Harold W. Horne
This is an appeal from a juvenile court proceeding regarding child support and visitation. The minor child was born in 1996; the mother and father never married each other. Mother filed a petition to establish paternity, and a blood test established the father's paternity of the child. On June 20, 1996, a consent order was entered providing that the mother would have full custody of the minor child, and that the parties would work out a child support agreement between themselves, as well as a visitation schedule. The consent order stated that if either party moved more than 90 miles from the permanent residence of the other party, both parties would share equally in transportation costs. After much litigation, including two prior appeals, the trial court entered an order which included inter alia the denial of several motions by the defendant father, an increase in the father's child support obligation, an awarding of attorney's fees to the plaintiff mother, and the setting aside of any future visitation by the father with the minor child until the father obtains substantial psychological counseling and demonstrates that the resumption of visitation is in the child's best interest. The father again appeals. We affirm, finding ample support for the order of the trial court.

Fred Dean a/k/a Omawali Ashanti Shabazz vs. State
E1998-00135-SC-R11-PC
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: R. Jerry Beck
We granted this appeal to determine whether the petitioner properly raised a claim of ineffective assistance of counsel in a post-conviction proceeding when it was based upon the failure of defense counsel to object to or appeal the trial court's erroneous range of punishment instruction to the jury on the offense of attempted second degree murder. We conclude (1) that the issue of ineffective assistance of counsel was properly raised in the post-conviction proceeding and (2) that defense counsel's failure to object to or appeal the erroneous jury instruction fell below the range of competence demanded of attorneys in criminal cases and was prejudicial to the petitioner. We therefore affirm the judgment of the Court of Criminal Appeals.