Opinions

Arthur Blair v. Marilyn Badenhope- Dissenting
E1999-02748-SC-R11-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

With today’s holding, the majority declares, essentially, that a parent who voluntarily surrenders custody of a child forfeits any right to custody and  from that day forward is shorn of parental status and relegated to a status no better than that of a non-parent, should the parent petition to modify the custody decree. I cannot agree. In my view, this decision condescendingly brushes aside the fundamental and constitutionally-grounded principle  that a parent has a right to raise a child without undue governmental  interference. Likewise, the holding disregards the presumption, widely recognized in law, that a child’s best interests are served most effectively,  where possible, by placement with a fit parent. The majority’s holding places far too little weight on the parent’s fitness to care for the child or the parent’s efforts, no matter how extensive or admirable, to foster and nurture a loving bond with the child. Moreover, my views aside, the majority misapplies its own analysis to reach a result I find to be unsupportable and unjust. For these reasons, I respectfully dissent.

State of Tennessee v. Ralph Dewayne Moore
E1999-02743-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge E. Eugene Eblen

Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court.

Yasmond Fenderson v. State of Tennessee
E2001-01088-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Yasmond Fenderson, filed a petition for post-conviction relief to challenge his Knox County convictions of second-degree murder and conspiracy to commit second-degree murder. The post-conviction court conducted an evidentiary hearing but denied post-conviction relief. The petitioner appeals and claims the ineffective assistance of trial counsel. Finding that the record supports the post-conviction court's denial of relief, we affirm.

State of Tennessee v. James Henderson Dellinger and Gary Wayne Sutton - Concurring/Dissenting
E1997-00196-SC-DDT-DD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

I concur with the majority’s opinion affirming the convictions as to both defendants. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.

J.Y. Sepulveda v. State of Tennessee
E1999-02766-SC-R11-PC
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Rex Henry Ogle

In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed.

State of Tennessee v. Jacquie Upchurch Giardina
E2001-00581-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James E. Beckner

Convicted by a jury of third-offense driving while under the influence (DUI), the defendant, Jacquie Upchurch Giardina, challenges on appeal the sufficiency of the convicting evidence and her sentence of eleven months and 29 days to be served in confinement. Discerning no error, we affirm the conviction and the sentence.

Kenneth Trivett v. Norman Litchfield
E2000-01307-WC-R3-CV
Authoring Judge: W. Neil Thomas, III
Trial Court Judge: G. Richard Johnson, Chancellor
Although the appellant argues that he was unfairly forced to trial and that the decision of the trial court was improper, no timely notice of appeal was filed. Although this issue was neither briefed nor argued, failure to file a timely appeal is jurisdictional. Consequently, the appeal will be dismissed.

Michael John Durant v. Lorrie Diane Durant
M2001-00691-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Carol A. Catalano
This appeal concerns the dissolution of a twelve-year marriage. The trial court granted the husband a divorce on the grounds of inappropriate marital conduct. The court distributed the parties' property and awarded custody of the couple's two minor children to the husband. The court also enforced a contract the parties entered into prior to the divorce wherein the husband agreed to purchase the wife's share of the marital residence. The wife appeals. We affirm the trial court.

Nancy E. Cotter v. Ted A. Burkhalter, et al.
M2000-03183-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal arises from an action by a Trustee against: (1) Ted A. Burkhalter (Burkhalter), an accountant/attorney, and the accounting firm, Burkhalter, Ryan & Co., P.C., for professional malpractice; (2) Burkhalter, a former co-trustee, for alleged breach of fiduciary duties; (3) Burkhalter and his partner, Linda Resha, in a general partnership, for alleged conspiracy to defraud and convert funds from the trust; and (4) Prudential Securities, Inc. for breach of fiduciary duty by allegedly permitting the diversion of funds by Burkhalter. The Chancery Court granted summary judgment in favor of Burkhalter and Burkhalter-Ryan finding that the malpractice claims were time-barred. The Chancery Court also granted summary judgment in favor of Prudential Securities finding that Prudential had not breached a fiduciary duty to the trust. Following a bench trial on the remaining issues, the Chancery Court found that the plaintiff/appellant was judicially estopped from pursuing the claims against Burkhalter for alleged breach of fiduciary duties as a trustee, and found in favor of Burkhalter and Resha on the claim of conspiracy to divert funds, finding there was insufficient evidence to establish that a conspiracy existed. We affirm.

Brian Roberson v. State of Tennessee
M2001-00459-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The petitioner appeals the trial court's denial of his petition for post-conviction relief. He claims that he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Jesse R. Scruggs
M2001-00518-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of DUI and driving in violation of a Habitual Traffic Offender Order. Based upon our review of the record, we conclude that there is sufficient evidence corroborating the defendant's statement that he was driving. Furthermore, the trial court is presumed to have fulfilled its role as thirteenth juror when, as in the instant case, the trial court overrules a defendant's motion for new trial without comment. The judgment of the trial court is affirmed

Michael Delaney Galligan v. Linda Medders Galligan
M2001-00619-COA-R3
Trial Court Judge: Robert E. Corlew, III

State of Tennessee v. Gregory Scott Payne
M2000-02900-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Walter C. Kurtz

Defendant, Gregory Scott Payne, was indicted by a Davidson County Grand Jury for one count of sexual battery, one count of attempted rape, and two counts of rape. Following a trial, the jury found defendant guilty of one count of sexual battery, a Class E felony, as a lesser-included offense of one of the rape charges, and not guilty of the remaining offenses. The trial court subsequently sentenced defendant as a standard Range I offender to two years in confinement. In this appeal, defendant asserts that (1) the evidence was insufficient to support his conviction, and (2) the trial court erred by denying his motion to strike the victim's testimony or declare a mistrial (based on the failure of the police to produce the taped recording of the victim's statement). Defendant also contends that the trial court erred by imposing the maximum sentence length and by denying him probation or any other form of alternative sentencing. After reviewing the record, we affirm the judgment of the trial court.

Gregory Pigg v. State of Tennessee
M2001-01423-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

The petitioner originally pled guilty to aggravated rape and, by agreement, was sentenced to fifteen years imprisonment. Petitioner timely sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends he received ineffective assistance of counsel. We disagree and affirm the judgment of the post-conviction court.

Jeffrey Crouch, et al v. Bridge Terminal Transport, Inc.
M2001-00789-COA-R3-CV
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a trial court's refusal to grant class action status to plaintiffs' claims for breach of contract and promissory fraud. Plaintiffs filed suit against defendant alleging that identical contracts between proposed class members and defendant were breached and that defendant's conduct amounted to promissory fraud. The trial court held that plaintiffs failed to show that issues of law and fact common to the class predominated over individual questions and refused to certify the class. Plaintiffs were granted this interlocutory appeal to review the trial court's decision on class certification. For the following reasons, we affirm the decision of the trial court.

Timothy Kendrick v. Judy Shoemake
E2000-01318-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: William M. Dender

Timothy Kendrick v. Judy Shoemake
E2000-01318-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: William M. Dender

James D. Leckrone v. James D. Walker, et al.
M1998-00974-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal arises from a dispute over the proceeds from the sale of a Florida condominium unit once owned by a Tennessee partnership but titled in the name of two of its partners. When the successor to the partnership's interest in the unit undertook to sell it, one of the owners of record agreed to sign the deed only if the proceeds were placed in escrow while the parties attempted to resolve his claim to one-half of the funds. When the parties failed to agree on a distribution of the proceeds, the escrow holder filed an interpleader action in the Chancery Court for Davidson County. Following a bench trial, the trial court awarded the escrowed proceeds to the partnership's successor after determining that the owner of record was estopped to invoke the statute of frauds to defeat the successor's claim. We have determined that the trial court reached the correct result because the owner of record no longer possessed a beneficial interest in the unit. Accordingly, we affirm the judgment.

Dudley G. Boyd, et al. v. Comdata Network, Inc., et al.
M2000-00949-COA-R9-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Russell Heldman
This appeal involves a discovery dispute implicating the common interest privilege and the work product doctrine. After filing suit in the Chancery Court for Williamson County to rescind their guaranties, the individual guarantors of a corporate debt served interrogatories and requests for production of documents on the creditor seeking copies of all written communications between the creditor and the corporation from which the creditor had purchased the corporate debt. The creditor objected to the production of documents involving its negotiation of a joint defense agreement with the original creditor and the drafts of an agreement to repurchase the corporate debt. The trial court directed the creditor to produce both categories of documents but permitted the creditor to pursue an interlocutory appeal. We granted the interlocutory appeal to address the application of the common interest privilege and the work product doctrine. We have determined that the common interest privilege shields the documents relating to the joint defense agreement from discovery and that the work product doctrine likewise protects the drafts of the repurchase agreement. Accordingly, we reverse the trial court's order compelling the production of these documents.

Janet Crame v. Grinnell Corporation
W2001-00542-SC-WCM-CV
Authoring Judge: W. Michaelmaloan, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer, Grinnell Corporation, contends the evidence preponderates against the trial court's award to the employee, Janet Crame, of twenty-two percent (22%) permanent partial disability to both arms. For the reasons stated in this opinion, We affirm the judgment of the trial court.

State of Tennessee v. Randall Taylor
M2001-00018-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Thomas W. Graham

Defendant contends there was insufficient evidence to support the conviction for driving on a revoked license. We disagree and affirm the trial court's judgment

Bradford D. Darnbush v. State of Tennessee
M2000-02256-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge L. Craig Johnson

The petitioner appeals the trial court's summary dismissal of his post-conviction relief petition. The issue presented for appeal is whether the petitioner's post-conviction petition is barred by the statute of limitations. The judgment of the trial court is affirmed.

State of Tennessee v. Robert Carl Harbison, Jr.
M2001-00421-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The defendant was convicted of reckless aggravated assault and sentenced as a Standard Range I offender to two (2) years, with all but ten (10) days suspended. Viewing the evidence in the light most favorable to the State, we conclude there is sufficient evidence to support the jury's finding that the defendant acted recklessly in causing serious bodily injury to the victim. However, applying the appropriate factors for consideration, we conclude that the defendant is eligible for judicial diversion, and there is no substantial evidence to support the trial court's denial of the defendant's request for judicial diversion. Accordingly, the judgment of the trial court is affirmed in part and reversed and remanded in part.

State vs. Andre Neely
W2000-01690-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Arthur T. Bennett

After the defendant's arrest for first degree murder and attempted first degree murder, a Shelby County General Sessions Court conducted a preliminary hearing to determine if there was probable cause to support his arrest. At the conclusion of the preliminary hearing, the court dismissed the defendant's case. However, a Shelby County grand jury later indicted the defendant for first degree murder and two counts of attempted first degree murder. Pursuant to a jury trial, the defendant was found guilty of one count of second degree murder and two counts of attempted second degree murder. Accordingly, the trial court sentenced the defendant to serve twenty years in confinement. The defendant now brings this appeal, challenging his conviction on the basis that (1) he was denied an opportunity to review the preliminary hearing tape, which was destroyed, and that (2) the trial court refused to admit certain testimony to cure this deficiency. After reviewing these claims, we find that neither of them merit relief. Accordingly, we affirm the defendant's convictions.

State of Tennessee v. Terrance Burke
W2000-02614-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted of intentionally evading arrest in an automobile, a Class E felony. The trial court sentenced the defendant as a career offender to six years incarceration. The defendant now appeals, arguing that the trial court erred by classifying him as a career offender. Concluding that the evidence was insufficient to support the trial court's determination that the defendant is a career offender, we reverse the judgment of the trial court and remand for re-sentencing.