State of Tennessee v. Bobby J. Armstrong
W2000-02598-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Appellant, Bobby J. Armstrong, appeals from the dismissal of his petition for post-conviction relief. Armstrong's convictions stem from his guilty pleas to two counts of felony murder and two resulting consecutive sentences of life without the possibility of parole. In this appeal, Armstrong raises the following issues for our review: (1) whether the guilty plea was knowingly, intelligently and voluntarily made; and (2) whether trial counsel was ineffective for failing to request a competency hearing to determine Armstrong's mental condition. After review, we find Armstrong's guilty plea was knowing, intelligent and voluntary and that he received effective assistance of counsel. As such, we affirm the judgment of the Madison County Circuit Court.

State of Tennessee v. Joe L. Patrick, Sr.
W2000-02998-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Joseph H. Walker, III

This is an appeal by the State of Tennessee as to whether the trial court erred in granting the Appellee/Defendant's motion to award program credits toward his release date from the Department of Corrections. After docketing of this case on May 8, 2001, for disposition of the State's appeal, the State filed a motion to consider post-judgment fact pursuant to Tennessee Rules of Appellate Procedures 14(a). After a review of the motion and the attached affidavit in support of the motion, we granted the State's motion. After a review of the entire record, and the motion for post-judgment of fact, we find that the Defendant has been released from the Department of Corrections and, thus, this appeal is dismissed.

Anthony E. Brasfield v. State of Tennessee
W2001-00169-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree

The Appellant, Anthony E. Brasfield, appeals from the dismissal by the Weakley County Circuit Court of his petition for post-conviction relief. On appeal, Brasfield asserts that the trial court erred in finding that his trial counsel was not ineffective by failing to preserve in his direct appeal the issues of (1) the trial court's suppression of his confession to the police and (2) the trial court's failure to charge misdemeanor escape as a lesser-included offense of felony escape. With regard to the first issue, we find that although trial counsel was deficient, no prejudice resulted. With regard to Brasfield's second issue, we find that misdemeanor escape is not a lesser-included offense of felony escape; therefore, no error occurred. Accordingly, the judgment of the post-conviction court is affirmed.

Gregory Scott Caudill v. State of Tennessee
E2000-00586-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County grand jury indicted the petitioner on four counts of aggravated robbery and two counts of aggravated assault. On November 28, 1994, the petitioner pled guilty to all six counts. Following a sentencing hearing, he received twelve years on each aggravated robbery and six years on each aggravated assault. The trial court then ran some of the sentences consecutively resulting in an effective sentence of thirty years as a Range I, standard offender. On direct appeal this Court modified the sentence to twenty-four years. State v. Gregory Scott Caudill, No. 03C01-9510-CC-00338, 1997 WL 7009 at *7 (Tenn. Crim. App. at Knoxville, January 9, 1997). The petitioner's application for permission to appeal to the Tennessee Supreme Court was denied. Thereafter, he filed a pro se petition for post-conviction relief alleging errors made with regard to his plea. Counsel was appointed to assist him; an amended petition was filed; and the trial court conducted a hearing thereon. At the conclusion of this hearing, the trial court dismissed the petition. Through this appeal the petitioner avers that the trial court failed to comply with Rule 11 of the Tennessee Rules of Criminal Procedure in taking his plea. More particularly, he alleges that the trial court did not advise him of the mandatory minimum and maximum penalties that he could potentially receive. After reviewing the record, we find that the petitioner's specific claim lacks merit. However, through its brief the State observes that constitutionally mandated advice concerning the petitioner's confrontation rights was not provided by the trial court in its colloquy at the time of the petitioner's plea. Therefore, the State requests that this Court remand the case for a hearing to determine if this omission was harmless. We agree and remand the matter for this purpose.

Christopher Stacy Long v. State of Tennessee
E2000-01909-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James Edward Beckner

The Petitioner pled guilty to first degree felony murder and to forgery, receiving concurrent sentences of life with the possibility of parole and one year's incarceration, respectively. The Petitioner subsequently petitioned the trial court for post-conviction relief. Following an evidentiary hearing, the trial court denied post-conviction relief. The Petitioner now appeals this decision. He argues that he received ineffective assistance of counsel when he entered his pleas of guilty, causing him to enter his pleas involuntarily and unknowingly. Having reviewed the record, we conclude that the Petitioner's representation was not deficient and thus affirm the judgment of the trial court.

State of Tennessee v. Zan Ray McCracken
E2000-1762-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant appeals from his Sullivan County Criminal Court conviction and sentence for driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced the defendant to eleven months and 29 days, with a six-month period of confinement, 45 days of which had to be served in continuous confinement. After the six-month confinement period, the defendant would serve the balance of the sentence on supervised probation. The trial court approved a $1,200 fine recommended by the jury. In this direct appeal, the defendant complains that the evidence at trial was insufficient to support his conviction, that the trial court committed reversible error in the guilt phase by allowing the jury to be informed that the defendant previously had been convicted of DUI, and that his sentence is excessive. We affirm the judgment of the trial court but remand for entry of a conforming judgment.

Anthony P. Jones v. State of Tennessee
M2000-01416-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Walter C. Kurtz

The petitioner, Anthony P. Jones, pled guilty in the Davidson County Criminal Court to three counts of aggravated sexual battery and received consecutive sentences of ten years for each count for a total effective sentence of thirty years. Subsequently, the petitioner filed a petition for post-conviction relief claiming that he received ineffective assistance of counsel and that his guilty pleas were involuntary and unknowing. The post-conviction court denied his petition. Consequently, the petitioner presents the following issue for our review: whether the post-conviction court erred in denying his claim for post-conviction relief. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. Damien Marcess Jackson
M2000-00763-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Damien Marcess Jackson, was indicted for first degree murder and two counts of attempted first degree murder. A jury convicted the Defendant of second degree murder and two counts of attempted second degree murder. He was subsequently sentenced as a Range I offender to twenty-five years for the murder and twelve years for each of the attempted murders, all to run consecutively. In this appeal as of right, the Defendant challenges the trial court's denial of his motion to suppress; the trial court's refusal to order the State to disclose the identity of a confidential informant; the sufficiency of the evidence; and the length and manner of service of his sentences. We affirm the trial court's judgment.

Jean Kelly Fisher Wallace v. Richard Edward Wallace
02A01-9702-CH-00029
Authoring Judge: Judge Hewitt P. Tomlin
Trial Court Judge: Judge C. Neal Small

This is a post-divorce custody proceeding. Jean Kelly Fisher Wallace (“mother”) was
granted a divorce in the Chancery Court of Shelby County from Richard Edward Wallace
(“father”) in May, 1992. Mother was awarded custody of the parties’ minor child, Caroline. In
April, 1995, father filed a petition to change legal custody from mother to father. Following a
bench trial, the court denied the relief sought by father and permitted custody to remain with
mother. The court delayed its decision for six months, principally to allow mother the
opportunity to make changes in two aspects of her life: (1) the neighborhood in which she and
the minor child had been living for slightly over a year and (2) her ongoing association and
relationship with her boyfriend. The trial court felt both aspects were detrimental to the welfare
of the parties’ child.

Sara J. and Jerry H. Malone v. First Capital Home Improvements
02A01-9704-CV-00091
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John Franklin Murchison

Defendant First Capital Home Improvements appeals the trial court’s judgment entered in favor of Plaintiffs/Appellees Sara J. Malone and Jerry H. Malone in this breach of contract action. We affirm.

Barbara Korthoff vs. Herbert Korthoff
W2001-01712-COA-R10-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Kay S. Robilio
In this pending divorce action, the trial court ordered Husband to transfer $300,000.00 to Wife as a partial distribution of the marital estate. Husband filed an application for extraordinary appeal pursuant to Rule 10 Tenn. R. App. P. which this Court granted. Husband contends that the trial court is without authority to make a partial distribution of marital funds during the pendency of the divorce action. Furthermore, if the court had such authority, it could not do so absent an evidentiary hearing to determine whether the property was marital or separate. The application was granted and the order of the trial court reversed.

State of Tennessee, Department of Children's Services, v. Amy Diane Bottoms, and Brian Bottoms, Sr. In the Matter of: Brian Scott Bottoms, Jr., Israel Vaughn Bottoms, and Elijah Keane Bottoms
01A01-9706-JV-00249
Authoring Judge: Presiding Judge Henry F. Todd
Trial Court Judge: Judge Andrew J. Shookhoff

Brian Bottoms, Sr., and Amy Bottoms have appealed from the judgment of the Juvenile
Court, terminating their parental rights in respect to Brian Scott Bottoms, aged 7, Israel Vaughn
Bottoms, aged 5, and Elijah Keane Bottoms, aged 2, and placing them in the legal guardianship
of AGAPE with the right to place them for adoption.

Sheila Faye Hagen McCall Barnett v. Ronald Edward Barnett, Sr.
01A01-9706-CV-00244
Authoring Judge: Presiding W. Frank Crawford
Trial Court Judge: Judge Muriel Robinson

Plaintiff, Sheila Faye Hagen McCall Barnett (Wife), and defendant, Ronald Edward Barnett, Sr. (Husband), were divorced by decree entered January 9, 1997. Husband appeals and presents issues concerning property division, alimony, and attorney’s fees.

John Watson Little, et. al. and Leslie Earl Little, Executors for the Estate of Leslie H. Llittle, Deceased, . v. Michael Hogan, Jeff Payne et. al.
01A01-9707-CV-00291
Authoring Judge: Judge Henry F. Todd
Trial Court Judge: Judge Lee Russell

The captioned executors filed this suit to recover damages for the wrongful death of 88
year old Leslie H. Little, deceased, who lost his life in a motor vehicle collision at the
intersection of North Main Street and Colloredo Boulevard in Shelbyville, Bedford County,
Tennessee. Movement of traffic through the intersection was controlled by the multicolored
lights of an ordinary traffic control signal.
Several

George Stinson, Edward D. Lewis, and Gelsco of Tennessee, Inc., v. 138 Fifth Avenue South, et. al. and Metro Development and Housing Authority - Concurring
01A01-9702-CV-00060
Authoring Judge: Judge Ben H. Cantrell

I concur in the conclusion that paragraph 17 of the lease was not triggered by the sale from the lessors to MDHA. I am also of the opinion that the critical sentence beginning with “All damages awarded for such taking . . .” refers to a partial taking, because the damages are described later in the sentence as “compensation for diminution in value to the leasehold or to the fee of the property herein leased.” A taking of the whole would not diminish the value of the leasehold or the fee; it would extinguish the leasehold and the fee and replace them with a monetary award.

William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
Authoring Judge: J. Steven Stafford, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

William Craig Browning v. James River Corporation
W1999-01799-WC-R3-CV
Authoring Judge: Wil V. Doran, Special Judge
Trial Court Judge: Joe C. Morris, Chancellor
The trial court determined that the plaintiff suffered a 5% vocational impairment to each leg. The defendant asserts that the plaintiff failed to provide proper notice of his injuries; that he failed to prove that the injuries arose out of and within the course and scope of his employment; and that the evidence does not support the amount of vocational disability awarded. For the reasons set forth below, We affirm the judgment of the trial court.

Dept. of Children's Svcs. vs. Pamela Cox, et al
M1999-01598-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This case presents two issues. The first is whether proper notice was given to the mother of a dependent and neglected child to meet due process requirements and allow adjudication of her right to visitation and of the goal of the permanency plan for the child. The second issue is whether the evidence preponderated against the trial court's decision to change the goal of the permanency plan to termination of parental rights and terminate the mother's visitation. We affirm the circuit court on both issues finding no due process violation and more than adequate evidence to support the trial court's decision.

James Dortch, Sr. vs. Evonne Dortch
M1999-02053-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Muriel Robinson
This appeal involves a dispute over the division of a marital estate following a seventeen-year marriage. Both parties sought a divorce in the Circuit Court for Davidson County. During a short bench trial, they stipulated that each of them had grounds for divorce but contested the classification, valuation, and division of their separate and marital property. The trial court declared the parties divorced and undertook to divide their marital estate equally. Both parties are dissatisfied with the division of the marital estate. The husband asserts that the trial court made a significant mathematical error in calculating the amount required to equalize the division. For her part, the wife asserts that the trial court misclassified items of separate property as marital property. We have determined that the trial court properly determined that the parties should receive equal shares of the net marital estate. However, we also find that the trial court misclassified a number of items of the wife's separate property and erroneously calculated the amount to be awarded to the wife to equalize the division of the marital estate. Accordingly, we have corrected the errors and affirm the judgment as modified herein.

James Ray vs. Thomas Richards
M2000-01808-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Hamilton V. Gayden, Jr.
Plaintiff filed a complaint against Defendant for personal injuries resulting from an alleged assault which occurred on October 20, 1998. The jury found for Defendant. Plaintiff appeals raising two issues: (1) Whether the trial court committed reversible error by admitting evidence of Plaintiff's character, reputation, conduct, and criminal records, and (2) whether the trial court erred in allowing the neighbor's petition describing Plaintiff as a public nuisance into evidence. We affirm the trial court.

Connie McGahey vs. James Wilson
M2000-01931-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Upon divorce, the parties entered into an agreement that provided the parties would retain ownership as the marital residence as tenants in common, but could not sell the property without mutual consent. Mrs. McGahey now desires to partition the property over her former husband's objection. The special master found that the contract provision barring partition was unenforceable. The chancellor found the provision enforceable but only for a reasonable period of time (sixteen years). Mr. Wilson now appeals the trial court's judgment ordering partition by sale. Resolution of this appeal requires us to examine the effect of a contract barring partition between tenants in common when no time limitation or purpose for the restriction against sale was stated in the agreement. We hold the contract provision to be unenforceable.

Recognized Ground of Equity. Chambers v. City of Chattanooga, 71 S.W.3D 281, 284 (Tenn. Ct. App.
M2006-02424-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Mccoy

Harpeth Valley Utilities Dist. of Davidson and Williamson Counties, v. The Metropolitan Government of Nashville and Davidson County - Concurring
01A01-9711-CH-00686
Authoring Judge: Judge William C. Koch, Jr.

We concur with the results of the presiding judge’s opinion because we believe that the holding of Davidson County v. Harmon, 200 Tenn. 575, 292 S.W.2d 777 (1956) controls the outcome of this case. The Harpeth Valley Utility District has been operating since 1959 under the aegis of the Utilities Law of 1937 [Tenn. Code Ann. §§ 7-82-101, -804 (1992 & Supp. 1997)] providing water and sewerage disposal services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) (Supp. 1997); First
Suburban Util. Dist. v. McCanless, 177 Tenn. 128, 132-34, 146 S.W.2d 948, 950 (1941). Unless specifically provided otherwise, a city’s zoning power does not extend to state government instrumentalities located within its borders. See Davidson County v. Harmon, 200 Tenn. at 583-84, 292 S.W.2d at 780-81.

William Ware, Virginia Ware, and Summer Ware, et. al. v. Michael C. Green, Commissioner, State of Tennessee Department of Safety
01A01-9604-CH-00170
Trial Court Judge: Chancellor Robert S. Brandt

This appeal involves the forfeiture under the Tennessee Drug Control Act of $4,710.75 in cash, twenty-two pistols, rifles and shotguns, a video camera, silver bars, and assorted gold and silver coins during a search of a residence in Waynesboro. The Commissioner of Safety ordered the currency and personal property forfeited despite the family’s contention that an initial search of their home and property without a warrant was illegal. The family filed a petition for judicial review in the Chancery Court for Davidson County. The trial court found the personal property was lawfully seized after the officers obtained a search warrant and affirmed the forfeiture order. The family perfected this appeal. We have determined that there is substantial and material evidence to support the commissioner’s decision.

Linda Sue Pinkard v. Findlay Industries, Inc.
M2000-01320-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Larry Ross, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court's finding of permanent partial impairment or disability is contrary to the preponderance of the evidence, (2) the trial court erred in denying the employer's request for the appointment of a neutral physician, and (3) the award of permanent partial disability benefits on the basis of 6 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (2) Appeal as of Right; Judgment of the General Sessions Court of Warren County Affirmed. JOE C. LOSER, JR., SP. J., in which ADOLPHO A. BIRCH, JR., J., and JAMES WEATHERFORD, SR. J., joined. Patrick A. Ruth, Nashville, Tennessee, for the appellant, Findlay Industries, Inc. William Joseph Butler and Frank D. Farrar, Lafayette, Tennessee, for the appellee, Linda Sue Pinkard. MEMORANDUM OPINION At the time of the trial on March 17, 2, the employee or claimant, Linda Sue Pinkard, was 36 years old with a ninth grade education and no special skills or training. She did have experience as a production worker and was employed by Findlay, a sewing factory, for more than ten years. On November 24, 1998, while lifting material onto a table at work, she felt a sudden pull in her back. Later that night she felt numbness in her legs and tingling in her toes. She was sent to Riverpark Hospital for emergency care and presented with a panel of possible treating physicians, from whom she chose Dr. Robert Dimick, a neurosurgeon, in Nashville. Dr. Dimick released her after providing conservative care. Thereafter, she saw Dr. John Thompson on the recommendation of her attorney. Dr. Dimick diagnosed low back pain and spasm, degenerative disc disease, a protruded disc and stenosis, with mild to moderate pressure on the nerve roots. The doctor conceded the injuries could have been caused or aggravated by trauma at work. Without measuring her loss of motion or sensation, Dr. Dimick estimated her permanent impairment rating at zero percent. Dr. Thompson, an orthopedic surgeon in Sparta, opined that the claimant's injuries were work-related. He estimated her permanent impairment at 17 percent to the whole body and restricted her from lifting more than 2 pounds occasionally, 1 pounds frequently or 5 pounds repetitively. He prescribed standing no more than 3 minutes at a time or more than 5 minutes of each hour, no more than occasional bending, stooping, kneeling and no squatting, climbing, crouching, crawling or twisting. Dr. S. M. Smith, an orthopedic surgeon in Jamestown, saw the claimant for an independent medical examination and evaluation in July 1999. Dr. Smith diagnosed a ruptured disc at L5-S1. He estimated the claimant's permanent impairment at 19 percent to the whole body and prescribed permanent restrictions. The claimant's own testimony, supported by other lay proof, was that she could not work within her restrictions. She was unable to continue in a janitorial service job that she had held before her injury at Findlay. She did return to work for Findlay at a lower paying job in the parts room, but is concerned whether she would be able to find any work if she lost her job. Upon the above summarized evidence, the trial court found the claimant's permanent medical impairment to be 15 percent to the body and awarded permanent partial disability benefits based on 6 percent to the body as a whole. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225 (e)(2). This tribunal is not bound by the trial court's findings but instead conducts an independent examination of the record to determine where the preponderance lies. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). Where the trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given oral testimony are involved, considerable deference must be accorded those circumstances on review, because it is the trial court which had the opportunity to observe the witnesses' demeanor and to hear the in-court testimony. Long v. Tri-Con Ind., Ltd., 996 S.W.2d 173, 177 (Tenn. 1999). The appellate tribunal, however, is as well situated to gauge the weight, worth and significance of deposition testimony as the trial judge. Walker v. Saturn Corp., 986 S.W.2d 24, 27 (Tenn. 1998). The extent of an injured worker's vocational disability is a question of fact. Story v. Legion Ins. Co., 3 S.W.3d 45, 451 (Tenn. 1999). The appellant contends the trial judge should have rejected Dr. Smith's opinion because his examination was conducted in the claimant's attorney's office and because Dr. Smith's opinion is -2-