Kevin Millen v. Shelby County Sheriff's Department
W2010-01343-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

After unsuccessfully appealing his worker's compensation lawsuit, appellant was assessed appellate court costs. A Fieri Facias/Writ of Execution was executed, and appellant's car was attached and sold at a sheriff's sale. Appellant then filed a lawsuit against the sheriff's office claiming he had been carjacked. The trial court dismissed appellant's complaint and we affirm.

Christopher Lovin v. State of Tennessee
E2009-00939-CCA-RM-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton, Judge

The Petitioner, Christopher Lovin, appeals the Claiborne County Criminal Court's denial of post-conviction relief from his conviction for felony murder in the perpetration of aggravated child abuse. On appeal, he contends that trial counsel rendered ineffective assistance by (1) failing to object to the State's amendment of his indictment, (2) failing to examine and rebut the State's medical witnesses properly, (3) failing to object to the State's use of demonstrative evidence, and (4) failing to object to the State's presentation of two theories of causation. We affirm the judgment of the trial court.

Victor L. Dobbins v. State of Tennessee
M2009-02652-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl Blackburn

Following a bench trial, the Petitioner, Victor L. Dobbins, was found guilty of being a convicted felon in possession of a handgun, a Class E felony. See Tenn. Code Ann. _ 39-17- 1307(b)(2). This Court affirmed his conviction on direct appeal. State v. Victor L. Dobbins, No. M2007-01751-CCA-R3-CD, 2008 WL 2648951 (Tenn. Crim. App., Nashville, July 3, 2008), perm. to appeal denied, (Tenn. Dec. 22, 2008). The petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the petitioner contends that the post-conviction court erred in denying him relief because: (1) trial counsel failed to properly investigate his case and (2) the cumulative effect of trial counsel's errors entitles him to a new trial. After our review, we affirm the post-conviction court's denial of relief.

State of Tennessee v. Vincent Jordan
M2009-02488-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Michael R. Jones

The Defendant, Vincent Jordan, appeals the Montgomery County Circuit Court's order revoking his probation for robbery, a Class C felony, and ordering the Defendant to serve the remainder of his eight-year sentence in confinement. We affirm the judgment of the trial court.

State of Tennessee v. Viola Darlene Stephens
M2008-02847-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Curtis Smith

Defendant, Viola Darlene Stephens, pled guilty to theft of property valued at less than $500, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The trial court sentenced her to eleven months, twenty-nine days for the theft conviction, to serve six months, and six months for driving on a revoked license, to be fully served in incarceration. The sentences were ordered to be served concurrently with each other. On appeal, defendant contends that the trial court erred in not stating whether it had considered a sentence of community corrections. After a thorough review of the record, we affirm the judgments of the trial court.

William W. Griffin v. Walker Die Casting, Inc., et al.
M2009-01773-WC-R3-WC
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Judge F. Lee Russell

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought to compel the employer to provide a total left knee replacement surgery based upon court-approved settlement for a work-related left knee contusion. The trial court ordered the employer to provide the knee replacement surgery and awarded attorney’s fees to the employee. The employer has appealed, arguing that the trial court erred by finding that the proposed surgery was causally related to the work injury. We agree and reverse the trial court’s order.

Thomas E. Blake v. Nissan North America, Inc., et al.
M2009-02173-WC-R3-WC
Authoring Judge: Senior Judge Walter C. Kurtz
Trial Court Judge: Chancellor Robert E. Corlew, III

The employee sustained a compensable injury to his right arm. After surgery and recovery, he returned to work for the same employer at the same rate of pay. Over a year later, his work week was reduced from forty to thirty-two hours per week as part of a plant-wide reduction in hours due to economic conditions. While working the reduced number of hours, he accepted a buyout offer and voluntarily resigned. Subsequently, his workers’ compensation case was tried. The trial court held that he did not have a meaningful return to work because of the reduction in work hours and made an award of more than one and one-half times the impairment. The employer has appealed, contending that employee had a meaningful return to work in spite of the plant-wide reduction of work hours carried out for the purpose of preventing layoffs. We agree that the reduction in force, under these facts, does not impair the determination that the employee had a meaningful return to work, and we modify the judgment accordingly

Anne S. Phillips vs. Anderson County, Tennessee
E2009-01883-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Special Judge Jon Kerry Blackwood

This appeal involves a retaliatory discharge claim. Employee claims that she was discharged after reporting her supervisor's unlawful activities. Employer denied that employee was discharged, claimed that she quit, and demonstrated that the State terminated the grant funding the program overseen by employee. A jury trial commenced, and at the close of all proof, employer moved for a directed verdict. The trial court granted the motion for directed verdict and found that employee failed to prove a causal link between her discharge and her decision to engage in a protected activity. Employee appeals. We affirm.

In Re: Pauline M., Stephen M., and Rachael M.
E2009-02649-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This is a termination of parental rights case. The trial court terminated both parents' rights to the children on grounds of: (1) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. _ 36-1-102(1)(A)(ii); and (2)persistence of conditions as set out at Tenn. Code Ann. _ 36-1-113(g)(3). The trial court also terminated Father's parental rights on the additional ground of abandonment by failure to support pursuant to Tenn. Code Ann. _ 36-102(1)(A)(i), and Mother's parental rights on the additional ground of mental incompetence pursuant to Tenn. Code Ann. _ 36-1-113 (g)(8)(B). Finding clear and convincing evidence in the record to support each of these grounds, as well as clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm.

Cydnie B. O'Rourke v. James P. O'Rourke
M2007-01833-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert E. Lee Davies

In the last proceeding in this protracted post-divorce litigation, the trial court transferred custody, or primary residential placement, of three children of a divorced couple from the mother to the father. In this consolidated appeal, the mother claims that the trial court erred in a number of ways. However, a number of her arguments relate to orders or actions that have been rendered moot by the final order, including her challenges to the use of a"parenting coordinator." As to the final order modifying residential placement, we hold that the trial court did not err in declining to use Tenn. Code Ann. _ 36-6-406 to limit the father's visitation with the children and that the court acted within its discretion in limiting the testimony of Mother's expert witness as a discovery sanction. We also hold that the trial court's award of $330,000 in attorney fees to the father was not error. We affirm the trial court.

Joshua Todd Daniels vs. Kevin Grimac, et al
E2009-01510-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Dale Workman

This is an appeal from a judgment summarily holding attorney Herbert S. Moncier in direct, criminal contempt of court. Because the trial court improperly exercised its summary contempt authority several weeks after the cited conduct occurred, we vacate its judgment and remand this case for additional proceedings.

State of Tennessee v. Donna Harvey - Dissenting
E2009-01945-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Vance

The trial court should have rejected the guilty plea as being deficient pursuant
to Tennessee Code Annotated section 40-35-304(g)(1). That subsection provides that when restitution is a component of alternative sentencing and there is “no sentencing hearing or presentence report because the defendant’s sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c).” Tenn. Code Ann. § 40-35- 304(g)(1). In a theft case, payment of restitution must be “a part of the sentence” pursuant to Tennessee Code Annotated section 40-20-116. See id. § 40-20-116(a) (providing that the trial court “shall . . . order the restitution of the property” in theft cases). In the present case, the plea agreement left no sentencing issues undecided except for the amount and payment method of restitution; no presentence report was entered into evidence. Under the circumstances, the “restitution hearing” was not a “sentencing hearing” as contemplated by section 40-35-304(g)(1); to say otherwise is to render the provisions of subsection (g)(1) meaningless. I cannot fathom why the subsection reads the way it does, but it says what it says.

State of Tennessee v. Donna Harvey
E2009-01945-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Vance

The Defendant, Donna Harvey, and a codefendant pled guilty in the Sevier County Circuit Court to theft of at least $1,000 but less than $10,000, a Class D felony. See T.C.A. __ 39- 14-103, -105(3) (2006). The defendant received a four-year sentence as a Range II, multiple offender, suspended to time served with the balance on supervised probation. The trial court ordered the defendant and codefendant to pay $64,852 in restitution with joint and several liability. At issue in this appeal is the amount of restitution for damages caused by the crime. We reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider the defendant's financial resources and ability to pay and determine the proper amount and schedule of restitution.

State of Tennessee v. Evelyn Cotton Self
M2009-00343-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall, J.
Trial Court Judge: Judge Don Ash

Following a jury trial, Defendant, Evelyn Cotton Self, was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced defendant to eleven months, twenty-nine days with defendant's sentence suspended and defendant placed on probation after service of seventy-three days in confinement. On appeal, defendant argues that (1) the evidence is insufficient to support her conviction; (2) the trial court erred in denying defendant's request for a jury instruction on involuntary intoxication; (3) the trial court erred in instructing the jury concerning prescription medicines; (4) the trial court erred in excluding the testimony of defendant's psychologist; and (5) the trial court erred in ordering defendant to serve seventy-three days in confinement. After a thorough review of the record, we affirm the judgment of the trial court.

Phillip Lowell Bledsoe v. State of Tennessee
W2009-00684-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn L. Peeples

The Petitioner, Phillip Lowell Bledsoe, appeals from the Gibson County Circuit Court's denial of post-conviction relief from his conviction for first degree premeditated murder. In his appeal, the petitioner argues that he received ineffective assistance of counsel because trial counsel failed to pursue potentially exculpatory evidence; failed to impeach a detective's credibility based on his police misconduct in a different case; failed to object to numerous references to the petitioner's gang membership; and failed to file a motion in limine, make an objection, or request a limiting instruction regarding references to a polygraph examination. Upon review, we affirm the judgment of the post-conviction court.

Rick D. Hanebutt v. State of Tennessee
W2009-01346-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald Parish

The petitioner, Rick D. Hanebutt, appeals the Carroll County Circuit Court's denial of his petition for post-conviction relief. The petitioner is currently serving concurrent sentences of life and twenty years for his convictions for first degree murder and attempted first degree murder. On appeal, the petitioner contends that the trial court erred in: (1) denying his motion to continue the postconviction hearing; and (2) denying his petition for post-conviction relief. He contends that the court erred in denying relief because he claims he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective in failing to: (1) investigate the case and present viable witnesses, proof, and argument as to self-defense; (2) obtain a ballistics expert; (3) obtain unadulterated copies of phone records and obtain the phone records of another witness; (4) properly impeach a witness with inconsistent evidence, statements, and testimony; (5) contest the search warrant; (6) renew a motion to change venue; (7) object to statements made by the prosecution during voir dire; and (8) request additional jury instructions on drug usage and witness credibility. He further contends that the cumulative effect of all the alleged errors supports a finding of ineffective assistance of counsel. Following a thorough review of the record before us, we find no error and affirm the denial of the petition.

International Market and Restaurant, Inc., et al. v. Belmont University, et al.
M2010-00005-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amanda Jane McClendon

International Market and Restaurant, Inc. and Patti Myint, owner of the P.M. Café, sued the Belmont University and the Metropolitan Government because representatives of Belmont and the United States Secret Service informed the plaintiffs that the streets and sidewalks around plaintiffs’ establishments would be closed for security purposes the evening of the Presidential debate at Belmont pursuant to a plan developed by the Secret Service. The plaintiffs closed the businesses that evening; however, the sidewalks were not closed. The plaintiffs claim that they lost revenue by closing and seek compensation based on negligent representation, constructive fraud and breach of the indemnity agreement between Belmont and Metro. The trial court granted Belmont’s motion for summary judgment and Metro’s motion to dismiss. Plaintiffs appealed. We affirm.

State of Tennessee v. Vershawn McCoy
W2009-01222-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Mark Ward

A Shelby County jury convicted the Defendant, Vershawn McCoy, of second degree murder, and the trial court sentenced him as a violent offender to twenty years to be served at 100%. On appeal, the defendant contends that the trial court inadequately responded to a jury question raised during deliberation requesting a definition of "state of passion." After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.

Regions Bank, Successor-In-Interest to Union Planters Bank v. Lost Cove Cabins and Campgrounds, Inc., et al.
M2009-02389-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry B. Stanley, Jr.

The trial court entered judgment against the borrowers and guarantors on two promissory notes. On appeal, the defendants argue that the trial court erred in striking their jury demand and that they are entitled to relief under an alleged written commitment for permanent financing or under various equitable theories. We find the defendants' arguments to be without merit and affirm the decision of the trial court.

Terrance Lowdermilk v. Tennessee Department of Safety
M2010-00417-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia C. Bonnyman

Petitioner filed this petition for judicial review in 2009 to challenge the propriety of the seizure of $5,518 in cash following the Tennessee Bureau of Investigation executing a search warrant on Petitioner’s residence in May of 2001. A notice of seizure was served on Petitioner; also a forfeiture warrant was issued and mailed to Petitioner at his residence. The Department of Safety subsequently entered a final administrative order forfeiting the money. When Petitioner filed this action almost eight years later, the trial court dismissed the petition on the ground that it lacked subject matter jurisdiction because the petition was not timely filed. The trial court dismissed the action. We affirm.

Carol L. Brandon v. Williamson Medical Center, et al.
M2010-00321-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge James Martin

Plaintiff timely filed a complaint for medical malpractice, but failed to file a certificate of good faith within ninety days as required. Defendants filed a motion to dismiss, and plaintiff subsequently filed a motion for enlargement pursuant to Rule 6.02 and a proposed certificate of good faith. The trial court granted defendants' motion, finding plaintiff had failed to demonstrate "good cause" for failing to file the required certificate. Because we find that plaintiff has failed to demonstrate either "good cause" or "excusable neglect," we affirm the trial court's dismissal of plaintiff's complaint.

Wade Phelps/Phelps Harrington Construction Co., Inc. v. C & C Construction Co., LLC, et al.
M2010-00228-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Contractor agreed to build duplex for property owner, with plaintiff providing construction financing. At closing, contractor was paid, but contractor did not pay plaintiff as agreed. Plaintiff sued property owner, contractor, and bank. We previously affirmed the trial court's grant of summary judgment to the bank, finding that contractor and plaintiff were in a joint venture, such that payment to contractor was payment to plaintiff. Property owner then moved for summary judgment, which the trial court granted. Because we find no separate agreement between property owner and plaintiff requiring repayment directly to plaintiff, plaintiff's cause of action against property owner is precluded, and the trial court's grant of summary judgment is affirmed.

Jennifer Bonner Givens, et al. v. Mark S. Josovitz, et al.
M2010-00071-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Royce Taylor

After an elevated PSA test in October 2000, Dr. Josovitz referred Decedent to a urologist. After an even higher PSA level on retest, the urologist performed a biopsy, which was benign. Despite being informed of his need for additional PSA testing, decedent did not return to the urologist, and, despite routinely seeing decedent for other health issues, Dr. Josovitz did not again discuss the need for repeat testing with decedent until 2004. In May 2004, decedent was diagnosed with advanced prostate cancer, and he died in September 2005. Plaintiffs' expert testified that decedent's prostate cancer must have been diagnosed by December 2001 in order for decedent to survive. However, it is undisputed that the defendants had no knowledge of his prostate cancer by that time. Plaintiffs filed suit in this case beyond the three-year statute of repose for medical malpractice. Because they are unable to prove defendants had knowledge of decedent's prostate cancer, fraudulent concealment is unavailable to toll the statute of repose. Accordingly, we find that plaintiffs' wrongful death claim is barred by the statute of repose and further that plaintiffs are not entitled to recover damages for pain and suffering. Summary judgment is granted to defendants, and the trial court's dismissal of plaintiffs' claim is affirmed.

Clarence E. Miller vs. Marian N. Miller
E2010-00492-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor William E. Lantrip

Husband filed for divorce after twenty-five years of marriage alleging inappropriate marital conduct as grounds for divorce. Wife filed a counter-claim for divorce also alleging inappropriate marital conduct. After a bench trial, the court found that the parties had lived separately for at least 10 years; awarded a divorce to Husband; and awarded alimony in futuro to Wife. Wife appeals challenging the trial court's award of a divorce to Husband, the division of the marital property, and the award of alimony. Upon review of the record, we affirm.

Arthur B. Roberts, et al vs. Robert Bailey, et al
E2010-00899-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Frank V. Williams, III

Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey ("the Baileys") were sued by Arthur B. Roberts and Tia Roberts with regard to a boundary line dispute. The Baileys filed a third party complaint against Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee Littleton ("the Littletons"), and Charlotte Dutton seeking to quiet title to real property, including the property involved in the boundary line dispute. The Baileys filed a motion for partial summary judgment against the Littletons. After a hearing, the trial court entered an order denying the motion for summary judgment and certifying the judgment as final pursuant to Tenn. R. Civ. P. 54.02. The Baileys appeal to this Court. We affirm.