Georgia-Pacific LLC, et al. v. Swift Transportation Corporation
W2008-00344-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves the indemnity and insurance provisions of a contract, which must be interpreted according to Georgia law. The trial court found that the defendant had no duty to indemnify or insure the plaintiff for a claim based on the plaintiff’s own negligence. We affirm.

Lisa Miller, et al. v. M & R Constructors, Inc. a/k/a Millwrights & Riggers
M2007-01945-WC-R3-WC
Authoring Judge: Senior Judge Allen W. Wallace
Trial Court Judge: Judge John Wooten

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. This is a suit to recover workers’ compensation death benefits. Employer denied that Decedent’s cardiac arrest was caused by his employment. The trial court found the death to be work-related, and awarded benefits to the survivors. On appeal, Employer contends that the evidence preponderates against that finding.  We disagree, and affirm the judgment.

Michael Limbaugh v. Mueller Refrigeration Co., Inc.
M2007-00999-WC-R3-WC
Authoring Judge: Senior Judge Allen W. Wallace
Trial Court Judge: Chancellor C. K. Smith

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee sustained a compensable injury. He subsequently developed a condition known as “winging” of the scapula.  Two treating doctors testified that the AMA Guides did not provide for assigning impairment for this condition. An evaluating physician agreed that the AMA Guides did not cover the condition, but assigned 10% permanent impairment to the body as a whole, based upon his experience and judgment. The trial court awarded 15% permanent partial disability to the body as a whole.  Employer has appealed, contending the evidence preponderates against the trial court’s finding. We affirm the judgment.

State of Tennessee v. Fredrick Milan
W2006-02606-CCA-MR3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Carolyn Wade Blackett

A Shelby County Criminal Court jury convicted the appellant, Fredrick Milan, of first degree premeditated murder and aggravated assault, and the trial court sentenced him to consecutive sentences of life and five years, respectively. On appeal, the appellant contends that (1) the trial court erred by consolidating the offenses; (2) the trial court improperly admitted the victim’s prior statement into evidence under the hearsay rule’s forfeiture by wrongdoing exception, Tennessee Rule of Evidence 804(b)(6); (3) the trial court erred by admitting into evidence the 9-1-1 tape of an eyewitness to the victim’s murder; (4) the trial court erred by admitting an autopsy photograph into evidence; (5) the evidence is insufficient to support the appellant’s murder conviction; and (6) the trial court erred by ordering consecutive sentencing and by assessing a five-hundred-dollar fine for the aggravated assault conviction. The State contends that the evidence is sufficient to support the murder conviction and that the trial court properly ordering consecutive sentencing. However, the State acknowledges that the trial court improperly fined the appellant. Regarding the appellant’s remaining issues, the State contends that the appellant waived them because he failed to include them in his motion for new trial and that he is not entitled to plain error relief. We conclude that the evidence is sufficient to support the murder conviction and that consecutive sentencing is proper in this case. Nevertheless, we also conclude that the trial court committed plain error as to the aggravated assault conviction by consolidating the appellant’s indictments for trial and that the trial court erred by imposing the appellant’s fine. Therefore, the appellant’s murder conviction is affirmed but his aggravated assault conviction and resulting fine are reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

Sara K. Ruder v. Joseph R. Ruder
W2007-01222-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

This is a divorce case involving the interpretation of a Prenuptial Agreement. Husband/Appellant appeals the trial court’s decision to reimburse certain expenditures made by Wife as “improvements” to the marital home. Wife/Appellee appeals the trial court’s denial of her request for attorney’s fees. Finding no error, we affirm.

Robert Edwards v. Saturn Corporation
M2007-01955-WC-R3-WC
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Jim T. Hamilton

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and report of findings of fact and conclusions of law. The trial court determined that: (1) under Building Materials Corp. v. Britt, Employee’s date of injury was his last day worked before having shoulder surgery, December 15, 2005; (2) Employee’s meaningful return to work was not frustrated by a plant-wide lay-off; and (3) Employee’s permanent partial disability award should be capped at 1.5 times the medical impairment rating. Because the evidence does not preponderate against the trial court’s findings, we affirm the trial court’s judgment.

Jennifer Kelly v. Dollar General Corporation
W2007-01105-SC-WCM-WC
Authoring Judge: Donald P. Harris, Sr. J.
Trial Court Judge: Walter L. Evans, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 5-6-225(e)(3) (Supp. 27) for a hearing and a report of findings of fact and conclusions of law. The employee had separate claims for carpal tunnel syndrome and a back injury. The trial court awarded 3% permanent partial disability for the carpal tunnel injury but dismissed the back claim. Both sides have appealed. The employer contends that the trial court erred in finding that the employee sustained her burden of proof as to causation of the carpal tunnel syndrome. The employee contends that the trial court erred in finding that she had failed to sustain her burden of proof as to permanent disability arising from her back injury. We affirm the judgment concerning the carpal tunnel claim, reverse the judgment concerning the back claim, and remand the case to the trial court. Tenn. Code Ann. _ 5-6-225(e) (Supp. 27) Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Reversed in Part, and Remanded DONALD P. HARRIS, SR. J., in which JANICE M. HOLDER, J., and ALLEN M. WALLACE, SR. J., joined. Gregory D. Jordan and W. Paul Whitt, Jackson, Tennessee, for the appellant, Dollar General Corporation. Steve Taylor, Memphis, Tennessee, for the appellee, Jennifer Kelly. MEMORANDUM OPINION FACTUAL AND PROCEDURAL BACKGROUND This is the second appeal in this case. Jennifer Kelly alleged that she sustained both carpal tunnel syndrome and a back injury as a result of her employment with Dollar General Corporation. Previously, the trial court had entered summary judgment for Dollar General on the back claim, based upon the statute of limitations. The trial court had dismissed the carpal tunnel syndrome claim after a trial on the merits, finding that Ms. Kelly had not provided timely notice of her injury. Kelly v. Dollar General Corp., Nos. W25-1891-SC-WCM-CV & W25-1174-SC-WCM-CV, 26 WL 2924815 (Tenn. Workers' Comp. Panel Sept. 25, 26). The Special Workers' Compensation Appeals Panel reversed both of these determinations and remanded the case for further proceedings. Id. at *6. After remand, the cases were tried together in the Chancery Court of Shelby County, resulting in the judgments which are the subject of this appeal. Ms. Kelly began working for Dollar General in 2. She was hired as a "third key manager" of one of Dollar General's stores, which meant that she ran the store during her shift. She later became assistant manager and then manager at the store. Her responsibilities included operating a cash register, loading and unloading trucks, stocking shelves, managing the schedules of other employees, tabulating sales information, and completing reports. Her back injury occurred in January or February of 21, when she fell while assembling a conveyor that was to be used to unload a truck. When she fell, the conveyor fell on her. Ms. Kelly testified that she was the assistant store manager at the time and reported the incident to the store manager, Annette Ross. Ms. Ross did not testify. Ms. Kelly did not request that Dollar General provide her with medical treatment at that time. On February 21, 21, she, without notice to Dollar General, consulted Dr. Mike Lemonds, who later became her primary care physician. She complained of low back pain and told him she had hurt her back. Dr. Lemonds failed to note and could not recall if she told him "where or when or how." Dr. Lemonds prescribed conservative treatment. She returned to him on several occasions over the following weeks. He ordered a magnetic resonance imaging ("MRI") study, which was performed on March 2, 21, and showed a herniated disc at the L5-S1 level and degenerative changes at other levels of her spine. Ms. Kelly continued to have symptoms, and Dr. Lemonds continued to provide conservative treatment over the next two years. Ms. Kelly's back pain periodically worsened during that time. Beginning in April or May of 21, Ms. Kelly began to experience numbness, tingling, and burning in her hands. She advised Dr. Lemonds of these symptoms on May 21, 21. When the symptoms continued to worsen in the latter part of 22, Dr. Lemonds suggested that a nerve conduction study be performed. This test was positive for bilateral carpal tunnel syndrome. Ms. Kelly continued to work for Dollar General until November 23. At that time, she was terminated for violation of a company policy concerning employee check cashing. Ms. Kelly was referred by her attorney to Dr. Tewfik Rizk, an orthopaedic surgeon, in April 24. Dr. Rizk evaluated her low back pain and diagnosed nerve root irritation at L5-S1 with radiculopathy. In October 24, Dr. Rizk ordered a nerve conduction study of Ms. Kelly's lower extremities. This test confirmed his diagnosis. Based upon the history given to him, Dr. Rizk was of the opinion that the most likely cause of this injury was her fall at work in 21. He assigned a permanent impairment of 12% to the body as a whole. Dr. Rizk testified that Ms. Kelly "should not be involved in any kind of activity which necessitates repetitive back movement such as pushing, -2- ****** Document Outline ****** * Page_1 * Page_2 * Page_3 * Page_4 * Page_5 * Page_6 * Page_7 * Page_8

State of Tennessee v. Starbrough Jones
W2006-02230-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

A Shelby County Criminal Court jury convicted the appellant, Starbrough Jones, of first degree felony murder, especially aggravated robbery, and attempted especially aggravated robbery, and the appellant received sentences of life, twenty-one years, and nine years, respectively. The trial court ordered that the appellant serve the twenty-one-year and nine-year sentences concurrently with each other but consecutively to the life sentence. On appeal, the appellant contends that (1) the trial court erred by allowing unreliable hearsay testimony into evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); (2) the evidence is insufficient to support the convictions; and (3) consecutive sentencing is excessive. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

State of Tennessee v. Mario Lester
W2007-01447-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Mark Ward

The defendant, Mario Lester, was convicted of one count of burglary of a building (Class D felony) and was sentenced to twelve years as a career offender. On appeal, he argues that the evidence was insufficient to support the conviction and that the trial court erred in denying community corrections.  After careful review, we affirm the judgment from the trial court.

State of Tennessee v. Isedore Lamont Parks
W2007-02907-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The defendant, Isedore Lamont Parks, was convicted of simple possession of cocaine, a Class A misdemeanor, and sentenced to eleven months, twenty-nine days in the county jail at seventy-five percent release eligibility, to be served consecutively to a prior sentence. On appeal, he argues that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

Dennis Pylant v. State of Tennessee
M2005-02721-SC-R11-PC
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Robert Burch

We accepted this appeal to determine whether the post-conviction court erred in denying Petitioner Dennis Pylant’s claim of ineffective assistance of counsel at trial. In 2001, a jury convicted Petitioner of the first degree felony murder of two-year-old S.J.D. in the perpetration of aggravated child abuse. The Court of Criminal Appeals affirmed Petitioner’s conviction and this Court denied Petitioner’s application for permission to appeal. Petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel at trial. At the hearing, Petitioner adduced testimony about self-incriminating statements made by the victim’s mother but which trial counsel did not present to the jury at trial. The post-conviction court struck this testimony as hearsay and denied Petitioner’s claim for relief. The Court of Criminal Appeals affirmed the post-conviction court. We hold that the post-conviction court erred in striking the proffered testimony as hearsay. We also hold that, because the post-conviction court made no credibility findings with respect to the proffered witnesses, we are unable to reach the merits of Petitioner’s claim. Accordingly, we reverse the Court of Criminal Appeals’ judgment in this case and remand for a new post-conviction hearing.

Velma Lynn Saunders Manuel v. Davidson Transit
M2007-01580-CVR3-WC
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Chancellor Tom E. Gray

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee, Velma Lynn Saunders Manuel, was injured in an automobile accident which occurred as she was returning to her home from receiving medical treatment for a compensable work injury. She sought benefits for the additional injury. Her employer, Davidson Transit Organization, denied the claim.  The trial court ruled that the additional injury arose from and in the course of the employment, and awarded 28% permanent partial disability to the body as a whole. On appeal, the employer contends that the trial court erred by finding the injury to be compensable. We affirm the judgment.

Jennifer McClain Swan v. Frank Edward Swan
E2007-2265-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

Jennifer McClain Swan (“Mother”) and Frank Edward Swan (“Father”) were divorced in March of 2006 in Knox County Chancery Court (“Chancery Court”). The parties have two minor children born of the marriage (“the Children”). In October of 2006, Mother obtained first an Ex Parte Order of Protection against Father and then a Bridging Ex Parte Order of Protection from the Fourth Circuit Court for Knox County (“Circuit Court”). Over the next few months, Mother filed multiple petitions for contempt alleging that Father had violated the Order of Protection. After a hearing, the Circuit Court entered an order finding and holding, inter alia, that Father had violated the Bridging Order of Protection a total of forty-four times, that Father would serve time in the Knox County Penal Farm, that Mother had a no-contact Order of Protection against Father for ten years, and that Mother would be allowed to relocate outside the state of Tennessee without having to reveal her address to Father. The Circuit Court also entered a modification of the Chancery Court’s Permanent Parenting Plan that, inter alia, named Mother the primary residential parent and provided that Father would have co-parenting time with the Children only upon the recommendation and approval of Father’s psychologist, the Children’s psychologist, the Guardian Ad Litem, and the Court. Father appeals to this Court. We vacate the Permanent Parenting Plan entered by the Circuit Court and affirm the remainder of the Order of Protection.

Universal Outdoor, Inc., et al. v. Tennessee Department of Transportation
M2006-02212-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Richard H. Dinkins

The Tennessee Department of Transportation ordered the removal of a long-existing billboard to permit the expansion of a highway right-of-way. The billboard’s owner removed the sign and reinstalled it on another part of its leasehold, within 30 feet of its original location. The Department refused to renew the permit for the sign or to issue a new permit because its new location did not comply with the requirements of The Billboard Regulation and Control Act of 1972. The owner challenged that decision at an administrative hearing, arguing that it was entitled to maintain the nonconforming billboard at its new location under the “grandfathering” clause of the zoning statute. The administrative law judge disagreed and ordered the billboard’s removal. The chancery court affirmed the decision of the administrative law judge. We affirm the chancery court.

Catherine Smith v. Sally Brittingham Smith and John Michael Charles Smith
M2006-01806-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Carol Soloman

This is an appeal from an order joining a third party in a divorce action. During the husband and wife’s marriage, husband’s mother gave the couple a substantial amount of money. The wife filed for a divorce in circuit court. Soon after, the husband’s mother filed a lawsuit in chancery court against the husband and wife, alleging breach of an agreement to repay the funds and to grant her a security interest in the marital home. Simultaneously, she filed a lien lis  pendens on the marital home. The marital home was sold, and the chancery court transferred the husband’s mother’s lien lis pendens to the proceeds of the sale. The husband allowed a default judgment to be taken against him in his mother’s chancery court lawsuit. Subsequently, the circuit court granted the wife’s motion to join the husband’s mother in the divorce proceedings as a necessary party. Thereafter, the chancery court case was transferred to the circuit court. The circuit court held a trial on the merits; it found no agreement by the wife to repay the monies given to the couple by the husband’s mother, and dismissed her claim against the wife. The husband’s mother was awarded damages against the husband for the full amount of the money loaned, to be paid out of his share of the proceeds from the sale of the marital home. The circuit court’s distribution of the martial estate, however, effectively eliminated his share of the proceeds. The husband’s mother appeals, arguing that she was improperly joined in the divorce action, and that the circuit court did not give proper effect to her lien lis pendens against the proceeds from the sale of the marital home. On appeal, we affirm, finding that the joinder was proper and finding no error in the application of the lien against the husband’s share of the proceeds.

Catherine Smith v. Sally Brittingham Smith and John Michael Charles Smith - Order
M2006-01806-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby

In Re: A.N.F. (d/o/b 10/24/99), a Child Under Eighteen Years of Age
W2007-02122-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Bob G. Gray

This opinion involves two consolidated appeals. The first case involves post-divorce petitions to modify a parenting plan, filed by the husband and the wife, regarding custody of two children. The second case was filed by the wife and a third party, seeking to establish the third party’s parentage of one of the two children. For the following reasons, we affirm the trial court’s decision in the custody case as modified, and we affirm the trial court’s decision in the paternity case.

State of Tennessee v. Ralph Lester Nelson
E2008-00128-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Ralph Lester Nelson, pled guilty to one count of violating a motor vehicle habitual offender order, a Class E felony; one count of driving without a seatbelt, a Class C misdemeanor; and one count of driving without proof of financial responsibility, a Class E misdemeanor. After a sentencing hearing, the trial court sentenced the Defendant as a multiple offender to an effective sentence of three years in the Tennessee Department of Correction (TDOC). On appeal, the Defendant claims that the trial court erred when it did not grant him alternative sentencing. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

State of Tennessee, et al. v. Good Times, Ltd., et al.
E2007-1172-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

The State of Tennessee (“State”) sued Good Times, Ltd. (“Good Times”) 1 and others with regard to real property deeded to the State by Good Times after the State was sued for inverse condemnation by Good Times’ lessee, Pun Wun Chan d/b/a #1 China Buffet (“China Buffet”). The State claimed that it was entitled to indemnity from Good Times in the inverse condemnation action under its warranty deed. The Trial Court consolidated the State’s case against Good Times with the inverse condemnation action and then bifurcated the trial. The inverse condemnation case was tried before a jury and China Buffet was awarded a judgment against the State. The Trial Court then granted summary judgment to Good Times in the State’s case against Good Times and  dismissed the State’s case. The State appeals to this Court. We vacate the grant of summary judgment to Good Times, grant the State summary judgment against Good Times, and remand this case to the Trial Court for a determination of the amount of damages, and for further proceedings as necessary with regard to all other parties and claims.

Vickie Robnett v. Edward H. Tenison, Jr.
M2007-02490-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robbie Beal

The issue is whether a court-ordered easement by necessity for ingress and egress to landlocked property may be terminated on the ground it is no longer necessary because the landlocked owner has an express easement through which that owner has reasonable, although not as desirable, ingress and egress. The trial court denied the petition to terminate the easement by necessity upon a finding it would place an undue burden on the landlocked property owner to have it terminated. We have determined the trial court applied an incorrect legal standard, that of undue burden, to deny the petition to terminate the easement at issue. Easements by necessity are dependent on the necessity that created them; therefore, a way of necessity continues only as long as a necessity for its use continues. The fact that the way of necessity would be the most convenient does not prevent its extinguishment when it ceases to be absolutely necessary. Accordingly, we reverse the decision of the trial court.

Curtis Morris v. Amsouth Bank
W2007-01688-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This appeal involves forged endorsements on a check. The appellant had two checking accounts at the defendant bank. The appellant forged endorsements on a check, deposited the check into his account at the bank, and then removed the proceeds from his bank account. The bank later determined that the endorsements on the check were forged and debited the appellant’s other account in the amount of the fraudulently endorsed check. The appellant filed a lawsuit against the bank, and the bank counterclaimed for the amount of the check on which the appellant forged the endorsements. The bank filed a motion for summary judgment and submitted a statement of undisputed material facts in support of the motion. The appellant did not respond to the bank’s statement of undisputed material facts. The trial court granted summary judgment in favor of the bank, and the appellant appeals. We affirm and remand the case to the trial court for determination of damages against the appellant for a frivolous appeal.

Frederick Bertrand, a citizen and resident of Benton County, Tennessee v. The Regional Medical Center At Memphis, A Tennessee Corporation
W2008-00025-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This appeal arises from an October 2003 medical malpractice action filed against The Regional Medical Center at Memphis (“the Med”) and several physicians. Plaintiff voluntarily nonsuited his action and re-filed it within the one-year period provided by the savings statute codified at Tennessee Code Annotated § 28-1-105. The trial court awarded summary judgment to the Med upon determining Plaintiff could not rely on the savings statute where the General Assembly had amended the Governmental Tort Liability Act (“the GTLA”), bringing the Med within the scope of the GTLA as codified at Tennessee Code Annotated § 29-20-101 (2007 Supp.), et seq. The amendment became effective July 1, 2003. On November 26, 2007, the trial court entered final judgment in favor of the Med pursuant to Tennessee Rule of Civil Procedure 54.02. Plaintiff filed a timely notice of appeal to this Court. We affirm.

Deborah Jenkins et. al. v. Southland Capital Corporation, Southland Equity Corporation, Terry Lynch and Bradford Farms LLC
W2007-01180-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jerry Stokes

This is a consolidated wrongful death and personal injury case. In May 2002, three young boys walking beside the road were struck by a drunken driver in a residential subdivision. Two were killed, the third severely injured. The plaintiffs sued the developers of the subdivision, arguing that the absence of sidewalks in the area where the boys were walking was a cause of the accident. The trial court granted summary judgment in favor of the developers on grounds that the plaintiffs’ lawsuit was time-barred under the four-year statute of repose for improvements to real property, T.C.A. § 28-3-202. We agree with the trial court that the improvements to the real property on which the accident occurred were substantially completed more than four years prior to the filing of the lawsuits under the statutory definition at T.C.A. § 28-3-201(2), and therefore affirm.

Maxwell Medical, Inc., Successor in Interest to Max Well Medical, LLC v. Loren L. Chumley, Commissioner of Revenue, State of Tennessee
M2007-01702-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Chancellor by Interchange Cristi Scott

The Clerk and Master, a substitute Judge, granted defendant summary judgment in this case, and plaintiff appealed. The record reveals that the substitute Judge was not designated in accordance with the statutes and case decisions, and we therefore vacate the summary judgment and remand to the Trial Court.

State of Tennessee vs. Tyson Lee Day - Dissenting
M2006-00989-SC-R11-CD
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Jane W. Wheatcraft

The State of Tennessee filed its Tenn. R. App. P. 11 application in this case to determine whether Tennessee recognizes the “community caretaking” exception to the requirement that police officers have at least reasonable suspicion when they make a traffic stop. I agree with the Court’s conclusion that we cannot address this question because it is beyond the scope of the legal issue certified to this Court in accordance with Tenn. R. Crim. P. 37(b)(2). Rather than dismissing the appeal as being improvidently granted, the Court has decided to determine whether, under the essentially undisputed facts, Officer Jeff Tarkington acted reasonably when he stopped Tyson Lee Day’s automobile on May 16, 2004. The Court has decided that Officer Tarkington did not act reasonably. I cannot concur with this conclusion.