Emmanual Small, et al. v. Shelby County Schools, a/k/a Board Of Education, Shelby County Schools
W2007-00045-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This is a negligence claim brought by a student against a school board pursuant to the Tennessee Governmental Tort Liability Act. The plaintiff, a student at Millington Middle School, began experiencing breathing problems after physical education class. The physical education teacher was unaware of the student’s asthma, or the fact that the student was mentally retarded. The mother came to school and picked up her son, who was later taken to Le Bonheur Children’s Medical Center in Memphis, where he remained for six months. The mother then brought a negligence claim on behalf of her son against the school board. During discovery, the student’s attorney failed to disclose the student’s treating doctor as an expert witness. The school board sought to exclude testimony from the doctor concerning causation of the student’s injuries and the reasonableness and/or necessity of the medical charges. The court allowed the testimony concerning causation and necessity, but excluded testimony related to reasonableness. In its answer, the school board failed to raise the affirmative defense of comparative fault. On the first day of trial, the court granted the school board leave to amend its complaint to include the comparative fault of other individuals, including the student’s mother. After a bench trial, the circuit court entered a judgment in favor of the student in the amount of $3 million dollars, but reduced that award to $130,000 pursuant to the Governmental Tort Liability Act. The student’s attorney then moved for an award of discretionary costs, which the court denied. The school board appeals, alleging that it is immune from suit because its employees were performing a discretionary function. Next, the school board argues that the court erred by allowing the doctor to testify concerning causation and necessity because the student’s attorney failed to disclose the doctor as an expert witness. Finally, the school board argues that the only witness that corroborated the student’s claim was not credible. The student raises the issue of whether the court erred in allowing the school board to amend its answer to include comparative fault, and whether the court erred in refusing to award discretionary costs. For the following reasons, we affirm.

State of Tennessee v. Jeffrey Lee Fields
W2006-01378-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge C. Creed Mcginley

The defendant, Jeffrey Lee Fields, appeals the order declaring him a motor vehicle habitual offender (MVHO) by default judgment. He contends, and the State agrees, that the Rules of Civil Procedure were not followed regarding service of process, notice of hearing, notice of default judgment, notice of entry and service of judgment. Further, he contends there were insufficient convictions to support a judgment declaring him a motor vehicle habitual offender. After review, we conclude that a conviction on appeal is a final conviction for the purpose of determining MVHO status; however, because the proper procedures were not followed in obtaining the judgment declaring the defendant a motor vehicle habitual offender, it should be vacated.

State of Tennessee v. Charles Vantilburg, III
W2006-02475-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee V. Coffee

The defendant, Charles Vantilburg III, was originally convicted of second degree murder in 2002 and sentenced to 20 years’ incarceration. On direct appeal, this court reversed the defendant’s conviction and remanded the case for a new trial on the basis of the trial court’s giving an erroneous definition of the term “knowingly.” See State v. Charles Vantilburg, No. W2002-01480-CCA-R3-CD (Tenn. Crim. App., Jackson, Jan. 13, 2004). After a second trial, the defendant was again convicted of second degree murder, and the trial court imposed a 22-year sentence. In this appeal, the defendant asserts that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting into evidence a “memorandum of understanding” signed by the parties, (3) the trial court erred by permitting the state to play a videotape of the recovery of the victim’s body, (4) the trial court erred by instructing the jury on flight, and (5) the sentence is excessive. The sentence is modified to 20 years; otherwise, the judgment of the trial court is affirmed.

Danny Jones, et al. v. Shelby County Division of Corrections
W2007-00198-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge D'Army Bailey

The Appellant, Shelby County Division of Corrections (“SCDC”), appeals the judgment of the trial court in favor of Appellee inmates. Appellee inmates filed suit against the SCDC, under the Tennessee Governmental Tort Liability Act (“GTLA”), for injuries sustained when a metal ventilation system fell from the ceiling while officers were performing a search of the cell block. The SCDC asserts three points of error: (1) that the SCDC is not a governmental entity, as defined by T.C.A.§ 29-20-102(3)(A) of the GTLA so as to be subject to suit thereunder; (2) that expert testimony was required as to the cause of the system’s collapse; and (3) that the trial court erred in not considering the fault of unknown inmates in manipulating the ventilation system. Finding no error, we affirm.

Ricky Flamingo Brown v. State of Tennessee
M2007-00158-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Ricky Flamingo Brown, was convicted in 1986 of rape of his twelve year old daughter. The trial court sentenced him in abstentia to life in prison after he escaped from jail. After his capture in 1990, he began to serve his sentence. Upon agreement by the State, the Petitioner proceeded with a delayed direct appeal, which this Court dismissed. The Petitioner subsequently filed a number of collateral appeals, all of which were denied by the trial court, with some of those judgments appealed and affirmed in this Court. In 2006, the Petitioner then filed this habeas corpus petition alleging a void sentence. The habeas corpus court denied the petition without a hearing. After a thorough review of the applicable record and law, we affirm the judgment of the habeas court.

State of Tennessee v. Timothy R. Bouton - Dissenting
E2006-02737-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Rebecca J. Stern

The majority, after finding plain error, remands for re-sentencing to conform with the requirements of Blakely v. Washington. I must respectfully dissent.

State of Tennessee v. Timothy R. Bouton
E2006-02737-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Rebecca J. Stern

The Defendant, Timothy R. Bouton, appeals from the sentencing decision of the Hamilton County Criminal Court. The Defendant pled guilty to vehicular homicide and reckless endangerment with a deadly weapon. At a subsequent sentencing hearing, the trial court followed the pre-2005-revision sentencing law and imposed an effective ten-year sentence as a Range I, standard offender in the Department of Correction. In this appeal, the Defendant argues, for the first time, that the United States Supreme Court’s Blakely v. Washington, 542 U.S. 296 (2004), decision precludes enhancement of his vehicular homicide sentence above the presumptive minimum of eight years. The Defendant also argues that the trial court erred by ordering a sentence of total confinement. After a review of the record, we conclude that the trial court did not err in denying the Defendant an alternative sentence. However, we must notice as plain error that the trial court improperly enhanced the Defendant’s sentence by applying factors that were not determined by a jury. Because we cannot determine from the record before us the proper sentence to be imposed, this matter is remanded to the trial court for further resentencing in accordance with this opinion.

Jerry Freeman, et al. v. Lewisburg Housing Authority
M2006-01898-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge F. Lee Russell

The trial court granted summary judgment to the defendant public housing authority, dismissing claims by its former employees for retaliatory discharge in violation of the Tennessee Public Protection Act and for constructive discharge based on a racially hostile work environment in violation of the Tennessee Human Rights Act. Because we find that the employees failed (1) to establish an essential element of a claim for retaliatory discharge or (2) to show that the hostile work environment was racially discriminatory, the judgment of the trial court is affirmed in all respects.

Courtney Perry v. State of Tennessee
W2006-01852-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Otis Higgs, Jr.

The petitioner, Courtney Perry, sought post-conviction relief from his conviction of felony murder and especially aggravated robbery. The Shelby County Criminal Court denied relief after an evidentiary hearing. On appeal, the petitioner argues he received ineffective assistance of counsel because trial counsel failed to raise a proper defense of duress and failed to address why the petitioner was present at the murder scene. We affirm the denial of post-conviction relief.

Dorothy Owens, as Conservator of Mary Francis King, an incapcitated person, et al. v. National Health Corporation, et al.
M2005-01272-SC-R11-CV
Authoring Judge: Justice Janice M. Holder

ORDER GRANTING IN PART AND DENYING IN PART APPELLEES’ PETITION TO REHEAR The appellees, NHC/OP, L.P., National Health Realty, Inc., NHC, Inc., a/k/a NHC, Inc., Tennessee, and National Health Corporation, have filed a petition to rehear the opinion of this Court filed on November 8, 2007. By order of January 4, 2008, appellant, Dorothy Owens, was ordered to file a response to the petition to rehear. Appellant’s response was filed on January 16, 2008. In their petition, the appellees allege that the Court improperly allowed discovery as to the principal’s competence to sign the power of attorney. Upon due consideration, the Court concludes that appellees’ petition to rehear is well-taken as to this issue and should therefore be granted. The petition to rehear is denied as to the remainder of the issues . It appearing to the Court from appellees’ Petition to Rehear and appellant’s response that footnote 4 of its Opinion filed November 8, 2007, should be modified, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the attached Opinion be and the same is hereby substituted for that Opinion filed in this cause on November 8, 2007, without change to this Court’s judgment entered  contemporaneously with the filing of the original Opinion on November 8, 2007, and without the further taxing of costs. PER CURIAM

State of Tennessee v. William Keith Gillum
M2006-02734-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, William Keith Gillum, was charged in count one of the indictment with first degree premeditated murder, and in count two with aggravated assault. Defendant entered a best interest plea of guilty in count one to the lesser included offense of voluntary manslaughter, a Class C felony, and the State dismissed count two of the indictment. Following a sentencing hearing, the trial court sentenced Defendant to seven years. The trial court ordered Defendant to serve three months in the county workhouse, with Defendant placed on probation for the balance of his sentence. On appeal, Defendant challenges the length of his sentence, arguing that the trial court erred in the weight assigned to the one enhancement factor and the three mitigating factors. After a thorough review, we affirm the judgment of the trial court.

Paul Graham Manning v. State of Tennessee
M2007-00374-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Leon C. Burns, Jr.

The Petitioner, Paul Graham Manning, appeals from the judgment of the trial court dismissing his petition for writ of error coram nobis. The trial court dismissed the petition because it was not timely filed and because the petition did not allege newly discovered evidence or make allegations which had not been previously raised or litigated. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Michael Anthony Sales
M2007-00743-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee Russell

The defendant, Michael Anthony Sales, pleaded guilty to two counts of violating an habitual traffic offender order and was sentenced to consecutive terms of five years and six months in the Department of Correction for each offense. On appeal, the petitioner argues that the sentence he received is excessive and contrary to law. We affirm the sentence of the trial court.

State of Tennessee v. Marcus Richards
M2006-02179-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Timothy L. Easter

Defendant pled guilty to misdemeanor possession of cocaine. Prior to his plea, Defendant filed and the trial court heard a suppression motion. The trial court, after the hearing and submission of briefs by the parties, denied the motion. Defendant properly preserved a certified question of law. After a thorough review of the record, we reverse the judgment of the trial court and dismiss the charge against Defendant.

State of Tennessee v. Triston Lee Harris - Dissenting
M2006-01532-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Jim T. Hamilton

I respectfully dissent from the conclusion that probable cause did not exist for the search of the defendant. I would hold that the canine’s positive alert on the defendant’s car provided the authorities with probable cause to search the defendant, the car’s driver.

State of Tennessee v. Triston Lee Harris
M2006-01532-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jim T. Hamilton

The defendant, Triston Lee Harris, appeals a certified question of law following his Lawrence County Circuit Court June 12, 2006 conviction of possession of cocaine with intent to sell, for which he received a six-year Department of Correction sentence. The defendant challenges the circuit court’s denial of his motion to suppress. We hold that although the defendant’s vehicle was subject to a search following a proper canine sweep, the contraband which was found on the defendant’s person should have been suppressed, and we reverse the judgment of the trial court.

Charles G. Summers v. James Fortner, Warden
M2007-01596-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Timothy L. Easter

The petitioner, Charles G. Summers, appeals the summary dismissal of his petition for writ of habeas corpus. He contends that his sentence is illegal and that his judgment is, therefore, void. The petitioner has established that his sentence for escape was imposed in direct contravention of a statute, and is, therefore, illegal and void. Because the petitioner has made a threshold showing that he is entitled to habeas corpus relief, the judgment of the habeas corpus court is reversed, and the case is remanded for the appointment of counsel and an evidentiary hearing to determine the scope of the remedy available to the petitioner.

State of Tennessee v. R. D. S. - Concurring/Dissenting
M2005-00213-SC-R11-JV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge R.E. Lee Davies

I concur in the majority’s analysis of the alleged Miranda violations in Parts I and II (A). I respectfully dissent, however, as to the majority’s conclusions in Part II (B) concerning the motion to suppress the evidence discovered in R.D.S’s truck.

State of Tennessee v. R. D. S. - Concurring/Dissenting Correction
M2005-00213-SC-R11-JV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge R.E. Lee Davies

R.D.S. v. STATE OF TENNESSEE
Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Williamson County
No. II-CR04274 R.E. Lee Davies, Judge
No. M2005-00213-SC-R11-JV - Filed February 6, 2008
JANICE M. HOLDER, J., concurring and dissenting.
I concur in the majority’s analysis of the alleged Miranda violations in Parts I and II (A). I
respectfully dissent, however, as to the majority’s conclusions in Part II (B) concerning the motion
to suppress the evidence discovered in R.D.S’s truck.

State of Tennessee v. R. D. S.
M2005-00213-SC-R11-JV
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge R.E. Lee Davies

This appeal arises out of a finding of delinquency following a denial of a motion to suppress
incriminating statements and seized evidence. The trial court found that the juvenile defendant was not in custody at the time he made his incriminating statements, thus not triggering Miranda requirements; the Court of Appeals agreed. We affirm that part of the Court of Appeals’ holding. However, due to a lack of evidence in the record regarding the law enforcement officer’s role as a school resource officer, we remand the case to the trial court for a new trial to determine whether the law enforcement officer was required to have reasonable suspicion or probable cause to search the juvenile defendant’s truck. Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed in Part, Reversed in Part and Remanded
 

State of Tennessee v. James David Johnson
W2006-01842-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Joseph H. Walker, III

The defendant, James David Johnson, was convicted of premeditated first degree murder; felony first degree murder; aggravated robbery, a Class B felony; and theft over $10,000, a Class C felony. The felony first degree murder conviction was merged with the premeditated first degree murder, and a life sentence was imposed. The defendant was sentenced to eighteen years as a multiple offender for aggravated robbery and to fifteen years as a career offender for theft over $10,000. The theft offense was set as concurrent to the aggravated robbery, but the two, together, were consecutive to the life sentence. This resulted in an effective sentence of life imprisonment plus eighteen years. On appeal, the defendant submits three issues: (1) the evidence was insufficient to support the convictions; (2) the trial court erred in failing to suppress the defendant’s statements; and (3) the trial court erred in admitting hearsay testimony. After review, we affirm the convictions.

Alena Wharton v. Robert Wharton
W2007-01972-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor George R. Ellis

This interlocutory appeal arises from a petition for contempt to enforce a child support order. Although it is undisputed that neither the parents nor the child who is the subject of the support order in this case resided in Crockett County for at least six months prior to the filing of the current petition, the trial court denied Mother’s request under Tennessee Code Annotated § 36-5-3003 to transfer the matter to Dyer County, where the child resides with Father. We reverse, remand, and order the matter transferred.

Bobby A. Davis v. Howard Carlton, Warden
E2007-01279-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lynn W. Brown

The pro se petitioner, Bobby A. Davis, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that his aggravated rape and aggravated robbery convictions are void due to various defects in the indictments. Following our review, we affirm the summary dismissal of the petition.

David Wayne Smart v. State of Tennessee
M2007-00504-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, David Wayne Smart, was convicted in 2001 of first degree premeditated murder and sentenced to life in prison. We affirmed that judgment on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner subsequently filed a petition for post-conviction relief alleging he was denied the effective assistance of counsel. The post-conviction court denied the petition after a hearing. Upon a thorough review of the applicable record and law, we affirm the judgment of the post-conviction court.

Farrell Nesbitt v. Paula Nesbitt
M2007-00176-COA-R3-CV
Authoring Judge: Special Judge Don R. Ash
Trial Court Judge: Judge Muriel J. Robinson

This appeal arises from a dispute regarding the trial court’s award of alimony in futuro to Paula Nesbitt. The trial court granted the parties’ divorce, pursuant to Tennessee Code Annotated § 36-4-129, and ultimately awarded the divorce to the wife because the husband appeared to be at greater fault on the grounds of inappropriate marital conduct. Farrell Nesbitt challenges the trial court’s alimony in futuro award, arguing rehabilitative alimony was the proper award. We affirm the trial court’s ruling. Costs of this appeal shall be assessed to the appellant, Ferrell Nesbitt.