Mary Anne Osesk v. Michael W. Osesek
Husband filed a petition to terminate or modify the amount of alimony in futuro he was obligated to pay, asserting that a post-divorce decrease in his income as well as the fact that Wife secured employment after the divorce constituted substantial and material changes in their circumstances which warranted the elimination of or a reduction in the amount of alimony. The trial court held that, while the loss of Husband’s job was not anticipated, there was nota substantialand materialchange of circumstances because Husband had otherassets from which to continue to make the alimony payments; the court accordingly dismissed the petition and awarded Wife her counsel fees. Husband appeals the dismissal of the petition and award of attorney fees to Wife. We affirm the holding that Husband’s assets are available to satisfy his alimony obligation and the award of attorney fees to Wife. We vacate the dismissal of the petition and remand for further consideration. |
Sumner | Court of Appeals | |
Tony Wayne Wilson v. Bill Jennings et al.
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. In this case, the employee alleged that he was working as a carpenter for the defendant, Wayne Neeley, when he fell from the roof of a house and seriously injured his right ankle. Neeley denied that he was the employer and also denied that he was a subcontractor for the defendant, B & L Construction, the general contractor. The trial court held that the employee was employed by Neeley and that Neeley was a subcontractor of B & L Construction. Because Neeley did not have workers’ compensation insurance, the trial court found B & L Construction liable for workers’ compensations benefits pursuant to Tennessee Code Annotated section 50-6-113 and awarded both temporary total disability benefits and accrued medical expenses, but nothing else. On appeal, the employee contends that the trial court erred by failing to award permanent disability benefits and future medical benefits. In response, the defendant contends that the trial court erred by awarding temporary disability benefits. We hold that the trial court properly awarded temporary total benefits, but erred by failing to award permanent disability benefits and future medical benefits to the employee. The judgment is reversed in part and the case is remanded for further proceedings. |
Bradley | Workers Compensation Panel | |
Stanley A. Gagne v. State Farm Fire and Casualty Company
Plaintiff brought suit against defendant, his insurance company, claiming a burglary loss. Defendant moved for summary judgment on the grounds the statute of limitations had run, but plaintiff argued that under contract law the statute of limitations is six years. The Trial Court enforced the one-year statute of limitations contained in plaintiff's policy of insurance and plaintiff has appealed. On appeal, we affirm the Judgment of the Trial Court which held that the one-year statute of limitations set forth in the policy was applicable to this claim. |
Campbell | Court of Appeals | |
State of Tennessee v. Nickolus L. Johnson
A Sullivan County jury convicted the Defendant, Nickolus L. Johnson, of premeditated first degree murder, see Tenn. Code Ann. § 39-13-202(a)(1) (2006), for the shooting death of Officer Mark Vance of the Bristol Police Department. Following penalty phase proceedings, the jury found the presence of the following two aggravating circumstances: (1) that thedefendant previously had been convicted of one or more felonies whose statutory elements involved the use of violence to the person; and (2) that the defendant knew or should have known when he committed the murder that the victim was a law enforcement officer engaged in the performance of his official duties. See Tenn. Code Ann. § 39-13-204(i)(2), (9) (2006). After finding that these aggravating circumstances outweighed any mitigating factors presented by the defense, the jury sentenced the Defendant to death. See Tenn. Code Ann. § 39-13-204(g)(1) (2006). In this appeal, the Defendant challenges both his conviction and accompanying death sentence. He raises the following issues for our review: (1) whether the evidence presented during the guilt phase was sufficient to support his conviction; (2) whether Tennessee’s death penalty statute violates article I, section 19 of the Tennessee Constitution; (3) whether the exclusion of jurors from the jury based on their views on the death penalty violates article I, sections 6 and 19 of the Tennessee Constitution; (4) whether the trial court erred in admitting into evidence the videotape of the Defendant taken in Officer Graham’s patrol car immediately following the Defendant’s arrest; (5) whether the trial court erred in failing to require defense counsel to present mental health mitigation evidence despite the Defendant’s objection to the presentation of such evidence; (6) whether individual and cumulative instances of prosecutorial misconduct during closing argument at the penalty phase denied the Defendant his right to a fair trial and should have resulted in the trial court declaring a mistrial; (7) whether the trial court erred in denying defense counsel’s requests for special jury instructions during the penalty phase in response to the prosecutor’s assertion during closing that the Defendant had failed to express remorse; (8) whether the trial court erred in denying the Defendant’s oral motion for a change of venue based on the effect pretrial publicity in the case had on potential jurors; (9) whether the trial court erred in denying defense counsel’s request for authorization of funds with which to hire an expert to support the claim that pretrial publicity in the case required a change of venue in order to protect the Defendant’s right to a fair trial; and (10) whether the trial court erred in denying defense counsel’s request for additional peremptory challenges during jury selection. Following our review of the record, and our mandatory review of the sentence, see Tenn. Code Ann. § 39-13-206(c)(1) (2006), we affirm the judgments including the sentence of death. |
Sullivan | Court of Criminal Appeals | |
State of Tennessee v. James Leroy Poston
The Defendant-Appellant, James Leroy Poston, was indicted by the Cumberland County Grand Jury for one count of second degree murder. Poston subsequently entered a guilty plea to reckless homicide in the Cumberland County Criminal Court. Pursuant to his plea agreement, Poston received a sentence of two years as a Range I, standard offender, with the manner of service to be determined by the trial court. At the sentencing hearing, the trial court imposed a sentence of confinement in the Tennessee Department of Correction. On appeal, Poston argues that the trial court erred in denying his request for an alternative sentence. Upon review, we reverse the judgment of the trial court and remand for entry of a judgment sentencing Poston to serve his two-year sentence on supervised probation. |
Cumberland | Court of Criminal Appeals | |
State of Tennessee v. Jimmy Lee Heard
The Defendant, Jimmy Lee Heard, was convicted of criminal conspiracy to commit aggravated robbery, a Class D felony; aggravated robbery, a Class B felony; and evading arrest, a Class D felony. He pleaded guilty to attempted second degree murder. The trial court sentenced him as a Range II, multiple offender to an effective sentence of twenty-nine years in the Tennessee Department of Correction. On appeal, he argues that the trial court erred by denying his motion for recusal and by imposing consecutive sentences. He further contends that the evidence was insufficient to support his conviction for conspiracy to commit aggravated robbery. Following our review, we affirm the judgments of the trial court. |
Rutherford | Court of Criminal Appeals | |
James Garry et al. v. Tennessee Gas Transmission Company et al.
In this easement boundary dispute, property owners seek damages against a gas company for trespassing and nuisance. The gas company possesses three separate utility easements for natural gas pipelines on the property at issue, which easements include the right to perform maintenance and other work on the pipelines. When the gas company undertook major repairs to the pipelines in 2006, the property owners filed this action, alleging the gas company exceeded the boundaries of the utility easements and trespassed. The trial court granted summary judgment to the gas company based on the affidavit of an employee of the gas company. We find the affidavit fails to establish the employee’s personal knowledge of material facts stated therein, specifically the boundaries of each easement; accordingly, we reverse and remand. |
Cheatham | Court of Appeals | |
In Re: Zachary G., et al
This is a termination of parental rights case in which the Tennessee Department of Children’s Services (“DCS”) removed Zachary G. and Kaleb M. (collectively the “Children”) from Heather M. (“Mother”) and Elmus G. (“Father”). The Children were adjudicated 1 dependent and neglected and placed with Rhonda S. (“Grandmother”). Years later, the Children were placed in foster care and two new permanency plans were entered. DCS then petitioned to terminate Mother’s parental rights. Following a hearing, the court terminated Mother’s parental rights, finding that Mother had abandoned the Children, that Mother had failed to substantially comply with the permanency plans, and that termination of Mother’s parental rights was in the best interest of the Children. Mother appeals. We affirm the decision of the trial court. |
Campbell | Court of Appeals | |
Sandra K. Williams v. Ronnie Lloyd Williams
This appeal concerns the post-divorce modification of alimony in futuro. Ronnie Lloyd Williams (“Husband”) sought a reduction in his alimony obligation owed to Sandra K. Williams (“Wife”). Husband alleged that Wife’s income had increased since the divorce, resulting in an unanticipated substantial and material change in circumstances. Following a hearing, the trial court reduced Husband’s alimony obligation from $750 per month to $500 per month. Wife appeals. We reverse the decision of the trial court, vacate the trial court’s judgment and terminate Husband’s alimony obligation. |
Claiborne | Court of Appeals | |
Jeffrey Wayne Buckner v. Melissa Brunson (Buckner)
The parties’ final decree of divorce provided that they would equitably share in the sale proceeds of a business that they had sold. After a few months, the wife filed a petition for contempt and/or additional relief, alleging that the husband was not making the payments in compliance with the final decree. The trial court found that husband was in contempt to the extent that he failed to make payment in full on one occasion, but it declined to find the husband in contempt for most of the matters asserted. The wife filed a motion to alter or amend, which was denied. The wife appeals. We affirm. |
Dyer | Court of Appeals | |
Vivian Kennard v. Arthur M. Townsend, IV, M.D., et al.
This case is before us upon mandate from the Tennessee Supreme Court for reconsideration of our previous opinion, Kennard v. Townsend, No. W2010–00461–COA–R3C, 2011 WL 1434625 (Tenn. Ct. App. April 14, 2011), in light of the Tennessee Supreme Court's decision in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In our previous review of this medical malpractice case, we upheld the trial court’s exclusion of Appellant’s medical expert under the locality rule, and further affirmed the trial court’s grant of summary judgment against the Appellant. Because the qualifications of Appellant’s expert were not considered in light of Shipley, and because the admission of expert testimony is a matter of discretion in the trial court, we vacate the orders excluding the testimony of the Appellant’s expert and the grant of summary judgment, and remand for reconsideration in light of the Shipley decision. Vacated and remanded. |
Shelby | Court of Appeals | |
State of Tennessee v. William Darelle Smith (concurring)
I concur in Judge Wedemeyer’s opinion. I write separately to express my concern of how the trial court dealt with the issue of a juror’s communication with the witness Dr. Adele Lewis. The appellate record indicates that when the fact of the communication was made known to the trial court, there was no discussion of the matter on the record. Any instructions to the jury concerning appropriate juror conduct during the trial are not included in the transcripts, although the jury voir dire was added in a supplement to the record. Direct communication by a juror to a witness during the course of a trial in the nature of the “Facebook” message in this case could never be considered appropriate. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. William Darelle Smith
A Davidson County jury convicted the Defendant, William Darelle Smith, of first degree premeditated murder, and the trial court sentenced the Defendant to serve a life sentence in the Tennessee Department of Correction. The Defendant appeals his conviction, claiming the following: (1) the trial court erred when it allowed the Defendant’s girlfriend to testify about threatening statements the Defendant made two or three days before the victim’s murder; (2) the evidence is insufficient to support his conviction; and (3) the trial court erred when it failed to inquire into possible juror misconduct. After a thorough review of the record and applicable law, we affirm the trial court’s judgment. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. William Darelle Smith - Concur
I concur in Judge Wedemeyer’s opinion. I write separately to express my concern of how the trial court dealt with the issue of a juror’s communication with the witness Dr. Adele Lewis. The appellate record indicates that when the fact of the communication was made known to the trial court, there was no discussion of the matter on the record. Any instructions to the jury concerning appropriate juror conduct during the trial are not included in the transcripts, although the jury voir dire was added in a supplement to the record. Direct communication by a juror to a witness during the course of a trial in the nature of the “Facebook” message in this case could never be considered appropriate. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. William Darelle Smith
A Davidson County jury convicted the Defendant, William Darelle Smith, of first degree premeditated murder, and the trial court sentenced the Defendant to serve a life sentence in the Tennessee Department of Correction. The Defendant appeals his conviction, claiming the following: (1) the trial court erred when it allowed the Defendant’s girlfriend to testify about threatening statements the Defendant made two or three days before the victim’s murder; (2) the evidence is insufficient to support his conviction; and (3) the trial court erred when it failed to inquire into possible juror misconduct. After a thorough review of the record and applicable law, we affirm the trial court’s judgment. |
Davidson | Court of Criminal Appeals | |
James K. Robbins v. David D. Mills, Warden & State of Tennessee
The Petitioner, James K. Robbins, appeals as of right from the Morgan County Criminal Court’s dismissal of his fourth petition for writ of habeas corpus. He contends that the judgment of conviction is void because he was sentenced illegally. Upon review, we affirm the habeas corpus court’s judgment. |
Morgan | Court of Criminal Appeals | |
State of Tennessee v. Herman S. Hester, Jr. (aka "Sonny")
The Defendant, Herman S. Hester, Jr., pled guilty to four counts of selling over 0.5 grams of cocaine. The trial court imposed the ten-year effective sentenced agreed to in the plea agreement and granted the Defendant’s request for an alterative sentence, placing him in the Community Alternatives to Prison Program (“CAPP”). The Defendant’s alternative sentence supervisor filed a warrant alleging that he had violated the terms of the program. After a hearing, the trial court returned the Defendant to CAPP. The Defendant’s supervisor filed a second warrant, and, after a hearing, the trial court revoked the Defendant’s alternative sentence and ordered him to serve the balance of his sentence in the Tennessee Department of Correction. On appeal, the Defendant contends the trial court erred when it revoked his probation. After reviewing the record, we affirm the trial court’s judgment. |
Knox | Court of Criminal Appeals | |
City of Knoxville v. Boyce McCall
This is a case involving a prescriptive easement The City of Knoxville filed a petition for an injunction against the Appellant, alleging that he was obstructing a public alley that was created by a valid prescriptive easement on his property. The Appellant answered, denying that the City of Knoxville had any right to use his property as an alley and asserting a counterclaim for damages and attorney fees. The trial court found a valid prescriptive easement, and enjoined the Appellant from blocking the alley. The Appellant appeals. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction. |
Knox | Court of Appeals | |
Ronald and Sherry Windrow v. Middle Tennessee Electric Membership Corporation
This appeal involves a nuisance claim. The plaintiff landowners filed a nuisance action against the defendant electrical cooperative, alleging that the cooperative’s electrical substation, built near the plaintiffs’ home, constituted a nuisance. The electrical cooperative filed a motion to dismiss, alleging that the landowners’ claim was in actuality a claim for inverse condemnation that was time-barred, and that they were precluded from asserting a tort claim for nuisance. The trial court granted the motion, and the plaintiff landowners now appeal. We reverse. |
Williamson | Court of Appeals | |
Jim Hammond, Sheriff of Hamilton County, et al v. Chris Harvey, et al
Six sergeants (collectively “the Sergeants”) employed by Jim Hammond, the Sheriff of Hamilton County (“the Sheriff”), filed a grievance with the Hamilton County Sheriff’s Office Civil Service Board (“the Board”) complaining that there is an unlawful disparity in pay among the 19 sergeants on the force. The Board found a disparity and ordered the Sheriff “to equalize their pay and if all [s]ergeants do the same job that they should be paid the same if there is no written criteria to establish standards.” The Sheriff appealed 1 to the trial court by petition for a writ of certiorari. The court (1) held that the Board was without authority to order the Sheriff to equalize the pay of the 19 sergeants and (2) declared the Board’s decision “null and void.” The Sergeants appeal. We modify the trial court’s judgment and remand to the Board with instructions. |
Hamilton | Court of Appeals | |
State of Tennessee v. L.V. Williamson
The defendant, L.V. Williamson, appeals the judgment of the trial court revoking his probation and ordering that he serve the balance of his sentence in confinement, arguing that his youth and candor before the court should have resulted in less than the full revocation of his probation. Following our review, we affirm the judgment of the trial court. |
Madison | Court of Criminal Appeals | |
In Re Estate of Carl Robin Geary, Sr.
This appeal presents the issue of whether a widow who signed a prenuptial agreement is entitled to an elective share of her husband’s estate. The evidence does not preponderate against the trial court’s finding that the widow signed the prenuptial agreement knowledgeably. Given the validity of the prenuptial agreement, we affirm the trial court’s decision denying the widow an elective share. |
Grundy | Court of Appeals | |
David Hearing v. David Mills, Warden
The petitioner, David Hearing, filed a petition for a writ of habeas corpus, seeking relief from his two convictions of felony murder and the accompanying life sentences. The habeas corpus court denied relief, and the petitioner appeals. Upon review, we affirm the judgment of the habeas corpus court. |
Lake | Court of Criminal Appeals | |
Roger Dale Harris v. David Sexton, Warden & State of Tennessee
The Petitioner, Roger Dale Harris, appeals the Johnson County Criminal Court’s denial of his petition for habeas corpus relief from his 1991 conviction for first degree murder and resulting sentence of life imprisonment. He contends that the conviction is void because of a defective indictment and that the trial judge should have recused himself. The State has moved this court to affirm the trial court’s denial of relief by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The State’s motion for a memorandum opinion is granted, and the judgment of the trial court is affirmed. |
Johnson | Court of Criminal Appeals | |
Ronkeivius Williamson v. State of Tennessee
Ronkeivius Williamson (“the Petitioner”) filed for post-conviction relief from his conviction of second degree murder, and the resulting sentence of twenty-five years, on the grounds that he received ineffective assistance of counsel in conjunction with his guilty plea. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court. |
Davidson | Court of Criminal Appeals |