Thomas Frazier, et al v. Walter Jerry Mitchell, et al
M2009-00010-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert E. Corlew, III

One of many heirs to certain property in Rutherford County opposed the partition by sale of the property. The property was sold and the proceeds distributed. The heir appealed. Due to the lack of a transcript or a statement of the evidence, we affirm the trial court.

Sandra Peterson v. Robert L. Peterson
M2008-00631-COA-R3-CV
Authoring Judge: Judge Holly M. Kriby
Trial Court Judge: Judge John H. Gasaway, III

This is a post-divorce petition for contempt. In the divorce decree, the mother was designated the primary residential parent of the three children; the father had standard alternate parenting time and was ordered to pay child support. After the divorce decree was entered, however, the parties and the children continued to cohabit for about five years. During this period of cohabitation, the father did not pay the mother the court-ordered child support, but instead provided necessities for the family. When the father moved out of the home, he began to pay some child support but did not pay the full amount due under the divorce decree...

Howard Keith Sallee v. State of Tennessee
W2008-01935-CCA-R3-PC
Authoring Judge: Judge JerryL. Smith
Trial Court Judge: judge William B. Acree, Jr.

The Weakley County Grand Jury indicted Petitioner, Howard Keith Sallee, for one count of fraudulently obtaining a controlled substance. Petitioner pled guilty to the offense as charged. The trial court sentenced Petitioner to ten years as a Range III, persistent offender. Petitioner filed a petition for post-conviction relief in which he alleged that his guilty plea was not entered voluntarily, knowingly, and intelligently because he attempted to commit suicide a few days before entering his guilty plea. He also alleged that his trial counsel was ineffective for failing to order a mental evaluation. The post-conviction court held an evidentiary hearing. Following the hearing, the postconviction court concluded that Petitioner had been unable to prove his assertions. After a thorough review of the record, we conclude that the evidence does not preponderate against the findings of the post-conviction court. Therefore, we affirm the denial of Petitioner’s petition for post-conviction relief.

Gena Maglio Chiozza v. Christopher Alexander Chiozza
W2008-02415-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This case arises from a post-divorce motion to modify child support to include payment of the minor children’s private school tuition. Because Appellant/Father’s brief fails to comport with Tenn. R. App. P. 27 and Rule 6 of the Court of Appeals, and because Appellant/Father has failed to comply with this Court’s order to supplement the appellate record with necessary documents, we dismiss the appeal. Mother/Appellee has requested attorney’s fees accrued in defense of this appeal. Pursuant to Tenn. Code Ann. § 27-1-122, we exercise our discretion and award Ms. Chiozza her fees, and remand for the determination of the amount of those fees. Dismissed and remanded.

Oliver J. Higgins v. State of Tennessee
W2008-02693-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge C. Creed Mcginley

A Hardin County jury convicted Petitioner of several drug-related crimes. Petitioner unsuccessfully appealed these convictions. State v. Oliver Higgins, Jr., No. 5, 1991 WL 153021, (Tenn. Crim. App., at Jackson, Aug. 14, 1991), perm. app. denied, (Tenn. Dec. 30, 1991). These convictions were later used to enhance his sentence in the Federal courts. Petitioner filed a petition for postconviction relief to attack these convictions. The post-conviction court treated the petition as a motion to reopen a prior petition for post-conviction relief and dismissed the petition. On appeal, Petitioner argues that the post-conviction court erred in dismissing his petition. We conclude that the appeal is not properly before this Court because Petitioner is required by statute to file an application for permission to appeal as opposed to a notice of appeal as filed. Therefore, we dismiss this appeal.

Norman B. Whitton v. M. Josiah Hoover, III
E2008-01769-COA-R3-CV
Authoring Judge: Judge Herschel P. Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

Plaintiff sued defendant, his attorney, in Sessions Court to recover an attorney fee in the amount of $1,000.00 paid to defendant for legal representation. His theories for recovery were for malpractice and breach of contract. The Sessions Judge entered a Judgment for plaintiff and defendant appealed to Circuit Court. The Circuit Court found that the contract which provided for a fee for certain legal services in the amount of $1,000.00 was unconscionable and entered Judgment for plaintiff for $1,000.00 plus other expenses. Defendant appealed to this Court. We hold on the evidence before us that the contract entered was not unconscionable, but upon the facts and law the amount of the fee was not reasonable and we reduce the fee to $500.00 and Judgment will be entered in favor of plaintiff for $500.00 upon remand.

State of Tennessee v. Jeremy Garrett
W2007-02700-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Otis Higgs, Jr.

In two separate indictments, the defendant, Jeremy Garrett, was charged with aggravated robbery, a Class B felony; first degree felony murder; and especially aggravated robbery, a Class A felony. The trial court subsequently granted the State’s motion to consolidate the two indictments without conducting a hearing, and, following a jury trial, the defendant was convicted as charged. He was subsequently sentenced to concurrent sentences of eight years, life, and fifteen years for the respective convictions. On appeal, the defendant raises two issues for our review: (1) whether the trial court erred in granting the State’s motion to consolidate the two indictments without conducting a hearing; and (2) whether the evidence is sufficient to support the conviction for first degree felony murder. Following review of the record, we conclude that, although the trial court did err in failing to conduct a hearing on the motion to consolidate, the error was harmless. Further, we conclude that the evidence presented was sufficient to support the conviction. Accordingly, the judgments of conviction are affirmed.

Lana Walton Luster v. Kenneth Walton
W2008-02167-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This is a post-divorce child support modification case. The trial court relied upon the parties’ private agreement to modify child support, but failed to determine if the amount agreed to be paid complied with the Tennessee Child Support Guidelines. Vacated and remanded.

Robert Wayne McClanahan v. State of Tennessee
W2008-02658-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Clayburn L. Peeples

The petitioner, Robert Wayne McClanahan, appeals the denial of his petition for habeas corpus relief. He entered guilty pleas to three charges: burglary of an automobile, a Class E felony, and two counts of burglary of a building other than a habitation, both Class D felonies. He was sentenced as a Range I, standard offender to one year for the Class E felony in case number 3691, and to two years in case number 3693 for the Class D felony. He was sentenced as a Range II, multiple offender to six years for the Class D felony in case number 3795. These sentences were to run consecutively for an effective sentence of nine years. The petitioner claims he is on a suspended sentence and is being held improperly. We conclude that the judgments from which he appeals neither are void nor has his sentence expired. The record reveals that the petitioner is entitled to a hearing on whether he violated the provisions of drug court, thereby violating his conditions of probation. The judgment dismissing the petition for habeas corpus relief is affirmed, but we remand to the trial court for a hearing on the petitioner’s violation of probation in case number 3795.

Tammie Haake v. Saturn Corporation
M2008-02476-WC-R3-WC
Authoring Judge: Special Judge Donald P. Harris
Trial Court Judge: Chancellor Jeffrey S. Bivins

In this workers’ compensation case, the employee, Tammie Haake, sustained compensable injuries which required her to have surgery on both wrists. After the first procedure, she was able to return to work, although with modified duties. While she was temporarily disabled from the second surgery, her employer, Saturn Corporation, offered its workers an early retirement incentive program. She accepted the offer, and, as a result, did not return to work. The trial court found that her retirement was reasonably related to her work injuries, and therefore did not apply the “cap” of one and one-half times impairment contained in Tennessee Code Annotated section 50-6-241(d)(1)(A) Employer has appealed from that decision. We affirm the judgment. 1

State of Tennessee v. Jairo Jesus Canales Garcia
M2007-01673-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert G. Crigler

The defendant, Jairo Jesus Canales Garcia, was convicted of first degree (premeditated) murder; first degree (felony) murder, burglary, a Class D felony; attempted especially aggravated robbery, a Class B felony; and theft of property, a Class D felony. He received an effective sentence of life plus twenty years. On appeal, he argues that: the evidence was insufficient to support his convictions; the jury was selected improperly; and the trial court erred in allowing certain testimony. After careful review, we affirm the judgments from the trial court.

State of Tennessee v. Ronnie Cortez Akins
M2007-01620-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte D. Watkins

The defendant, Ronnie Cortez Akins, was convicted of first degree felony murder, a Class A felony; criminally negligent homicide, a Class E felony; and especially aggravated robbery, a Class A felony. He was sentenced as a Range I, violent offender to life in the Tennessee Department of Correction for the murder conviction and to twenty years on the robbery conviction, with the sentences to be served concurrently. On appeal, the defendant asserts that the evidence was insufficient to support his convictions and that the trial court erred in denying his motions to suppress a gun found during a protective sweep of his room and his statement to the authorities. After careful review, we affirm the convictions from the trial court.

John Biaselli v. State of Tennessee
M2008-02335-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Robert Crigler

The petitioner, John Biaselli, pleaded guilty to one count of possession of a Schedule II controlled substance for resale and one count of possession of a Schedule II controlled substance for delivery, both Class B felonies. The trial court merged the two counts and sentenced the petitioner to eleven years in the Tennessee Department of Correction at thirty percent. The petitioner appealed his sentence to this court, which affirmed the trial court. The petitioner now appeals the judgment of the Bedford County Circuit Court denying post-conviction relief. The petitioner asserts that he

Mario Pisani v. State of Tennessee
M2008-02206-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Don R. Ash

A jury convicted the petitioner, Mario Pisani, of seven counts of rape of a child, seven counts of rape, eight counts of sexual battery by an authority figure, seven counts of aggravated sexual battery, and seven counts of incest. The trial court sentenced him to forty-two years in the Tennessee Department of Correction. On direct appeal, this court upheld the convictions. The petitioner now appeals the judgment of the Rutherford County Circuit Court denying post-conviction relief and asserts that he received ineffective assistance of counsel. Specifically, the petitioner argues that trial counsel was ineffective in failing to impeach the victim with a prior inconsistent statement. After review, we affirm the judgment denying post-conviction relief.

State of Tennessee v. James Ray Boles
W2008-02659-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph H. Walker, III

The appellant entered pleas of nolo contendere to two counts of statutory rape by an authority figure, and he pled guilty to one count of statutory rape by an authority figure. The trial court imposed a sentence of three years for each conviction and ordered that two of the sentences be served consecutively for a total effective sentence of six years. On appeal, the appellant challenges the trial court’s imposition of consecutive sentencing. Upon review, we affirm the judgments of the trial court.

Joe Henry Moore v. State of Tennessee
W2008-02699-COA-R3-CV
Authoring Judge: Judge David R. Farmer

This case arises out of a prisoner’s claims for medical malpractice, negligence, and violation of his right to be free from cruel and unusual punishment under the state and federal constitutions. The claims commission, in two separate orders, wholly resolved the prisoner’s claims in favor of the State of Tennessee. Because the prisoner has not argued or otherwise provided any basis for this Court to determine the alleged errors in the judgment of the claims commission, we affirm.

Stephen George Beem v. Joan Nan Gallina Beem
W2009-00800-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves a motion to set aside a marital dissolution agreement. After a long marriage, the parties filed cross-petitions for divorce. After mediation, they entered into a marital dissolution agreement settling division of the considerable martial estate. The parties presented the MDA to the trial court, and it was approved and incorporated into the final decree of divorce. Several weeks later, the husband filed this pro se petition to have the MDA set aside, claiming that, at the time it was signed, he was not mentally competent to enter in to such an agreement. The husband’s motion was denied, and the wife was awarded attorney fees pursuant to the terms of the MDA. The husband now appeals. We affirm. We hold that the evidence supports the factual finding below that the husband was mentally capable of understanding the consequences of the MDA, and we find no abuse of its discretion in the trial court’s denial of the husband’s motion to set it aside. We also affirm the award of attorney fees to the wife, and award attorney fees for this appeal.

Laranda Conner v. Robert King, II
W2009-00511-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Christy R. Little

The only issue on appeal is whether the trial court erred in changing the minor child’s surname. Finding no error, we affirm.

Jonathan Parker v. Henderson County, Tennessee, et al.
W2009-00975-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donald P. Harris

The plaintiff/appellee, Jonathan Parker (“Mr. Parker”), was shot once in the right shoulder by Officer David Stanhope (“Ofc. Stanhope”) of the Lexington Police Department during the execution of a search warrant at Mr. Parker’s residence. The trial court held the City of Lexington (“the City”) liable for the injury that Mr. Parker suffered. The court determined that Sergeant Jeff Middleton (“Sgt. Middleton”) was negligent in failing to properly supervise Ofc. Stanhope during the operation and that Ofc. Stanhope negligently created the dangerous situation leading to the use of deadly force. The court awarded $40,000 in damages to Mr. Parker, which accounted for his fault in failing to immediately respond to police commands. We affirm.

Donny Ray Thompson v. City of Lawrenceburg, et al.
M2008-02662-WC-R3-WC
Authoring Judge: Senior Judge Allen W. Wallace
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 § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found Employee to be permanently and totally disabled as a result of a compensable injury. It apportioned benefits 70% to Employer and 30% to the Second Injury Fund. Employer appealed. Employer and Employee then reached an agreement to compromise Employer’s portion of the claim for a lump sum payment. The appeal was voluntarily dismissed. Employee thereafter filed a motion requesting that the Fund  immediately commence paying its share of the judgment. The trial court granted that
motion. The Fund has appealed, contending that the order violates several provisions of the workers’ compensation law. We agree, reverse the order at issue, and remand the case to the trial court for further proceedings.

Nathan E. Steppach, Jr. v. William H. Thomas, Jr., City of Memphis, et al.
W2008-02549-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Kenny W. Armstrong

This case arises from the grant of a writ of certiorari by the Shelby County Chancery Court. Upon review of the Memphis City Council’s record, the court affirmed the Council’s action in approving a planned development and companion street closure. We conclude that the order appealed lacks finality due to the failure to comply with Tenn. R. Civ. P. 58. Consequently, we dismiss this appeal for lack of subject-matter jurisdiction.

Tammy Teal Bennett v. David Ross Bennett
M2009-00147-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Jeffrey S. Bivins

Wife appeals claiming trial court erred in finding her agreement to a Marital Dissolution Agreement and Parenting Plan was valid and not obtained under duress. Finding that wife later adopted the disputed Marital Dissolution Agreement and Parenting Plan with advice of counsel and without any allegation of duress, we find that wife waived her objection and, alternatively, that any dispute as to the validity of her agreement had been rendered moot by her later adoption of it.

Tony Samuel v. State of Tennessee
W2008-02346-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph H. Walker, III

A Lauderdale County jury found the petitioner guilty of aggravated rape and aggravated kidnapping. The trial court sentenced the petitioner to an effective thirty-five year sentence in the Tennessee Department of Correction. The petitioner appealed his convictions to this court, which affirmed the convictions and sentence. The petitioner then sought post-conviction relief on the theory that he received ineffective assistance of counsel during the trial, inter alia. The post-conviction court dismissed the petition. The petitioner now appeals. Following our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee Department of Children's Services v. V.L.S.C. and M.M.S.
M2009-00890-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna Scott Davenport

Father challenges the trial court’s termination of his parental rights on the grounds of abandonment by failing to visit and by engaging in conduct exhibiting a wanton disregard for the child’s welfare. Finding that the trial court’s decision is supported by clear and convincing evidence, the judgment terminating Father’s parental rights is affirmed.

State of Tennessee v. David Wayne Gray
M2008-02843-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jane W. Wheatcraft

The post-conviction court dismissed the petition, finding that the petition was time barred and that no due process consideration existed to toll the statute of limitations. After a thorough review of the record and the applicable law, we affirm the post-conviction court’s dismissal of the petition as time barred.