State of Tennessee v. George Lebron Johnson
E2004-00834-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Douglas A. Meyer

The Hamilton County Criminal Court Grand Jury indicted the defendant, George Lebron Johnson, on two counts of attempt to commit first degree murder. He entered into an agreement with the state to plead guilty to two counts of aggravated assault in exchange for concurrent six-year, Range I sentences. The agreement provided that the trial court would determine the manner of service of the effective six-year sentence. On January 9, 2004, the trial court ordered him to serve the effective sentence in confinement. On February 6, 2004, the defendant moved the court to allow him to withdraw his guilty pleas and for a new trial on the issue of the manner of service of his sentences. The trial court denied both motions, and the defendant has appealed. We affirm the judgments of the trial court.

Jesse David Teasley v. State of Tennessee
E2003-03040-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mary Beth Leibowitz

The petitioner, Jesse David Teasley, appeals the trial court's denial of his motion to withdraw his guilty plea, request for writ of error coram nobis, and petition for post-conviction relief. The state has filed a motion requesting that this Court affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The trial court properly denied relief as the pleadings were untimely filed and without merit. Accordingly, the judgment of the trial court is affirmed.

Preston U. Pendergrass v. Kevin Myers, Warden
M2004-00463-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jim T. Hamilton

The petitioner, Preston U. Pendergrass, appeals the summary dismissal of his petition for writ of habeas corpus, arguing that the indictment, which charged him with two counts of attempted first degree murder, failed to state the facts constituting an offense, thereby depriving the convicting court of jurisdiction and rendering his judgments void. The petitioner further argues that the court erred by not appointing appellate counsel as requested. Following our review, we affirm the judgment of the trial court dismissing the petition for writ of habeas corpus.

In Re F.R.R., III
M2004-02208-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Alfred L. Nations

This appeal involves the termination of a biological father’s rights to his non-marital child. When the child was almost five years old, his mother and her husband filed a petition in the Williamson County Juvenile Court seeking to terminate the biological father’s parental rights and to adopt the child. Following a bench trial, the juvenile court determined that the biological father had abandoned the child by willfully failing to visit him and that terminating the biological father’s parental rights would be in the child’s best interests. Accordingly, the court terminated the biological father’s parental rights and approved the adoption. The biological father has appealed.  We have determined that the record contains clear and convincing evidence that the biological father abandoned the child and that terminating the father’s parental rights would be in the child’s best interests.

State of Tennessee v. Jerry Glen Yates
W2004-01805-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge: Judge William B. Acree

The Appellant, Jerry Yates, appeals the denial by the trial court of a motion to suppress all evidence in a prosecution for driving under the influence, alleging an illegal warrantless misdemeanor arrest because he left the scene of the accident. We affirm the trial court’s denial of the motion.

Bernadette Benson v. Nathan Berryman, et al.
W2004-00489-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge James F. Russell

This appeal arises out of an action by Appellant for a claim of negligence. After the close of
Appellant’s proof, Appellee moved for involuntary dismissal based on the lack of evidence
concerning the actions of the emergency vehicle involved in the automobile accident. The trial court granted the motion on this basis, and Appellant now seeks review by this Court. We affirm.
 

State of Tennessee v. Annette Reynolds
M2003-02991-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Robert L. Jones

The defendant, Annette Reynolds, was convicted of facilitation of possession of cocaine for resale, a Class C felony, and possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced the defendant as a career offender to concurrent sentences of fifteen years and eleven months, twenty-nine days, respectively. In this appeal of right, the defendant challenges the sufficiency of the evidence and contends that there was prosecutorial misconduct during closing argument. She also claims that the trial court made several errors: by denying discovery regarding the identity of the confidential informant whose information led to the search warrant for her residence; by denying her motion to suppress the evidence seized during the search; by admitting the presentence report at sentencing; and by sentencing her as a career offender. The judgments of the trial court are affirmed.

Union County Education Association v. Union County Board of Education and Dr. James Pratt, Superintendent of the Union Cty Schools
E2004-00820-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Billy Joe White

We dismiss this appeal from a granting of summary judgment because the appeal was not from a final judgment and the issues are moot.

Stevie W. Caldwell v. Virginia Lewis, Warden
E2004-00772-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The petitioner, Stevie W. Caldwell, was convicted in 1995 in the White County Criminal Court of first degree felony murder, aggravated arson, and conspiracy to commit arson against personal property, for which he was sentenced, respectively, to life, nineteen years, and six months, to be served concurrently. In a pro se petition for writ of habeas corpus, he claimed that the indictment was defective, thereby depriving the trial court of subject matter jurisdiction. The trial court dismissed the petition, and this timely appeal followed. After review, we affirm the dismissal.

Richard D. Vatt, et al. v. A.L. James d/b/a A.L. James Construction Company
E2004-00785-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Jacqueline E. Schulten

This case involves the alleged breach of a real estate sales contract. The plaintiffs argue that the defendant home builder is in breach of contract because he refused to sell them the house contracted for unless, in addition to the price stated in the contract, they paid him for costs attributed to changes in construction. None of these changes were implemented pursuant to written change orders as required under the contract. The builder countersued arguing that the changes for which he sought payment were agreed to orally after the contract was executed, that the written change order requirement of the contract was waived, and that the plaintiffs breached the contract by refusing to pay him the original contract price, plus the amount attributed to the changes. The trial court entered judgment in favor of the defendant. We affirm in part, reverse in part and remand.

Christa A. Avenell v. James Allen Gibson
E2004-01620-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

Christa A. Avenell,¹ sometimes referred to herein as “the plaintiff,” brought this action against James Allen Gibson (“the creditor”), seeking to recover funds taken out of the Avenells’ two joint accounts by their bank in response to a levy of execution. The trial court held that the 1988 amendment to Tenn. Code Ann. § 45-2-703 (2000) changed the law with respect to bank accounts held by individuals as tenants by the entirety; that Mrs. Avenell failed to prove she was entitled to the levied upon funds; and that the creditor was entitled to retain the funds paid into court by the Avenells’ bank. The plaintiff and her husband appeal. We reverse.

Christa A. Avenell vs. James Allen Gibson - Dissenting
E2004-01620-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Telford E. Forgerty, Jr.

I agree with the majority opinion’s analysis until it undertakes consideration of the 1988 amendment to Tenn. Code Ann. § 45-2-703(a). As quoted in the majority opinion, the amendment states:

Any balance so created, including, without limitation, any balance held by spouses, shall be subject to assignment by, or the claim of any creditor of, either depositor, as if such depositor were the sole owner of the funds; provided that is such creditor realizes its claim by any means other than enforcement of an assignment, pledge, or the grant of a security interest made by any one (1) of such depositors, any other depositor not indebted to the creditor may, by commencing a separate action against the creditor, establish such rights as that depositor may have in the funds.

Faron Douglas Pierce v. State of Tennessee
E2004-00372-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Faron Douglas Pierce, appeals the Knox County Criminal Court's dismissal of his petition for post-conviction relief and request for a delayed appeal. On appeal, the petitioner argues that he was denied effective assistance of counsel. Specifically, the petitioner argues that his counsel was ineffective in failing to allow him to testify at his sentencing hearing, and in failing to file a Rule 11 application for permission to appeal to the Tennessee Supreme Court. After review of the record, we grant the petitioner a delayed appeal, and we stay further proceedings on his remaining post-conviction claim.

In Re: Estate of Billy F. Hawk, Jr.
E2004-00877-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor W. Frank Brown, III

This case involves a petition filed by the co-executors of the Estate of Billy F. Hawk, Jr. to approve a sale of real estate partially owned by the Estate. The issue presented is whether the trial court should have approved the private sale. The trial court held that the proposed sale was not in the best interest of all the beneficiaries of the Estate. The proposed buyer appeals. We hold that the trial court’s decision was not contrary to the preponderance of evidence, nor was it arbitrary or capricious, and therefore, affirm the trial court’s judgment.

Deborah Kay Parker Hoxit Ohme v. Frderick Herman Ohme, IV
E2004-00211-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

This is a divorce case. The trial court granted Deborah Kay Parker Hoxit Ohme ("Wife") a divorce from Frederick Herman Ohme, IV ("Husband"), divided the parties' marital property and debts, and awarded Wife transitional alimony of $500 per month. In addition, the court approved Wife's parenting plan, in which she was designated as the primary residential parent of the parties' child, and ordered Husband to pay child support of $854 per month. Husband appeals the granting of the divorce to Wife, the division of debt, the award of alimony, and the trial court's decree regarding responsibility for transporting the parties' child to and from visitation. We affirm.

State of Tennessee v. Phyllis E. Hathaway
E2004-00223-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Phyllis Hathaway, appeals from the trial court’s order modifying her probation and setting her restitution. On appeal, the petitioner argues that the trial court erred in (1) imposing consecutive sentences and probation on December 7, 1989 because the judgments had become final; and (2) in determining restitution fourteen (14) years after the sentencing hearing. Following review, we conclude that the judgment expiration issue is without merit. In addition, we affirm the trial court’s modification of the petitioner’s probation. However, after review of the record, we conclude that the trial court failed to follow the criteria set forth in Tennessee Code Annotated section 40-35-304 when setting restitution. Therefore, regarding the issue of restitution, we reverse the judgment of the trial court and remand for a new sentencing hearing consistent with this opinion.

Michael Holman v. State of Tennessee
M2004-02006-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee

The petitioner, Michael Holman, appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief from his conviction of possession of one-half gram or more of cocaine with intent to deliver and sentence of twenty years. This court affirmed the judgment of conviction. See State v. Michael Andrae Holman, M2002-01471-CCA-R3-CD, Marshall County (Tenn. Crim. App. July 23, 2003). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney failed (1) to interview and subpoena witnesses adequately; (2) to obtain phone records and motel documents; (3) to contact witnesses who could provide the petitioner with an alibi defense; (4) to cross-examine the informant and co-defendant thoroughly; (5) to argue sufficiently that the petitioner could not have been in constructive possession of the drugs found; and (6) to prepare adequately for trial. We affirm the judgment of the trial court.

State of Tennessee v. Steve Skinner
W2003-00887-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Steven Skinner, was convicted by jury of two counts of first degree premeditated murder for which he received consecutive sentences of life imprisonment with the possibility of parole. On appeal, he contends that (1) the evidence is insufficient to sustain his convictions because there is no proof connecting him to the crimes other than uncorroborated accomplice testimony, and (2) the trial court erred in sentencing the defendant to two consecutive life sentences.  Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

Paul K. Flannigan v. State of Tennessee
W2003-02979-CCA-R3-PC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Paul K. Flannigan, appeals pro se from the order of the Shelby County Criminal Court denying his petition for post-conviction relief. The trial court dismissed the petition for failure to state a colorable claim. On appeal, the petitioner asserts that his judgments, indictments, and jury
verdicts are invalid. He further argues that the trial judge and district attorney have acted improperly.  Finding no merit in this appeal, we affirm the judgment of the trial court.

State of Tennessee v. Patrick Harris
W2004-00469-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bernie Weinman

The defendant, Patrick Harris, was convicted by a Shelby County jury of first degree murder. In this appeal, he insists that he acted in self-defense and that the evidence is legally insufficient to support his conviction. Finding that the evidence is sufficient and that it entitled the jury to reject the defendant’s claim of self-defense, we affirm the defendant’s conviction.

State of Tennessee v. Charles Sawyer
M2002-01062-SC-R11-CO
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge William C. Lee

The defendant, Charles Sawyer, was arrested by the police for aggravated sexual battery. Following his arrest, Sawyer made an oral statement to the police after an officer read to Sawyer an affidavit supporting the arrest warrant but before the officer advised Sawyer of his Fifth Amendment rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Sawyer filed a motion to suppress his oral statement. Based upon the nature of the facts contained in the affidavit supporting the issuance of the arrest warrant and the circumstances surrounding his arrest and detention, we conclude the statement resulted from an unconstitutional custodial interrogation and therefore should be suppressed. Accordingly, we affirm the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Allstate Insurance Company v. Robert E. Watson
M2003-01574-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Allstate Insurance Company paid a fire loss to the landlord then brought an action against the tenant asserting subrogation rights. The trial court held the tenant to be blameless as to the fire but found him liable under the terms of the lease, which provided that the tenant would be "responsible for all damages to the apartment, intentional or non intentional". Since we find the tenant to be an additional insured under the Allstate policy, no subrogation rights exist, and we reverse the trial court.

Margie Marie Lynn, et. al. v. Expediters Express, Inc., et. al.
M2003-01777-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

Plaintiff sued her employer for misrepresentation relating to health insurance coverage and sought to recover amounts incurred by her husband for medical bills. The trial court found for plaintiff awarding her treble and punitive damages. We reverse the trial court's finding of treble and punitive damages and affirm the trial court's award of a refund to plaintiff for amounts contributed as premiums.

In Re: A.R.G.
M2004-00894-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Betty Adams Green

The trial court terminated the parental rights of both parents of A.R.G., DOB 12-26-2000. Only Mother, C.S., appeals. Grounds for termination were substantial noncompliance with a permanency plan and failure to remedy conditions in her life permitting the child's return in the near future. We affirm the action of the trial court.

In Re: B.L.R. (D/O/B 7/18/98) and J.F.R. (D/O/B 7/18/98)
M2004-00915-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Buddy D. Perry

This is a termination of parental rights case wherein J.R.R., who is neither the biological father of the twins nor the husband of the mother of the twins, resists the termination of his parental rights. The trial court terminated his parental rights, and we affirm the judgment.