State of Tennessee, ex rel., Reba Alexander v. Michael, Williams/State of Tennessee, ex rel., Michael Springfield v. Rita Alexander, Shelby
W2003-01485-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. Roland Reid

This is a consolidated appeal of two lawsuits in which the trial court refused to enforce or modify child support orders administratively issued under Tennessee Code Annotated 36-5-103(f). The trial court dismissed the State’s petitions in both actions. We vacate the orders of dismissal and remand for proceedings on the merits.

Marion P. Gurkin, III v. Roy Wood, Individually, Associates General Insurance, Inc. Tennessee Insurance Company, Permanent General Assurance Corp, Permanent General Co, and INgram Industries Insurance Gp.
W2003-00793-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This case involves an automobile insurance claim. The insured’s family owned a chain of
convenience stores. The insured applied for a personal automobile insurance policy. The insurance agent completed the application, indicating that the vehicle was for personal use, and the insured approved it. Later, the insured suffered personal injuries from a traffic accident and submitted a claim to the insurance company. The insurance company asserted that the vehicle was owned by the family convenience store chain and was used for business purposes. On this basis, the insurance company refused to pay the claim and rescinded coverage, alleging there were material misrepresentations in the insured’s application. The insured filed this lawsuit against the insurance company and its agent, and the insurance company filed a cross-claim against the agent. After a bench trial, the trial court found that the vehicle was not owned by the family business and was not used for business purposes, and that consequently there was insurance coverage and the agent was not liable. The insurance company appeals. We affirm, finding that the evidence supports the trial court’s findings that the insured owned the vehicle individually, that the insured did not use the vehicle for business purposes, and that the agent was not negligent.
 

State of Tennessee v. Harry G. Sturgill
M2003-01817-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Steve R. Dozier

The appellant, Harry G. Sturgill, was convicted by a jury of eight counts of rape of a child and two counts of statutory rape. As a result, he received a twenty-five year sentence for each of his eight child rape convictions and a two-year sentence for each of his statutory rape convictions. Two of the child rape convictions were ordered to be served consecutively. All of the other sentences were ordered to be served concurrently, for an effective fifty-year sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence in regard to his child rape convictions and the length and consecutive nature of the sentences. For the following reasons, we affirm the judgment of the trial court.

Jerry Lee Chilton v. David Mills, Warden
E2003-00667-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Eugene Eblen

The Defendant appeals from the judgments of the trial court denying him habeas corpus relief. The trial court dismissed the petitions, finding that they failed to state cognizable claims for habeas corpus relief. We affirm the judgments of the trial court.

Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner, v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. C. Dave, M.D.
W2003-00522-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Russell

This is a wrongful death case. The decedent was survived by her husband and two brothers. The husband gave his power of attorney to his grand-nephew. The grand-nephew filed a wrongful death lawsuit, alleging medical malpractice which resulted in the decedent’s death. The grand nephew voluntarily dismissed the claim. The grand-nephew refiled the action within one year of the nonsuit but beyond the expiration of the original statute of limitations. In the second action, the decedent’s husband was added as a plaintiff. The defendants filed motions for summary judgment, arguing that the second lawsuit was time barred. The trial court granted the motion, holding that because the grand-nephew was not a proper party plaintiff under the Tennessee wrongful death statute, the first lawsuit was a nullity and did not toll the statute of limitations. We reverse, holding that the original lawsuit was not void, but merely voidable, and that the second lawsuit was timely filed under the savings statute.
 

Marlin Financial & Leasing v. Nationwide Mutual Insurance Company
E2003-01045-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Howell N. Peoples

This is a declaratory judgment action filed by Marlin Financial & Leasing Corporation ("Marlin") against its insurer, Nationwide Mutual Insurance Company ("Nationwide"), seeking a determination as to coverage under Marlin's insurance policy with Nationwide. Specifically, the suit seeks to obligate Nationwide to pay $8,333.33, the amount of Marlin's settlement of a claim asserted by AmSouth Bank ("AmSouth" or "the Bank"), and associated attorney's fees and expenses of $52,654.05. The trial court granted summary judgment to Marlin, finding that AmSouth's claim against Marlin for "loss of use" of certain property was covered under the business liability feature of the policy and that Marlin was entitled to reimbursement for the amount of its settlement of AmSouth's claim and Marlin's related litigation expenses. The trial court ultimately awarded Marlin prejudgment interest, but it refused to assess a bad faith penalty against Nationwide. Nationwide appeals and both sides raise issues. We affirm.

Todd Hillman Rice v. Michelle E. Rice
E2003-01336-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Richard R. Vance

The Trial Court convicted respondent on "six counts" of contempt. On appeal, we hold evidence supports only one count of contempt.

Robert Ledford v. George Raudenbush
E2004-00170-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The defendant appeals from the Trial Court's awarding Judgment to plaintiff for $1,000.00. The record on appeal is insufficient to review alleged error. We affirm.

State of Tennessee, Department of Children's Services v. CBH, in re: SB
E2003-03000-COA-R3-PT
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The Trial Court terminated the mother's parental rights after finding statutory grounds to terminate and clear and convincing evidence that it was in the child's best interest that the parent's rights be terminated. On appeal, we affirm.

William Hackworth v. State of Tennessee
M2003-02148-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, William Hackworth, pled guilty to four counts of incest and received an effective twelve-year sentence as a Range I offender. Petitioner filed a pro se petition for post-conviction relief, alleging, in part, that his trial counsel was ineffective for failing to seek DNA testing in order to establish the paternity of the child borne of the victim in this case. The trial court summarily dismissed the petition, finding that it was filed outside the one-year statute of limitations and that Petitioner was not entitled to post-conviction DNA analysis. Petitioner appeals the trial court's denial of post-conviction relief. We affirm the judgment of the trial court.

Vanderbilt Mortgage & Finance v. Joseph Rotello, et al.
E2003-01963-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

Joseph and Nina Rotello ("Defendants") purchased a mobile home from Clayton Sevierville and financed the purchase through Vanderbilt Mortgage & Finance, Inc. ("Plaintiff"). After Defendants defaulted on the installment contract, Plaintiff filed suit and then filed a properly supported motion for summary judgment seeking possession of the mobile home. Defendants, who were proceeding pro se, filed a response to the motion for summary judgment, but failed to offer any competent proof to establish a genuine issue of material fact for trial. The Trial Court granted Plaintiff's motion for summary judgment, and we affirm.

State of Tennessee v. David Lee Bellamy
E2003-02936-CCA-R3-CD-
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

The appellant, David Lee Bellamy, plead guilty to violation of an habitual traffic offender order, two counts of reckless aggravated assault, four counts of reckless endangerment, driving under the influence, driving under the influence, fourth offense, improper passing, and driving left of center, with the sentence to be determined by the trial court. After a sentencing hearing, the trial court sentenced the appellant to an effective sentence of twelve years. Unsatisfied with the denial of alternative sentencing, the appellant now appeals. We affirm the judgment of the trial court.

State of Tennessee v. Ydale Banks
W2000-00963-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Brown

A Shelby County Criminal Court jury convicted the defendant, Ydale Banks, of first-degree felony murder, first-degree premeditated murder, conspiracies to commit both modes of first-degree murder, especially aggravated burglary, especially aggravated robbery, three counts of especially aggravated kidnapping, and three counts of aggravated assault. The defendant now claims on appeal that: (1) the trial court erred in denying the defendant's motion to suppress his pretrial statement; (2) the trial court erred in refusing to grant the defendant's motion for a judgment of acquittal; (3) the evidence presented at trial is insufficient to support the convictions for first-degree murder; (4) the trial court erred in admitting prejudicial photographs into evidence in the sentencing phase of trial; (5) the trial court erred in admitting victim-impact evidence during the sentence phase; (6) the provisions of Tennessee Code Annotated section 39-13-204(c) relative to the use of victim-impact evidence are unconstitutional; (7) the trial court erred in instructing the jury; and (8) the trial court erred in instructing the jury as to the definition of "knowingly." We reverse the judgment of conviction of conspiracy to commit felony murder but otherwise affirm the judgments of the trial court.

Dewayne Cathey v. State of Tennessee
W2003-00411-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, Dewayne Cathey, petitioned the Hardeman County Circuit Court for a writ of habeas corpus to challenge his sentence in his 1993 Shelby County, guilty-pleaded conviction of first degree murder. The lower court summarily dismissed the petition, and on appeal, the petitioner claims that the trial court erred in dismissing his petition without a hearing. Upon our review of the record, we reverse and vacate the trial court’s order. Furthermore, we order the lower court to grant habeas corpus relief.

In re: Nancy Jane Shipe, Daniel P. McClure, (Conservator of Estate), v. Fae N. Shipe, (Conservator of the Person), and Nancy Jane Shipe (Ward)
E2003-01647-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Chancellor Thomas R. Frierson, II

Competing Petitions between The Conservator of the Estate and the Conservator of the Person resulted in the Trial Court altering the Ward's living arrangements. On appeal, we affirm.

Sullivan County, Tennessee and the Sullivan County Building Commissioner v. Joe Ellis Lyon
E2003-01107-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John S. McLellan, III

Appellant, pro se, employed counsel during appeal, but appeal is premature. We dismiss appeal and remand.

Alvin Freeman, et al. v. Janice K. Stewart, et al.
E2003-02285-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge John S. McLellan, III

Janice K. Stewart ("Mrs. Stewart") was the record owner of a parcel of real property located in Tall Oaks Court subdivision when this litigation began. Several of Mrs. Stewart's neighbors filed this suit claiming Mrs. Stewart was in violation of the subdivision restrictions by having a freestanding metal garage and a separate large wooden structure on her property. The Trial Court agreed and gave Mrs. Stewart the option of keeping one of the structures as a garage and ordering her to remove the other structure. Mrs. Stewart subsequently transferred the property to her husband, Ed Stewart ("Mr. Stewart"), who then was added as a defendant. The neighbors filed a petition for contempt against both Mr. and Mrs Stewart when they continued to have both a freestanding metal garage and the wooden structure on their property. A hearing was held on the petition for contempt and the Trial Court held Mrs. Stewart in contempt and found the wooden structure still to be in violation of the subdivision restrictions. We affirm the Trial Court's finding that the wooden structure is in violation of the subdivision restrictions. We vacate the finding of contempt and remand for further proceedings on the claim of contempt as to Mrs. Stewart.

State of Tennessee v. James Allen Michaels
E2003-02336-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, James Allen Michaels, pled guilty to two counts of robbery, both Class C felonies. Defendant was originally indicted on charges of aggravated robbery. For his convictions, Defendant was sentenced as a Range II offender to eight years and three years as a Range I standard offender, to be served consecutively. The length of the sentences imposed was agreed upon in the negotiated plea agreement. Defendant appeals the trial court's denial of probation. After reviewing the record on appeal, we affirm the judgments of the trial court.

State of Tennessee v. Michael K. Miller
W2003-01621-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Bernie Weinman

Aggrieved of the order to serve 90 days of his two-year sexual battery sentence in confinement, the defendant, Michael K. Miller, appeals. We affirm the judgment of the trial court.

Mary Jean Upright v. Richard Upright
W2003-01834-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Bob G. Gray

Husband appeals trial court’s final decree of divorce pertaining to division of marital
property. We affirm.

V.D., et al v. N.M.B.
M2003-00186-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Marietta M. Shipley

The paternal grandmother of an eight year old boy, who had had custody of the child for the most recent four years of his life, filed a petition to terminate the parental rights of his mother so the grandmother could adopt him. The trial court granted the petition, finding clear and convincing evidence of several grounds for termination and that such a step was in the child's best interest. We affirm the termination on the ground of abandonment.

State of Tennessee v. Bernard E. Roller, Jr.
M2002-02911-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

Following a jury trial, the appellant, Bernard E. Roller, Jr., was convicted of driving under the influence. The trial court sentenced the appellant to an eleven month, twenty-nine-day sentence and suspended all of the sentence except for fifteen days, which the appellant was ordered to serve in the workhouse. After the denial of a motion for new trial, the appellant filed a timely notice of appeal challenging: (1) his sentence as excessive; (2) the trial court's decision to exclude evidence about the tachograph in the police officer's car; (3) comments made by the prosecutor during rebuttal argument; (4) the trial court's failure to take corrective action following the prosecutor's prejudicial comments; and (5) the trial court's failure to question the appellant in accordance with Momon v. State, 18 S.W.3d 152 (Tenn. 1999). Although we conclude that issues (1), (2), (3), and (4) are without merit, the record is devoid of evidence to allow this Court to determine whether the appellant personally and knowingly waived his right to testify. Therefore, we remand the case to the trial court for a hearing to determine whether the appellant's right to testify was violated, and if so, whether the violation of the appellant's right to testify was harmless beyond a reasonable doubt.

Floyd Jenkins v. State of Tennessee
E2004-00705-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Carroll L. Ross

The petitioner, Floyd W. Jenkins, appeals the Monroe County Criminal Court's denial of his Motion for Probation. The state contends that the trial court properly denied the motion because the petitioner is serving his sentences in the Department of Correction and the trial court no longer has jurisdiction over him. We agree with the state and, pursuant to Rule 20, Tenn. Ct. Crim. App. R., affirm the judgment of the trial court.

Harry M. Nimmons v. State of Tennessee
E2003-02513-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Harry M. Nimmons, appeals the Knox County Criminal Court's denial of his petition for post-conviction relief from his guilty pleas to three counts of possessing with the intent to sell less than one-half gram of cocaine and resulting effective sixteen-year sentence. He contends that he received the ineffective assistance of counsel because he would have gone to trial if his attorneys had explained evidentiary issues to him. We affirm the trial court.

State of Tennessee v. Robert L. Clark, Jr.
E2004-00248-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge E. Eugene Eblen

The petitioner's judgment forms entered May 29, 1996, reflect that he pled guilty to second degree murder, a Class A felony, committed on November 18, 1994, and possession of cocaine greater than one-half gram with intent to sell, a Class B felony, committed on October 3, 1994. The trial court sentenced him to twenty-five years on the murder conviction and twelve years on the cocaine conviction. The judgments ordered the sentences to be served concurrently to each other but consecutively to sentences for other convictions listed on the judgment forms. The petitioner filed a petition for writ of habeas corpus relief claiming that his sentences are void because they are in direct contravention of statutory law requiring them to be served consecutively rather than concurrently. The trial court granted habeas corpus relief, and the State appealed. We hold that the testimony presented by this petitioner was outside the record of the underlying convictions and proceedings and therefore should not have been considered by the trial court. We reverse and remand this case for a determination as to whether the record of the underlying convictions and proceedings constitutes satisfactory proof that the petitioner was on bail for the Class B cocaine offense when the second degree murder was committed.