State of Tennessee v. James C. McFall
E2001-02712-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James E. Beckner

The Defendant, James McFall, was found guilty by a jury of violating a motor vehicle habitual offender order. The trial court subsequently sentenced the Defendant as a multiple, Range II offender to three years in the Department of Correction, to be served consecutively to a prior sentence. The Defendant now appeals, challenging the sufficiency of the indictment; the sufficiency of the evidence; the trial court's instructions to the jury; and the efficacy of the State's Notice of Intent to Seek Enhanced Punishment. We affirm the judgment of the trial court.

Darry L Phillips v. Deroyal Industries
E2001-01655-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Billy Joe White, Chancellor
The employer appeals the trial court's award of medical bills for testing and hospitalization by an unauthorized physician. The employee cross-appeals contending (a) that he was justified in seeking treatment by the unauthorized physician and that all medical bills should have been awarded, and (b) that the trial court erred in failing to award all temporary total benefits due. We affirm the judgment of the trial court.

State of Tennessee v. Edward Korick
E2000-02474-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Edward Korik, appeals the Anderson County Criminal Court's ordering him to serve forty-five days in jail for his guilty plea to driving under the influence (DUI), second offense, a Class A misdemeanor. He contends that this court should remand his case to the general sessions court, where it originated, with orders that the general sessions court consider his request for work release instead of incarceration. We affirm the judgment of the trial court.

David Boese v. State of Tennessee
E2001-00035-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carroll L. Ross

Petitioner pled guilty in state court to second degree murder and aggravated assault. Petitioner contends he was told by trial counsel that a pending first degree murder charge in state court would result in incarceration for life without parole in federal court on related charges. He asserts that trial counsel's performance was deficient resulting in unknowing and involuntary guilty pleas. We disagree and affirm.

State of Tennessee v. Shannon Wade Jacobs
M2001-00349-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Holloway
Defendant was convicted of second degree murder, a Class A felony. On appeal, defendant contends that the trial court improperly excluded defendant's medical records and improperly sentenced defendant. We affirm the judgment of the trial court.

State of Tennessee v. Timothy Tyrone Sanders
M2001-02128-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Charles Lee

The appellant, Timothy Tyrone Sanders, was convicted in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell. On direct appeal, this court reversed the appellant's conviction because the trial court failed to properly charge the jury on the lesser-included offense of simple possession, and we remanded the case for retrial. State v. Timothy Tyrone Sanders, No. M2000-00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at **13-14 (Nashville, January 18, 2001). Subsequently, the appellant was once again convicted of possession of cocaine with intent to sell. The trial court sentenced the appellant as a Range II offender to seventeen years and six months incarceration in the Tennessee Department of Correction. In the instant appeal, the appellant raises the following issues: (1) whether the evidence is sufficient to sustain his conviction, and (2) whether the trial court erred in determining the length of his sentence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. James Robert Lawson
E2001-01415-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Jerry Beck

The Defendant pled guilty to one count of child abuse, a Class D felony. Following a hearing, the trial court denied judicial diversion. The trial court sentenced the Defendant as a Range I, standard offender to two years to be served on intensive probation. The Defendant now appeals, arguing that the trial court erred by denying him judicial diversion and by imposing as a condition of his probation that he not reside in the same household with children of "tender years." Finding no error, we affirm the judgment of the trial court.

State of Tennessee v. Derrick Wayne Kembel
E2001-02087-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The appellant, Derrick Wayne Kembel, entered guilty pleas in the Blount County Circuit Court to seven counts of theft and was granted immediate probation. Soon thereafter, the trial court revoked the appellant's probation due to the appellant's failure to comply with the terms of his release. On appeal, the appellant contends that the trial court erred when it revoked his probation and sentenced him to serve the balance of his sentence in incarceration. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Ronnie Daniel
M2001-01217-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Stella L. Hargrove

On March 6, 1997, the defendant pled guilty to a two-count indictment for passing worthless checks in an amount over $10,000, a Class C felony, and in an amount over $1,000, a Class D felony. He was granted judicial diversion and placed on probation. The trial court subsequently revoked the defendant's diversion and sentenced him to concurrent sentences of four years and six months for the Class C felony and two years for the Class D felony, all suspended except seven months service in the county jail. In this appeal, the defendant contends he should have received full probation or community corrections upon being revoked from judicial diversion. We disagree and affirm the judgment of the trial court.

Doxie M. Frayser v. Dentsply International, Inc.
W2001-01485-SC-WCM-CV
Authoring Judge: L. Terry Lafferty, Senior Judge
Trial Court Judge: Robert A. Lanier, Judge
The trial court found that Plaintiff's workers' compensation claim for an injury occurring in 1994, was barred by the statute of limitations and that the doctrine of equitable estoppel was not applicable to the case. We hold that an employer may not offer an employee an alternative benefit option that would circumvent Tennessee Workers' Compensation Law when the employer is aware that the employee's injury is work-related. As discussed below, the trial court's judgment is reversed and remanded in part and affirmed in part.

State of Tennessee v. Don Woody McGowan
M2001-02866-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Graham

Defendant, Don Woody McGowan, was convicted by a Marion County jury of possession of drug paraphernalia, a Class E felony. Defendant appeals his conviction, presenting the following issues for review: (1) whether the evidence was sufficient to support his conviction; (2) whether he was denied a fair trial by the trial court's denial of his motion to sever the cases when the co-defendant failed to appear on the second day of trial; (3) whether the trial judge erred by failing to recuse himself; and (4) whether his sentence was proper. After a review of the record, we find that the evidence was insufficient to sustain the conviction. The judgment of the trial court is reversed, and the case is dismissed.

State of Tennessee v. Barry K. Harris
M2001-01359-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald P. Harris

The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.The defendant was convicted of theft over $500.00, two counts of theft over $1000.00, and driving on a suspended license with prior convictions. He was given an effective sentence of eighteen years in the Department of Correction. The defendant contends that the sentence imposed by the trial court is excessive. The trial court followed the statutory sentencing procedure, imposed a lawful sentence after considering and weighing the proper factors and principles set out under sentencing law, and the trial court's findings of fact are supported by the record. Accordingly, we affirm the judgment of the trial court.

John C. Tomlinson v. State of Tennessee
M2001-02152-CCA-R3-CO
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier
The petitioner appeals the trial court's denial of the appointment of counsel and the dismissal of his petition for writ of habeas corpus. For many and varied reasons, we affirm.

Rodney D. Palmer v. State of Tennessee
W2001-01571-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

A Shelby County jury convicted the Petitioner of attempted second degree murder, a Class B felony, and three counts of aggravated assault, a Class C felony. The trial court ordered the Petitioner to serve an effective twenty-six-year sentence in the Tennessee Department of Correction. This Court affirmed the Petitioner's convictions on appeal, and the Tennessee Supreme Court denied permission to appeal. The Petitioner filed a petition for post-conviction relief. Following a hearing, the court denied post-conviction relief. The Petitioner now appeals the denial of post-conviction relief. Finding no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Thomas Dee Huskey
E1999-00438-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The defendant, Thomas Dee Huskey, appeals as of right from his convictions and sentences for aggravated rape, rape, aggravated robbery, robbery, especially aggravated kidnapping, and aggravated kidnapping, for which he received an aggregate sentence of sixty-six years. The convictions relate to four victims and result from two trials that were consolidated for this appeal. The defendant raises numerous issues. Although we conclude that several errors occurred, only one requires reversal of any convictions. Because of improper consolidation, we reverse the judgments for the three aggravated rape convictions and one especially aggravated kidnapping conviction relating to the victim, D.C., but we affirm the remaining judgments of conviction.

State of Tennessee v. Steven Murray
E2000-02878-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen
In this case, the Defendant, Steven Murray, pled guilty to assault. The Criminal Court of Roane County sentenced Defendant to serve the agreed-upon 11 months and 29 days, suspended, on supervised probation, and ordered restitution in the amount of $10,622.75. In his sole issue on appeal, Defendant asserts that the trial court erred in the amount of restitution ordered and requests that the order of restitution be set aside and this case remanded for a new hearing. We have found a clerical error in the order setting forth the conditions of probation and remand for correction of that order. Otherwise, the judgment of the criminal court is affirmed.

Rodney Tipton v. State of Tennessee
E2001-00001-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The Appellant, Rodney Lee Tipton, proceeding pro se, appeals from the dismissal of his petition for post-conviction relief. Tipton was convicted by a Blount County jury of aggravated rape and aggravated robbery and received an effective thirty-three year sentence in the Department of Correction. On appeal, Tipton argues that he should receive a new trial based upon the following grounds: (1) the State’s refusal to respond to his discovery requests, and the post-conviction court’s failure to address his motion to compel discovery; (2) denial of the right to represent himself at his post-conviction hearing; (3) denial of his right to testify at trial; (4) ineffective assistance of counsel; (5) prosecutorial misconduct; (6) actual innocence; (7) the cumulative effect of all errors; and (8) the post-conviction court’s failure to enter specific findings of fact and conclusions of law. After a review of the record, we affirm the dismissal of Tipton’s petition for post-conviction relief.

State of Tennessee v. Rhonda Patricia Mayes - Order
M2001-00423-CCA-R3-CD
Authoring Judge: Judge John Everett Williams

The opinion and judgment entered June 24, 2002, are hereby VACATED and WITHDRAWN. A corrected opinion and judgment will be filed in due course.

Lawrence County v. Jerry Brewer, et al .
M2001-00078-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This matter involves a dispute over payment of solid waste disposal fees, which the Lawrence County Commission attempted to charge the citizens of Lawrence County, and application of late payment penalties to these fees. Lawrence County filed complaints in order to collect overdue solid waste fees that the Commission allegedly enacted on May 25, 1999 by Resolution #11052599. The trial court determined that Resolution #11051599 did not impose any solid waste fees on the residents of Lawrence County and dismissed Plaintiff's complaints. We affirm the trial court.

In Re: Estate of Vivian McSwain
M2001-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Frank G. Clement, Jr.
Robert L. Poe, in his capacity as the executor of the Estate of Vivian K. McSwain, filed a motion to set his fee and expenses. Following a bench trial on the executor's motion, the trial court awarded the executor $20,000. The executor appeals, arguing that the award is inadequate. We affirm.

K. Mahendra Chowbay v. Brian Davis, et al.
M2001-01838-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Marietta M. Shipley
In this premises liability case, K. Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon and Dance Hall ("Silverado's"), for injuries Plaintiff received during an assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis. Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a motion for summary judgment because matters outside the pleadings were submitted to the trial court. Defendants contended in their motion that since Davis' assault of Plaintiff occurred on property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff to protect him from such an assault. The trial court granted Defendants' motion. Plaintiff appeals. We affirm.

Joe Livingston v. Jennifer Elaine Livingston
M2001-02697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John W. Rollins
This is a divorce case. The trial court granted Joe Phillip Livingston ("Father") a divorce from Jennifer Elaine Livingston ("Mother") on the ground of inappropriate marital conduct and awarded primary physical custody of the parties' two minor children to Father. Mother was granted visitation rights; however, the court ordered that she "refrain from allowing the parties' children to be at the residence of [Mother's] maternal grandmother" during visitation. Mother appeals the award of custody and the granting of the divorce to Father. In addition, Mother also raises a procedural issue and questions the admission of certain evidence. We affirm.

Tracey L. (Yanusz) Taylor v. John J. Yanusz
M2001-02760-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: C. L. Rogers
This appeal involves a dispute over the custody of a five-year-old boy. His parents were divorced following his mother's extramarital affair. Their marital dissolution agreement established a joint custody arrangement with the father having primary physical custody. Following an unsuccessful two-year reconciliation effort, the child's mother petitioned the Sumner County General Sessions Court for sole custody. The father insisted that the child's circumstances had not changed and that he continued to be more fit than the mother to be the child's primary custodian. The trial court, sitting without a jury, determined that the child's circumstances had changed and that the child's interests would be best served by placing him in his mother's custody. The father asserts on this appeal that the child's circumstances have not changed materially and that the evidence does not support giving sole custody to the mother. While we have determined that the child's circumstances changed following his parents' divorce, we have determined that the evidence preponderates against the trial court's conclusion that the changes are so escalating and dangerous that they required a change in the original custody arrangement. Accordingly, we vacate the order awarding the mother sole custody of the child and remand the case for further proceedings.

Tonya Ray v. William Ray
M2002-01553-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This extraordinary appeal involves a dispute over the custody of four-year-old twins. On October 5, 2001, this court vacated an order of the Circuit Court for Davidson County granting custody of the twins to the former husband of their biological mother and remanded the case for the purpose of determining whether the twins' biological father is currently fit to have custody and whether placing the twins in his custody will expose them to substantial harm. On June 27, 2002, the trial court declined to permit the biological father to continue visitation with the twins pending court-ordered psychological evaluations of the biological father and the twins. We have determined that the June 27, 2002 order must be vacated because it lacks evidentiary support and is based on a significant misinterpretation of our October 5, 2001 opinion.

Kuehne & Nagel, Inc. v. Preston, Skahan & Smith International, Inc.
M1998-00983-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a contract dispute between a customs broker and an importer of Russian vodka. The customs broker sued the importer in the Davidson County General Sessions Court seeking to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of fiduciary duty, and usury. After the general sessions court dismissed both cases, the parties appealed to the Circuit Court for Davidson County. On the day of trial, the trial court denied the importer's motion to exclude nine invoices that the customs broker had failed to produce during discovery. Thereafter, the trial court, sitting without a jury, awarded the customs broker a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal, the importer asserts that the trial court erred by refusing to exclude the nine invoices and that the evidence preponderates against the judgment. We have determined that the trial court did not abuse its discretion by denying the importer's motion in limine and that the evidence supports the judgment for the customs broker. Accordingly, we affirm the judgment.