Billy Conatser, et al., v. L.D. (Joe) Ball
M1999-00583-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Vernon Neal

This case involves a dispute over the scope of the right of the defendant to use the plaintiffs' property as a means of ingress and egress to various sections of the defendant's property. The deed to defendant's 1,600 acre tract, which surrounds plaintiffs' 151 acre tract on 3 sides, included a 26 foot wide north-south easement over plaintiffs' property. Plaintiffs alleged that defendant refused to confine his activities within the easement, thereby trespassing and committing waste upon their land. The trial court determined that defendant was entitled to use the 26 foot wide easement running in a north and south direction on the Conatsers' property and a second 20 foot wide route of ingress and egress branching off of the 26 foot easement in a northwesterly direction. The court rejected defendant's claim that he was entitled to a third easement along another east and west direction route and awarded plaintiffs $2,500 in damages for trespass. We affirm the trial court's rulings on the scope of defendant's easement and modify the damages to the $5000 originally awarded by the trial court.

State of Tennessee v. Paul Randall Freeland
W2000-01323-CCA-R3-CD
Authoring Judge: Judge Cornelia A. Clark
Trial Court Judge: Judge Julian P. Guinn

The defendant was declared a motor vehicle habitual offender in Benton County Circuit Court. On appeal, he argues that the trial court erred because the first qualifying underlying conviction occurred more than five years before the date the state's petition was filed. Because no statute of limitations applies under the Motor Vehicle Habitual Offenders Act, we affirm the trial court's judgment.

Leon Goins v. State of Tennessee
W2000-02608-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

The petitioner appeals the denial of post-conviction relief on his conviction for the sale of .5 grams of cocaine, a Schedule II controlled substance. In his pro se petition for post-conviction relief, the petitioner alleged that his trial counsel was ineffective for failing to thoroughly investigate and keep him informed of vital information regarding his case. After the appointment of post-conviction counsel and a hearing on the petition, the court denied the petition for post-conviction relief. The petitioner filed a timely appeal to this court, raising the sole issue of whether the post-conviction court erred in finding that he had effective assistance of trial counsel. Based upon a careful review of the record, we affirm the judgment of the post-conviction court.

Teresa Deion Smith Harris v. State of Tennessee
W2000-02611-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The petitioner was originally convicted by a Henry County jury of first degree felony murder and sentenced to life without the possibility of parole. The conviction was affirmed on direct appeal. The petitioner sought post-conviction relief, which was denied by the post-conviction court. In this appeal, the petitioner contends she is entitled to post-conviction relief based on (1) newly discovered evidence and (2) ineffective assistance of counsel. After a thorough review of the record, we conclude that the post-conviction court correctly denied post-conviction relief.

State of Tennessee v. Gerald Stovall
E2000-00926-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Carroll L. Ross

The Monroe County grand jury indicted the defendant on two counts of selling or delivering over .5 grams of cocaine. At the conclusion of a bench trial, the trial court found beyond a reasonable doubt that the defendant had sold cocaine in the alleged amounts on the dates in question. However, immediately after making this determination, the trial court sua sponte announced that it was dismissing the indictment because of a fatal wording error. Through this appeal the State contends that the dismissal was erroneous and asks that the case be remanded for sentencing. Following our review of the record and applicable caselaw, we find the State's issue to have merit and, therefore, reverse the trial court's dismissal and grant the requested remand for sentencing.

State of Tennessee v. Ernest Eugene Thomas, alias: Victor Knable
E2000-02613-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ray L. Jenkins

In 1997, pursuant to a negotiated plea agreement, the Defendant pled guilty to possession of more than seventy pounds of marijuana with the intent to sell, a Class B felony, and received a twelve-year sentence as a Range II multiple offender, to be served in the Tennessee Department of Correction. On March 3, 2000, the Defendant filed a motion to correct an illegal sentence, alleging that he should have been sentenced as a Range I standard offender rather than a Range II multiple offender because two prior Pennsylvania convictions that were the basis for his Range II sentencing were misdemeanors rather than felonies. Following a hearing on the Defendant's motion, the trial court dismissed the motion, finding that "the Defendant may plead outside the range" and that the Defendant had sufficient qualifying felonies. Finding no error by the trial court, we affirm the judgment of the trial court dismissing the Defendant's motion.

Thomas C. Farnsworth, Jr., v. Gary P. Faulkner, et al.
W2000-02031-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

This appeal arises from the trial court's granting of a motion of summary judgment. The court ruled that Shop had violated an Agreement which incorporated in its entirety a previous lease of certain property. As a result, Owner was awarded the repair costs for certain repairs that Shop had been responsible for under the lease. Owner was also awarded attorney's fees and expenses. Shop appealed, arguing that certain material facts were in dispute and thus summary judgment was inappropriate. We affirm in part and reverse in part.

State of Tennessee v. Jackie F. Curry
E2000-02475-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

The Defendant, Jackie F. Curry, appeals as of right his conviction for three counts of aggravated rape. The trial court sentenced the Defendant to twenty-two (22) years for each count. The sentences were ordered to run consecutively to each other and consecutively to a prior eight-year sentence for which the Defendant was on probation at the time of this incident. The Defendant raises the following three issues in this appeal: 1) whether the evidence was sufficient to sustain his convictions for aggravated rape; 2) whether the trial court erred in permitting the State to impeach him with two prior convictions for the sale of cocaine; and 3) whether the trial court erred in sentencing the Defendant. The judgment of the trial court is hereby affirmed.

State of Tennessee v. Lewis Woody
E2000-01363-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant, Lewis Woody, filed a notice of appeal which we construe to appeal the judgments of conviction for two forgeries resulting from a negotiated plea agreement, and he also included within the notice, an appeal from the trial court's order denying his motion to tax costs to the State and to "quash execution of garnishment." For the reasons set forth herein, we dismiss his appeal.

Donald Mitchell Green v. State of Tennessee
E2000-01941-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Mary Beth Leibowitz

The petitioner, Donald Mitchell Green, appeals the trial court's denial of post-conviction relief. In this appeal of right, the petitioner contends that the trial court erred by ordering a dismissal without an evidentiary hearing. The judgment is reversed and remanded to the trial court for the appointment of counsel and an evidentiary hearing.

State of Tennessee v. James Kevin Underwood
E2000-01945-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The defendant, James Kevin Underwood, was convicted of evading arrest, a Class E felony; driving on a revoked license, fourth offense; and possession of drug paraphernalia, the sentences to be served concurrently. Germane to this appeal, the defendant was sentenced for the evading arrest as a Range I offender either to two years in "house arrest" under a community corrections alternative program of which six months are to be served in jail, "day for day," or to six months in jail, day for day, followed by two years in a community corrections alternative program. Either way, the defendant contends (1) that the sentence exceeded the one-year sentence in his plea agreement and (2) that, in any event, the trial court cannot order him to serve six months day for day. We affirm the judgments for the two misdemeanor offenses, but we remand the evading arrest case for resentencing.

State of Tennessee v. Daniel Wade Wilson
E2000-01885-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Phyllis H. Miller

The Defendant, Daniel Wade Wilson, appeals as of right his convictions for second degree murder, first degree felony murder and especially aggravated robbery in the Sullivan County Criminal Court. The trial court merged the second degree murder conviction into the felony murder conviction, and the jury sentenced the Defendant to life imprisonment for the felony murder. The trial court sentenced the Defendant to twenty-three (23) years for the especially aggravated robbery conviction. The sentences were ordered to run consecutively. The Defendant raises the following four issues in this appeal: 1) whether the trial court erred in failing to charge all applicable lesser-included offenses; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the evidence was sufficient to sustain Defendant's convictions for first degree felony murder and especially aggravated robbery; and 4) whether the trial court erred in sentencing the Defendant. The judgment of the trial court is hereby affirmed in part and reversed in part, and remanded to the trial court for a new trial on the felony murder charge in Count II and the especially aggravated robbery charge in Count III of the indictment. The case is further remanded for sentencing on the second degree murder conviction in Count I of the indictment

State of Tennessee v. Ben Warren Miller
E2000-03038-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Phyllis H. Miller

Pursuant to Tennessee Code Annotated sections 55-10-601 to 55-10-617, the State of Tennessee filed a "petition and notice" to have the Appellant/Respondent, Ben Warren Miller, declared an Habitual Motor Vehicle Offender. The Appellant filed, in one pleading, an "Answer and Motion to Dismiss." In the answer, the Appellant admitted all material allegations which would support a judgment declaring him to be an habitual motor vehicle offender. In his motion to dismiss, the Appellant argued that no summons was issued with the petition, and the trial court violated the Tennessee Rules of Civil Procedure in signing an order which required, in part, that Appellant "may be held in violation of this order" if he did not appear and defend the petition to be declared an habitual motor vehicle offender. The trial court denied the motion to dismiss and rendered a judgment declaring Appellant to be an habitual motor vehicle offender. On appeal, the Appellant does not challenge the substantive grounds for having him declared an habitual motor vehicle offender. However, in three issues, he argues that the judgment should be reversed and the petition dismissed because: (1) The trial court's order entered subsequent to the filing of the petition required Appellant to appear and defend or "he may be held in violation of this order," (2) the trial court's order giving notice of the hearing on the petition was not signed by an assistant district attorney, (3) the trial court did not have the authority to issue an order directing the Appellant to appear at a hearing on the petition and did not have the authority to state in the order that he might be held in violation of the order if he did not appear and defend the petition. We affirm the judgment of the trial court.

Kenneth Stomm v. State of Tennessee
E1999-00392-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Kenneth Stomm, appeals the trial court's denial of his petition for writ of habeas corpus. The single issue presented for review is whether the petition was properly dismissed without an evidentiary hearing. The judgment is affirmed.

Terese Overland vs. Swifty Oil Co.
M2000-02192-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Russell Heldman
On October 22, 1997, an accident occurred involving two minors, Ms. JoNee O'Brien and Ms. Kari Ann White. As a result of the accident, Ms. White, a passenger in Ms. O'Brien's automobile sustained fatal injuries. On February 24, 1998, Ms. Terese Overland, individually and as natural mother and next of kin of Ms. White, filed a wrongful death action against Ms. O'Brien and her mother, Ms. Jackie O'Brien Woodard. On October 22, 1998, the complaint was amended to add Swifty Oil Co., Inc. as an additional party. The complaint alleged that the young minors obtained intoxicating liquors from Swifty's manager, Mark Erickson. On April 14, 1999, the complaint was amended again alleging negligent supervision on behalf of Swifty. Swifty subsequently filed a motion for summary judgment pertaining to the claims asserted by Ms. Overland on March 31, 2000. By Memorandum of Law, the trial court granted summary judgment to Swifty on all claims on May 12, 2000. An Order dismissing all claims against Swifty was entered May 18, 2000. On July 5, 2000, an Order of compromise and settlement was entered effectively dismissing all the claims against the defendants excluding Swifty. Notice of this appeal soon followed.

Debra McDowell vs. Robert McDowell
M2000-02153-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Jeffrey S. Bivins
Mr. and Ms. McDowell were divorced by the Williamson County Circuit Court on September 15, 1986. On March 16, 2000, Ms. McDowell filed a contempt complaint against Mr. McDowell alleging that he had breached an agreement to pay his youngest daughter's private school tuition at Battle Ground Academy. A hearing was held on May 2, 2000, concerning the contempt complaint. Following the hearing, the Honorable Jeffery Bivens of the Williamson County Circuit Court took the matter under advisement. On July 28, 2000, the trial court ordered Mr. McDowell to pay his daughter's tuition until she graduated from Battle Ground Academy. This appeal soon followed.

State vs. Timothy R. Bowles
M1997-00092-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Seth W. Norman
Timothy R. Bowles was convicted of aggravated rape, attempted rape, and robbery. The Court of Criminal Appeals affirmed the convictions for the sexual offenses, but because the trial court failed to instruct the jury on the lesser-included offense of theft, the intermediate court reversed the robbery conviction. We granted the State's application for review to determine whether the trial court's failure to instruct the jury on the offense of theft constituted reversible error. We granted Bowles's application for review to decide: (1) whether the evidence is sufficient to support the conviction for aggravated rape; and (2) whether the trial court erred in failing to submit the offense of sexual battery to the jury as a lesser-included offense of either aggravated rape or attempted rape. After thorough review and due consideration, we hold that the evidence is sufficient to support the aggravated rape conviction. We further hold that any error on the part of the trial court in failing to instruct the jury regarding the lesser-included offense of sexual battery was harmless. Regarding the robbery conviction, however, we hold that the trial court's failure to instruct the jury on the lesser-included offense of theft constitutes reversible error. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

Donna Jo Russell , et al vs. John Russell
M2000-01101-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Arthur E. Mcclellan
On August 5, 1998, Donna Jo Russell Freeman filed a complaint for divorce against John Robert Russell. The parties entered into a Marital Dissolution Agreement ("MDA") and shortly thereafter the trial court entered a final decree of divorce on December 21, 1998. The MDA did not address the legal rights and responsibilities with regard to the two children (hereinafter referred collectively as "the minor children"). The children's biological father is Carl Robert Freeman. Donna Jo Russell and Carl Robert Freeman married on November 29, 1999. Subsequently, Carl Robert Freeman filed a petition to establish parentage of John and Josiah Russell. John Robert Russell filed a motion seeking temporary visitation rights of the minor children and a Rule 60.02 motion. The trial court denied John Robert Russell's temporary visitation rights and consolidated his Rule 60 motion with Carl Robert Freeman's parentage petition. On March 10, 2000, the Circuit Court of Sumner County granted Carl Robert Freeman's petition to establish parentage, effectively making him the father of the minor children. The trial court further denied John Robert Russell's Rule 60.02 motion. On April 24, 2000, John Robert Russell filed this appeal.

Ebbtide Corp. vs. The Travelers Ins. Co., et al
M1999-01932-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert E. Burch
The insurance broker involved in this matter, Willis Corroon, failed to forward to Plaintiff the terms for reinstatement of Plaintiff's workers compensation policy, which terms were faxed to Willis Corroon by Travelers, the insurer. As a result, Plaintiff, Ebbtide Corp., was without insurance for several months, during which time one severe worker's compensation claim was filed and paid for by Plaintiff. The trial court determined that Tennessee Code Annotated section 56-6-147 was not applicable to Willis Corroon as an insurance broker; as such, Willis Corroon was the agent of Plaintiff, the insured. Thus, Travelers fulfilled its contract with Plaintiff by properly communicating the terms for insurance reinstatement to Plaintiff's agent, Willis Corroon. Willis Corroon was found to be negligent for not forwarding these terms on to the Plaintiff and liable for all damages incurred by Plaintiff as a result of their being uninsured. The preliminary question to be determined is whether section 56-6-147 applies in this matter to make Willis Corroon the agent of the insurance company. We agree with the trial court's determination that section 56-6-147 does not apply to the facts presented in this matter and affirm the trial court's ruling.

Town of Linden, et al vs. Bliss Garcia, et al
M2000-01776-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This case presents an appeal from a declaratory judgment action brought by Plaintiffs/Appellants, Town of Linden and Tex Smith, to request an interpretation of the phrase "next regular election" contained in the charter for the town of Linden. The trial court held that this phrase included the next county election, being the next regularly scheduled election in the town of Linden on August 3, 2000, and also held that the town of Linden had no standing to bring a declaratory judgment action on this issue. Plaintiffs appealed both holdings. We affirm the trial court on both issues.

State of Tennessee v. Raul T. Garcia
E2000-02817-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James Edward Beckner

A Greene County jury convicted the Defendant of reckless aggravated assault, a Class D felony, and the trial court sentenced the Defendant as a Range I, standard offender to four years in the Tennessee Department of Correction. The Defendant now appeals, challenging the sufficiency of the evidence and the propriety of the sentence imposed by the trial court. After a careful review of the record, we conclude that the evidence is sufficient to support the conviction and that the sentence is proper. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. David Wayne Osborne
E2000-03086-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Phyllis H. Miller

The Defendant pled nolo contendere to one count of felony child neglect, one count of possession of drug paraphernalia, one count of possession of marijuana, and two counts of public intoxication. At issue in this appeal is the sentence for felony child neglect, a Class D felony for which the Defendant received a two-year Community Corrections sentence. Subsequently, based upon a warrant alleging that the Defendant had violated the terms and conditions of his Community Corrections sentence, the trial court revoked the Defendant's Community Corrections sentence and increased his original sentence from two years to four years, to be served with the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court improperly enhanced his two-year sentence for felony child neglect to four years and that the court erred by failing to impose some form of alternative sentencing. We conclude that the trial court properly increased the length of the Defendant's sentence from two to four years and that the Defendant's prison sentence was properly imposed. Accordingly, we affirm the judgment of the trial court.

Linda Rowland v. Northbrook Health Care Center
W2000-02562-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Joe C. Morris, Chancellor
In this appeal, the employer, Northbrook, insists the award of permanent partial disability benefits based on 7 percent to the body as a whole is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

Peter Kuderewski, et al vs. Estate of Hoover Hoobs, et al
E2000-02515-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard E. Ladd
Peter Kuderewski and David Sanchez ("Plaintiffs") sued Hoover Hobbs ("Defendant"), alleging they had an implied partnership during the beginning phases of a now-defunct plan to open a family fun center in Kingsport, Tennessee ("Project"). Plaintiff argues the parties had agreed to use property ("Property") already owned by Defendant for the Project. A portion of the Property was later sold, and Plaintiffs sought to recover 50% of the sale price pursuant to their claimed respective partnership interests. Alternatively, Plaintiffs claim they were entitled to recover, under a theory of unjust enrichment money spent toward improving Defendant's Property in anticipation of the Project. After a bench trial, the Trial Court denied both of Plaintiffs' claims. Plaintiffs appeal. We affirm.

State of Tennessee v. Jeremy Wayne Aikens
E2000-00997-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Eugene Eblen

The Loudon County Grand Jury indicted the Defendant for driving under the influence of an intoxicant. The Defendant's first jury trial resulted in a mistrial. Following a second trial, a Loudon County jury convicted the Defendant of the offense charged. The trial court sentenced him to eleven months, twenty-nine days incarceration, with all but four days suspended, and fined him $400. The Defendant now appeals his conviction, arguing (1) that insufficient evidence was presented to support his conviction; and (2) that he received ineffective assistance of counsel at trial. Upon review of the record, we conclude that the evidence presented at trial was sufficient to support the Defendant's conviction, and we conclude that the Defendant received adequate representation at trial. We thus affirm the judgment of the trial court.