Heather Hill, et al. v. Andrea Giddens, M.D., et al.
W2006-02496-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Karen R. Williams

Patient filed a complaint against Doctors, OB/GYN Group, and Hospital (together “Defendants”) alleging medical malpractice for failing to obtain informed consent and failing to properly care for Patient during and after her hospitalization. The trial court granted summary judgment in favor of the defendants on the grounds that Patient failed to provide a competent medical expert as required by T.C.A. § 29-25-115 (Supp. 2006). Patient appeals.
We affirm.

Paul Welcome v. State of Tennessee
E2006-02022-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The petitioner, Paul Welcome, appeals the denial of his petitions for post-conviction relief and writ of error coram nobis. He asserts he was denied the effective assistance of counsel at trial and that he is entitled to relief based upon newly discovered evidence. Discerning no error, we affirm the judgments of the post-conviction court.

Bessie L. White, et al. v. Premier Medical Group, et al.
M2006-01196-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

In this medical malpractice action against a treating physician, his medical group, and several hospital entities, the plaintiffs contend the trial court erred by including in the jury instructions the defense of superseding cause requested by the treating physician and his medical group. The plaintiffs argue the evidence was insufficient to justify the instruction. It is proper to charge the law upon an issue of fact within the scope of the pleadings upon which there is material evidence sufficient to sustain a verdict. The record contains material evidence regarding each of the essentialelements of the defense of superseding cause sufficient to sustain a verdict of  superseding cause; therefore, an instruction as to superseding cause was appropriate.

Harry McLemore, Jr. v. Charles Traughber, Tennessee Boards of Probation and Paroles
M2007-00503-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Carol L. Mccoy

An inmate filed a petition for a common law writ of certiorari, alleging that the Board of Paroles acted arbitrarily and illegally in denying parole. The chancery court dismissed the petition for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The inmate appealed. We affirm.

Bruce Wood, et al. v. Metropolitan Nashville Board of Health, et al.
M2006-01599-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This is an appeal challenging the issuance of several permits to North American Galvanizing Company by the Air Pollution Division of the Metropolitan Department of Health. Appellants base their challenge on the failure of the Department to consider the location of the company as well as noise and exhaust fumes arising from truck traffic traveling through a residential neighborhood to and from the company. They also challenge the representation of both the Department and the  Boardof Health by Metropolitan Department of Law attorneys. The Chancellor ruled against the appellants. We affirm.

Linda L. Weber, v. Donald D. Weber, Jr.
M2006-2311-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Timothy L. Easter

In this dispute over child support owing by the father, the Trial Court ordered child support ended on the grounds the child turned 18 and his high school class had graduated, but ordered payments of back child support arrearage. On appeal, we affirm.

Moore Family Properties, LLC, et al. v. Pull-A-Part of Tennessee, LLC, et al.
W2007-00457-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal involves a review of actions taken at a meeting of the Memphis City Council. When the council members voted on a resolution, for unknown reasons, the electronic voting machine did not record an entry for one of the council members. This resulted in six votes being cast in favor of the measure and six votes against it. The omitted council member orally expressed his intention to vote in favor of the resolution before the Chairman announced the result of the vote. The Chairman then called for the electronic voting machine to be cleared so that all members could re-enter their votes. After the second vote, the Chairman declared that the resolution passed by a vote of seven to six. The appellants filed a petition for a writ of certiorari in the chancery court, alleging that the first vote was final and that the City Council acted illegally by taking a second vote. Upon review of the record of the proceedings, the trial court granted summary judgment to the City of Memphis and the Memphis City Council. We affirm.

William Edward Hargrove v. Merriellen Hargrove A/K/A Merriellen Warstler
W2007-00538-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Ron E. Harmon

This is a post-divorce case involving disputes over obligations in the Marital Dissolution Agreement and modification of the visitation schedule contained in the permanent parenting plan. Husband filed for divorce from Wife, and on August 25, 1998, the chancery court entered a final decree of divorce that incorporated the Marital Dissolution Agreement. The permanent parenting plan was filed on February 12, 2004. Concerning Husband and Wife’s minor son, born January 7, 1990, the residential schedule in the permanent parenting plan provided that Husband would be the primary residential parent and Wife would be responsible for the child every other weekend and during certain holidays. As to property division, the Marital Dissolution Agreement required Husband to transfer one-half of his pension plan to Wife. Concerning the marital home, Wife agreed to execute a quitclaim deed to Husband conveying her interest to Husband simultaneously with Husband paying her $15,000. After a contempt hearing, the court modified the parenting schedule; found that Wife was entitled to one-half of Husband’s pension, but not one-half of Husband’s annuity; and found that Husband had satisfied the $15,000 obligation. Wife appeals pro se, arguing that the modification of the residential schedule found in the parenting plan is void because the court did not follow Tenn. Code Ann. § 36-6-405(a). Wife also argues that the parties’ intent was that she was to receive half the annuity along with half the pension. Finally, Wife contends that Husband did not meet his burden of proof to establish the defense of accord and satisfaction. We affirm.

Carl Johnson v. State of Tennessee
W2006-01805-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

The Appellant, Carl Johnson, appeals the order of the Shelby County Criminal Court denying his petition for post-conviction relief. Johnson, who was convicted of especially aggravated robbery, is currently serving a sentence of twenty-five years in the Department of Correction. Following the affirmance of his conviction on direct appeal, Johnson filed a petition for post-conviction relief alleging numerous instances of ineffective assistance of counsel, which was denied. On appeal, this court remanded the case for an evidentiary hearing “solely on the petitioner’s complaint of the ineffective assistance of counsel regarding lesser-included offense instructions and Owens.” Following an evidentiary hearing, during which Johnson challenged only trial counsel’s failure to request that aggravated assault be charged as a lesser-included offense of especially aggravated robbery, the post-conviction court again denied relief finding that trial counsel was not ineffective for failing to request the lesser charge. In the instant appeal, Johnson challenges the denial of  relief. Following a review of the record and the law applicable at the time of trial, we find no reversible error and affirm the denial of post-conviction relief.

In Re: Adoption of M.P.J., DOB 1/29/02
W2007-00379-COA-R3-PT
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Clayburn L. Peeples

This is a case involving the termination of a father’s parental rights. The Department of Children’s Services instituted a dependent and neglect proceeding and the court granted a protective order removing the minor child from the mother’s home. At the time, the father’s whereabouts were unknown. The child, almost seven months old, was placed in the temporary custody of her  greataunt. The father subsequently began serving a 56 month sentence in federal prison. When the child was almost five years old, the great-aunt petitioned the court for the termination of both the mother and the father’s parental rights and for the adoption of the child. The mother joined in the petition. After a termination hearing, the court announced that the father had abandoned the child, that his rights were terminated, and granted the great-aunt’s petition for adoption. The court first entered an order of adoption, but had yet to enter the order terminating the father’s parental rights. The court then issued an order of termination, but failed to include any findings of fact. Next, the court issued an amended order of termination with specific findings of fact, nunc pro tunc to the termination hearing date. Father appeals, arguing (1) that the trial court failed to make findings of fact; (2) that there is not clear and convincing proof of abandonment; (3) that the Department of Children’s Services did not afford him a reasonable opportunity to reunite with the child; and (4) that substantial harm to the child must be proven before a court may constitutionally terminate a parent’s rights. We affirm.

Lawrence Levine et al. v. Ron Marsh et. al.
M2006-00297-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge D. Randall Kennedy

This appeal involves a dispute over the personal property of a wife who was murdered by her husband. Following their appointment as conservators of her property, the wife’s parents filed suit in the Circuit Court for Davidson County against their son-in-law and certain members of his family seeking to recover their daughter’s personal property. Following a three-day trial, the jury returned a $222,449.10 verdict for the parents against the husband’s brother, sister, and brother-in-law. On this appeal, the husband’s family members take issue with the denial of their motion for directed verdict based on the statute of limitations, the failure to join the original conservator as a necessary party, the admissibility of certain evidence, and the jury instructions.  We have determined that the trial court did not commit error during the trial and, therefore, affirm the judgment.

Heatherly Awad v. Selma Curtis
MC-CV-CV-CD-02-20
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Michael R. Jones

This is a breach of contract case. The parties executed a contract for the sale of a beauty salon whereby, according to one of the provisions, Seller agreed to work for Buyer for a specific amount of time. Seller quit before the specified period expired. Both parties sued for breach of contract. The trial court awarded damages to Buyer in the amount of $18,000.00. Seller appeals, asserting that the provision at issue was too indefinite to be enforceable and challenging the damages awarded Buyer. The judgment of the trial court is affirmed.

Patsy L. Aldridge v. Pam Aldridge, et al. In Re: Conservatorship of Bill M. Aldridge
W2006-02334-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert S. Benham

This is a case involving a petition for appointment of conservator and a request for attorney’s fees by the non-petitioning spouse of the ward. The husband and wife were married, but lived apart.  The husband lived with his daughter from a previous marriage. Unknown by the husband’s children, he continued to see and financially support his estranged wife. The husband suffered from bipolar disorder requiring several hospitalizations. The husband, during a manic period, emptied his 401K account and purchased several vehicles and properties. The husband’s daughter petitioned the court for appointment of a conservatorship for her father. The court found that the husband was disabled, and appointed the daughter as the conservator over his person and a third-party attorney as the conservator over his finances. The wife was represented by counsel during the proceedings. The court ordered the conservator to pay the wife spousal support in the amount of $2,000 a month out of the husband’s $150,000 estate. The wife then petitioned the court for an award of her attorney’s fees, which the probate court denied. Wife appeals, arguing that the lower court has the statutory authority pursuant to Tenn. Code Ann. § 34-3-109 to include in the award of financial support her attorney’s fees. We affirm.

Highwoods Properties, Inc., et al. v. City of Memphis
W2007-00454-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves the second case filed by the appellants to challenge an annexation ordinance. Previously, the appellants filed a quo warranto action seeking to have the annexation ordinance declared null and void on various grounds. Other landowners had previously filed quo warranto actions that were consolidated and still pending, and the appellants sought to consolidate their action with the others. The trial court held that the appellants’ quo warranto action was not timely filed, and accordingly dismissed it. On appeal, this Court affirmed. The consolidated quo warranto proceedings concluded with a consent order approving the reasonableness of the annexation ordinance, but providing that the annexation would take place in two phases. The appellants then filed the present action seeking a declaration that the annexation accomplished through the consent order was procedurally invalid and unconstitutional. The trial court dismissed the appellants’ complaint for failure to state a claim upon which relief could be granted. We affirm.

Serena Rucker v. St. Thomas Hospital
M2007-00716-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Judge Barbara N. Haynes

This is a common-law retaliatory discharge case. Plaintiff/Appellant alleged that she was wrongfully discharged from her employment with Defendant/Appellee. Defendant/Appellee moved for summary judgment, which the trial court granted. Plaintiff/Appellant appeals. We affirm.

Jerry D. Carmack et al. v. Louis W. Oliver, III
M2006-01873-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Landowners who hired an attorney to defend their property rights brought suit for legal malpractice
against that attorney related to his representation in the litigation over disputed property. The
defendant attorney filed a motion for summary judgment, claiming that the one-year statute of
limitations for malpractice claims had passed before the landowners filed their suit against him. The trial court granted the attorney’s motion. We affirm the grant of summary judgment to the defendant attorney as to any allegations of delay in seeking an injunction against a trespassing neighbor, since the landowners had complained about the delay to several official bodies over two and a half years before they filed their complaint against their attorney. However, we reverse the trial court as to any alleged acts of legal malpractice that occurred within one year of the filing of the plaintiffs’ complaint.

State of Tennessee v. Derrick Settles
W2006-02350-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Arthur T. Bennett

The Defendant, Derrick Settles, was convicted of two counts of first degree murder and two counts of possession of over .5 ounces of marijuana with the intent to sell. The jury sentenced him to life without the possibility of parole for one murder conviction, and the trial court ordered a consecutive life sentence for the other. The trial court also merged the possession offenses into a single conviction and imposed a concurrent sentence of one year for that conviction. In this appeal, the Defendant argues that the trial court erred by denying his pretrial motions to suppress the evidence recovered from a search of his apartment and his confession because he lacked the intellectual capacity to validly consent to the search or effectively waive the rights guaranteed him by Miranda v. Arizona, 384 U.S. 436, 479 (1966). Following our review, we affirm the judgments of the trial court.

Robert Crawford, Sr. et al. v. J. Avery Bryan Funeral Home, Inc.et al. - Concurring/Dissenting
E2006-00987-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

The defendants’ filings in this case clearly establish that Teri Crawford does not have a cause of action for intentional interference with the dead body of her brother, Robert H. Crawford. That cause of action belonged to Mr. Crawford’s widow, to the exclusion of all others. Furthermore, in my opinion, the record before us negates Ms. Crawford’s alleged causes of action against all defendants except those asserted against the individuals and entities directly associated with the operation of the Tri-State Crematory (hereinafter sometimes referred to as “the Tri-State Defendants”). As to these latter individuals and entities, I believe the defendants’ filings fail to negate Ms. Crawford’s three causes of action for (1) intentional, (2) reckless, and (3) negligent infliction of mental distress. Therefore, I disagree with the majority’s conclusion that the trial court was correct in dismissing Ms. Crawford’s complaint with respect to these “infliction of mental distress” theories.

Robert Crawford, Sr. , et al. v. J. Avery Bryan Funeral Home, Inc., et al.
E2006-00987-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This appeal involves one of numerous civil lawsuits filed against T. Ray Brent Marsh and his former business, Tri-State Crematory, Inc., and others. The plaintiffs in this case are the parents and siblings of Robert H. Crawford, Jr., whose body was sent to the Tri-State Crematory for cremation. The body, however, was not cremated and to this day the plaintiffs do not know what happened to their loved ones’ body. The Trial Court dismissed the lawsuit after finding that the decedent’s surviving spouse was the only person with standing to bring the various tort claims asserted by the plaintiffs. The decedent’s sister, Teri Crawford, appeals that determination. We affirm.

Rondal Akers, et al. v. Buckner-Rush Enterprises, Inc., et al.
E2006-01513-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This is an appeal from three consolidated lawsuits filed against T. Ray Brent Marsh, Marsh’s former business, Tri-State Crematory, and Buckner-Rush Enterprises, Inc. The plaintiffs are relatives and a girlfriend of three deceased individuals whose bodies were sent by Buckner-Rush Funeral Home to Tri-State Crematory for cremation. The bodies were not cremated and either were dumped or buried by Marsh on the Tri-State premises. The Trial Court dismissed all three lawsuits after holding that the plaintiffs did not have standing to bring any of the tort, contract, or statutory claims at issue. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Rondal Akers, et al. v. Buckner- Rush Enterprises Inc. et al. - Concurring/Dissenting
E2006-01513-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

For the reasons stated in my separate opinion, concurring in part and dissenting in part, in the case of Robert H. Crawford, Sr. et al. v. J. Avery Bryan Funeral Home, Inc. et al., No. E2006-00987-COA-R3-CV (Tenn. Ct. App. E.S., filed November 21, 2007), I respectfully dissent from so much of the majority opinion as affirms the dismissal of the complaints filed by Rondal D. Akers, Jr., Lucinda Akers, Donna Burns, Susan Hall, Doyle Harden, Ricky Harden, Sandra Fogle, Mollie C. Denton, and Elaine Waldron, against the individuals and entities directly associated with the operation of Tri-State Crematory, as to the claims in those complaints alleging outrageous conduct/infliction of emotional distress. In all other respects, I concur in the majority opinion.

Michael W. Smith v. Delphus Hicks, Sheriff
W2007-00320-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Michael W. Smith, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.

Michael Ware v. Tommy Mills, Warden
W2007-00186-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Michael Ware, appeals the lower court’s denial of his petition for habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s dismissal.
 

Trent Watrous, Individually, and as the surviving spouse and next of kin of Valerie Watrous v. Jack L. Johnson, et al.
W2007-00814-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The trial court awarded summary judgment in favor of Defendants on Plaintiff’s claim of negligent entrustment. We reverse and remand for further proceedings.

Gordon C. Collins v. Barry L. Arnold, et al. - Concurring
M2004-02513-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

I am in complete agreement with the court’s conclusions that the judgment in this case must be reversed because the trial court refused to give an instruction warranted by the facts and that the evidence does not warrant an award of punitive damages against either Graham Brothers Entertainment of Nashville or Tennessee Protection Agency. Because this case must be retried, I write separately with regard to the admissibility of the evidence regarding Mr. Gangwer’s prior conviction.