Jerry D. Carney v. State of Tennessee
M2005-01904-CCA-R3-CO
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Cheryl A. Blackburn

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court’s order dismissing his petition for writ of error coram nobis in which the petitioner alleged that newly-discovered evidence mandated a new trial. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for coram nobis relief after a hearing and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Darryl Ford v. State of Tennessee
M2005-01854-CCA-R3-HC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert L. Holloway

The Appellant, Darryl Ford, proceeding pro se, appeals the Wayne County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. Because the petition fails to raise a cognizable claim for habeas corpus relief, the judgment of the trial court is affirmed.

Don Murfree McClaran, et al. v. Judith Ann Beardsley, et al.
M2005-02042-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge J. Mark Rogers

In this case, the unsuccessful Plaintiff appeals the grant of summary judgment in favor of a will offered for probate by the defendants, Judith Ann Beardsley as executrix and Cavalry Bank Trust Department as Administrator ad litem for the estate of Olalee McClaran. Plaintiff challenges the will as a product of fraud in the inducement and undue influence. The proponents filed a Motion to Dismiss or in the Alternative for Summary Judgment. From the summary judgment grant against him, Mr. McClaran now appeals. We affirm the trial court.

State of Tennessee v. Johnny C. Menifee
M2005-00708-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Stella L. Hargrove

The Appellant, Johnny C. Menifee, was convicted by a Maury County jury of Class D felony evading arrest with risk of injury, misdemeanor theft, Class E felony reckless endangerment with a deadly weapon, and resisting arrest following his involvement in a car theft and resulting police high-speed chase. Menifee was subsequently sentenced to an effective eighteen-year Department of Correction sentence. On appeal, Menifee raises two issues for review: (1) whether the evidence is sufficient to support his convictions; and (2) whether his dual convictions for felony evading arrest and felony reckless endangerment violate double jeopardy. Following review, we affirm the convictions.

Tammy Kay Joiner v. James Alden Griffith - Concurring
M2004-02601-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Wayne C. Shelton

The majority opinion and some of the participants in this matter have placed significant emphasis on the best interests of the child prong of the modification analysis. In my opinion, a more rigorous analysis of the first prong, i.e., whether there was a material change in circumstances, is in order since that finding is a pre-requisite to consideration of best interest.

Tammy Kay Joiner v. James Alden Griffith
M2004-02601-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Wayne C. Shelton

This bitter change of custody proceeding originated with Mother’s filing of a Petition to Stay Visitation based upon concerns that the parties’ youngest child had been potentially exposed to inappropriate sexual behavior while in Father’s custody. Father counterclaimed for a change in custody based upon Mother’s attempt to interfere with Father’s visitation. Following a bench trial, the trial court found Mother’s accusations unfounded, awarded Father joint custody, and decreased Father's child support. Mother asserts that the trial court erred by finding the circumstances had changed sufficiently to modify custody or child support. Since the outcome of the custody issue was dependent on the trial court’s assessment of the credibility of the witnesses, we affirm the trial court’s conclusion that there was a material change of circumstances. We, however, have concluded the trial court erred in setting child support, and remand that issue for further proceedings.

State of Tennessee v. Latonya Taylor
M2005-00313-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, Latonya Yvonne Taylor, was convicted by a Davidson County jury of aggravated  robbery, especially aggravated kidnapping, and two counts of kidnapping. For these convictions, the Defendant received an effective twenty-three-year sentence in the Department of Correction. In this appeal as of right, the Defendant presents the following issues for our review: (1) whether the trial court erred in denying her motion to suppress her statement given to the police; (2) whether the trial court improperly limited the scope of the Defendant’s mother’s testimony; (3) whether theevidence is sufficient to support her conviction for especially aggravated kidnapping; and (4) whether the trial court erred by imposing consecutive sentences. After review, we find no error and affirm the judgments of the trial court.

City of Jackson v. Mohamed Shehata
W2005-01522-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Donald H. Allen

A businessman purchased a house in Jackson, Tennessee for the use of his employees. While he did not live at the residence, the businessman allowed the employees to park the equipment used in the furtherance of his business at the residence. The equipment consisted of parking lot sweepers, pickup trucks, and trailers holding lawn-care equipment. The house is located in an area of the city zoned for residential use only. After receiving complaints from the neighbors, the city discussed the situation with the businessman in an effort to have him remove the equipment. When he failed to do so, the city sent him a letter asking that he remove the equipment or face further action. When this did not produce results, the city issued the businessman a citation for violation of the applicable residential zoning ordinance. The city court ruled that the businessman’s conduct violated the ordinance. The businessman appealed to the circuit court, which likewise entered a ruling in favor of the city. The businessman has appealed to this Court arguing that the applicable ordinance is impermissibly vague and that the citation failed to notify him that storing business equipment at the residence constituted a violation of the ordinance. We affirm.

Arnold Alphonso Bueno v. Pattie Lynette Bueno Todd
W2005-02164-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor D. J. Alissandratos

This appeal stems from criminal and civil contempt charges brought by a father of two minor children because of the mother’s failure to pay child support. The father brought his criminal contempt charge based on section 36-5-104 of the Tennessee Code. In this appeal, we are asked to determine whether the chancery court violated the mother’s due process rights during the criminal contempt hearing. The mother asserts on appeal that the chancery court violated her due process rights by (1) allowing the father’s attorney to try the case against her for criminal contempt; (2) failing to provide proper notice to her pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure; (3) failing to provide her with a right to a jury trial; and (4) applying the wrong legal standard when it found her guilty of criminal contempt. Also, we are asked to determine whether the chancery court properly terminated the mother’s visitation rights with her children based on the chancery court’s findings that the mother committed perjury, that the mother was in criminal contempt for violating section 36-5-104 of the Tennessee Code, and that the mother was in civil contempt. We vacate the portions of the chancery court order (1) finding Appellant in criminal
contempt, (2) sentencing Appellant to serve six months in jail for criminal contempt, and (3) terminating Appellant’s visitation with her children until they attain the age of eighteen years, and we remand this case to the chancery court for further proceedings.

Mary E. Moffitt v. U.S. Xpress Enterprises, et al.
E2004-02500-WC-R3-CV
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Chancellor Howell N. Peoples

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and
conclusions of law. The Employee asserts that the trial court erred in finding that she did not sustain injuries arising out of and in the course and scope of her employment with Employer as a result of an incident occurring on December 14, 2000, and also asserts that the trial court erred in assessing court costs against her. We agree with the findings of the trial court and affirm the judgment.

Gerald Jump v. C & M Disposal
E2005-02629-WC-R3-CV
Authoring Judge: Special Judge Roger E. Thayer
Trial Court Judge: Chancellor Jerri S. Bryant

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated §50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions
of law. The trial court dismissed the complaint finding Plaintiff had failed to establish he suffered
an aggravation of a pre-existing fracture to his left wrist. On appeal, Plaintiff argues the medical
evidence preponderates against the court’s dismissal of the action. Defendant seeks recovery of
discretionary costs and also seeks to have the costs of preparing the transcript of the evidence taxed as appellate costs. We affirm the dismissal of the action and remand the issue of discretionary costs to the trial court.

Jesse Williams, Sr., et al. v. Linkscorp Tennessee Six, L.L.C., d/b/a Nashboro Golf Club - Dissenting
M2004-02603-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

I respectfully dissent from the majority. As stated in the majority opinion, in order for an owner or operator of premises to be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, the plaintiff must prove, in addition to the elements of negligence, that the condition was caused or created by the owner or, if the condition was created by someone other than the owner, that the owner had actual or constructive notice that the condition existed prior to the accident. Blair v. West Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004). It is alleged in the Plaintiffs’ complaint that Mr. Williams was walking down a set of steps on the golf course that were made of railroad crossties and that he fell due to the slippery surface of the step. Mr. Williams testified in his deposition that he evidently hit some mud and moss1 on the stairs, which caused him to fall. He testified that it was “raining real, real hard at that time.” However, Mr. Williams recanted this testimony in a subsequent affidavit wherein he stated, “it may have been sprinkling, but it was not raining hard.” In response to the Defendant’s motion for summary judgment, the Plaintiffs filed affidavits of Arthur Overall and Larry Rees, both of whom were golfing with Mr. Williams. Mr. Overall stated that

it had been raining heavily early that morning, but at the time we were playing golf,
there was a light drizzle if raining at all. As we approached the 8th hole, Jesse
Williams, Sr., was walking down the steps when he slipped and fell. As I walked
over to help Jesse Williams, Sr., I observed that there was Algae 2 and water all over
the steps and that they were made of railroad ties and were very uneven and worn.
The steps were very slippery.

Jesse Williams, Sr., and wife Janet Williams v. Linkscorp Tennessee Six, L.L.C., d/b/a Nashboro Golf Club
M2004-02603-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is a premises liability action. While playing golf in the rain, the plaintiff slipped and fell on stairs on the golf course made of railroad cross ties. The plaintiff claimed that the stairs were covered with mud and some variety of moss or algae, making them dangerously slippery. The plaintiff sued the golf course for negligence. The defendant golf course filed a motion for summary judgment, which the trial court granted, finding that the plaintiff failed to proffer evidence of notice, either actual or constructive. The trial court also found that the plaintiff’s evidence of a dangerous condition was speculative. We reverse, finding sufficient evidence to create a factual issue on whether a dangerous condition existed and whether the defendant golf course had constructive notice.

State of Tennessee v. Richard Barrom
W2005-01596-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

Following a jury trial, the defendant, RichardBarrom,was convicted of assault by causing extremely offensive or provocative physical contact, a Class B misdemeanor. The trial court deferred sentencing, placed the defendant on diversion for eleven months, twenty-nine days, and ordered him to perform thirty hours of community service work and complete an anger management program.  On appeal, he argues that: (1) the evidence is insufficient to support his conviction; (2) the trial court erred in overruling his objection to hearsay testimony; (3) the trial court improperly removed a juror based on race; and (4) his conviction was barred by prior jeopardy. Additionally, the State argues that the trial court erred by granting judicial diversion. Following our review, we affirm the judgment of the trial court.

Memphis Health Center, Inc. et al. v. Gregory Grant, et al.
W2004-02898-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor D. J. Alissandratos

This is a derivative action. The board chairman of a nonprofit health care center was found guilty of submitting false claims in violation of federal law. Thereafter, the health care center’s chief executive officer and two of its board members filed a derivative action on behalf of the health care
center against the chairman and health care center’s remaining board members for violating their fiduciary duties to the corporation. The derivative suit sought, inter alia, injunctive relief to require the board to take action against the board chairman, and to enjoin the board from allegedly violating the CEO’s employment agreement by terminating her. The trial court issued a temporary restraining order, enjoining the board from violating the health care center’s bylaws, from violating federal regulations, and from terminating the employment of the CEO. Subsequently, the trial court found the defendant board members guilty of contempt for violating that order and entered a permanent injunction against the defendants. The permanent injunction awarded in the contempt action removed the defendants from the board and permanently barred them from the premises. The defendants appealed. We affirm, finding that the trial court’s action was warranted in the face of the board’s failure to take action regarding the board chairman after the federal judgment for filing false claims was entered against him.

State of Tennessee v. Bobby Ray Johnson
M2005-02357-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John W. Rollins

In the latter half of 2001, the defendant, Bobby Ray Johnson, who was living in Coffee County, convinced his girlfriend to engage in fellatio on two occasions with the minor victim, while the defendant watched and videotaped the encounters. The defendant was indicted for two counts of rape of a child. The defendant was convicted on both counts by a Coffee County jury. The trial court sentenced the defendant to two consecutive sentences of twenty years each to be served at 100% as a child rapist. The defendant argues that there was insufficient evidence to support his conviction and that the trial court erred in ordering his sentences to be served consecutively. We affirm the judgments of the trial court.

Henry Kent Sudberry v. Royal & Sun Alliance, et al.
M2005-00280-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert E. Corlew, III

Trial court granted motion to dismiss tort claims as barred by statute of limitations where the injury alleged was loss of employment. To the extent the employee alleged he had a contract for continued employment, his complaint was not subject to Tenn. R. Civ. P. 12.02(6) dismissal because the three year statute of limitations applies to cases involving loss of property, including contractual rights.

State of Tennessee v. Gary Lee Marise
W2003-02434-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Judge Charles C. McGinley

We granted permission to appeal in this case pursuant to Rule 11, Tennessee Rules of Appellate Procedure, to determine whether lay testimony of olfactory observations alone may support a conviction for possession of anhydrous ammonia with the intent to manufacture methamphetamine, a violation of Tennessee Code Annotated section 39-17-433(a). We conclude that the burden of proving the nature and composition of anhydrous ammonia as it is defined in Tennessee Code Annotated section 43-11-303(a) cannot be met by adducing lay testimony of olfactory observations only. Because the evidence adduced in the case under submission did not include any evidence of the chemical composition of the substance, we conclude that it is insufficient to sustain the conviction for unlawful possession of anhydrous ammonia and reverse the judgment of the Court of Criminal Appeals insofar as it affirmed this conviction. Accordingly, we dismiss the defendant’s conviction for possession of anhydrous ammonia with the intent to manufacture methamphetamine.

State of Tennessee v. Bobby Gene Walker, Jr.
E2005-02200-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Bobby Gene Walker, Jr., appeals a certified question of law regarding a police officer’s stop of him which resulted in his arrest for driving under the influence and violating the implied consent law. Because we agree with the Circuit Court for Blount County that reasonable suspicion supported by specific and articulable facts existed for the stop, we affirm the judgments of the trial court.

State of Tennessee v. Robert J. Wrigglesworth, Jr.
M2005-01841-CCA-R9-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael R. Jones

The defendant, Robert J. Wrigglesworth, Jr., previously convicted in Texas for the offense of indecency with a child by contact, was indicted for violating Tennessee Code Annotated section 40-39-211(c) because of his residing at an address where a minor child also resided. He offered to stipulate that he was a sex offender as covered by this statute. The trial court concluded that the State was required to accept this stipulation and thus barred from proving that the defendant was a convicted sex offender or why it was unlawful for him to live in the same residence as a minor. The State filed a Rule 9 appeal. Following our review, we reverse the order of the trial court.

State of Tennessee v. William Earl Cherry
M2005-02327-CCA-R9-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald P. Harris

Williamson County- The defendant, William Earl Cherry, was indicted for three counts of aggravated assault and three counts of reckless endangerment. He filed an application for pretrial diversion, and the State denied his request. He then filed a petition for writ of certiorari, and the trial court ordered that the State enter into a memorandum of understanding. The State filed a Rule 9 appeal. Following our review, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

Terry Jamar Norris v. State of Tennessee
W2005-01502-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Terry Jamar Norris, appeals the dismissal of his petition for post-conviction relief, arguing ineffective assistance of appellate counsel. Following our review, we affirm the dismissal of the petition for post-conviction relief.

State of Tennessee v. Markus K. Hartley
M2005-02523-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jeff Bivins

The appellant, Markus K. Hartley, was indicted by the Williamson County Grand Jury for driving under the influence, fourth offense. The appellant filed a motion to suppress the evidence, arguing that the police did not have probable cause to stop his vehicle. The trial court denied the motion to suppress the evidence. Subsequently, the appellant pled guilty to driving under the influence, second offense, but reserved a certified question of law to determine whether the trial court properly ruled on the motion to suppress. Because the trial court properly denied the motion to suppress, we affirm the judgment of the trial court.

Nancy Lee Barlow Long v. Bobby Ray Long
M2004-01697-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Carol L. Soloman

In this post-divorce action, the Trial Court entered Judgment against the defendant for previously awarded obligations, and held him in contempt. On appeal, we affirm.

Sumner County Board of Education v. Carden Company, Inc.
M2005-2670-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Tom E. Gray

In this action, the Trial Court stayed defendant’s planned arbitration and defendant has appealed.  We affirm.