Russell Allen v. State of Tennessee
M2004-00217-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert L. Jones

In 2000, the Petitioner, Russell Allen, was convicted of aggravated sexual battery, and was sentenced to serve eight years. Subsequently, the Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition, concluding that his petition was not filed within the statute of limitations. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his post-conviction petition. After thoroughly reviewing the record and the applicable authorities, we affirm the post-conviction court's judgment.

GSB Contractors, Inc. v. Harry F. Hess, Jr. and Connie Hess
W2003-03068-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

Following a hail storm which severely damaged the Appellees’ home, the Appellee contracted with the Appellant, a construction contractor, to repair the damage. The Appellees’ insurance policy covered the damage done to the home by the hail storm, but the Appellees entered into a collateral agreement with the Appellant to do additional work to the home. The insurance company paid for all work done by the Appellant in repairing the damage from the storm, but the Appellees refused to pay the balance due on work completed under the collateral agreement citing poor workmanship by the Appellant’s subcontractors. The Appellant subsequently filed suit against the Appellees in general sessions court seeking to recover the balance owed. Following a judgment in favor of the
Appellant, the Appellees appealed to the circuit court and filed a counterclaim against the Appellant.  Following a trial, the circuit court ruled in favor of the Appellees. In proving their damages, the Appellees presented the testimony of two expert witnesses at trial. The circuit court ruled that the proper measure of damages was the cost of repairing the defective work. The Appellant filed an appeal to this Court contesting the trial court’s selection of “cost of repair” as the appropriate measure of damages in this case, as well as the trial court’s evidentiary rulings regarding certain testimony. We affirm.

George Haskel Stewart v. Demple L. Sewell, et al.
M2003-01031-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Buddy D. Perry

Plaintiff, stepson of Clara Stewart, contends that attorneys-in-fact of Mrs. Stewart acted in violation of Tenn. Code Ann. 34-6-108(c)(6) and their confidential relationship with Mrs. Stewart, which deprived him of inheriting real property formerly owned by his father under the will of Mrs. Stewart. The attorneys-in-fact (Fiduciaries) are the daughter and son of Mrs. Stewart. They sold the property while their mother was mentally and physically incapacitated, living in a nursing home. The property was sold for substantially less than the appraised value to a daughter and son-in-law of one of the Fiduciaries and two of their friends. Mrs. Stewart, who inherited the property from Plaintiff's father, was the sole owner of the property at the time of the sale. The Fiduciaries, however, invested the proceeds in certificates of deposit with themselves identified as co-owners with Mrs. Stewart with right of survivorship. The Fiduciaries became sole owners of the entire sales proceeds upon the death of Mrs. Stewart. During the administration of Mrs. Stewart's estate, the Fiduciaries, now executors, advised Plaintiff that his devise adeemed by extinction. Plaintiff brought this action to recover the real property or the fair market value thereof from the Fiduciaries and/or the buyers. The trial court dismissed the complaint without making findings, stating only that it was not sustained by the proof. Plaintiff appealed. We reverse finding that the Fiduciaries acted in contravention of the power of attorney and Tenn. Code Ann. 34-6-108(c)(6) and breached their fiduciary duties to Mrs. Stewart, and award Plaintiff a judgment against the Fiduciaries for the net proceeds resulting from the sale of the devised property plus pre-judgment interest from the date of sale.

Harry Douglas Lane v. Harry Lane, Henderson, Hutcherson, & McCullough PLLC., E. Laddell McCullough, CPA, Harry Lane Nissan, Inc., and Jeffrey E. Cappo
E2003-02763-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor John F. Weaver

In this dispute over the plaintiff's share in the proceeds of the sale of the business, the Trial Court awarded Judgment to plaintiff in the amount of $571,453.00, plus interest based on the "sales price" as found by the Judge. On appeal, we affirm.

David James Cantrell v. State of Tennessee
E2004-01234-CCA-R3-HC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Thomas W. Graham

The petitioner, David James Cantrell, appeals from the trial court's order dismissing his petition for writ of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petition fails to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

In Re M.J.M., Jr., L.P.M., & C.A.O.M. - Concurring
M2004-02377-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Samuel E. Benningfield

I continue to disagree with the standard of review employed by the Court in this case for reasons discussed at length in In Re Z.J.S. No. 2002-02235-COA-R3-JV, 2003 WL 21266854 at *18-22 (Tenn.Ct.App.June 3, 2003) (no Tennessee Rule of Appellate Procedure 11 application filed) and Estate of Acuff v. O’Linger, 56 S.W.3d 527, 533-37 (Tenn.Ct.App.2001). A preponderance of the evidence standard is inconsistent and irreconcilable with a clear and convincing evidence standard either in the trial court or on appeal.

In Re M.J.M., Jr., L.P.M., & C.A.O.M. - Concurring
M2004-02377-COA-R3-PT
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Samuel E. Benningfield

I agree fully with the majority’s resolution of this case and the issues raised therein. I write separately, however, to express my concern with the apparent inconsistency in the grounds alleged by the Department. Specifically, while the parents’ failure to make reasonable efforts to provide a suitable home for the first four months after removal of the child from the home is a definition of abandonment, Tenn. Code Ann. § 36-1-102(1)(A), it is questionable to me whether the Department can rely on that ground when it has entered into a permanency plan that gives a parent one year to find stable and suitable housing. The majority found that ground unavailable because the Department did not use reasonable efforts, making it unnecessary to address my concern. I agree with that conclusion, but want to make it clear that some question about reliance on that ground may exist regardless of the Department’s efforts.

In Re M.J.M., Jr., L.P.M., & C.A.O.M.
M2004-02377-COA-R3-PT
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Samuel E. Benningfield

This appeal involves a mother’s efforts to prevent the termination of her parental rights to her three children while she completes her treatment for methamphetamine addiction. After the Tennessee Department of Children’s Services took custody of the children, it devised a permanency plan obligating the mother to address her drug addiction and to complete other remedial tasks within twelve months. However, after six months of the mother’s failed attempts to restore order to her life, the Department filed a petition in the White County Juvenile Court to terminate the mother’s parental rights. Between the filing of the Department’s petition and the hearing, the mother made significant steps toward completing the tasks in the permanency plan. Despite the mother’s progress, the juvenile court terminated her parental rights on the grounds of abandonment, failure to comply with the permanency plan, and failure to remedy the conditions that had required the children’s removal. The mother has appealed. We have determined that the Department has failed to present clear and convincing evidence of one or more grounds for terminating the mother’s parental rights.

Guy G. Bigger, Jr., et al. v. Anthony I. Fields, Guy M. Fields, Patrick E. Smith, et al.
M2004-01489-COA-R3-CV
Authoring Judge: Judge Donald P. Harris, Sr.
Trial Court Judge: Chancellor J. B. Cox

As found by the trial court, appellant, Guy G. Bigger, Jr., was defrauded by Anthony Fields and Guy Fields with regard to the sale of a 332 acre tract of land in Marshall County, Tennessee. The Fields’ conveyed a portion of the tract to the appellee, Patrick Smith. Mr. Bigger brought suit seeking, among other things, to set aside the Fields’ deed to Mr. Smith alleging it to be a fraudulent conveyance. The trial court found Mr. Smith to be a bona fide purchaser who gave adequate consideration for the transfer and denied relief as to Smith. Mr. Bigger appealed challenging the findings of the trial court. We find the evidence does not preponderate against the trial court’s findings and affirm.

Alfio Orlando Lewis v. Ricky Bell, Warden
M2004-02735-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Alfio Orlando Lewis, appeals from the dismissal of his petition for the writ of habeas corpus. The State has filed a motion requesting that the Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State's motion has merit. Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

In The Matter of: M.J.J.
M2004-02759-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John P. Hudson

In this termination of parental rights case, the juvenile court terminated the parental rights of the mother and father, and the mother appeals. We affirm.

Dickey Cotton v. State of Tennessee
W2004-00366-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Carolyn Wade Blackett

The petitioner appeals from the denial of post-conviction relief and asserts in two issues that his guilty plea was unknowing and involuntary due to (1) trial counsel’s ineffective representation, and (2) violations of Tennessee Rule of Criminal Procedure 11. We affirm the denial of post-conviction relief.

State of Tennessee v. James Austin - Dissenting
W2004-00510-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge John P. Colton, Jr.

The majority concludes that modification of the defendant’s sentence is required in light of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ______, 124 S. Ct. 2531 (2004).  I must respectfully dissent.

State of Tennessee v. James Austin
W2004-00510-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John P. Colton, Jr.

The defendant appeals his conviction for second degree murder on the grounds of insufficient evidence to support the verdict and the sentence, pursuant to Blakely issues. After review, we find sufficient evidence to support the verdict. We conclude that the two enhancement factors used to elevate the sentence are violative of Blakely and, therefore, modify the sentence to twenty years. The cause is remanded for modification of sentence.

Robert Brewster, Jr. v. Fayette County Board of County Commissioners, et al.
W2003-01842-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Dewey C. Whitenton

The Fayette County Board of Commissioners denied Plaintiff/Appellant’s application for a change in zoning. The Chancery Court for Fayette County affirmed. We affirm.

Cory D. Holland v. Packard's Service Center, LLC.
M2003–01807-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol L. Soloman

Plaintiff claims that his 1990 Nissan with over 200,000 miles was rendered inoperable due to Defendant’s installation of a faulty alternator. He seeks damages for the diminution in the value of the vehicle, wages he allegedly lost while the vehicle was inoperable, and damages under Tennessee’s Consumer Protection Act. Plaintiff’s claims under Tennessee’s Consumer Protection Act were dismissed upon summary judgment. During the trial, the court granted competing motions excluding both parties’ expert witnesses. The jury returned a verdict for the defendant on the remaining claims. Plaintiff appeals. We affirm.

Loucindra Taylor v. American Protection Insurance Co., et al.
W2004-01011-WC-R3-CV
Authoring Judge: Special Judge W. Frank Brown, III
Trial Court Judge: Chancellor George R. Ellis

American Protection Insurance Company and Tower Automotive Products Company, Inc. appeal the trial court’s grant to Loucindra Taylor of 12% permanent partial disability to both of her arms. First, the Appellants contend that the injured employee did not give notice to the employer as required by law. Second, the Appellants argue that the medical evidence failed to show that the Plaintiff’s condition was related to her employment. Third, the Appellants claim that the 12% award to each arm is excessive and not supported by the evidence. For the reasons set forth below, we affirm the decision of the trial court.

Lawrence Parisi v. Ryan's Family Steakhouse, et al.
W2004-01671-WC-R3-CV
Authoring Judge: Special Judge W. Frank Brown, III
Trial Court Judge: Judge Kay S. Robilio

The employee, Lawrence Parisi, has appealed the trial court's dismissal of his workers’ compensation lawsuit. Mr. Parisi was a Mississippi resident. He worked at a Ryan's Family Steakhouse in Mississippi and was injured there. Based upon the facts of this case and the applicable law, we affirm the dismissal entered by the trial court.

State of Tennessee v. William O. Ewerling
M2003-00595-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Seth W. Norman

The Appellant, William O. Ewerling, proceeding pro se, appeals his misdemeanor convictions by the Davidson County Criminal Court for possessing a weapon in a public park, possession of a handgun while under the influence of alcohol, and criminal trespass. On appeal, Ewerling argues the trial court erred as follows: (1) improperly admitted hearsay statements; (2) admitted non-relevant evidence; (3) permitted introduction of evidence from a witness who had no personal knowledge of the matter; (4) improperly instructed the jury; and (5) imposed excessive sentences. Additionally, Ewerling argues that the evidence was insufficient to support his convictions. After review, we conclude that issues (1), (2), (3), (4), and (5) are waived as the record is insufficient to permit a review of these issues. With regard to Ewerling's sufficiency argument, we conclude that the evidence is legally sufficient to support his convictions for possessing a weapon in a public park and possession of a handgun while under the influence. However, we conclude that the evidence is legally insufficient to support his conviction for criminal trespass. Accordingly, the convictions and sentences for possessing a weapon in a public park and possession of a handgun while under the influence are affirmed; the conviction for criminal trespass is reversed and dismissed.

Clifford Wilson v. Gay Lynn Wilson
M2003-02261-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

This case involves a dispute over the proper amount of child support to be paid for the parties' two minor children. Father requested a child support adjustment due to the emancipation of the parties' oldest child. He additionally requested a downward deviation of his child support payments due to significant additional parenting time in excess of that contemplated by the Tennessee Child Support Guidelines, as well as, significant additional monies paid for private school and other expenses for the children. The previous court order required Husband to pay $4,100 per month for their three minor children based on an income of $10,000 per month. The trial court determined that Husband's new child support amount for the remaining two minor children would be $3,700 per month. Father argued that the proper amount after the emancipation of their oldest child should reduce his child support to $3,200 per month. Father also argued that he should be entitled to a downward deviation reducing his child support to $1,000 per month for his two minor children. We agree with Father that the trial court incorrectly modified his child support following the emancipation of the parties' oldest child. Although Husband's current income is in excess of $10,000 per month, Wife did not carry her burden of proving that additional child support based on an amount over $10,000 per month is reasonably necessary. Child support should be set at 32% of $10,000, $3,200 per month. With regard to Father's request for a downward deviation of his child support obligation, we find that there has been no change of circumstances since the last court order and that this issue could have and should have been litigated at the time of the previous Order, so the matter is barred by res judicata. Child support is set at $3,200 per month for the remaining two minor children.

State of Tennessee, Department of Children's Services, vs. S.A.M.H.
E2004-02543-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Steven H. Jones

On May 27, 2004, the Juvenile Court Referee entered an order terminating the parental rights of S.A.M.H. ("Mother") to her two minor daughters. The Referee concluded that the State of Tennessee, Department of Children's Services ("DCS") had proven by clear and convincing evidence that grounds to terminate Mother's parental rights existed and that doing so was in the best interests of the children. Pursuant to Tenn. R. Juv. P. 4(c)(2), the Referee was required to inform Mother of her right to request a rehearing before the Juvenile Court Judge as well as the manner and time limits within which to perfect such a request. The Referee inadvertently failed to inform Mother than she had only five judicial days in which to file her request for a rehearing. Mother filed her request for a rehearing one day late. The Juvenile Court Judge dismissed Mother's appeal after concluding that it was untimely and the Referee's decision had become final after five judicial days. We vacate the judgment.

Randall Blakeney v. State of Tennessee
E2004-02499-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Randall Blakeney, appeals the trial court's order denying post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The pleading is barred by the statute of limitations and was properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. John H. Parker
W2004-00911-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner filed a “Writ of Certiorari and/or Writ of Habeas Corpus and/or Motion for Post-Judgment Relief” in the trial court. On appeal, the petitioner challenges the trial court’s denial of both his petition for writ of habeas corpus and his application for writ of certiorari. Following our review, we affirm the denial of both forms of relief.

State of Tennessee v. Charles Michael Hall
W2004-01165-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Julian P. Guinn

A jury convicted the defendant, Charles Michael Hall, for a third offense of driving under the influence of an intoxicant (D.U.I.), a Class A misdemeanor, and for driving after having been declared a habitual motor vehicle offender, a Class E felony. For the D.U.I. conviction, he received a sentence of eleven months and twenty-nine days in the county jail with a release eligibility at 75% and a $1500 fine. For the habitual motor vehicle offender offense, he received a sentence of one year as a Range I standard offender to be served in the Department of Correction. The sentences are to be served consecutively. In this appeal as of right, the defendant argues: (1) the evidence is insufficient to sustain his convictions; (2) the trial court improperly denied charging a proposed jury instruction; and (3) the trial court improperly charged the jury. After reviewing the matter, we affirm the judgment of the trial court.

State of Tennessee v. Michael L. Calandros - Judgment
E2004-02382-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John Everett Williams

Came the appellant, Michael L. Calandros, pro se, and also came the Attorney General on behalf of the State of Tennessee, and this case was heard on the record on appeal from the Criminal Court of Sullivan County; and upon consideration thereof, this Court is of the opinion that this avenue of appeal is unavailable to the defendant because the sentence in this case is neither illegal nor void.