State of Tennessee v. Carl Creason
E2003-02505-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Curtis Smith

A jury found the Defendant, Carl Creason, guilty of driving on a revoked driver's license. After conducting a sentencing hearing, the trial judge sentenced the Defendant to six months in the county jail. The Defendant appeals his sentence, arguing that the trial court erred by not allowing him to serve his sentence on probation. We affirm the judgment of the trial court, but remand for entry of a uniform judgment document.

Jeff Willard v. Golden Gallon-TN, L.L.C.
E2003-02628-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Samuel H. Payne

This is a retaliatory discharge case wherein the plaintiff/employee alleged that his employment was terminated, inter alia, in violation of the Family and Medical Leave Act and because he obeyed a lawful subpoena. The trial court granted the employer's motion for summary judgment. The employee appealed. We vacate the trial court's grant of summary judgment because we have determined that (1) a claim for retaliatory discharge in violation of Tennessee public policy lies in cases where a substantial factor in an employer's decision to terminate an employee is the fact that the employee honored a lawful subpoena, (2) a genuine issue of material fact exists as to whether the employee was terminated for honoring a lawful subpoena, and (3) a genuine issue of material fact exists as to whether the employee was terminated in violation of the Family Medical and Leave Act. Accordingly, we vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.

State of Tennessee v. Michael A. Prechtel
E2003-02653-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.

Defendant, Michael A. Prechtel, appeals the trial court's revocation of probation. On September 6, 2001, Defendant pled guilty in the Cumberland County General Sessions Court to possession of drug paraphernalia and was sentenced to serve 11 months and 29 days with all but two days suspended and placed on supervised probation. Following three separate probation revocation proceedings in the general sessions court, defendant's probation was revoked and he was ordered to serve his sentence in the Cumberland County jail. Defendant appealed to the Cumberland County Criminal Court. Following a de novo hearing, the criminal court affirmed the general sessions court's decision to revoke defendant's probation and ordered him to serve 11 months and 29 days in confinement. We affirm the judgment of the Cumberland County Criminal Court.

J.E.B. v. J.C.W.
E2003-02782-COA-R3-JV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge William Terry Denton

This is a child custody case. After a trial, the trial court designated the Father as primary residential custodian of the parties’ child. Mother appeals, arguing that the trial court should have awarded her primary residential custody. We find that the evidence does not preponderate against the trial court’s finding that the child’s best interests are served by awarding Father primary residential custody. Consequently, we affirm the judgment of the trial court.
 

Gary Lynn Vernon, Pro Se v. Jim Dickman, Warden & State of Tennessee
M2003-02268-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Russell Heldman

The Petitioner, Garry Lynn Vernon, appeals the trial court's denial of his petition for habeas corpus relief. The state has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner fails to assert a cognizable claim for which habeas corpus relief may be granted. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Phillip Lowell Bledsoe
W2003-02867-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Clayburn L. Peeples

The appellant, Phillip Lowell Bledsoe, was convicted by a jury in the Circuit Court of Gibson County of first degree premeditated murder and sentenced to life imprisonment. On appeal, the appellant contends that the evidence was insufficient to support his conviction of first degree murder. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Don Allen Coleman v. Jack Morgan, Warden
M2002-02237-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R.E. Lee Davies

Don Allen Coleman petitioned the Hickman County Circuit Court for habeas corpus relief, contending that the two rape of a child judgments against him impose illegal sentences. We agree that the sentences are illegal and we vacate them, thereby reviving the two indictments and pleas for further proceedings.

State of Tennessee v. Leslie E. Raymond
E2003-02709-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The petitioner, Leslie E. Raymond, appeals the trial court's dismissal of his motion to correct an illegal sentence. The State has filed a motion requesting that this Court dismiss the appeal or, in the alternative, affirm the trial court's action pursuant to Rule 20, Rules of the Court of Criminal Appeals. The motion is without merit. Accordingly, the judgment of the trial court is affirmed.

Tommy Davis Craig v. David Robert Dison
M2003-00419-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Allen W. Wallace

This appeal involves an unsuccessful plaintiff who seeks review of a jury verdict. Plaintiff argues that the trial judge failed to perform his function as a thirteenth juror. We agree and reverse and remand for a new trial.

Eric T. Davis v. State of Tennessee
M2003-02138-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge John H. Gasaway, III

The petitioner, Eric T. Davis, pled guilty to robbery, and the trial court sentenced him to six years probation. The petitioner subsequently pled guilty to possession of cocaine with the intent to sell, and the trial court sentenced him to eight years probation, to be served consecutively to his prior sentence. The petitioner's probation was revoked in both cases. He appealed the trial court's order revoking his probationary sentences, and this court affirmed the revocation of his probation. Thereafter, the petitioner filed a pro se petition for post-conviction relief in which he alleged, among other things, that he was denied effective assistance of counsel at his probation revocation hearing. The post-conviction court summarily dismissed the petition, holding the petitioner failed to assert a colorable claim for post-conviction relief. After reviewing the record and applicable law, we conclude that the post-conviction court was correct in summarily dismissing the petition. Accordingly, we affirm the post-conviction court's judgment.

Jon E. Shell v. D. Scott King
E2003-02124-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Jon and Rebecca Shell ("Plaintiffs") sued D. Scott King ("King") after a limited liability company formed by the three of them went out of business. Plaintiffs sought dissolution of the company known as The Big Red Barn, LLC ("the Company" or "the LLC"). Plaintiffs also claimed King had breached his fiduciary obligations to both them and the LLC. The trial court referred this case to a Special Master and after a trial, the Special Master issued a report concluding King was negligent and had breached his fiduciary obligations and recommending that plaintiffs be awarded a judgment which included some, but not all, of plaintiffs' attorney fees and expert witness fees. The trial court confirmed the report of the Special Master in all respects. We modify the judgment of the trial court and affirm as modified.

Gwinn Fayne, et al. v. Teresa Vincent, et al.
E2003-01966-COA-R3-CV
Authoring Judge: Senior Judge H. David Cate
Trial Court Judge: Chancellor Jerri S. Bryant

Purchasers of real property sued sellers and real estate company seeking rescission for tortious misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court rescinded the transaction and dismissed the real estate company on the basis that the salesperson was an independent contractor. Purchasers appealed asserting: (1) the salesperson was an agent rather than independent contractor; (2) the trial court did not place the purchasers in the position in which they would have been since the transaction was rescinded; and (3) the purchasers should have been awarded their attorney's fees. We agree with the trial court that the salesperson was an independent contractor, but modify and remand for further proceeding (1) relative to placing the parties in the position in which they would have been had there been no transaction and (2) concerning the allowance of purchasers' attorney's fees.

State of Tennessee v. Donnie Lomax
M2003-01443-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Allen W. Wallace

The defendant, after entry of a plea of guilty, appeals from the imposition of consecutive sentences, the denial of alternative sentencing, and the requiring of restitution to be paid to an entity not named as a victim in the indictment. Upon careful review, we affirm the respective sentences and the denial of alternative sentencing, but reverse the imposition of consecutive sentencing. The cause is remanded for additional hearing for determination of Automotive Financing Corporation’s victim status and if so established, the amount of restitution. We further direct that the recipient of the restitution for sales tax and clerk fees be changed from the State of Tennessee to the individuals named in the indictments who paid the sales tax and clerk fees.

State of Tennessee v. Donnie Lomax - Concurring/Dissenting
M2003-01443-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Allen W. Wallace

I concur in the named victims’ receiving restitution. However, I seriously question whether a person or entity situated as AFC was in this case could be viewed as a “victim” for restitution purposes. The persons buying the vehicles are the named victims–and victims in fact–relative to the theft offenses charged in the indictment. The defendant took their money. AFC, with the titles, could have repossessed the vehicles. However, it voluntarily chose to relinquish the titles to the named victims, thereby essentially removing their loss from their purchases.

Sheila Mcalpin v. Thyssen Krupp Elevator Mfg., Inc.
W2003-02578-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Martha B. Brasfield, Chancellor
In this appeal, the employer insists the trial court's award of permanent partial disability benefits based on 45 percent to both arms is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

Susan Green v. Leon Moore, et al
M2003-01015-COA-RM-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge R.E. Lee Davies

This appeal pertains to an alleged breach of a settlement agreement arising from a prior dispute between the parties. The plaintiff brought this action to recover damages resulting from an insulting remark allegedly made by an executive of her former employer in violation of a prior settlement agreement that contained a non-disparagement provision. As a result of the alleged breach, the plaintiff claims she was not permitted to serve as Director of Sales for twenty-seven motels, for which she would have received additional compensation, and was precluded from advancing with her new employer. The trial court dismissed plaintiff's claims on summary judgment. Plaintiff appealed. We affirm.

Keith Allen, et al., v. State of Tennessee
M2003-00905-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: William Baker, Commissioner

The Claims Commission awarded damages to Plaintiffs individually and as administrators of the Estate of their son, Robert Keith Allen. The state was held liable under Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). We affirm the judgment of the Claims Commission.

John R. Albamont v. Town of Pegram, Tennessee
M2003-01624-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge George C. Sexton

Owner of commercial property in Pegram, Tennessee, filed suit against the Town of Pegram challenging the validity of Pegram's sewer tap privilege fee, asserting that the fee bears no reasonable relationship to the demand placed on the sewer system and therefore is capricious, arbitrary and unreasonable. The trial court granted summary judgment for the Town of Pegram and dismissed the action. We find there are material facts in dispute and therefore reverse the decision of the trial court granting summary judgment.

Robert L. Eubanks, Jr., et al., v. Procraft, Inc. et al.
E2003-02602-COA-R9-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

An applied liquid siding damaged the Plaintiffs’ house. By amended complaint the Plaintiffs joined the purported manufacturer, a Canadian corporation, pursuant to the Hague Convention. Held, not subject to jurisdiction in Tennessee. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

Bruce McGehee, M.D. v. Otis A. Plunk, M.D.
W2003-01332-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

A judgment was rendered against corporation, of which Defendant is 100% owner. Plaintiff sought to recover judgment from Defendant’s corporation but was unsuccessful. Plaintiff filed suit against Defendant alleging that conveyance made between corporation and Defendant was fraudulent. The trial court found the conveyance fraudulent and assessed the judgment against the Defendant, personally. For the following reasons, we affirm.

Frederick Todd Smith, et al., v. Jim Crossman, et al.
M2003-01108-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

This appeal involves the interpretation of the attorney's fee provision in a lease agreement. The trial court awarded Landlord attorney's fees, and Tenants appeal. We reverse the award of attorney's fees, finding no contractual basis exists for the award.

Norman Hamby v. State of Tennessee
W2003-02947-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Nancy C. Miller-Herron, Commissioner

Plaintiff filed suit against Defendant seeking damages for injuries caused by a fall that occurred on Defendant’s premises. The Tennessee Claims Commission ruled in favor of Defendant. Plaintiff appealed to this Court. This Court reversed the commission’s decision and remanded for a determination of comparative fault. Upon remand, the commission ruled that Defendant had breached its duty but found that Plaintiff was at least 50% at fault for his injuries, thereby barring Plaintiff’s recovery. In the absence of a transcript to support Plaintiff’s position, we must affirm the commission’s ruling.

State of Tennessee, ex rel., Reba Alexander v. Michael, Williams/State of Tennessee, ex rel., Michael Springfield v. Rita Alexander, Shelby
W2003-01485-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. Roland Reid

This is a consolidated appeal of two lawsuits in which the trial court refused to enforce or modify child support orders administratively issued under Tennessee Code Annotated 36-5-103(f). The trial court dismissed the State’s petitions in both actions. We vacate the orders of dismissal and remand for proceedings on the merits.

Marion P. Gurkin, III v. Roy Wood, Individually, Associates General Insurance, Inc. Tennessee Insurance Company, Permanent General Assurance Corp, Permanent General Co, and INgram Industries Insurance Gp.
W2003-00793-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This case involves an automobile insurance claim. The insured’s family owned a chain of
convenience stores. The insured applied for a personal automobile insurance policy. The insurance agent completed the application, indicating that the vehicle was for personal use, and the insured approved it. Later, the insured suffered personal injuries from a traffic accident and submitted a claim to the insurance company. The insurance company asserted that the vehicle was owned by the family convenience store chain and was used for business purposes. On this basis, the insurance company refused to pay the claim and rescinded coverage, alleging there were material misrepresentations in the insured’s application. The insured filed this lawsuit against the insurance company and its agent, and the insurance company filed a cross-claim against the agent. After a bench trial, the trial court found that the vehicle was not owned by the family business and was not used for business purposes, and that consequently there was insurance coverage and the agent was not liable. The insurance company appeals. We affirm, finding that the evidence supports the trial court’s findings that the insured owned the vehicle individually, that the insured did not use the vehicle for business purposes, and that the agent was not negligent.
 

State of Tennessee v. Harry G. Sturgill
M2003-01817-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Steve R. Dozier

The appellant, Harry G. Sturgill, was convicted by a jury of eight counts of rape of a child and two counts of statutory rape. As a result, he received a twenty-five year sentence for each of his eight child rape convictions and a two-year sentence for each of his statutory rape convictions. Two of the child rape convictions were ordered to be served consecutively. All of the other sentences were ordered to be served concurrently, for an effective fifty-year sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence in regard to his child rape convictions and the length and consecutive nature of the sentences. For the following reasons, we affirm the judgment of the trial court.