Patrick E. Simpson v. State of Tennessee
M2003-01750-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Patrick E. Simpson, pled guilty to two counts of aggravated assault and was sentenced to concurrent terms of three years to be served consecutively to his parole violation. He appeals the summary dismissal of his petition for habeas corpus relief, arguing that the trial court failed to enforce his guilty plea agreement and that his sentence has expired. Following our review, we affirm the dismissal of the petition.

Allie Jane Collins, and husband, Cle Collins, v. Dana Edwards, M.D. and Robert Hunt, M.D.
E2003-01508-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Kindall T. Lawson

The trial judge dismissed this medical malpractice action on the ground that the statute of limitations had run. On appeal, we vacate and remand.

State of Tennesseev. Ira Ishmael Muhammed, alias Ira Ishamel Muhammed
E2003-01629-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stephen M. Bevil

The defendant, Ira Ishmael Muhammed, was convicted of attempted second degree murder, a Class B felony; two counts of aggravated assault, Class C felonies; attempted voluntary manslaughter, a Class D felony; and felony reckless endangerment which the trial court, acting as thirteenth juror, dismissed at the sentencing hearing. He was sentenced as a Range I, standard offender to twelve years for the attempted second degree murder conviction, six years for each aggravated assault conviction, and four years for the attempted voluntary manslaughter conviction, with the sentences to be served consecutively, for an effective sentence of twenty-eight years. On appeal, the defendant argues: (1) the trial court erred in admitting an audiotape of telephone conversations between him and his ex-wife, one of the victims; (2) the trial court erred in not suppressing an audiotape of statements he made shortly after being shot; (3) the trial court erred in imposing consecutive sentencing; and (4) the application of consecutive sentencing is unconstitutional. Following our review, we affirm the judgments of the trial court.

In the Matter of: K.G., et al.
W2003-00809-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Charles V. Moore, Jr.

Mother appeals the trial court’s order terminating parental rights and decree of guardianship. We affirm and vacate, in part.
 

Henry Rankins v. State of Tennessee
W2003-01749-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: J. C. McLin

The Petitioner, Henry Rankins, filed a petition for post-conviction relief based on the Post- Conviction DNA Analysis Act. The trial court denied relief and Petitioner now seeks review of the lower court’s decision. 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. After review, we conclude that the petition fails to satisfy the criteria of the Post-Conviction DNA Analysis Act. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Timothy Earl Waters, pro se v. State of Tennessee
W2003-02460-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The Petitioner, Timothy Earl Waters, appeals the trial court's summary dismissal of his petition for common law writ of certiorari seeking relief from a post-conviction judgment. 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. Finding that the lower court properly dismissed the petition, theState's motion is granted and the judgment of the trial court is affirmed.

Donna S. Young v. Fred C. Hartley, M.D., et al
E2002-02925-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Thomas J. Seeley, Jr.

Donna S. Young ("Plaintiff") sued Fred C. Hartley, M.D. ("Defendant") claiming that during a tubal ligation, defendant negligently performed additional surgeries upon plaintiff's vaginal area without her consent and that those extra surgeries caused plaintiff to suffer physical and emotional damage. After trial, the jury returned a verdict in defendant's favor. Plaintiff appeals raising, among other things, several questions regarding the admission of evidence at trial. We affirm.

State of Tennessee v. James Allen Bates
E2003-01475-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Phyllis H. Miller

A jury convicted the Defendant, James A. Bates, of two counts of especially aggravated kidnapping, three counts of assault (which the trial court merged into a single count), one count of possession of a firearm by a convicted felon, one count of felony evading arrest, and one count of possession of marijuana. The trial court subsequently sentenced the defendant on the especially aggravated kidnapping convictions as a Range II, multiple offender to an effective term of thirty-eight years in the Department of Correction. The defendant now appeals, challenging the sufficiency of the evidence supporting his convictions of especially aggravated kidnapping and the trial court's decision to sentence him as a Range II, multiple offender on those offenses. We affirm the judgments of the trial court.

Arthur McRae et al., v. Knox County, et al.
E2003-01990-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

This is a zoning dispute involving billboards. Its posture is not traditional because the Board of Zoning Appeals and the owner of the billboards are in agreement. The Board granted the owner two variance from a zoning ordinance; this action was challenged by the Appellees who claimed that the erection of the billboards adversely affected the value, use, and enjoyment of their property, which vested them with a special interest and entitlement to file a petition for certiorari for a judicial review of the Board's action. The Writ was granted, and a hearing resulted in a finding that the action of the Board of Zoning Appeals was unlawful and capricious.

Eddie Wayne Gordon v. State of Tennessee
W2003-02376-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Eddie Wayne Gordon, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief. In 1983, Gordon pled guilty to first degree murder and was sentenced to life imprisonment. In 1984, Gordon, proceeding pro se, filed the instant petition for post-conviction relief. For twenty years, Gordon has unsuccessfully sought an evidentiary hearing on his petition. Fundamental fairness dictates that Gordon receive the process that is due him. Accordingly, the judgment of the trial court is reversed, and this matter is again remanded to the Gibson County Circuit Court for an evidentiary hearing upon Gordon’s petition for post-conviction relief.

State of Tennessee v. Bobby Joe Gentry
E2003-01069-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Richard R. Baumgartner

A Knox County jury convicted the Defendant, Bobby Joe Gentry, of aggravated rape, and the trial court sentenced the Defendant as a repeat violent offender to life in prison without the possibility of parole. The Defendant appeals, contending that: (1) the evidence is insufficient to support his conviction; (2) the trial court erred when it failed to dismiss the indictment; (3) the trial court erred when it charged the jury on the elements of aggravated rape and aggravated sexual battery and on the culpable mental state; (4) he was denied effective assistance of counsel; (5) Tennessee Code Annotated section 40-35-120 (1997), under which the Defendant was sentenced as a violent offender, is unconstitutional; and (6) the trial court erred when it found that the Defendant qualified as a violent offender pursuant to Tennessee Code Annotated section 40-35-120. Finding no reversible error, we affirm the trial court's judgment.

Kellie Cox v. Randy Cox
M2003-01622-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Stella L. Hargrove

After twenty-one years of marriage and raising two children, now adults, Wife filed for divorce. The trial court granted the divorce and ordered Husband to pay rehabilitative alimony for three years, awarded Wife sole possession of the marital residence and ordered Husband to pay the mortgage as alimony in futuro until Wife remarries, lives with a person of the opposite sex or dies. Husband was also required to pay Wife's attorney fees. Husband appealed. We modify the trial court's order requiring Husband to pay alimony in futuro and reconstitute it as rehabilitative alimony with a three year limit. In all other aspects, we affirm the trial court.

William Berrios v. State of Tennessee
E2003-01791-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, William Berrios, appeals the post-conviction court's denial of his post-conviction relief petition in relation to his guilty plea to felony murder for which he received a life sentence. On appeal, the petitioner contends: (1) the state failed to satisfy a condition of the plea agreement; and (2) his plea was unknowingly and involuntarily entered. We affirm the judgment of the post-conviction court.

State of Tennessee v. Tyrie Brown
M2003-00556-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

A Franklin County jury convicted the Defendant, Tyrie Brown, of possession with intent to deliver more than 0.5 grams of cocaine, assault and resisting arrest. The trial court sentenced the Defendant to thirteen years for the possession conviction and ninety days on both the assault conviction and the resisting arrest conviction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. Finding no reversible error, we affirm the judgments of the trial court.

William Alexander Cocke Stuart v. State of Tennessee
M2003-01387-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The petitioner, William Alexander Cocke Stuart, pled guilty in the Davidson County Criminal Court to theft of property over $10,000 and received a five-year sentence to be served in split confinement. Subsequently, he filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing or voluntary. The post-conviction court, without holding an evidentiary hearing, dismissed the petition and the petitioner appealed. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for further proceedings.

Ruskin A. Vest, Jr., et al. v. Duncan-Williams, Inc.
M2003-02690-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jim T. Hamilton

Plaintiffs sued defendant alleging that defendant was negligent, breached its fiduciary duty, and committed fraud and state securities act violations in brokering the sale of municipal bonds to plaintiffs. Defendant filed a motion to dismiss for lack of subject matter jurisdiction and improper venue based upon an arbitration agreement plaintiffs entered into with a third party. The trial court denied defendant's motion to dismiss and defendant appealed. After reviewing the record, we hold that defendant has failed to prove that it is an intended third party beneficiary of the arbitration agreement. We affirm.

Waynell C. Burnette v. Teddy Sundeen, et al.
E2003-01404-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Dale Young

In this litigation arising out of an automobile accident, Waynell C. Burnette ("the plaintiff") filed a motion asking the trial court to sanction Teddy Sundeen and Elhame Dauti ("the defendants") for a discovery abuse. Acting under the authority of Tenn. R. Civ. P. 37.02, the court entered a judgment by default against both defendants and, in the same order, awarded the plaintiff damages of $100,000. The defendants appeal, contending that they were not afforded proper notice of the plaintiff's intention to raise the issue of damages at the hearing on the motion for sanctions. We vacate so much of the trial court's order as awards the plaintiff unliquidated damages of $100,000.

Daniel Hamilton v. T & W of Knoxville, Inc., D/B/A Lexus of Knoxville
E2003-02004-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

By special verdict the jury found that the defendant automobile dealer willfully and knowingly
violated the Consumer Protection Act by selling the Plaintiff a used Lexus automobile that had been wrecked but nevertheless was a certified vehicle under the manufacturer’s guidelines. More than a year later - after the Plaintiff himself wrecked the vehicle and drag-raced it various times - he discovered that some panels had been re-painted, leading to the conclusion that the vehicle had been wrecked before he purchased it. The dealer agreed to repurchase the vehicle which was left in its charge, but the Plaintiff, after consulting counsel, returned to the Defendant’s place of business and removed the vehicle. The jury assessed damages of $4000.00, remitted to $2500.00. The Plaintiff moved for treble damages and attorney fees: the Defendant moved for judgment NOV, because the issue of “willful and knowing” violation of the Tennessee Consumer Protection Act is a question of law for the court. The motion for judgment NOV was granted. Plaintiff was awarded $5000.00 attorney fees which he claims is inadequate. We affirm.

Melissa Frazier Norwood Hoffmeister, now Brink v. John Kenneth Hoffmeister
E2003-02022-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Chancellor John F. Weaver

The custody of a four-year old boy is the pivotal issue in this case. The Chancellor found that the father was the better qualified to be the primary residential custodian of his son following a recitation of the bizarre conduct of the mother. We affirm.

Stacey G. Hill v. Donna Elizabeth Frazier Hill
E2003-02173-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

Donna Elizabeth Frazier Hill ("Mother") filed a complaint against Stacey G. Hill ("Father") seeking to modify the parties' Permanent Parenting Plan ("the parenting plan"). Father responded and filed a counterclaim. Mother proposed a revised plan that would reduce Father's visitation time and increase his child support obligation. The trial court denied Mother's revised plan with respect to the oldest child, but granted her proposed changes with respect to the other children. The trial court designated Father as the primary residential parent of the oldest child and increased his child support obligation for the younger children; however, the trial court refused to order Mother to pay child support for the oldest child on the ground that Father "has not required the [oldest] child to comply with the original Parenting Plan based on the child's expressed desires." Father appeals, arguing that the trial court erred in deviating from the Child Support Guidelines ("the Guidelines") based upon the ground espoused by the court. We vacate so much of the trial court's order as absolves Mother of any obligation to support the oldest child in the custody of Father.

Kelvin Shoughrue, et al., v. St. Mary's Medical Inc., et al.
E2003-00116-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Harold Wimberly

In this appeal in a medical malpractice lawsuit, the Appellants, J.D. Lee and the law firm of Lee, Lee & Lee, contend that the Knox County Circuit Court erred in its award of attorneys' fees. We affirm the judgment of the Trial Court and remand.

Damien Owes v. State of Tennessee
M2002-03020-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Damien Lamar Owes, was found guilty by a Davidson County jury and stands convicted of especially aggravated robbery, aggravated burglary, and five counts of especially aggravated kidnapping. He is serving a 30-year sentence. Aggrieved by his convictions, the petitioner pursued a pro se action for post-conviction relief predicated on the alleged ineffective assistance of trial and appellate counsel. Following the appointment of counsel and a hearing, the petition was denied. The petitioner appeals and urges that he is entitled to relief. We disagree and affirm the dismissal of the petition.

In Re: Nellie Elizabeth Crowell
M2002-02285-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Frank G. Clement, Jr.

This is a Will construction case. The decedent's Will provided that her estate would be distributed to her husband. However, the husband predeceased the decedent leaving no issue. The only remaining provision in the Will provided that her estate would be distributed to certain orphan's homes if she and her husband died at the same time. The trial court found it unreasonable to construe the Will to require simultaneous death and distributed the estate to the orphan's homes. We hold that the Will contains a failed condition resulting in intestate succession. We reverse and remand.

State of Tennessee v. Patrick Collins
M2002-02885-CCA-R9-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Frank G. Clement, Jr.

The trial court dismissed count two of this indictment charging the violation of the implied consent law and barred the State from arguing in the defendant's trial for DUI that he knew he would suffer a loss of driver's license if he refused the breath test. The State appeals. We conclude that the defendant was sufficiently advised of the possible suspension of his driver's license upon his refusal to submit to testing to satisfy the warning requirement of Tennessee Code Annotated section 55-10-406(a)(2). The defendant need not be advised of the correct and exact term of the suspension in order to satisfy the statutory warning requirements. The defendant was advised that he would suffer a loss of driver's license if he refused the breath test. We reverse the trial court's dismissal of the violation of implied consent law. Likewise, we reverse the trial court's limiting the State from arguing that the defendant knew he would suffer a loss of driver's license if he refused the breath test. Accordingly, we remand for trial consistent with this opinion.

State of Tennessee v. David Clinton York
M2003-00525-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lillie Ann Sells

The defendant, David Clinton York, an inmate in the Clay County Jail, pled guilty to felony escape and was sentenced as a Range III, persistent offender to five years in the Department of Correction. On appeal, he argues that the trial court erred in determining that he was a persistent offender, in denying alternative sentencing, and in applying the enhancement and mitigating factors. Following our review, we affirm the judgment of the trial court.