State of Tennessee v. Art Mayse
M2001-03172-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Art Mayse, was convicted by a jury of eleven counts of rape of a child, each a class A felony, and seven counts of aggravated sexual battery, each a class B felony. After a sentencing hearing, he was sentenced as a Range I offender to an effective sentence of fifty years to be served in the Department of Correction. In this appeal as of right, the Defendant challenges: (1) the adequacy of the bill of particulars, (2) the constitutionality of the delay between the commission of the offenses and the disclosure to authorities, (3) the trial court's denial of his request for a change of venue and motion to excuse a juror for cause, and (4) the sufficiency of the evidence. Because the evidence is insufficient to support two of the aggravated sexual battery convictions, those convictions are reversed and dismissed. The remaining convictions are reversed and the case is remanded for a retrial on those charges because the trial court failed to require the State to elect the offenses on which it relied to support the convictions.

State of Tennessee v. Lester E. Elliott
M2002-00037-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Lester E. Elliott, was convicted by a jury of driving in violation of the Motor Vehicle Habitual Offenders Act. He was sentenced to two years in the Department of Correction for this offense. The Defendant now appeals as of right, arguing that the evidence is not sufficient to sustain his conviction. We affirm the judgment of the trial court.

State of Tennessee v. Maurice Lamont Davidson
M2002-00178-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

The Defendant, Maurice Lamont Davidson, was convicted by a jury of one count of second degree murder, one count of voluntary manslaughter, and one count of attempted voluntary manslaughter. The trial court subsequently sentenced the Defendant to twenty-two years for the second degree murder, three years for the voluntary manslaughter, and two years for the attempted voluntary manslaughter, with the first two sentences to be served concurrently and the third sentence to be served consecutively, all to be served in the Department of Correction. In this direct appeal, the Defendant contends that the trial court erred in excluding certain expert testimony; that the evidence is not sufficient to support his convictions; and that the sentences are excessive. We affirm the Defendant's convictions, reduce his sentence for the second degree murder to twenty years, and order that his sentence for attempted voluntary manslaughter be served concurrently.

State of Tennessee v. Robert Wayne Herron
M2002-00951-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Leon C. Burns, Jr.

The Appellant, Robert Wayne Herron, was convicted by a Putnam County jury of felony possession of cocaine with intent to deliver, simple possession of cocaine, and possession of drug paraphernalia.  In this appeal, Herron contends that (1) the trial court erred in admitting evidence of his prior drug activity in violation of Tennessee Rule of Evidence 404(b) and (2) the evidence is legally insufficient to support these convictions. After review, we find these contentions are without merit. Although not raised as error, we find Herron’s multiple convictions for simple possession and felony possession, stemming from a single cocaine possession, violate principles of double jeopardy. The misdemeanor cocaine conviction is, therefore, merged with the felony cocaine conviction. We remand for entry of judgments of conviction consistent with this holding. Herron’s convictions for felony possession with intent to deliver and misdemeanor possession of drug paraphernalia are affirmed.

In matter of: S.Y., J.Y., and D.Y.
W2002-00593-COA-R3-JV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
Department of Children's Services filed petition to terminate parental rights of mother of dependent and neglected minor children. Department's termination petition was based on allegations of abandonment, mother's failure to substantially comply with a permanency plan, and the removal of the children for at least six months with little likelihood that the condition causing removal will be remedied. Juvenile Court granted petition terminating mother's parental rights. Mother appeals, asserting that juvenile court violated her due process rights by failing to appoint an attorney for the dependent and neglect proceeding, and erred in concluding that clear and convincing evidence exists to support findings that warrant termination of parental rights. We affirm.

Promus Hotels vs. Martin, Cole, Dando, Robertson
W2002-01028-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Walter L. Evans
Shelby County -This is an appeal from an Order denying Appellant's Motion to Compel Arbitration. Appellant filed a third-party claim against its subcontractor, Appellee, for indemnity. The Subcontract between the parties contained an agreement to arbitrate. Appellant contends that the agreement binds Appellee to arbitrate the matter. Appellee contends that it is not bound to arbitrate due to an exception in the Subcontract. We affirm and remand.

Trumbo Inc. vs. Witco Corp.
W2002-01186-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D'Army Bailey
This case involves the loss of evidence. A metal fabrication company modified a fat melting tank for another company. Later, an employee of the melting tank company was severely injured by hot melted fat while working with the modified tank. Following the accident, as part of an investigation, the employer removed the two temperature gauges attached to the tank. The employer paid workers' compensation benefits to the employee. The employee then sued the fabrication company that modified the tank. The employer intervened to assert its statutory lien under the workers' compensation laws, so that it could recover any monies paid to the employee by the fabrication company. Five years after the accident, the fabrication company sought production of the temperature gauges from the employer, as part of its defense in the lawsuit filed against it by the employee. The employer was unable to locate the gauges. The fabrication company settled the lawsuit filed by the injured employee, and filed a claim against the employer for spoliation of evidence and negligence. The fabrication company argued that it was forced to settle the underlying lawsuit with the employee, in part because of the missing gauges. The trial court granted a motion for summary judgment in favor of the employer, finding that the employer did not have a duty to preserve the evidence and that the fabrication company had not established causation. The fabrication company appeals. We affirm, finding that regardless of whether the employer had a duty to preserve the temperature gauges, the fabrication company had not proffered evidence that the gauge would have materially assisted it in defending the lawsuit filed by the employee, and thus was unable to establish causation.

A.I.J.J. Inc. vs. Norman Weizer
W2002-00975-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute regards a contractual obligation of an employee to repay recruitment costs incurred by his employer should he leave his position within a two year period. The trial court applied Florida law to the dispute and awarded judgment to the employer. We hold the contract is governed by New York law. We further find the provision was not applicable where the employee was terminated and reverse the judgment.

State of Tennessee v. Mark A. Griffin
E2001-02006-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James B. Scott, Jr.

The appellant, Mark A. Griffin, was convicted by a jury in the Anderson County Criminal Court of first degree murder committed in the perpetration of an aggravated robbery and was sentenced to life imprisonment without the possibility of parole. On appeal, the appellant raises several evidentiary questions, contests the jury charge, and challenges the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Allen Dale Cutshaw v. State of Tennessee
E2002-00438-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

The petitioner, Allen Dale Cutshaw, appeals the trial court's denial of his petition for post-conviction relief. In this appeal, the petitioner asserts that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed.

State of Tennessee v. Clyde T. Smith
M2002-00553-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

While serving a sentence in a community corrections program, the defendant was indicted and arrested on two counts of selling and delivering cocaine. His community corrections status was revoked upon proof of the indictment and arrest alone. The defendant claims that proof of an indictment and arrest, standing alone, is insufficient to support a revocation of a community corrections sentence. We agree and reverse the judgment from the trial court.

State of Tennessee v. Victor Eugene Tyson
M1999-00631-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Seth W. Norman

The Davidson County Grand Jury indicted the Defendant for first degree premeditated murder, felony murder, attempted first degree murder and five counts of reckless endangerment. A Davidson County jury found the Defendant guilty of second degree murder, felony murder, attempted first degree murder and five counts of reckless endangerment. After merging the Defendant's convictions for second degree murder and felony murder, the trial court sentenced the Defendant to life imprisonment. The trial court sentenced the Defendant to thirty-five years for the attempted first degree murder conviction to be served consecutively to the life sentence. The trial court merged the five reckless endangerment convictions and sentenced the Defendant to three years to be served concurrently with the other sentences. The Defendant now appeals, arguing the following: (1) that the trial court erred by failing to instruct the jury on all lesser-included offenses; (2) that the trial court erred by denying the Defendant's motion to suppress a photographic lineup; (3) that insufficient evidence was presented at trial to support the Defendant's convictions; (4) that trial counsel was ineffective; and (5) that the trial court improperly assumed that as a matter of law, the sentences in this case must be served consecutively to a prior federal sentence. Concluding that the trial court committed reversible error (the State concedes), by failing to instruct the jury on certain lesser-included offenses of premeditated murder, felony murder and attempted first degree murder, we reverse those three convictions and remand Counts 1, 2, and 3 to the trial court for a new trial. We affirm the conviction for reckless endangerment in Count 4 and the three year sentence imposed in that count. We also remand Count 4 for the trial court to determine whether the sentence imposed in Count 4 should be served concurrently with or consecutively to the Defendant's federal sentence.

Byrd Earthman vs. Becky McRae
W2002-00564-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: J. Steven Stafford
This is a child support case involving the allocation of private school tuition. In the parties' divorce, the father was granted sole custody of their three minor children. At the time of the divorce, the mother worked part time and, upon agreement of the parties, did not pay child support. The mother began working full time and so began paying child support. The father earns substantially more income than the mother. The father decided to send the parties' oldest child to boarding school. The mother objected to assisting in paying for the child's tuition. The trial court determined that the mother should pay a portion of the tuition in addition to child support. The mother appeals. The mother argues that the trial court erroneously considered her new spouse's income, and erred in requiring her to pay a portion of the tuition in addition to child support. We affirm.

Susan Whitehurst vs. Martin Medical
W2001-03034-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: William B. Acree
This is a defamation case. The plaintiff is an obstetrician/gynecologist who practices in a largely rural area. The individual defendants are pharmacists who work at Wal-Mart stores in that area. In October 1997, one of the pharmacists received a phone call from her sister, another physician in the area. The sister told the pharmacist that the plaintiff obstetrician/gynecologist had contracted the HIV virus and was sending letters to her patients to inform them of that fact. The pharmacist, a former patient of the plaintiff, repeated the information to her co-workers. Several Wal-Mart employees, including the defendants, repeated the information about the plaintiff to others. The information was false. When the plaintiff learned of the spread of the false rumors, she sued the defendants for defamation. After a lengthy trial, the jury found in favor of the defendants. The plaintiff now appeals, asserting, inter alia, that the trial court erred in admitting evidence that was irrelevant or otherwise improper, and in approving the jury verdict. We affirm, finding that the trial court did not err in the admission of evidence, and that material evidence supports the jury's verdict.

Dale/Mary Bruno vs. Harold/Michelle Rounds
W2002-00130-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Dewey C. Whitenton
This appeal arises from a dispute regarding a restrictive covenant in a residential community. The trial court held that the building at issue was not a barn or a storage building and thus was not in violation of the restrictive covenant. The parties raise multiple issues on appeal. For the following reasons, we affirm.

Christopher Powell vs. Patsy Powell
W2002-00421-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: George R. Ellis
This case involves the proper valuation and division of marital property, the propriety of the award of sanctions and attorney's and expert witness' fees. We affirm the trial court's valuation and division of the marital property. We reverse the award of fees and the imposition of sanctions as the sanction imposed exceeded the authority of the trial court. We remand the case for further proceedings to include consideration of the imposition of a sanction within the court's authority.

Donald Disher Jr. vs. Karol Disher
W2002-01421-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This appeal arises from a divorce proceeding. The chancery court granted the parties a divorce and awarded Wife rehabilitative alimony in the amount of two thousand dollars ($2,000.00) per month for a period of two (2) years followed by three thousand dollars ($3,000.00) per month for a period of six (6) years. The court awarded Wife one hundred percent (100%) of the marital residence and ordered that the marital property be divided sixty/forty (60/40), with Wife receiving sixty percent (60%) and Husband receiving forty percent (40%). In addition, the court awarded Wife $150,000 on her interspousal tort claim. The court also awarded Wife the full amount of her attorney fees and other expenses. The parties raise multiple issues on appeal. For the following reasons, we reverse in part, vacate in part and remand.

Pravin Patel vs. Douglas Bayliff
W2002-00238-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert A. Lanier
This is an appeal from a grant of summary judgment. The underlying case concerned the sale of a home to the Appellants that, subsequent to the closing, evidenced termite damage. Appellant buyers claim that the Appellee sellers are responsible for this damage under various theories of recovery, all of which were dismissed by the trial court. Appellants further assert that the Appellee termite company is responsible for the damages because they failed to disclose on the termite inspection report that the home had been repeatedly treated for termites by that same company. We affirm in part, reverse in part, and remand.

Larry Kerr vs. Anderson County
E2002-00020-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: James B. Scott, Jr.
The Trial Judge held plaintiff's employment Contract was valid and enforceable. On appeal, we reverse on the grounds the provisions in the Contract are against public policy.

State of Tennessee v. Tammy B. Davenport
E2001-02980-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant pled guilty to six counts of forgery over $1000, a Class D felony, and four counts of forgery, a Class E felony, with the sentences to be set by the trial court. At the conclusion of the sentencing hearing, the trial court sentenced the defendant as a Range I, standard offender to the maximum terms of four years for each forgery over $1000 conviction and two years for each forgery conviction, with the sentences to be served concurrently in the Department of Correction. The trial court denied the defendant's request for full probation or split confinement. The defendant appeals, arguing that the trial court erred by failing to place its findings on the record and by denying probation or a sentence of split confinement. Based on our review, we affirm the sentences imposed by the trial court.

State of Tennessee v. Branden Haney and Lawrence Davis
E2002-00559-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Ben W. Hooper, II

The appellants, Branden Haney and Lawrence Davis, pled guilty in the Cocke County Circuit Court to one count of possession of more than .5 grams of a substance containing cocaine with intent to sell, a Class B felony; one count of possession of more than .5 ounces of marijuana with intent to sell, a Class E felony; and one count of possession of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Haney as a Range I standard offender to an effective sentence of eight years incarceration in the Tennessee Department of Correction, with the sentence to be suspended and served in a community corrections program. The trial court sentenced Davis as a Range I standard offender to an effective sentence of eight years incarceration, with the sentence to be suspended and served in a community corrections program "after [one] year split confinement in [the] Cocke County Jail." Pursuant to their plea agreements, Haney and Davis reserved the right to appeal certified questions of law challenging the trial court's denial of their motions to suppress. Upon review of the record and the parties' briefs, we affirm the judgments of the trial court.

W2002-03027-COA-R7-CV
W2002-03027-COA-R7-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Arnold B. Goldin

Debbie G. Scott v. Federal Express Corporation,
E2002-00941-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: Howell N. Peoples, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann._ 5-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff filed a petition seeking compensation for an ankle injury which occurred July 16, 1997 and for a back injury which occurred on May 11, 2. The trial judge bifurcated the two claims and heard the back injury case. On April 15, 22 the trial court entered a judgment which dismissed the portion of the complaint seeking compensation for the back injury. The plaintiff says the evidence preponderates against this finding. We affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court Affirmed JOHN K. BYERS, SR. J., in which WILLIAM M. BARKER, J. and JOSEPH M. TIPTON, SP. J., joined. Selma Cash Paty, Chattanooga, Tennessee, attorney for the appellant, Debbie G. Scott. Kent E. Krause, Nashville, Tennessee, attorney for the appellees, Federal Express Corporation and Sentry Insurance. MEMORANDUM OPINION At the time of the trial, the plaintiff was forty-nine years of age. She began work for the defendant in 1986. Her duties were as a delivery person. This required her to load a truck with packages to be delivered to customers, to drive the truck to the location of customers, to unload packages at designated places and to pick up packages from customers. In July 1998 the plaintiff had a two-level bone fusion at L4-L5 and L5-S1. The need for the surgery was non-work related. In December of 1998 the plaintiff fell at work and experienced some back pain through January 1999, for which she saw a doctor. In July 1999 the plaintiff twisted her ankle and suffered a severe sprain. She was placed in a fracture boot as a result of this. The plaintiff testified that this caused her back and leg to hurt. The plaintiff conceded, however, she had reported to her doctor that she was having increased lower back pain radiating into her hip and down her leg on April 27, 2. Medical Treatment The pertinent medical evidence was given by Dr. Richard G. Pearce, an orthopedic surgeon, who treated the plaintiff for her previous back injury and also treated her in relation to her limb complaints. Dr. Pearce testified the problem the plaintiff now suffers is as a result of degenerative changes at the L3-4 level which is above the vertebra that were fused in the 1998 surgery. He testified it is not unusual for this to occur above a fusion. Further, he testified the incident of May 11 [12] caused the plaintiff's symptoms from this disc level to get worse. Dr. Pearce's testimony as it relates to whether the plaintiff is entitled to recover is better understood by setting out his testimony verbatim. Q. Would you go back, Doctor, now and compare those complaints with the complaints that she had on April 27th of 2? A. They were similar complaints. Q. Virtually identical; aren't they, sir? A. Well, if you read the dictation, it would be very similar, yes, sir. Q. In fact, she told you on that day that she had some increasing lower back pain with some pain radiating into her hip and down into her right leg; correct? A. That's correct. Q. Doctor, is it _ is it your opinion that the incident that she described to you in January 21 relating to you for the first time an injury that she alleges occurred on May 11, 2, and your opinion that that is the cause of her current problems, is that based on her telling you that there was an increase in her symptoms, in other words, an increase in her pain? A. Yes, sir. Q. Do you have any other source, study, history from her that -2-

Dorothy Krueser v. Barry Smith
M2001-03135-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Muriel Robinson
This is a child support case. The trial court increased Mr. Smith's child support from $3,500.00 per month to $10,000.00 per month based on his substantial increase in income. For the following reasons, we modify this decision of the trial court.

Timothy Gaither v. Jessie Bush & Angela White v. Timothy Gaither
M2001-01952-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. B. Cox
This is a case involving the division of wrongful death proceeds between the divorced parents of the deceased. The deceased was eighteen, healthy, and about to enter the military. The plaintiff mother asked for an equal division of the proceeds of a wrongful death settlement entered by the father. Also included in the settlement was the father's action, individually, for his emotional trauma suffered while witnessing his son's death. A jury was asked to divide the settlement proceeds between the parties. The jury found that all of the damages for the pecuniary value of the son's life were attributable to the mother and father, and none were attributable to the son. For the following reasons, we affirm.