State of Tennessee ex rel. William L. Gibbons, District Attorney General v. Club Universe
W2004-02761-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Rita L. Stotts

This is a public nuisance case. The Shelby County district attorney general filed a petition in general sessions court, asking the court to declare a local nightclub a public nuisance and to enjoin the nightclub from further operation. This division of the general sessions court was designated as an environmental court pursuant to Tennessee statute. After a hearing, the environmental court found that the nightclub was a public nuisance and permanently enjoined operation of the nightclub. The nightclub appealed this ruling to both the circuit court, requesting de novo review, and to this Court.  The circuit court held that it did not have jurisdiction to hear the appeal because the appeal would lie with this Court. Because the environmental court had concurrent jurisdiction with the circuit court, we affirm the trial court’s holding that the appeal from environmental court lies in this Court.  Further, we affirm the environmental court’s finding that the nightclub is a public nuisance and the grant of a permanent injunction.

Ricky Gene Campbell v. Wanda Suzanne Campbell
W2004-01608-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Dewey C. Whitenton

This is a child custody dispute involving the appointment of a guardian ad litem. The parties agreed to the appointment of a guardian ad litem. After an investigation, the guardian ad litem recommended that primary custody be awarded to the father. The mother filed a motion to remove the guardian ad litem. The trial court did not do so. After a bench trial, the father was designated the primary residential parent. The mother asserts that the guardian ad litem appointed by the trial court appeared biased towards the father because the guardian ad litem knew the father’s sister. The mother now appeals. We affirm, finding no abuse of discretion in the trial court’s decision not to remove the guardian ad litem.

Mark Smith v. Smith Imports, Inc., et al.
W2004-02022-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

This appeal arises from an order granting summary judgment. The trial court granted summary judgment for one of the defendants and the plaintiff appealed to this Court. After reviewing the record, we dismiss this appeal for lack of subject matter jurisdiction.

Linda M. Ferrell v. Charles R. Ferrell
M2003-02435-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Tom E. Gray

Husband appeals the division of marital property. The trial court found Husband did not bring into the marriage as many assets as Wife did, thus awarding a greater portion of the parties' home to Wife rather than Husband. The trial court further found that Husband had dissipated marital assets when he sold the parties' horse riding rings in violation of the statutory injunction. Husband claims that the division of property was not equal and challenges the finding that he dissipated marital assets while not making the same finding with regard to Wife. We affirm.

Freddie Osborne v. Collier Goodlett
M2003-03118-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Ross H. Hicks

This is a legal malpractice action in which Plaintiff, incarcerated at Turney Center Industrial Prison, appeals the dismissal by the trial court of his action against his court-appointed assistant public defender. Holding the defendant immune from suit under Tennessee Code Annotated section 8-14-209, the trial court dismissed the Complaint. We affirm the action of the trial court.

Marcella A. Chrisman vs. Vance L. Baker, Jr.
E2004-02307-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Russell E. Simmons, Jr.

The Trial Court granted defendant's Motion for Summary Judgment on plaintiff's claim for malpractice. Defendant had represented plaintiff in her representative capacity as conservator, and subsequently as administrator of deceased's estate. The Trial Court held the statute of limitations applied because she knew she had been harmed by defendant's actions more than one year prior to the filing of this action. On appeal, we affirm.

Diane Worley vs. White Tire of Tennessee, Inc. and Gazazbo, L.L.C.
E2004-02025-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Richard E. Ladd

The Trial Court entered Judgment for plaintiff for damages from destruction of road over easement and reformed deed. On appeal, we affirm.

Christopher Robert Smith v. State of Tennessee
M2004-01817-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Christopher Robert Smith, seeks post-conviction relief on the basis of ineffective assistance of counsel. After being convicted by a jury of conspiracy to possess with intent to manufacture, deliver or sell over 300 grams of cocaine, the petitioner appealed. On direct appeal this Court affirmed both his conviction and sentence. State v. Christopher Robert Smith, No. M2001-02297-CCA-R3-CD, 2002 WL 31202132 (Tenn. Crim. App., at Nashville, Sept. 27, 2002), perm. app. denied (Feb. 24, 2003). The petitioner then filed a petition for post-conviction relief. After a hearing, the post-conviction court dismissed the petition. For the following reasons, we affirm the post-conviction court's dismissal of the petition for post-conviction relief.

State of Tennessee v. Mark S. Armstrong
M2004-02432-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James K. Clayton, Jr.

A Rutherford County jury convicted the Defendant, Mark S. Armstrong, of aggravated rape, and the trial court sentenced the Defendant to twenty years, as a Range I offender. On appeal, the Defendant contends that: (1) the trial court erred when it failed to grant the Defendant’s motion for a mistrial when inadmissible evidence was admitted through an inadequate redaction of a videotaped statement; (2) the trial court erred in failing to provide an adequate limiting instruction to the jury regarding a videotape sound malfunction; (3) the trial court erred when it failed to require the State to make an election of the offense for which it sought a conviction; (4) the trial court erred in failing to grant the Defendant’s motion for judgment of acquittal; and (5) the evidence is insufficient to sustain the Defendant’s conviction. Finding no error, we affirm the judgment of the trial court.

Anthony D. Forster v. State of Tennessee
M2004-00452-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Presiding Judge Gary R. Wade

In an opinion filed June 24, 2005, this court affirmed the trial court's dismissal of the petitioner's petition for post-conviction relief, concluding that the single issue presented in the petition, whether the waiver of the right to counsel was voluntary, had been previously determined by this court on direct appeal. On July 11, 2005, the petitioner, Anthony Forster, filed a petition to rehear pursuant to Tennessee Rule of Appellate Procedure 39. He complains that this court misapprehended a material fact and that this court ruled on an issue upon which the parties had not been heard. He asserts that this court erred by concluding that the issue had been previously determined because the propriety of this court's opinion on direct appeal had not been addressed.  Further, he contends that the parties were not heard on the issue because the state in its brief asserted that the issue had been waived and did not address the merits of the claim.

Christopher Cook v. State of Tennessee
M2004-02251-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Monte D. Watkins

The petitioner, Christopher Cook, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of trial counsel. After our review, we affirm the post-conviction court's denial of the petition.

Melvin E. Waters v. Kenneth Locke, Warden
M2004-02814-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Monte D. Watkins

This matter is before the Court upon the State’s motion 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 summarily dismissing the petition for the writ of habeas corpus.  In that petition the petitioner sought a writ of habeas corpus to release him from his sentence for facilitating aggravated robbery. We are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition 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.

Jorge Acosta Rubio v. Tony Parker, Warden
W2004-02850-CCA-R3-HC
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Jorge Acosta Rubio, 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 has failed to allege any ground that would render the judgment of conviction void. Accordingly, we grant the State’s motion and affirm the judgment of the lower court.

Rem Noble and Brandt Noble, Individually, and d/b/a/ Noble, Inc. v. Tom Pease, Individually, and Corporate Copy, Inc.
W2004-00439-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case is about the sale of a business. The owner of a copy machine business sold the assets of the
business to a competitor. The buyer purchased the company through a promissory note that required monthly payments. After the sale, the seller and the seller’s son became employees of the buyer.  However, while employed by the buyer, the seller continued to deal in copy machines on the side.  The seller voluntarily left employment, and his son was fired. After the buyer learned of the seller’s side dealings in copiers, the buyer stopped making payments on the promissory note. The seller sued the buyer for failing to make the agreed upon payments. The buyer counter-sued for breach of contract. After a trial, the trial court rescinded the purchase agreement. We reverse, finding that rescission was not an appropriate remedy in this case, and remand for a determination of the appropriate damages.

Clyde T. Smith v. State of Tennessee
M2003-02146-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Defendant, Clyde T. Smith, appeals from the trial court's dismissal of his petition seeking 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 State's motion is granted. The judgment of the trial court is affirmed.

Christopher A. Johnson v. State of Tennessee
E2004-01464-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Christopher A. Johnson, appeals from the trial court's order denying 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 petitioner has failed 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.

William P. Livingston, Jr. v. State of Tennessee
E2004-01261-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James E. Beckner

The petitioner, William P. Livingston, Jr., appeals the dismissal by the Hamblen County Criminal Court of his petition for post-conviction relief. After review of the record, we affirm.

State of Tennessee v. Brian Carl Lev
E2004-01208-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Richard R. Baumgartner

The Appellant, Brian Carl Lev, appeals the denial of judicial diversion following his guilty pleas to two counts of statutory rape. After review, we reverse the sentencing decision of the trial court and remand for deferment of the proceedings as provided by Tennessee Code Annotated section 40-35-313 (2003).

Mario A. Leggs v. State of Tennessee
E2004-02457-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lynn W. Brown

The petitioner was convicted by a jury in the Johnson County Circuit Court of multiple offenses, and he received a total effective sentence of twenty-two years, eleven months, and twenty-nine days. Subsequently, the petitioner filed a petition for a writ of habeas corpus, alleging that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), renders his sentences void. The trial court summarily dismissed the petition, which dismissal the petitioner appeals. The State 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. Upon review of the record and the parties' briefs, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Ronnie Lee Holt v. State of Tennessee
M2004-02412-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner challenges the denial of his habeas corpus petition, in which he contended that his absence from voir dire violated his constitutional rights and Tennessee Rule of Criminal Procedure 43(a) because he did not personally waive the right to be present. We initially note that, at the time of the petitioner's trial, a personal waiver of the right was not required. We conclude that there is no jurisdictional defect apparent from the record. Therefore, we affirm the denial of habeas relief.

Author Ray Turner v. State of Tennessee
M2004-02831-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Author Ray Turner, appeals the trial court's denial of his motion to reopen his petition for post-conviction relief contending that Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) established a new rule of law that was retrospectively applicable to his case and entitled him to reopen his post-conviction proceedings. 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. We find the State's motion has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State of Tennessee v. Eddie Hatchett
W2004-01073-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Otis Higgs, Jr.

A Shelby County Criminal Court jury convicted the defendant, Eddie Hatchett, of aggravated assault, a Class C felony, and the trial court sentenced him as a Range II, multiple offender to eight years in the Department of Correction. The defendant appeals, claiming the evidence is insufficient because the state failed to negate his claim of self-defense. We affirm the trial court.

State of Tennessee v. Steven Andrew Tidwell
W2004-01820-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Steven Andrew Tidwell, tried for aggravated burglary and theft of property between $500 and $1,000, was convicted of theft. The trial court imposed a two-year sentence to be served in the Department of Correction. In this appeal of right, the defendant argues that the evidence was insufficient, that the trial court erred by ruling that the state could cross-examine him with a prior burglary offense for which he had received judicial diversion, and that the sentence is excessive. The judgment of the trial court is affirmed.

State of Tennessee v. Philip Navel
W2004-01673-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Clayburn L. Peeples

This is a direct appeal of the sentence imposed for an aggravated sexual battery conviction entered pursuant to a guilty plea. The Defendant was sentenced as a Range I, standard offender to twelve years to be served in the Tennessee Department of Correction (TDOC). He now challenges his
sentence, raising three issues: 1) the trial court erred in admitting the testimony of a witness at the conclusion of the sentencing hearing who had not been sequestered during prior testimony, 2) the trial court erred in applying one enhancement factor because it was also an element of the offense, and 3) the sentence was improperly enhanced in violation of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004).  We affirm the judgment of the trial court.

Forrest L. Whaley, et al. v. Jim Ann Perkins, et al.
W2004-02058-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Rita L. Stotts

Purchasers of real property filed suit for breach of contract, negligence per se, intentional misrepresentation, breach of warranty of title, and emotional distress against various parties, alleging that purchasers had purchased the subject property in reliance upon misrepresentations by defendants as to the merchantability of title to the property, only to discover later that the property had been illegally subdivided by defendants. Purchasers contended that they suffered catastrophic pecuniary and other loss as result of alleged misrepresentations, due to extremely limited legal uses that could be made of illegally subdivided parcel. At trial, jury found that each of the defendants had committed intentional misrepresentation, and awarded compensatory damages in the amount of $170,000 and punitive damages in the amount of $5,000. Defendants appeal on numerous grounds. Finding that the trial court erred, we vacate and remand.