Judy Kesterson v. Bruce Varner
M2003-00743-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Russell Heldman

Bruce Varner seeks review of the trial court's dismissal of his Petition to Modify Custody. The trial court dismissed the petition at the close of the petitioner's proof, holding that petitioner had failed to carry his burden of proof that a change of custody was in the best interest of the child. The trial court assessed attorney's fees and costs to the petitioner. We affirm the decision of the trial court.

Lisa Wyatt Rowan v. Michael Howard Rowan
M2003-01668-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Don Ash

In this appeal, Appellant Michael Rowan challenges the trial court's grant of a post-divorce contempt petition. Appellee Lisa Rowan challenges the trial court's denial of her attorney's fees in connection with the petition, and seeks frivolous appeal damages in this court. We hold that the language of the parties' marital dissolution agreement is plain and unambiguous, affirm the trial court's grant of the wife's petition, reverse the trial court's refusal to award attorney's fees, and hold the appeal frivolous.

Kenneth E. Braswell v. Lowe's Home Centers, Inc.
M2003-02082-COA-R3-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Walter C. Kurtz

This appeal involves a customer who tripped over a floor mat while waiting in a cashier's line at a home improvement store. The customer filed suit against the store in the Circuit Court for Davidson County, and a jury returned a verdict for the store after determining that the customer was sixty-five percent at fault for his injuries. The customer asserts on this appeal that the evidence does not support the jury's verdict. We affirm the judgment.

Stevie Caldwell v. Bridgett Collette Caldwell
M2003-02427-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge John A. Turnbull

This appeal involves a lawsuit brought by a prison inmate against his former wife for defamation and failure to properly care for their child including the failure to facilitate visitation. The trial court dismissed the complaint after determining that the inmate's slander claim was barred by the statute of limitations and that the remainder of the complaint failed to state a claim for which relief could be granted. We affirm the judgment.

State of Tennessee v. Joseph Barajar
M2003-02844-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The defendant, Joseph Barajar, originally charged with premeditated first degree murder, was convicted of second degree murder. The trial court ordered a twenty-five-year sentence in the Department of Correction. In this appeal of right, the defendant challenges the sufficiency of the evidence, cites error in the admission of the evidence, and asserts that his sentence is excessive. See Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). The sentence must be modified to twenty-two years; otherwise, the judgment of the trial court is affirmed.

State of Tennessee v. Christopher Franklin Waddell
M2004-00126-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jane W. Wheatcraft

The Appellant, Christopher Franklin Waddell, appeals the sentencing decision of the Sumner County Criminal Court which resulted in the imposition of an effective thirty-year sentence. Under the terms of a plea agreement, Waddell pled guilty to two counts of aggravated assault, four counts of attempted aggravated robbery, and three counts of coercion of a witness. On appeal, Waddell argues that the trial court erred: (1) in its application of enhancing factors with respect to his aggravated assault convictions; (2) in imposing consecutive sentences; and (3) in denying an alternative sentence. After review, we affirm.

State of Tennessee v. Aaron T. Binkley
E2004-00739-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant, Aaron T. Binkley, pled guilty to forgery, a Class D felony, and was sentenced as a Range One standard offender to two years in the Department of Correction. On appeal, the defendant argues that the trial court erred in denying him alternative sentencing. Upon review, we affirm the judgment of the trial court.

State of Tennessee v. Michael Lebron Anderson
E2004-00694-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Michael Lebron Anderson, was convicted of burglary of a building other than a habitation, a Class D felony, and was sentenced to twelve years in the Department of Correction. On appeal, the defendant contends that the trial court erred by allowing hearsay statements of eyewitnesses to be introduced through the testimony of a police officer as an excited utterance, thereby violating his right to confront witnesses against him. After careful review of the record and the parties' briefs, we affirm the judgment of the trial court.

Arzolia Charles Goines v. State of Tennessee
E2003-03013-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Arzolia Charles Goines, appeals the trial court's dismissal of his petition for 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. See Tenn. Ct. Crim. App. R 20. The petition was properly dismissed as time-barred. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Jeffrey Martin Reaves, alias, Roland Lee Mallin
E2003-01899-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mary Beth Leibowitz

A Knox County Criminal Court jury convicted the defendant, Jeffrey Martin Reaves, of voluntary manslaughter, a Class C felony, attempted reckless homicide, a Class E felony, and misdemeanor reckless endangerment, a Class A misdemeanor, and the trial court sentenced him as a Range II, multiple offender to an effective sentence of ten years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient to support his convictions, that the trial court erred in applying certain enhancement factors, and that it erred in ordering consecutive sentencing. Because attempted reckless homicide is not a crime in Tennessee, we vacate the defendant's conviction for that count under plain error review. In all other respects, we affirm the judgments of the trial court.

In Re K.A.S.
M2004-02180-COA-R9-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Robert P. Hamilton

This Tenn. R. App. P. 9 interlocutory appeal concerns a father's efforts to set aside a default judgment granting custody of his daughter to the child's maternal grandparents. The grandparents asserted in their petition for custody that the father's whereabouts were unknown and they therefore served their petition on the father by publication in a Lebanon, Tennessee newspaper. Two and one-half years later, the father filed a motion to set aside the custody order asserting that service by publication was insufficient because the grandparents knew or should have known he was residing in Greensboro, North Carolina at the time they filed their petition for custody. We have determined that the default judgment is void for lack of personal jurisdiction and we thus reverse the trial court's order denying the father's motion to set aside.

State of Tennessee v. Braddie Eric Sullivan
M2004-01480-CCA-R10-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James L. Weatherford

The state was granted an extraordinary appeal pursuant to Rule 10, T.R.A.P., to challenge the Lincoln County Circuit Court's denying its motion to use statements made by the defendant, Braddie Eric Sullivan, to his attorney for impeachment purposes in his first degree murder and especially aggravated robbery trial. We affirm the trial court's denial of the state's motion.

Michelle Stalls v. Dorothy J. Pounders, et al.
W2003-02933-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

This case arises out of an action filed by the former client of an attorney, seeking damages pursuant to the Tennessee Consumer Protection Act and theories of breach of contract, fraudulent
misrepresentation, and common law fraud. Appellees filed a motion for summary judgment in the
trial court below, and the court granted the motion. Appellant now seeks review by this Court, and,
for the following reasons, we remand for further proceedings consistent with this opinion.
 

Mary Warren Kesser v. Peter Hale Kesser
W2003-02392-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert A. Lanier

Following their divorce in 1995, Wife filed a petition for contempt against Husband in 1997, alleging Husband failed to comply with certain provisions of the parties’ marital dissolution agreement. Husband filed an answer and submitted his counter-petition for modification of his child support obligation based on changed circumstances. Wife, in turn, filed a motion asking the court to determine Husband’s child support obligation following his receipt of a large severance payment from his previous employer. After holding a hearing on the parties’ respective petitions, the trial court entered one order addressing the visitation of the parties’ minor daughter and another order addressing the financial issues. In the order addressing the financial issues, the trial court increased Husband’s base child support obligation, ordered Husband to pay additional child support in various amounts pursuant to the marital dissolution agreement, ordered Husband to pay additional amounts from improperly withheld taxes on the exercise of certain stock appreciation rights, and ordered Husband to pay Wife’s attorney’s fees. For the reasons set forth herein, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
 

State of Tennessee, ex rel. Moore & Associates, Inc., v. Lon F. West
M2003-00152-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case involves judicial review of a zoning administrator's refusal to issue a certificate of compliance with all zoning laws to a newly-constructed hotel. We reverse the trial court's denial of the local government's motion to dismiss because such review is appropriate under the common law writ of certiorari, not a direct action for declaratory judgment, and the hotel owners failed to meet the exhaustion requirements prerequisite to certiorari review.

Susan Hutcheson v. Kristi Barth, Individually and in her Capacity as Administrator of the Estate of Raymond Wesley Barth
E2004-00970-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Daryl R. Fansler

The threshold issue presented in this appeal is whether the Plaintiff timely filed her notice of appeal so as to give this Court jurisdiction to hear this case. The trial court entered its order granting the Defendant's motion for summary judgment on January 15, 2004. This order adjudicated all the
claims of the parties. On February 25, 2004, the Defendant filed a motion for contempt alleging nonperformance of the order by the Plaintiff. On March 19, 2004, an agreed order awarding the Defendant pre-judgment interest was entered. The Defendant had not sought pre-judgment interest
in her counter-complaint or in any subsequent pleadings. The Plaintiff filed a notice of appeal on April 19, 2004. We find that the notice of appeal was not filed within thirty days of entry of the judgment appealed from pursuant to Rule 4 of the Tennessee Rules of Appellate Procedure.  Therefore, we dismiss this appeal because this court does not have jurisdiction to hear the issues in this appeal.

French R. Bolen v. Signage Solutions, LLC, et al.
E2004-01183-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Sharon J. Bell

The issues presented in this appeal are: whether the trial court properly ruled that the employer had good cause to terminate the employee; whether the trial court properly ruled that the employer was not bound by a written employment agreement with the employee through the year 2003; and whether the trial court properly ruled that the employee was not entitled to a bonus for the year 2002. We hold that the trial court's rulings were proper and so affirm the judgment of the trial court.

State of Tennessee v. Joe Calvin Boyce
W2004-01159-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jon Kerry Blackwood

A Hardeman County jury convicted the Defendant, Joe Calvin Boyce, of one count of theft of property valued between $1,000 and $10,000 and one count of attempted theft of property valued between $500 and $1,000. The trial court sentenced the Defendant, as a career offender, to twelve years in prison for the theft conviction and six years for the attempted theft conviction, to be served concurrently. The Defendant appeals, contending: (1) the evidence presented at trial is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him. On appeal, we vacate the Defendant’s six year sentence for attempted theft, and impose a sentence of eleven months and twenty-nine days for that conviction. The Defendant’s convictions and his sentence for theft are affirmed.

In the Matter of: E.H. State of Tennessee, Department of Children's Services v. Kenneth Harazak
W2004-00514-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Hansel J. McAdams

This involves the termination of parental rights. The child at issue was taken into protective custody after police raided the parents’ home and found an active methamphetamine lab. Drug charges were filed against the child’s mother and father. The father was on parole from a prior murder conviction in Illinois, and his drug-related activities were a violation of his parole. As a result, the father was returned to Illinois to serve further time in prison on the prior murder conviction. The mother’s parental rights were terminated by default judgment. The father’s parental rights were terminated based on having the child in the home with a meth lab, and the father’s resulting incarceration in Illinois. The father appealed, arguing that the Tennessee Department of Children’s Services did not make reasonable efforts to reunite him with his child. We affirm, finding that under the circumstances of this case, the Department of Children’s Services was not required to make reasonable efforts to reunite the father with the child.

Evelyn Penny Corbin v. NHC Healthcare/Milan, LLC.
W2003-02921-WC-R3-CV
Authoring Judge: Special Judge John A. Turnbull
Trial Court Judge: Chancellor George R. Ellis

This workers’ compensation appeal has been referred to this panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law.  The employer insists the award of 15% whole body disability is against the preponderance of the evidence since the treating physician found no impairment. We conclude that the evidence does not preponderate against the award and affirm the judgment of the trial court.

Brian Engebretson v. Allied Waste Industries Of Tennessee, Inc., a/k/a BFI Waste Systems Of North America, Inc., et al.
W2004-00339-WC-R3-CV
Authoring Judge: Special Judge John A. Turnbull
Trial Court Judge: Chancellor D.J. Alissandratos

TThis workers’ compensation appeal has been referred to this panel in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Employee appeals the trial court’s finding of no permanent disability as being against the preponderance of the evidence and asserts error in the admission of medical evidence due to leading questions. We find the trial court did not commit harmful error in overruling objections to leading questions propounded to the medical expert. We further find that the finding of no permanent disability is against the preponderance of the evidence and fix the employee’s permanent disability at 30% to the left leg.

Robert Foster v. Morrow Trucking, Inc., et al.
W2003-03098-WC-R3-CV
Authoring Judge: Special Judge John A. Turnbull
Trial Court Judge: Judge C. Creed McGinley

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. This case was previously before the Panel in Foster v. Morrow Trucking, et al, No. W2002-0041-WC-R3-CV (Foster I). In that appeal, the Panel remanded the case to the trial court for specific findings of fact regarding the percentage of disability that would have resulted from employee’s November, 1999 injury without consideration of his pre-existing diabetic neuropathy. Upon remand the trial court fixed the permanent partial disability resulting from the November, 1999 work related injury at 50% to the body as a whole without any consideration of his pre-existing disease. As discussed below, the Panel concludes that the evidence does not preponderate against that finding and, accordingly, affirms the judgment of the trial court.

Mario Pendergrass v. State of Tennessee
M2003-02144-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Seth W. Norman

The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel and given an evidentiary hearing. We conclude that the petitioner presents a colorable claim for relief under the more lenient standards afforded a pro se petition. Accordingly, we reverse the summary dismissal of the petition and remand the case to the post-conviction court for the appointment of counsel.

State of Tennessee v. James D. Nicholson
M2004-00111-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

On appeal, the defendant challenges the trial court’s denial of his motion to suppress. After careful review, we conclude that, under the facts presented, the defendant was seized when the officers instructed the defendant to “hold up,” pursued him on foot, and eventually apprehended him.  Moreover, we hold that the detectives lacked reasonable suspicion or probable cause to effectuate the stop. Therefore, we reverse the findings of the trial court, the evidence flowing from the illegal seizure is suppressed, the defendant’s conviction is vacated, and the charges are dismissed.

State of Tennessee v. James D. Nicholson - Dissenting
M2004-00111-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.

I would affirm the judgment of the trial court. In my view, the defendant was not seized when the officer directed him to "hold up." Further, the defendant's flight, coupled with his presence in an area known for drug trafficking, provided the officers with reasonable suspicion to pursue and detain him for further inquiry. That he was not a resident of the housing project, refused to provide his name or identification, and refused to provide the name of the individual he claimed to be visiting established probable cause to arrest him for trespassing.