Lisa Karen Stowers Smith vs. Mark Edward Smith
E2003-02642-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

Lisa Karen Stowers Hoffer, formerly Smith ("Mother"), filed a petition against her former husband, Mark Edward Smith ("Father"), seeking to modify the provisions of the parties' judgment of divorce, which judgment required Father to pay $1,200 per month in child support. The trial court, finding that, in the most recent three years, Father had had an average annual income of $117,238, held that there had been a substantial and material change in circumstances justifying an order requiring Father to pay child support of $2,803 per month. Father appeals, arguing that the trial court erred in its calculation of his income. We affirm in part and vacate in part.

State of Tennessee, et al. v. 1998 Deliquent Taxpayers
E2004-00008-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal stems from an action filed by the State of Tennessee, in its own behalf and for the use and benefit of Hamilton County and certain municipalities ("the state"), against property owners (collectively "the defendants") who had not paid their 1998 real estate taxes. Following the entry of a default judgment as to certain property, a delinquent tax sale was conducted at which Carlton Ditto and Positive Impact, Inc. ("the purchasers") bought a parcel of land. The purchase, however, was subsequently voided because the Hamilton County Property Assessor ("the Property Assessor") inadvertently reflected someone other than the true owner on its property rolls. As a consequence of this mistake, the true owner of the property was never made a party to the delinquent tax suit. The purchasers sought compensation for interest on the bid amount and the cost of recording the decree of sale. The purchasers also sought damages for the state's negligence. The trial court awarded interest on the bid amount and the cost of recording the decree, but refused to award damages for negligence. The state appeals. We affirm.

Julia V. Lee and Robert Joe Lee v. State of Tennessee
E2004-00851-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

This appeal stems from an action filed by the State of Tennessee, in its own behalf and for the use and benefit of Hamilton County and certain municipalities ("the state"), against property owners (collectively "the defendants") who had not paid their 1998 real estate taxes. Following the entry of a default judgment as to certain property, a delinquent tax sale was conducted at which Carlton Ditto and Positive Impact, Inc. ("the purchasers") bought a parcel of land. The purchase, however, was subsequently voided because the Hamilton County Property Assessor ("the Property Assessor") inadvertently reflected someone other than the true owner on its property rolls. As a consequence of this mistake, the true owner of the property was never made a party to the delinquent tax suit. The purchasers sought compensation for interest on the bid amount and the cost of recording the decree of sale. The purchasers also sought damages for the state's negligence. The trial court awarded interest on the bid amount and the cost of recording the decree, but refused to award damages for negligence. The state appeals. We affirm.

Jerry Biggs v. Reinsman Equestrian Products, Inc.
E2004-00172-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jerri S. Bryant

Plaintiff sued for breach of employment contract. The Trial Court found a breach and awarded damages. On appeal we hold the employer had just cause to terminate, and reverse Judgment.

Judy S. Parnell v. APCOM, Inc., et al.
M2003-00178-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Timothy L. Easter

Forty-six year old female employee who had worked for company for seventeen years filed this action against her employer after her position and employment were terminated. She claims her termination constituted a breach of contract and violated the Tennessee Human Rights Act. The trial court dismissed the THRA claim on summary judgment as time barred, holding that the savings statute did not apply to THRA claims. The remaining contract claims were tried and resulted in judgment in favor of the defendants. Plaintiff appeals. We find that the trial court erred by holding the savings statute inapplicable to THRA claims against private employers. We also find that the plaintiff failed to establish a prima facie case of discrimination under the THRA. We affirm the trial court in all other respects.

Louis Hudson Roberts v. Mary Elizabeth Todd, et al.
M2003-02594-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Carol L. McCoy

This is an appeal from a trial court's denial of a motion to set aside a default judgment. We Affirm.

State of Tennessee v. Freddie William Lewis
M2004-00210-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jane W. Wheatcraft

The appellee, Freddie William Lewis, was indicted for custodial interference after allegations arose that he moved his child to another state in violation of a juvenile court order. The appellee filed a motion to dismiss the indictment, arguing that a default judgment taken against him in juvenile court on the paternity petition, which later formed the basis for the indictment, was void. The trial court dismissed the indictment after a hearing. The State appeals, arguing that the trial court erred in dismissing the indictment. We determine that the trial court erred in dismissing the indictment because the default judgment was not void, but merely voidable. Accordingly, we reverse the judgment of the trial court, reinstate the indictment and remand the case for trial

Deborah B. Hall Byrd v. Danny K. Byrd
W2004-00796-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Martha B. Brasfield

This is an appeal from a decree of legal separation, involving issues of division of  marital property and debt, alimony, and attorney fees. Wife appeals. We affirm in part, reverse in part, and remand.
 

Donald Branch v. State of Tennessee
W2003-03042-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. McLin

The petitioner, Donald Branch, appeals the denial of his petition for post-conviction relief from his aggravated vehicular homicide convictions, arguing that trial and appellate counsel were ineffective for failing to cite reported criminal law cases when arguing for a jury instruction on proximate causation and that appellate counsel was ineffective for failing to supplement his appellate brief with State v. Farner, 66 S.W.3d 188 (Tenn. 2001), and for failing to raise as an issue on direct appeal the trial judge’s refusal to recuse himself. While the post-conviction appeal was pending, the petitioner sought and received permission to raise as an additional issue the impact of the United States Supreme Court’s Blakely v. Washington opinion on the sentencing in his case. Having thoroughly reviewed the record, we conclude that the petitioner has not met his burden of demonstrating either a deficiency in counsel’s representation or resulting prejudice to his case. We further conclude that Blakely does not apply retroactively to cases on collateral appeal. Accordingly, we affirm the post-conviction court’s denial of the petition.

William (Bill) Graves, et ux. v. Jeremy S. Jeter, et al.
W2003-02871-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Jon Kerry Blackwood

This is a personal injury case arising from an automobile accident. Defendant/Appellee was traveling at an excessive rate of speed and attempted to pass Plaintiffs/Appellants’ vehicle in a no pass zone as Plaintiffs/Appellants were making a left-hand turn into their driveway. Following a bench trial, the trial court found Plaintiff/Appellant driver 40% at a fault for the accident and Defendant/Appellee 60% at fault. Plaintiffs/Appellants appeal on issues of fault and damages. We affirm as modified herein.
 

State of Tennessee v. John Ray Thompson
M2003-00487-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Charles Lee

The Defendant, John Ray Thompson, appeals his convictions from two separate jury trials, where he was convicted of seventeen crimes involving his sexual contact with three minor girls. The trial court sentenced the Defendant to an effective sentence of eighty years for his convictions in both trials, of which sixty-nine years must be served at 100%. On appeal, he contends that: (1) the evidence is insufficient to sustain three of his convictions; (2) the State failed to elect facts to support two of his convictions; and (3) the trial court erred when it sentenced him. After throughly reviewing the record and the applicable authorities, we affirm all of the Defendant’s convictions in both trials except for two of his convictions for sexual battery because the jury was improperly instructed on those counts, and the instructional error was not harmless beyond a reasonable doubt. Further, we hold that the trial court improperly enhanced the Defendant’s sentences in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and we reduce the Defendant’s sentence in accordance with this opinion to an effective sentence of sixty-eight years, sixty of which must be served at 100%. We remand the case for the entry of appropriate judgments of conviction.

Tezozomoc "Ted" Alcantar, et al. v. Haulers Insurance Company
M2003-01004-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol L. Soloman

This is an action against an insurance company that is alleged to have breached its duties to an insured by failing to provide a defense in a prior personal injury action, wherein a substantial default judgment was entered against the insured. The former plaintiffs, now judgment creditors, and the purported insured, now judgment debtor, have joined forces as plaintiffs in this action to recover damages, including the amount of the default judgment, the purported insured suffered due to the insurer's refusal to provide a defense. The trial court dismissed the action on a Tenn. R. Civ. P. 12 motion for failure to state a claim on which relief could be granted. We affirm. The judgment on which this action is based is void, because the relief granted therein by default judgment exceeded the relief sought. In the alternative, if the previous judgment on which this action is based is valid, the purported insured is not afforded coverage; the policy excluded injury or damage expected or intended from the standpoint of the insured and it was held in the previous judgment that the purported insured intended the collision and the Alcantars' injuries.

In Re: S.C.H.
M2003-01382-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert P. Hamilton

The mother of a three year old girl asked the court to deny the girl's father any visitation with the child because she believed that the father had sexually abused the child. The trial court did not find that the evidence conclusively proved abuse, but denied the father any visitation or other contact with his daughter, stating, "I have to side with the protection of the child." Because the trial court did not make the requisite findings to support elimination of all visitation, we must vacate the judgment.

State of Tennessee v. Stanley Earl Cates
E2003-02648-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James B. Scott, Jr.

The Appellant, Stanley Earl Cates, was convicted by an Anderson County jury of aggravated robbery and sentenced to eight years imprisonment. On appeal, Cates raises the following issues for our review: (1) whether the trial court erred by denying his motion to suppress, (2) whether the evidence was sufficient to support the jury's verdict, (3) whether the trial court erred by requiring him to provide a voice exemplar before the jury, (4) whether the trial court erred in giving sequential jury instructions, and (5) whether the trial court abused its discretion by refusing to sentence him as an especially mitigated offender. After review, we find that Cates' issues are without merit. Accordingly, the judgment of the Anderson County Criminal Court is affirmed.

Jerry Britt v. State of Tennessee
E2004-01276-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James E. Beckner

The petitioner, Jerry Britt, entered Alford pleas in 1996 to three counts of attempted rape of a child and guilty pleas to one count of possession with intent to sell or deliver a Schedule II controlled substance, one count of possession with intent to sell or deliver a Schedule IV controlled substance, and six counts of delivery of a Schedule II controlled substance, and received an effective sentence as a Range I, standard offender of forty-eight years in the Department of Correction. He appeals the dismissal of his petition for writ of error coram nobis, arguing that the trial court should have granted him relief based on newly discovered evidence, the victim's recantation testimony. Following our review, we affirm the order of the trial court dismissing the petition.

Billy Gene Gray v. Cullom Machine Tool & Die, Inc., et al.
E2004-00011-SC-R3-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge Lawrence H. Puckett

We granted review in this workers' compensation case to determine whether the trial court erred in 1) awarding temporary total benefits, 2) apportioning liability between the employer and the Second Injury Fund, and 3) awarding 180 weeks of lump-sum benefits. After reviewing the record and applicable authority, we conclude that the trial court erred in awarding temporary total benefits to the employee who continued to work for the employer following his injury and then later operated his own unprofitable business. We also hold that the trial court erred in limiting the employer's liability for permanent total disability benefits to 60% of 400 weeks and in awarding 180 weeks of lump sum benefits. Accordingly, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Byron Edwards v. State of Tennessee
E2004-00918-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lynn W. Brown

The petitioner, Byron Edwards, appeals the trial court's order dismissing 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, Rules of the Court of Criminal Appeals. The petition fails to establish either a void judgment or an expired sentence. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Gerald Pendleton
W2003-03043-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bernie Weinman

A Shelby County jury convicted the Defendant of first degree felony murder, aggravated child abuse, aggravated child neglect, and perjury. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction for felony murder; and (2) he was denied a fair trial because an expert witness for the State did not disclose to the jury that the witness was himself the subject of a federal criminal investigation. Finding no reversible error, we affirm the trial court’s judgment.

Herbert F. and Shirel H. Pitz v. Donald E. and Dorothy D. Woodruff
M2003-01849-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor J. B. Cox

This case involves claims of fraud arising out of the sale of a house. The plaintiff purchasers signed a contract to buy a house owned by the defendants. The contract to sell contained an "as is" clause, allowing inspection of the property but requiring the sale to be "as is." The purchasers did not inspect the house further before the closing. After the purchasers took possession, they noticed several defects in the house that were not disclosed by the sellers. The purchasers sued the sellers, alleging that the sellers had made material misrepresentations of fact and had fraudulently concealed or failed to disclose material defects in the house. After a bench trial, the trial court held in favor of the sellers. It concluded that, although the sellers had made material misrepresentations of fact, the purchasers' reliance on those representations was not reasonable because of the "as is" provision in the contract and because the defects were either apparent or readily discoverable. The purchasers now appeal. We affirm, finding that the evidence does not preponderate against the trial court's conclusion that the purchasers' reliance was not reasonable.

Ames Davis, Administrator of the Estate of Mary Reeves v. W. Terry Davis
M2003-02447-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This case involves a claim for reimbursement against an estate. A trust was established during the decedent's lifetime to pay for her needs. Before the decedent died, her husband paid for her needs, in part to preserve trust property. After her death, the husband filed a claim against the wife's estate seeking reimbursement for his payments for the healthcare and support of the wife. The trial court found that the payments were made to protect the wife's trust property, as well as for the care and support of the wife, and would have been paid by the trustee but for lack of assets, and the wife's estate was the successor-in-interest to the remaining assets of the trust. Consequently, the trial court sustained the husband's claim against the wife's estate. The wife's estate now appeals. We affirm, finding the expenses paid by husband constitute a valid claim against the wife's estate.

Betty Lonora McMillin Whalen v. David Wesley Whalen
E2004-01008-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor Frank V. Williams, III

The issues in this case are whether the trial court's award of alimony to the wife was excessive because the husband's income may be diminished when he retires from his current employment and whether the trial court's award to wife for her attorney's fees and expenses was erroneous. Upon a finding that the time of the husband's retirement is uncertain and a further finding that the trial court did not abuse its discretion in awarding the wife attorney's fees and expenses, we affirm the judgment of the trial court as rendered and remand.

Walter Miller, et al., v. State Farm Insurance Company
W2004-00480-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chanceller D. J. Alissandratos

Plaintiffs appeal an adverse judgment from the general sessions court to the circuit  court for a trial de novo pursuant to T.C.A. § 27-5-108 (Supp. 2004). On motion of defendant, the circuit court transferred the case to the chancery court because a previous suit filed in the chancery court on the same cause of action was voluntarily dismissed by plaintiff. The chancery court granted defendant’s motion to adopt the findings of the special master filed in the previous chancery court suit and then granted defendant’s motion for summary judgment. Plaintiffs have appealed. We vacate and remand to the circuit court.
 

B & B Enterprises of Wilson Co., LLC, et al. v. City of Lebanon, et al.
M2003-00267-COA-R3-CV
Authoring Judge: Presiding Judge William B. Koch, Jr.
Trial Court Judge: Chancellor C. K. Smith

This appeal arises from a dispute between the City of Lebanon Planning Commission and real estate developers regarding approval of a proposed subdivision. The planning commission approved the plans for the first phase of this subdivision but then disapproved the plans for the second and third phases. The developers filed a petition for writ of certiorari in the Chancery Court for Wilson County seeking judicial review of the commission's actions. The trial court granted the writ and determined that the planning commission acted arbitrarily and capriciously by denying approval of the final subdivision plans. We affirm the trial court's decision.

State of Tennessee v. Howard Lavelle Tate
M2003-02418-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Howard Lavelle Tate, was pulled over by a Metropolitan Police Officer in Nashville, Tennessee for violating the noise ordinance. The officer asked the Defendant for consent to search the Defendant's person and the Defendant's vehicle. The Defendant replied "whatever" to both these requests. The officer found scales with a white powder residue in the Defendant's vehicle. The Defendant then fled the officer. The officer and a second officer caught the Defendant who then told the officers that they could find the drugs in his pants leg. The officers retrieved the drugs and placed the Defendant under arrest. The Defendant filed a motion to suppress the evidence found as a result of the warrantless searches. The trial court denied this motion. The Defendant pled guilty to possession of over .5 grams of cocaine, a Class B felony, but reserved a certified question concerning whether the warrantless searches fell within an exception to the warrant requirement. The Defendant now appeals on the basis of the certified question. We find that the searches fell within an exception to the warrant requirement and affirm the judgment of the trial court.

State of Tennessee v. Rose Marie Hernandez
M2003-01756-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lee Russell

The defendant, Rose Marie Hernandez, pled guilty to seventy counts of forgery, a Class E felony, which the trial court merged into thirty-five convictions of forgery, and the trial court sentenced her as a Range III, persistent offender to five years and six months for each conviction. The trial court ordered some of the sentences to run concurrently and others to run consecutively for an effective sentence of thirty-three years and six months in the Department of Correction. The defendant appeals, claiming the trial court erred in applying certain enhancement factors in violation of the rule announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and in denying alternative sentencing. Although we conclude that the sentencing procedure violated the rule announced in Blakely, we hold it to be harmless beyond a reasonable doubt. We affirm the judgments of the trial court.