State of Tennessee v. Michael K. Massengill
E2003-02836-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, Michael K. Massengill, appeals the revocation of his probation, arguing that the trial court erred in failing to place him back on intensive probation or in the community corrections program after he violated his probation. Following our review, we affirm the order of the trial court.

James D.L. Perry v. Howard Carlton, Warden
E2004-01000-CCA-R3-HC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lynn W. Brown

The petitioner, James D. L. Perry, appeals pro se from the Johnson County Criminal Court's dismissal of his petition for habeas corpus relief. The petitioner attacks his two convictions for possession with intent to sell one-half or more grams of cocaine within one thousand feet of a school for which he received concurrent twenty-year terms. He contends that the first cocaine conviction is void because he was entrapped, that the second cocaine conviction is void because he was convicted of a crime for which he was not indicted, and that both convictions are void because he was convicted under a statute which he claims was inapplicable. We affirm the trial court's dismissal of the petition.

State of Tennessee v. Lamar Ross - Concurring and Dissenting
W2003-02823-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Joseph B. Dailey

I write separately because, in my view, Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), precludes the application of enhancement factor (5). While I agree with the majority that the jury's verdict in count two necessarily includes a finding that the victim is mentally defective, the verdict does not include a finding that the victim was particularly vulnerable because of his mental disability, which is required by the statute. See Tenn. Code Ann. § 40-35-114(5) (2003). Our supreme court has held that factor (5) may be used only "if the circumstances show that the victim, because of his age or physical ormental condition, was in fact 'particularly vulnerable,' i.e., incapable of resisting, summoning help, or testifying against the perpetrator." State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). In my view, the verdict of the jury does not necessarily reflect that fact. In consequence, factor (5) would not be applicable under the rule established in Blakely. Because only one enhancement factor remains, I would have modified the sentence to twenty-one years, one year above the presumptive sentence.

State of Tennessee v. Lamar Ross
W2003-02823-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph B. Dailey

The defendant, Lamar Ross, was indicted by the Shelby County Grand Jury on two counts of aggravated rape, a Class A felony, under alternate theories, for one offense. Following a jury trial, he was convicted of both counts, which were merged into a single judgment of conviction, and sentenced by the trial court as a Range I, violent offender to twenty-four years in the Department of Correction. In a timely appeal to this court, he challenges the sufficiency of the evidence and the sentencing imposed. Based on our review, we modify the conviction in Count 2 to rape, a Class B felony, in accordance with the offense with which the defendant was charged. Further, we conclude that two of the four enhancement factors are inapplicable, in light of the United States Supreme Court’s subsequent opinion in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).  Accordingly, we modify the aggravated rape conviction in Count 2 to rape, which merges into the conviction for aggravated rape in Count 1, and reduce the defendant’s sentence to twenty-two years in the Department of Correction.

William A. Cohn v. Board of Professional Responsibility of the Supreme Court of Tennessee
W2003-01516-Sc-R3-CV
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Chancellor J. Steven Stafford

This is a direct appeal in an attorney discipline case. For seven years, the appellant, an experienced bankruptcy attorney, collected post-confirmation attorney’s fees from his debtor clients using a creditors’ procedure which the Bankruptcy Court for the Western District of Tennessee found improper. Following the bankruptcy court’s ruling, the Board of Professional Responsibility (“BPR”) filed a petition for discipline alleging that the appellant had violated a number of ethical rules. A BPR hearing panel agreed and ordered a public censure, disgorgement of certain fees, and suspension until such time as disgorgement was made. Both the attorney and the Board appealed to the chancery court, which affirmed the public censure, modified the disgorgement order, and reversed the suspension. Both parties appealed to this Court. After our review of the record and applicable authority, we conclude that the chancery court properly affirmed the hearing panel’s findings with regard to the appellant’s violation of the disciplinary rules and that it correctly required disgorgement of post-confirmation attorney’s fees, but that it erred in declining to impose a suspension. Accordingly, we affirm the chancery court’s judgment in part, but we modify the judgment to vacate the public censure and instead impose a ninety-day suspension.

Larry Thrasher v. Carrier Corporation,
M2003-01217-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr.J.
Trial Court Judge: L. Craig Johnson, Judge Sitting As Chancellor
This case, submitted on briefs, is before the Panel for a second time. In the first appeal filed by the employer, this Panel reduced the trial court's award of 1% permanent partial disability for work-related injuries to the employee's "two feet" to 4% permanent partial disability to "each foot." The employer brings a second appeal contending that the trial court erred in interpreting the Panel's judgment modifying the award. The employee contends that this is both a frivolous appeal and a bad-faith effort to avoid paying the employee his workers' compensation benefits. The Panel has concluded that the judgment of the trial court is affirmed.

Randel P. Carlton, et al. v. Mark L. Williams, et al.
E2003-02996-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Lawrence H. Puckett

Randel P. Carlton, and Julie S. Carlton ("Plaintiffs") purchased a house from Mark L. Williams and Sandra Kay Williams ("Defendants"). Plaintiffs later sued Defendants claiming, among other things, that Defendants knew and failed to disclose that the swimming pool was not in good working order and that the swimming pool encroached onto a sewer easement and neighboring property. Plaintiffs also claimed that Defendants had warranted that all fixtures, including the swimming pool, were free of liens and encumbrances and had breached this warranty. The case was tried on the issue of whether Defendants had warranted that all fixtures, including the pool, were free of liens and encumbrances. The Trial Court found and held, inter alia, that the paragraph of the sales contract relied upon by Plaintiffs contained no warranty and that the owner's affidavit also contained no warranty because it merged into the deed at closing. The Trial Court dismissed the case against Defendants. Plaintiffs appeal. We affirm, in part, reverse, in part, and remand for further proceedings.

City of Elizabethton, Tennessee, v. North American Fibers, Inc. et al.
E2003-02930-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor G. Richard Johnson

This appeal arises out of a cause of action filed by a municipality against a corporate landowner for breach of a sewer easement which the municipality purchased as a path for its underground sewer line. The municipality alleged that after construction of the sewer line, the landowner's long- standing practice of depositing fly ash and cinders over the area of the easement rendered the line inaccessible and necessitated the construction of an alternate sewage system for which the municipality requested compensation. The municipality also sought to hold the landowner's president and chief executive officer liable as the alter ego of the landowner. The trial court decreed that the landowner had unreasonably burdened the easement, awarded the municipality compensatory damages, and decreed that although the landowner's president was an alter ego of the landowner, he was not personally liable. On appeal the landowner argues that the municipality's cause of action was barred under the statute of limitations and equitable doctrines of estoppel and laches, that under the rule of practical construction the easement allowed the landowner to dump material over the sewer line, that the trial court erred in its award of damages, and that the court erred in refusing to strike findings with respect to the landowner's president. We affirm the judgment of the trial court as rendered and remand.

Citicorp Mortgage, Inc. v. Bancorpsouth Bank
W2004-00332-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

This case arises from trial court’s denial of Appellant Bank’s request for equitable subrogation of Appellee Bank’s lien to Appellant Bank’s lien. Because Appellant Bank had knowledge of Appellee Bank’s deed of trust prior to making the loan, Appellant Bank is not entitled to equitable subrogation. We affirm.
 

In the matter of: T.L.M., T.L.J., and T.J.B, Jr.
W2004-00234-COA-R3-PT
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Christy R. Little

The trial court terminated the parental rights of the Mother and alleged Fathers of two children under the age of 18. Mother appeals. We affirm.
 

In the Matter of C.M.S.: State of Tennessee Department of Children's Services v. Lisa Howell, et al.
W2004-00295-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Christy R. Little

This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Madison County, terminating her parental rights on the grounds of persistence of conditions. Specifically, Mother asserts that the termination of her parental rights is not supported by clear and convincing evidence in the record, and that termination is not in the best interest of the children. We reverse and remand.
 

Brian Deas, Administrator v. State of Tennessee
W2003-02891-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Nancy Miller-Herron, Commissioner

This case involves a wrongful death action filed against the State of Tennessee in the Tennessee Claims Commission pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). Appellant is the administrator of the estate of the deceased driver of an automobile involved in a collision with another vehicle on a state highway. Following a hearing, the Commissioner ruled that the state was negligent under section 9-8-307(a)(1)(I) in inspecting and maintaining the section of highway at issue, the shoulder of the highway did not constitute a dangerous condition under section 9-8-307(a)(1)(J), the Appellant failed to prove that the condition of the highway was the proximate cause of the decedent’s untimely death, and the Appellant was not entitled to recover because decedent’s negligence in causing the accident was at least fifty percent (50%). The Appellant filed a notice of appeal to this Court, arguing that the Commissioner’s findings constitute error. For the reasons stated herein, we affirm.
 

Tareco Properties, Inc. v. Steve Morriss
M2002-02950-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor R.E. Lee Davies

The assignee of a judgment rendered by a federal district court in Texas attempted to enforce that judgment in Tennessee. The trial court entered an order granting summary judgment to the plaintiff and enforcing the judgment. The defendant subsequently filed a Tenn. R. Civ. P. 60 motion for relief, arguing that the judgment of the federal court was void. The trial court agreed and set aside its previous order. After the Texas federal court that had rendered the original judgment reached the opposite conclusion, the plaintiff filed a Tenn. R. Civ. P. 60 motion asking the trial court to set aside its earlier order setting aside the summary judgment enforcing the Texas judgment. The trial court denied this motion. By final order, the trial court dismissed the plaintiff's action to enforce the Texas judgment. We reverse the trial court on this issue and also vacate the order of expungement granted to Mr. Morriss related to a holding of criminal contempt.

Crye-Leike. v. Estate of Kenneth Earp, et al.
M2003-00740-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Tom E. Gray

This case involves a dispute over whether a real estate listing contract was canceled by oral agreement prior to receipt of a full-priced offer from a buyer. Plaintiff real estate agents claim the contract was still in effect at the time of the offer entitling them to their sales commission when Defendant sellers refused to sell their property. The trial court found that the contract was canceled by oral agreement prior to receipt of the offer and dismissed Plaintiffs' complaint. Defendants counterclaimed for violations of the Tennessee Consumer Protection Act and the Tennessee Real Estate Broker's Licensing Act. Defendants counterclaims were also dismissed. We affirm the decision of the trial court.

Marcellus Hazelitt v. State of Tennessee
M2003-02542-CCA-R3-CO
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

This matter is before the Court upon the State's motion to dismiss the appellant's appeal, or in the alternative, affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant filed a motion for correction or reduction of sentence that the trial court denied without benefit of a hearing. After reviewing the record in this case, we find the State's motion to affirm the judgment of the trial court by memorandum has merit. Accordingly, the motion is granted and the appeal is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State ex rel. Karl F. Dean v. John Aaron Nelson, et al.
M2004-02509-COA-R10-CV
Authoring Judge: Presiding Judge William C. Koch, Jr.
Trial Court Judge: Judge Steve R. Dozier

This extraordinary appeal involves the efforts of the Metropolitan Government of Nashville and Davidson County to close an adult business where acts of prostitution and lewdness were allegedly occurring. At the City’s request, the Criminal Court for Davidson County issued an ex parte temporary restraining order immediately padlocking the business. Following a hearing one week later, the trial court entered a second order stating that the temporary restraining order would “remain binding and in effect pending a trial.” The owner of the adult business filed a Tenn. R. App. P. 10 application with this court. We have concluded that the trial court departed from the accepted and usual course of judicial proceedings in two respects. First, the court violated Tenn. Code Ann. § 29-3-106(a) (2000) by issuing the temporary restraining order without five days written notice. Second, the trial court violated Tenn. R. Civ. P. 65.03(5) by allowing the temporary restraining order to remain in effect pending the trial. Accordingly, we grant the owner’s Tenn. R. App. P. 10 application and vacate the order padlocking the premises.¹

State of Tennessee, Department of Children's Services v. Tammy Robbins
W2004-00487-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge James H. Bradberry

This is a termination of parental rights case. Tammy Robbins (“Ms. Robbins”) appeals from the order of the Juvenile Court of Weakley County terminating her parental rights. Specifically, Robbins asserts that the trial court erred the following five respects: in admitting the testimony of a certain expert witness; in disregarding the testimony of another expert witness; in disregarding the testimony of Robbins’s fact witnesses; in refusing to observe Robbins with her children; and in considering, in the termination proceeding, evidence of the State’s earlier removals of the children from Robbins’s custody. Because we find appellant’s assertions to be without merit, we affirm.
 

Christina K. Yeubanks v. Methodist Healthcare Memphis Hospitals, et al.
W2003-01838-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

Appellant, the mother of a nine year old girl who died after being seriously injured in an
automobile accident, challenges the trial court’s dismissal of her suit for failure to pay discretionary costs resulting from a prior trial of her suit (which ended with voluntary dismissal of some claims, and directed verdict for Appellees on other claims). Appellant contends that the trial court that originally heard the case displayed bias or prejudice in favor of Appellees during that proceeding. Appellant contends that, due to the court’s alleged bias in favor of defendants, the division of the circuit court in which she re-filed the case erred in transferring the case back to the original division in which it was heard. Appellant further contends that, upon the case being transferred back to the division in which it was originally heard, the trial court erred in not recusing itself due to its alleged bias or prejudice. Appellant also contends that, after failing to recuse itself, the trial court erred in dismissing her lawsuit for failure to pay discretionary costs assessed at the conclusion of the prior trial. We affirm the judgment of the trial court, and remand for determination of damages for the filing of a frivolous appeal.
 

State of Tennessee v. Franklin Howard
W2002-01680-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Dailey

Following a remand for a new trial on the charge of first-degree premeditated murder, see State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the defendant, FranklinHoward, was again convicted of first-degree premeditated murder and was also convicted of felony murder and sentenced to life in prison.  Now on appeal, he challenges the sufficiency of the convicting evidence, the admission of a codefendant’s statement, the failure of the trial court to bar the second trial based upon principles of double jeopardy, the trial court’s jury instructions, the failure to transfer the case to another trial judge for retrial, and the imposition of consecutive sentencing. We reverse the felony-murder convictions and dismiss those charges but otherwise affirm the defendant’s first-degree murder conviction and sentence.

State of Tennessee v. Michael A. Drake
M2003-02520-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge John D. Wootten, Jr.

The appellant, Michael A. Drake, was indicted on two counts of vehicular homicide and two counts of aggravated vehicular homicide. A jury found the appellant guilty of two counts of vehicular homicide by intoxication. In the second phase of the trial, the jury found the appellant guilty of two counts of aggravated vehicular homicide based on one prior DUI conviction and a blood alcohol level of .20 or more at the time of the present offense. On appeal, the appellant challenges the sufficiency of the indictment by arguing that it only gave notice that the State sought to convict him of aggravated vehicular homicide based on two prior DUI offenses. We determine that the indictment is misleading and deprives the appellant of adequate notice of the charges against him in violation of the 6th amendment to the United States Constitution and Article 1, section 9 of the Tennessee Constitution. The indictment indicated that the State sought the aggravated vehicular homicide convictions solely on the basis of the appellant's two prior DUI convictions pursuant to Tennessee Code annotated section 39-13-218(1)(a), rather than one prior DUI and a blood alcohol of .20 or more at the time of the offense, pursuant to Tennessee Code Annotated section 39-13-218(3). Thus, we are forced to dismiss the aggravated vehicular homicide conviction, modify the conviction to vehicular homicide under Tennessee Code Annotated section 39-13-213 and remand the case for resentencing.

State of Tennessee Department of Children's Services v. B.B.M.
E2004-00491-COA-R3-PT
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Mindy Norton Seals

This appeal involves the Juvenile Court's termination of the parental rights of B.B.M. ("Mother") to her four children. After a trial, the Juvenile Court held there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The Juvenile Court also concluded that DCS had proven by clear and convincing evidence that Mother's parental rights should be terminated on three separate grounds. Finally, the Juvenile Court held there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. The record on appeal is lacking in many respects and does not contain even the permanency plans developed by DCS to assist Mother in the unsuccessful attempt to reunite her with her children. We conclude the record, such as it is, does not contain sufficient evidence to support the Juvenile Court's conclusion that there was clear and convincing evidence that DCS had made a reasonable effort to assist Mother to reunite with her children. The judgment of the Juvenile Court is, therefore, reversed.

Calvin Lee Sneed v. State of Tennessee
E2004-00051-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Curtis Smith

The Defendant, Calvin Lee Sneed, was convicted upon a jury verdict of first degree premeditated murder and sentenced to life imprisonment. The Defendant's conviction and sentence were affirmed on direct appeal. See State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137 (Tenn. Crim. App., Knoxville, June 12, 1998). The Defendant subsequently filed a petition for post-conviction relief, alleging that he had received ineffective assistance of counsel at trial. After a hearing, the trial court denied relief. The Defendant now appeals. We affirm the judgment of the trial court.

State of Tennessee v. Michael Trew
E2003-01915-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Eugene Eblen

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure. The Defendant, Michael Trew, was found guilty by jury verdict of driving under the influence of an intoxicant (DUI), a Class A misdemeanor, and violating the implied consent law. The Defendant was sentenced to eleven months and twenty-nine days, with seven days to be served in the county jail; fined $400; and had his driver's license suspended for one year. The Defendant now appeals, claiming that the evidence at trial was insufficient to support his DUI conviction beyond a reasonable doubt. We affirm the judgment of the trial court.

Ronald Hugh Parchman v. Brenda Parchman
W2003-01204-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Joe C. Morris

This case involves the validity of a final divorce decree entered by the trial court which incorporated an agreement reached by the parties regarding alimony and property division. The wife subsequently filed a motion for a new trial, or in the alternative to alter and amend the judgment, alleging that the final divorce decree was invalid. The wife alleged that, at the time she entered into the agreement with her husband, she was not mentally competent. The trial court denied the wife’s motion. On appeal, the wife alleges that the trial court erred in denying her post-trial motion, as well as in its division of marital property and award of alimony in the final decree. For the reasons contained herein, we affirm.
 

Max Deberry v. Ed Gore, et al.
W2003-02679-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Clayburn L. Peeples

This case involves an inmate’s petition for a writ of mandamus filed against the Tennessee Department of Correction following an increase in his release eligibility date. The inmate filed the petition asking the trial court to order the department to enforce the sentencing range set forth in the judgment entered as a result of his plea agreement. The department filed a motion to dismiss which the trial court granted. We affirm.