State of Tennessee v. Joe R. Osborne
M2003-00966-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Timothy L. Easter

The appellant, Joe Robert Osborne, was convicted by a jury of one count of Driving Under the Influence (DUI). As a result, he was sentenced to 11 months and 29 days, with probation after service of 48 hours in jail, revocation of his driver's license for one year, mandatory attendance at Alcohol Safety School and assessed a $350 fine. On appeal, he challenges the sufficiency of the evidence and the trial court's failure to instruct the jury on the "missing witness" inference. Because we conclude there was no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. Michael Christopher Abrams
E2003-00810-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner appeals the Knox County Criminal Court's summary dismissal of his appeal and petition for writ of certiorari, arguing that he was entitled to a criminal court review of the general sessions court's ruling on his motion to suppress evidence. Because we conclude we lack jurisdiction, we dismiss the appeal.

Charles Beard, Sr., v. Florence E. Beard
E2003-02131-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Jacqueline E. Schulten

Charles Beard, Sr. ("Father") filed a petition seeking to have primary residential custody of the parties' two children transferred from Florence E. Beard ("Mother") to him. In the alternative, Father sought a reduction in his child support payments. After a hearing, the Trial Court refused to change the custody arrangement, again designating Mother the primary residential parent. The Trial Court did not alter Father's child support payments. Father appeals. We affirm.

Honnie Gunnoe, et al., v. Gerald Lee Lambert, et al., v. L.D. Simerly, et al.
E2003-01283-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor G. Richard Johnson

Honnie Gunnoe and Virginia Ott Gunnoe ("Plaintiffs") sued their neighbors, Gerald Lee Lambert and Janice Lee Lambert ("the Lamberts") and L.D. Simerly and Geraldine Simerly ("the Simerlys") seeking, among other things, to quiet title to a parcel of land. After a bench trial, the Trial Court found, inter alia, that Plaintiffs did not own the land in question. Plaintiffs appeal. We affirm.

State of Tennessee v. James Chitwood
M2003-01148-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lillie Ann Sells

The defendant, James Chitwood, pled guilty in the Clay County Criminal Court to aggravated assault and agreed to a five-year sentence as a Range I, standard offender with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered that the defendant serve his entire sentence in confinement. The defendant appeals, claiming that he should have received an alternative sentence. We affirm the judgment of the trial court.

Morgan Susanne Foxx v. Steven C. Bolden
E2002-02831-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge W. Dale Young

Morgan Susanne Foxx (“Wife”) sued Steven C. Bolden (“Husband”) for a divorce. After a lengthy trial, the Trial Court granted the parties a divorce, divided the marital property, and awarded Husband $25,000 in attorney fees. Wife appeals claiming, among other things, that the Trial Court erred when it failed to classify any of Husband’s TVA funded retirement pension as marital property and equitably distribute it. Wife also claims the award of attorney fees to Husband was an abuse of discretion. We agree with Wife regarding the pension and, therefore, vacate the judgment as to the marital property division and remand this case to the Trial Court to determine how much of Husband’s TVA funded retirement pension is marital property and to make an equitable distribution of all the marital property, including this additional asset. We likewise vacate the award of attorney fees to Husband since the propriety of that award may be affected by the marital property distribution. We affirm the granting of the divorce.
 

State of Tennessee v. Ernest G. Murphy
M2003-00797-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John A. Turnbull

The defendant, Ernest G. Murphy, pled guilty in the DeKalb County Circuit Court to vehicular assault, a Class D felony; driving under the influence (DUI), fourth offense, a Class E felony; driving on a revoked license, third offense, a Class A misdemeanor; and leaving the scene of an accident, a Class A misdemeanor. The trial court was to determine the length and manner of service of the sentences. After a sentencing hearing, the trial court merged the defendant's vehicular assault and DUI convictions and sentenced him as a Range I, standard offender to three years, nine months. For each misdemeanor conviction, the trial court sentenced the defendant to eleven months, twenty-nine days and ordered that all of the sentences be served consecutively. The trial court also ordered that the defendant serve four and one-half years in confinement and the remainder of his sentences on probation. The defendant appeals, claiming that the trial court erred by ordering consecutive sentences and by denying full probation. Although we determine that consecutive sentencing and denial of full probation are justified, we conclude that the sentences stated at the sentencing hearing and the sentences reflected in the judgments of conviction are dissimilar. The judgments of the trial court are reversed, and the case is remanded for resentencing pursuant to law.

Jacob Lee Davis v. State of Tennessee
M2003-00744-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Charles Lee

Petitioner, Jacob Lee Davis, filed a pro se petition for post-conviction relief and was appointed counsel to assist him during the post-conviction hearing. Following the evidentiary hearing, the trial court dismissed Petitioner's petition for post-conviction relief. On appeal, Petitioner argues that his trial counsel rendered ineffective assistance of counsel because they (1) failed to properly conduct voir dire or preserve for appeal the issues concerning the selection of jurors; (2) failed to pursue meaningful plea negotiations; and (3) failed to adequately apprize Petitioner of his right to testify. After a thorough review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. Daniel L. Robinson
M2003-00594-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, Daniel L. Robinson, entered guilty pleas on December 19, 2001, to the offenses of felony possession of less than .5 grams of cocaine, in case 2000-C-1609, and attempted possession of cocaine with intent to sell, in case 2000-C-902. Defendant was sentenced to five years probation for each conviction, to be served consecutively for a total effective sentence of ten years probation. On January 10, 2003, a probation violation warrant was issued against Defendant, alleging that he had violated the terms and conditions of his probation based on a new arrest for homicide. Following an evidentiary hearing, the trial court found that Defendant had violated the terms and conditions of his probation and ordered that Defendant's original sentences be placed into effect. After a review of the record, we conclude that the trial court erred in ordering revocation. Accordingly, we reverse the judgment of the trial court and dismiss the probation violation warrant.

Karen Lee Haney Fletcher v. John Marc Fletcher
W2003-00715-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Chancellor Joe C. Morris

Husband-appellant appeals order of the trial court holding him in civil contempt and designating punishment and the order of the trial court denying motion to modify alimony order. The notice of appeal was filed 30 days from the date of the trial court’s order denying the motion to modify but the filing was approximately one year after the contempt order. On appeal, we dismiss the appeal of the contempt order as untimely and affirm the order denying modification. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed in Part, Affirmed in Part and Remanded W. FRANK CRAWFORD, P.J.,

Joseph Brown v. State of Tennessee
W2002-03014-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Fred Axley

The petitioner, Joseph Brown, appeals pro se the denial of his petition for post-conviction relief from his convictions for facilitation of first degree murder and two counts of especially aggravated kidnapping. He argues that the trial court’s failure to advise him of his constitutional right against self-incrimination voids his guilty pleas and that the court’s failure to provide him with a transcript of the post-conviction hearing violated his constitutional rights. Additionally, he argues that the record does not reflect that counsel who represented him at the post-conviction hearing was relieved from continuing to represent him on appeal, and that he is entitled to counsel in his appeal to this court. We agree that the petitioner is entitled to be represented by counsel in the first tier appeal of the denial of his post-conviction petition and, accordingly, dismiss the appeal and remand to the post-conviction court with instructions to reenter its findings of fact and conclusions of law, with the petitioner’s time for appeal to start at the date of reentry, and the petitioner to be represented by counsel on appeal.

B&L Corporation, v. Thomas and Thorngren, Inc., et al.
M2002-02355-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff corporation sued former employees/officers alleging breach of non-compete
agreements, breach of fiduciary duty, conversion, unfair competition, intentional inducement to
breach a contract, and unjust enrichment. The trial court granted employees summary judgment on all claims and, on appeal, this Court affirmed the trial court’s grant of summary judgment on breach of non-compete agreements and conversion of intangible personal property claims. This Court reversed the summary judgment on the remaining claims and remanded the case for trial. The pending case on remand was voluntarily dismissed in the trial court and, subsequently, plaintiff sued defendants for the same remanded claims. Defendants moved to dismiss on the doctrine of res judicata (splitting cause of action) and the trial court denied the motion. After a trial on the merits, the trial court entered monetary judgment against defendants. Defendants appeal. We affirm in part as modified and reverse in part.

B&L Corporation v. Thomas and Thorngren, Inc. et al. James Edward McCrone - Partial Separate Concurrence
M2002-02355-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Carol L. McCoy

I concur fully with the majority’s well-reasoned opinion except in one respect. The majority concludes that the evidence preponderates against the trial court’s finding that B&L’s customer information, such as customer names, prices charged for services rendered, customer contract renewal dates and the identity of customer representatives, constituted confidential information. I disagree with the majority’s reasoning on this issue.
 

Adrian R. Arnett v. State of Tennessee
E2003-00954-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Richard R. Baumgartner

Petitioner, Adrian R. Arnett, timely filed a petition for post-conviction relief, attacking his convictions for two counts of aggravated rape, one count of especially aggravated kidnapping, one count of aggravated robbery, one count of aggravated assault, and one count of setting fire to personal property. Following an evidentiary hearing, the petition was dismissed by the trial court. On appeal, he raises one issue: his trial counsel rendered ineffective assistance of counsel by failing to properly request funding for and obtaining the services of an independent expert in forensic DNA analysis in order to challenge DNA evidence introduced by the State. After a review of the record, we affirm the judgment of the post-conviction court.

James E. Swiggett v. Howard Carlton, Warden and the State of Tennessee
E2003-02212-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert E. Cupp

The Petitioner, James E. Swiggett, appeals the trial court's dismissal of 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 petitioner has not established that the trial court was without jurisdiction to convict or sentence him or that his sentence has expired. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Gene Booker
W2002-02327-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

The appellant, Gene Booker, was convicted by a jury in the Shelby County Criminal Court of
aggravated robbery, especially aggravated kidnapping, and being a convicted felon in possession of a handgun. Following a sentencing hearing, the trial court sentenced the appellant to an effective sentence of fifty-one years in the Tennessee Department of Correction. On appeal, the appellant contends that 1) the evidence was insufficient to sustain his convictions and 2) the trial court erred in determining that the offense of being a felon in possession of a handgun should be tried with the other offenses. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

Sue Knighton v. Charles E. Hayes, Sr.
W2003-00837-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

Appellee-wife of deceased spouse sued a notary public and his bonding company for damages resulting in the notary public’s taking the acknowledgment of the signature of wife’s imposter to a waiver of retirement benefits and completing the acknowledgment certificate. The trial court found that the notary public owed a duty of reasonable care which he breached resulting in damage to appellee-wife and entered judgment for wife. Notary public appeals. We affirm.

Frank A. McCray v. State of Tennessee
M2002-03025-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The petitioner filed a petition for post-conviction relief and petition for DNA analysis under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petitioner's request for DNA analysis and did not rule on the post-conviction relief claim. The post-conviction relief issue has been waived. The petitioner is not entitled to DNA analysis because he has failed to meet all of the criteria set forth in the statute. The judgment of the post-conviction court is affirmed.

Zion Hill Baptist Church, Through its Trustees, v. Garry Taylor, et ux.
M2002-03105-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Robert E. Corlew, III

This case involves a dispute over the existence and location of two easements and a request for a mandatory injunction. The first disputed easement arises from the usage of the Plaintiff's property by adjacent owners and the second disputed easement arises from a transfer of property from the Defendants to Plaintiff. The trial court below found that only one of the disputed easements was before the court as an issue and found the easement existed over Plaintiff's land. In addition, the trial court did not issue, and made no findings regarding, the mandatory injunction requested by Defendants. For the following reasons, we affirm in part and remand.

Jay Johnson, et al., v. Reed Welch, et al.
M2002-00790-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge John J. Maddux, Jr.

This appeal involves a business dispute with multiple claims for breach of three separate contracts. The trial court found Reed Welch and his company, S& S Screw Machine Company, Inc., in breach in various ways and awarded a total of $1,032,133.15 in damages to Jay and Gail Johnson, both personally and as the owners of Quality Metal Treating, Inc. We affirm in part and reverse in part the judgment of the trial court.

State of Tennessee, Department of Children's Services v. David Michael McBee, Sr., et al.
M2003-01326-COA-R3-PT
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Floyd Don Davis

Father appeals the termination of his parental rights as to his two children. The parents are divorced and Mother's parental rights were also terminated; however, she did not appeal. As the trial court made no findings of fact in accordance with Tennessee Code Annotated section 36-1-113(k), we remand this case for a finding of facts by the trial court.

Jason Warren Allen v. State of Tennessee
E2003-02160-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Vance

The Petitioner, Jason Warren Allen, 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, Rules of the Court of Criminal Appeals. The petition is time-barred and the petitioner asserts no claim which would toll the statute of limitations. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Thaddeus D. Daniel v. State of Tennessee
E2003-02637-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Thaddeus D. Daniel, appeals the trial court's dismissal of 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, Tenn. Ct. Crim. App. R. The petition presents no cognizable claim for habeas corpus relief, does not state the cause or pretense of the petitioner's restraint, and was not filed in the appropriate court. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.

State of Tennessee v. Stokely J.U. Way
E2002-00251-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Ben W. Hooper, II

The Cocke County grand jury indicted the defendant, Stokely J. U. Way, with six counts of rape and six counts of incest. His trial was held on July 31 and August 1 of 2001. The jury convicted the defendant of two counts of rape and two counts of incest. The trial court sentenced the defendant as a Range I Standard Offender to twelve (12) years on each rape conviction, to run concurrently, and three (3) years for each incest count to run concurrently to each other, but consecutively to the rape sentences. However, because there were multiple rape convictions, the defendant's release eligibility for the rape convictions is 100%. The trial court levied the full fines recommended by the jury of $50,000 for the rape convictions and $20,000 for the incest convictions. The defendant brings five issues on appeal: (1) whether the trial court erred in allowing the hearsay testimony of the victim's friend, Mary Ann Breeden, as to what the victim told her regarding her father's incestuous relationship with her; (2) whether the trial court erred by allowing the defendant's preacher to testify about communications between him and the defendant in violation of the clergy/parishioner privilege; (3)whether the evidence was insufficient to establish the offenses of incest or rape and more specifically, the element of force or coercion; (4) whether the trial court erred in not charging all applicable lesser-included offenses including assault, sexual battery, attempted rape, attempted incest and child abuse; and (5) whether the sentences and fines imposed by the trial court were excessive. We affirm the trial court's judgments.

Blake E. Hallum v. State of Tennessee
M2003-00377-CCA-R3-CO
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Blake E. Hallum, appeals from the trial court's summary dismissal of his petition for writ of error coram nobis. After a review of the record and the applicable law, we affirm the judgment of the trial court.