Lisa Dawn Green, et al. v. Vicki Renee Johnson, et al.
E2006-02666-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Harold Wimberly

We granted permission to appeal in this case to determine whether an uninsured motorist carrier may reduce amounts owed under an uninsured motorist provision by the amount of settlement proceeds an insured receives from a non-motorist defendant. Because the uninsured motorist  statutes, codified at Tennessee Code Annotated sections 56-7-1201 to -1206, unambiguously  allow an uninsured motorist carrier to limit its liability by “the sum of the limits collectible under all  liability and/or primary uninsured motorist insurance polices, bonds, and securities applicable to the bodily injury or death of the insured,” Tenn. Code Ann. § 56-7-1201(d), and to receive an offset  or credit for “the total amount of damages collected by the insured from all parties alleged to be liable for the bodily injury or death of the insured,” id. §1206(i), we conclude that the uninsured motorist carrier in this case is entitled to an offset for the monies the insured received from the non-motorist defendants. Accordingly, we affirm the decisions of the trial court and Court of Appeals.

Rebecca Woody v. A.W. Chesterton Company, et al.
M2007-01210-COA-R9-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jackie Schulten

An insulator and his wife sued multiple corporate defendants for damages related to his development of mesothelioma from exposure to asbestos. Most of the defendants filed motions for summary judgment based upon a release agreement signed by the plaintiffs in 1980 in settlement of another lawsuit concerning asbestos exposure. The trial court denied the motions for summary judgment. We have concluded that, except as to any claims arising from post-release asbestos exposure, the trial court erred in denying the motions for summary judgment.

Terry C. Clemons v. Chuck's Marine, et al.
W2007-00098-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

The trial court determined Defendant orally agreed to assume outstanding debt on personal property offered for consignment sales. The trial court further determined Defendant was equitably estopped from asserting the Statute of Frauds as a defense. We reverse.

Judith Mae Harber as Trustee of Trust a for the Estate of Edwin Erwin, et al. v. Bank of America, N.A., et al.
W2007-00927-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

This is an action for breach of contract against a bank. Plaintiff Trustee sued bank for breach of the terms of a certificate of deposit (CD) by allowing her husband, who was neither the depositor nor her authorized agent, to redeem the CD held in trust for a $100,000 cashier’s check payable to Plaintiff as trustee. The Plaintiff Trustee appeals the trial court’s award of partial summary judgment to Defendant bank. Despite the bank’s breach of contract, Plaintiff Trustee was unable to maintain a suit founded upon her husband’s lack of authority to redeem the CD. The trial court found she ratified the redemption by previously filing suit against a different bank that had accepted the unendorsed cashier’s check for deposit, opened a checking account in Plaintiff’s name as trustee, and paid out the proceeds over Plaintiff’s forged signatures. The trial court concluded that by asserting ownership in the cashier’s check and the unauthorized checking account in the previous suit, the Plaintiff Trustee had manifested a clear intent to affirm her husband’s redemption of the CD. We agree. Even though Plaintiff Trustee pled alternative, inconsistent claims in the first suit, which is still pending, each claim was necessarily premised upon her husband’s authorized redemption of the CD. We accordingly affirm the judgment of the trial court.

State of Tennessee v. Ronald Frank Webb
E2006-01793-CCA-MR3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Leon C. Burns, Jr.

The defendant, Ronald Frank Webb, was convicted by a Cumberland County Criminal Court jury of driving under the influence, third offense, a Class A misdemeanor, for which the court sentenced him to eleven months and twenty-nine days, with 120 days to be served in jail at seventy-five percent release eligibility. The defendant claims on appeal that the trial court erred in giving lengthy and confusing instructions to the jury and in commenting that the instructions were confusing. We affirm the judgment of the trial court pursuant to Tennessee Court of Criminal Appeals Rule 20.

Gwinn Fayne And Alfred Fayne v. Teresa Vincent And David Vincent
E2007-00642-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John B. Hagler, Jr.

In this dispute over the sale of a home, the Trial Court initially granted purchasers a rescission of the sale, but purchasers appealed to this Court. We ruled that the Trial Court had failed to put the purchasers in the position they would have occupied had the sale never occurred, and remanded the issues of various costs, pre-judgment interest and the fair rental of the property to take into consideration in placing the parties in a pre-contract status quo position. Also, remanded was the issue of attorney’s fees and whether the sellers had violated the Tennessee Consumer Protection Act. On remand, the Trial Court ruled that sellers had violated the Tennessee Consumer Protection Act and awarded attorney’s fees and pre-judgment interest, as well as adjusting the Judgment to place the parties in status quo upon rescission.

The appeal ensued by the sellers, and we affirm the Judgment of the Trial Court, as well as an award of attorney’s fees to the purchasers for their representation on appeal.

State of Tennessee, ex rel. Kathy D. Flores v. Lawrence Ralph
M2007-00881-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Larry G. Ross

The State filed a petition for contempt against a man who had fallen far behind in his child support obligation, in part because he was incarcerated for a large portion of the time. The trial court reduced the arrearage to judgment in the amount of $28,632, found the father in contempt for failing to pay while he was not in jail, and sentenced him to serve 90 days in jail. Because the State did not prove beyond a reasonable doubt that the father had the ability to pay child support during the periods in question, we vacate the sentence for criminal contempt. We also vacate the arrearage judgment and remand this case to the trial court for reconsideration of arrearage.

Phillip C. Penny, Kurtis Schilk, and Robert Tebbetts v. The City of Memphis and City of Memphis Civil Service Commission
W2007-00861-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This case involves the termination of a municipal police officer. The police department received a report on an attempted suicide by a mental patient. The appellant officer and other officers responded. When the officers arrived at the scene, the suicide victim was sitting on his front porch, bleeding from self-inflicted wounds. As the officers approached the individual, he tried to flee. Attempting to gain control over the individual, the officers repeatedly struck him with their police
batons. The individual ran from the police and fell in the street. The officers again struck him with batons and handcuffed him while he was on the ground. The appellant officer held him on the ground by placing his baton across the back of his shoulders. Shortly afterward, the individual stopped breathing and died of a heart attack. After an investigation, three of the officers, including the appellant, were terminated for using excessive force in this incident. The terminations were upheld by the municipal civil service commission. The three officers then filed a petition for writ of certiorari, claiming that the commission’s decision was arbitrary and unsupported by substantial and material evidence. The trial court granted the petition as to two officers and reversed their terminations. However, it denied the petition as to the appellant officer because his termination was based on his disciplinary history as well as his conduct during the incident in question. The terminated officer now appeals. We affirm, finding that the commission’s decision to uphold the officer’s termination was supported by substantial and material evidence in the record.

State of Tennessee v. Alex L. Vance
M2007-01083-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Alex L. Vance, pled guilty to reckless aggravated assault, a Class D felony, and reckless endangerment, a Class A misdemeanor. Sentencing was left to the discretion of the trial court. The trial court sentenced him to three years for the felony conviction and ordered that he serve four months in the county jail, with the remainder to be served on probation. He was also sentenced to a concurrent term of eleven months and twenty-nine days for the misdemeanor offense. On appeal, the Defendant argues that the trial court erred by denying his request for judicial diversion and by ordering a sentence of split confinement rather than full probation. Following our review, we affirm the sentences imposed by the trial court.

Manhattan, Inc., D/B/A New York New York v. Shelby County, Tennessee, City of Memphis, and Memphis – Shelby County Office of Construction Code Enforcement
W2006-02017-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donna M. Fields

This is a petition for a writ of mandamus. The plaintiff purchased a vacant nightclub and sought to reopen it as a topless club. To this end, the plaintiff nightclub owner filed an application for a beer permit and a compensated dance permit from the city beer board, and for a certificate of occupancy with the local construction code enforcement office. After protracted litigation, the nightclub owner obtained the necessary beer and compensated dance permits. Subsequently, the construction code office issued a certificate of occupancy to the nightclub owner, but later sought to restrict it to prohibit sexually-oriented entertainment. This was unsuccessful, so the construction code enforcement office revoked the certificate. The nightclub owner then filed the instant petition for a writ of mandamus against the county and the construction code enforcement office, asking the trial court to compel the construction code office to issue an unrestricted certificate of occupancy. The defendants argued, inter alia, that the plaintiff’s intended use for adult entertainment was not “grandfathered” because the plaintiff had abandoned the nightclub while seeking the required permits. After a bench trial, the trial court held in favor of the nightclub owner and granted the writ of mandamus. The defendants now appeal. We affirm, finding that the trial court did not err in finding that the nightclub owner’s business use was lawful, and that the nightclub owner did not abandon the property during the time it was involved in litigation over the beer permit.

Carmen Rampaul Mohammed v. Farouk Mohammed
W2007-00360-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Rita L. Stotts

This is an appeal involving a post-divorce award of alimony in futuro. The court awarded the wife a divorce from the husband after 36 years of marriage. The husband has a bachelor’s and master’s degree in electrical engineering. The wife does not have a college degree and makes a living as a hair stylist. In the final divorce decree, the court awarded the wife temporary alimony in the amount of $3,500 per month. The husband sought to reduce his alimony obligation. At the hearing, the court found a material change in circumstances and reduced the husband’s alimony obligation from $3,500 a month to $2,000 a month. The court ordered, however, that this $2,000 a month award was in futuro until the wife’s death or remarriage. The husband appeals, and we affirm and remand for a determination of an appropriate award of the wife’s attorney’s fees.

State of Tennessee v. Xavier C. Parks
W2007-00142-CCA-R3-PC
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge J. Weber McCraw

On August 10, 2006, Petitioner, Xavier C. Parks, pleaded guilty in Hardeman County to a single count of aggravated burglary and he was sentenced to six years of incarceration as a Range I Standard Offender. Petitioner did not appeal the sentence. On November 6, 2006, Petitioner filed a pro se post-conviction petition. He used a form post-conviction petition provided by the State of Tennessee and simply checked the boxes beside two common grounds alleged in post-conviction proceedings: (1) “conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding of the nature and consequences of the plea;” and (9) “denial of effective assistance of counsel.” The petition contained no facts which would support these alleged grounds for collateral relief, and the post-conviction judge dismissed the petition for that reason.  We are constrained to agree with the post-conviction court and, therefore, affirm the dismissal.

Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger Health System v. Bradley County, Tennessee, et al.
E2006-01457-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Jerri S. Bryant

Chattanooga-Hamilton County Hospital Authority, conducting its operations as Erlanger Health System, filed suit against Bradley County for the medical expenses of a suspect injured in a shooting at a bar in Cleveland. The trial court awarded judgment for a part of the claim, and the Court of Appeals, in a divided opinion, affirmed. We granted review under Rule 11 of Tennessee Rules of Appellate Procedure in order to construe the statute governing the obligation of counties to pay the medical expenses of a prisoner confined in a jail or otherwise in police custody. Because the statute does not extend the obligation of the county to these circumstances, the judgment of the Court of Appeals is reversed and the complaint is dismissed.

William Earl Wilson v. State of Tennessee
M2007-00505-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte D. Watkins

The petitioner, William Earl Wilson, appeals the denial of his petition for post-conviction relief and argues that his guilty plea was not entered into knowingly and voluntarily and that he did not receive effective assistance of counsel. On December 8, 2005, the petitioner entered a plea of guilty to aggravated robbery, a Class B felony, and was sentenced to twenty years as a career offender. Specifically, the petitioner argues that his level of education and history of mental illness should invalidate his guilty plea and that counsel should have had him evaluated for competency prior to entering the guilty plea. After careful review, we affirm the judgment from the post-conviction court.

State of Tennessee v. Randy Bray
M2007-01301-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

A Grundy County jury convicted the Defendant, Randy Bray, of two counts of first-degree murder, and he was sentenced to two life sentences. On appeal, the Defendant alleges that: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it instructed the jury on flight. After a thorough review of the applicable record and law, we affirm the judgments of the trial court.

BellSouth Advertising and Publishing Corporation v. Primary Residential Mortgage, Inc.
M2007-00200-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Robbie T. Beal

The trial court held that a mortgage company’s branch manager had apparent authority to bind the company to local advertising contracts although there was a limitation on the branch manager’s authority which prohibited execution of contracts without the company’s approval. Since the mortgage company established the branch manager as a general agent, it was incumbent on the company to notify third parties of any limitations on the agent’s authority. Since it did not do so, the third party had a good faith belief in the agent’s apparent authority, and the trial court is affirmed.

Patrick Smotherman v. State of Tennessee
M2007-01419-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James K. Clayton, Jr.

The Petitioner, Patrick Smotherman, pled guilty to selling more than .5 grams of cocaine. He petitioned the court for post-conviction relief, claiming that he did not receive the effective assistance of counsel and that his guilty plea was not voluntarily, knowingly, or intelligently entered. The post-conviction court denied relief, and it is from this judgment that the Petitioner now appeals. After reviewing the evidence and applicable law, we conclude that the post-conviction court did not err, and we affirm the judgment.

Selma P. Griffin v. Munford Development Company and Charles Walker
W2007-00812-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Joe H. Walker

This case involves the statute of repose for actions based on improvements to real property. The defendant developer purchased and developed a lot for sale as part of a residential development. The plaintiff purchased the lot by warranty deed. The developer represented to the plaintiff that the lot was suitable for the construction of a residential dwelling. Relying on this representation, the plaintiff purchased the lot and built a house on it. Two years after the purchase, the house began to develop cracks in the foundation and exterior walls. Over the next two years, the problems worsened, so the plaintiff obtained an evaluation by professional engineers. The engineers informed the plaintiff that the house’s structural problems may have arisen because the soil on which the house was built was unsuitable to support such construction. The plaintiff then sued the development company and its president, claiming fraudulent misrepresentation, breach of implied warranty, and breach of express warranty. The defendants moved for summary judgment, asserting that the fouryear statute of repose on claims involving improvements to real property barred the plaintiff’s action. The plaintiff argued that the statute of repose was not applicable because her claims were based on misrepresentation. The trial court granted the defendants’ motion, and the plaintiff appeals. We affirm, finding that the plaintiff failed to introduce evidence that any of the defendants had knowledge that the soil conditions were unsuitable to support a residential dwelling at the time the alleged misrepresentations were made.

Jerry Graves v. State of Tennessee
E2007-00064-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, Jerry Graves, was convicted by a Knox County jury of first degree felony murder and especially aggravated robbery and received sentences of life and twenty-three years. He seeks post-conviction relief, contending that his trial counsel was ineffective. On appeal, he argues that the trial court erred in denying post-conviction relief because his trial counsel was ineffective in adopting a self-defense strategy at trial. We affirm the judgment of the trial court.

Federal Express vs. The American Bicycle Group, LLC
E2007-01483-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Michael W. Moyers

Federal Express (“Plaintiff”) filed a Complaint on Sworn Account in the Knox County Chancery Court claiming that the defendant, The American Bicycle Group, LLC (the “LLC”), owed Plaintiff $121,619.32. The LLC filed a Tenn. R. Civ. P. 12.02(3) motion to dismiss based on improper venue. The LLC claimed that venue was improper in Knox County because: (1) Plaintiff’s principal place of business was in Shelby County; (2) the LLC’s principal place of business was in Hamilton County; and (3) the alleged cause of action arose in Shelby County. Following a hearing, the LLC’s motion to dismiss was denied by the Trial Court because the LLC’s registered agent for service of process was located and served in Knox County. Both the Trial Court and this Court granted the LLC’s request for permission to file a Tenn. R. App. P. 9 interlocutory appeal. The sole issue on this appeal is whether the Knox County Chancery Court is a proper venue for Plaintiff’s action. We affirm the judgment of the Trial Court.

Quintell Hardy v. State of Tennessee
M2007-00543-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Don R. Ash

The petitioner, Quintell Hardy, appeals the denial of his petition for post-conviction relief from his conviction for second degree murder, arguing that he was denied the effective assistance of counsel and that his guilty plea was unknowing and involuntary. Following our review, we affirm the denial of the petition.

Cracker Barrel Old Country Store, Inc., et al., v. Richard Epperson, et al.
M2006-02424-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

In denying a request for attorneys’ fees in an action involving the enforcement of a declaration of easements and restrictions, the trial court found the phrase “costs and expenses” in that declaration does not include recovery of attorneys’ fees. The trial court is affirmed.
 

Young Bok Song v. State of Tennessee
M2007-00404-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Young Bok Song, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Following our review, we affirm the denial of the petition.

Trisha Ellen Dillingham v. David Clyde Downard
W2007-01429-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Roger A. Page

Mother sought court approval to relocate out-of-state due to a job transfer which would result in a significant increase in pay. When the matter came on to be heard, the job opportunity was no longer available. Father contends that the trial court should have dismissed the petition due to mootness. We agree. The matter is remanded to the trial court for entry of an order of dismissal.

State of Tennessee, Department of Children's Services, v. K.B., S.M., and Any Unknown Fathers, In the Matter of: P.B. (dob 5/25/05) A Child Under Eighteen (18) Years of Age
E2007-02262-COA-R3-PT
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Sharon M. Green

In this parental termination case, the Trial Court terminated the parental rights of the mother, finding that clear and convincing evidence established statutory grounds for termination as provided in Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A) and (E). The Trial Court found there was clear and convincing evidence that it was in the best interest of the minor child to terminate the parental rights of the parent. The mother has appealed and on appeal we affirm the Judgment of the Trial Court.