Marshall Donnell Johnson v. State of Tennessee
M2006-02281-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James K. Clayton, Jr.

The petitioner, Marshall Donnell Johnson, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred by finding that he received effective assistance of trial counsel and entered his guilty plea knowingly and voluntarily. Following our review, we affirm the denial of the petition.

Vicky Berry v. Houchen's Market of TN, Inc. and J. D. Easterly Properties - Concurring and Dissenting
M2006-02103-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge Barbara N. Haynes

I concur with the trial court’s grant of summary judgment as to the Defendant Houchens. However, I respectfully dissent from the majority’s conclusion that the Plaintiff was, as a matter of law, 50% or more at fault when she slipped and fell in oil in the parking lot owned by the Defendant Eatherly. After a review of the facts in the light most favorable to Ms. Berry, the nonmoving party, as is required when considering a trial court’s grant of summary judgment, Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997), I conclude that there are facts and inferences reasonably drawn from the facts which would permit reasonable minds to differ as to whether Ms. Berry was less than 50 % at fault. Accordingly, I do not agree that the Defendant Eatherly is entitled to summary judgment. The undisputed facts are that Ms. Berry drove into the parking lot, parked her car, got out of her car, walked three or four feet, and then slipped and fell in a puddle of oil in the parking lot. Ms. Berry was looking straight ahead as she walked and did not see the oil. She did not see the oil when she drove into the parking spot or before she fell. She could not see the oil after she had gone into the store and was looking out onto the parking lot. She testified that the oil was invisible to her. I cannot conclude that because she had oil in her hair and down her backside after she fell that the oil puddle was so large that she should have seen it. I cannot agree that her recovery should be barred because she was looking straight ahead and not down at her feet as she was walking. We know there was oil in the parking lot. But how large was the puddle of oil? How visible was it? Should Ms. Berry have seen it? These are material questions of fact to be answered by a jury - not the trial court or the appellate court. Issues of comparison and allocation of fault are properly left to the jury. Prince v. St. Thomas Hosp., 945 S.W.2d 731,735 (Tenn. Ct. App. 1996). Reasonable minds can differ as to the reasonableness of Ms. Berry’s conduct as she left her vehicle and attempted to enter the store.

Vicky Berry v. Houchen's Market of TN, Inc. and J. D. Easterly Properties
M2006-02103-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Barbara N. Haynes

Plaintiff fell in a puddle of oil in the parking lot near the Save-a-Lot Market. The Trial Court granted the market and the owner of the parking lot summary judgment. On appeal, we affirm.

State of Tennessee v. William Earl Robinson
M2007-00233-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, William Earl Robinson, pled guilty to one count of rape, a Class B felony, and was sentenced to eight years in confinement. His sentence was suspended and he was placed on probation with credit for time served. The defendant was subsequently arrested for violation of probation. Following a hearing, his probation was revoked and he was remanded into custody for the remainder of his original sentence. The defendant appeals the revocation of his probation and argues that the trial court erred by placing his entire sentence into effect. We affirm the decision of

State of Tennessee v. Christopher Carter - Dissenting
W2006-02124-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris B. Craft

I respectfully dissent from the majority’s holding that sufficient evidence supports the defendant’s conviction of the aggravated assault of Michael Langston. My departure centers around the assault element of “caus[ing] another to reasonably fear imminent bodily injury.” See T.C.A. § 39-13-101 (a)(2) (2006).

State of Tennessee v. Christopher Carter
W2006-02124-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris B. Craft

A Shelby County grand jury indicted the defendant, Christopher Carter, on five counts of aggravated assault. Following a jury trial, the defendant was convicted of one count of aggravated assault, a Class C felony, and one count of assault, a Class A misdemeanor. The state dismissed the remaining counts, and the trial court sentenced the defendant to fifteen years in the Department of Correction as a career offender. On appeal, the defendant contends that the evidence produced at trial was insufficient to support the jury’s guilty verdicts. After reviewing the record, we conclude that the evidence produced at trial was sufficient to support the defendant’s convictions, and we therefore affirm the judgments of the trial court.

In the Matter of L.A.J., III State of Tennessee, Department of Children's Services v. Larry Jones, Jr.
W2007-00926-COA-R3-PT
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William A. Peeler

This case involves the termination of parental rights. The child at issue was born in 1992. In 2000, the child was taken into protective custody based on allegations that the father had sexually abused him. A no-contact order was entered against the father. The mother regained custody of the child in 2002. In April 2003, the mother voluntarily relinquished custody of the child and he was placed with his aunt and uncle. After the child kicked his pregnant aunt in the stomach, custody was returned to the Department of Children’s Services (“DCS”). In June 2003, the child was found to be dependent and neglected. After the father failed to comply with the child’s permanency plan, DCS filed a petition for termination of parental rights as to both the mother and the father. Default judgment was granted as to mother. The court appointed an attorney to represent the father. A trial was held, after which the court ordered termination of the father’s parental rights on several  grounds. The father appeals, arguing, inter alia, that the failure to appoint an attorney for him during the dependency and neglect proceedings violated his due process rights. Finding that the dependency and neglect proceedings are separate and distinct from the termination proceedings, we hold that the father received full procedural protection in the termination proceedings that are the subject of this appeal, and affirm the trial court’s decision.

Christina Jo Bertuca v. Theodore Joseph Bertuca
M2006-00852-COA-R3-CV
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Judge Clara Byrd

This is an appeal from a divorce action filed by Christina Jo Bertuca against her husband, Theodore Joseph Bertuca. The divorce was granted on June 23, 2005, but the trial court reserved the issue of a division of marital assets. That matter was tried in February, 2006. While the hearing related to a variety of assets, most of the evidence presented related to the value of the husband’s ninety percent ownership in Capital Food Services, a Tennessee general partnership that was engaged in the ownership and operation of seven McDonald’s franchises located in Wilson County, Tennessee. The trial court determined the value of Capital Food Services had increased by $1,000,000 above the amount paid for the restaurants. The value of Mr. Bertuca’s interest had, therefore, increased by $900,000 and half that amount was awarded to Ms. Bertuca. Mr. Bertuca has appealed challenging the conclusions reached by the trial court. Ms. Bertuca has appealed from the judgment of the trial court allowing Mr. Bertuca to pay the sum awarded in eighty-four equal monthly installments without interest and asserting she is entitled to her attorneys’ fees on appeal. Having carefully reviewed the record, we affirm the judgment of the trial but modify the increase in value of Capital Food Services to $780,768 and Ms. Bertuca’s award to $350,345.50, payable as ordered by the trial court.

Pamela Lane v. American General Life and Accident Insurance Company - Concurring
E2006-02530-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Michael W. Moyers

I concur completely in the result reached by the majority. In my opinion, the failure of Mr. Lane to correctly respond to the question pertaining to doctors seen and hospitals visited in the past five years and the question regarding medical tests administered in the same time frame, and the resulting increase in the risk under evaluation by American General, operate as a complete bar to the suit by Wife. Given the very recent nature of these doctor visits, the trip to the hospital, and the tests taken, the information pertaining to these matters had to have been within the consciousness of Mr. Lane when he responded to the subject questions. A trier of fact could not have reasonably found otherwise. Hence, in my judgment, there is no genuine issue of material fact on this critical point. Because of this, I do not think it is necessary to address the interplay between (1) the “knowledge and belief” language on the application and (2) the “unless the matter represented increases the risk of loss” language in Tenn. Code Ann. § 56-7-103. I disassociate myself from this analysis.

Pamela Lane v. American General Life and Accident Insurance Company
E2006-02530-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Michael W. Moyers

In 2002, Ronnie Lane applied for and was issued a life insurance policy through American General Life and Accident Insurance Company (“American General”). Less than two years later, Mr. Lane died from a massive heart attack. Mr. Lane’s wife, Pamela Lane, made a claim for the life insurance benefits. American General denied the claim, asserting that Mr. Lane had made material misrepresentations on the application for life insurance which increased the insurance company’s risk of loss. The Trial Court agreed and granted American General’s motion for summary judgment. We affirm.

State of Tennessee v. James Taylor, Jr.
W2006-02085-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, James Taylor, Jr., was found guilty by a Lauderdale County jury of aggravated assault (Class C felony) and assault (Class A misdemeanor). He was sentenced to six years for his aggravated assault conviction and to eleven months and twenty-nine days for his assault conviction. On appeal, he contends that: (1) the evidence was insufficient to support either of his convictions; (2) the trial court erred in failing to dismiss the aggravated assault indictment because it did not allege the type of deadly weapon used by the defendant; (3) the trial court should have excluded testimony that the defendant was the subject of a restraining order; and (4) his sentence was improper. After review, we conclude that no reversible error exists and affirm the judgments from the trial court.

Billy Meeks v. Ricky J. Bell, Warden
M2005-00626-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Brothers

In 1990, Appellant, Billy Merle Meeks, was convicted, following a jury trial, of aggravated kidnapping, especially aggravated robbery, especially aggravated burglary, and extortion. He received an effective sentence of thirty-nine (39) years. On October 29, 2004, he filed a petition for writ of habeas corpus in the Circuit Court of Davidson County. A "Motion to Dismiss" was filed by Respondent on November 29, 2004, and the trial court entered an order summarily dismissing the petition on March 10, 2005. Appellant has appealed from the trial court's dismissal of the petition. The State has filed a motion for this Court to affirm the dismissal pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Finding merit in the motion, we grant same and affirm the judgment of the trial court.

Timmy Charles McDaniel v. State of Tennessee
E2007-00113-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole

The petitioner, Timmy Charles McDaniel, entered pleas of guilty to first degree felony murder and especially aggravated burglary in exchange for concurrent sentences of life without the possibility of parole and 12 years, respectively. Following his incarceration, the petitioner filed a petition for post-conviction relief alleging that his guilty pleas were not knowingly and voluntarily entered because he was denied the effective assistance of counsel. In this appeal, he challenges the denial of his petition for post-conviction relief and reasserts his claim that his guilty pleas were not knowingly, voluntarily, and intelligently entered. Finding no error, we affirm the judgment of the trial court.

Tammy Noonan v. Bridgestone/Firestone, Inc.
M2006-00586-WC-R3-CV
Authoring Judge: Special Judge Clayburn Peeples
Trial Court Judge: Circuit Judge Robert Corlew

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section
50-6-225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions
of law. The defendant contends that the trial court erred in finding that plaintiff sustained a workrelated injury to her right shoulder, in finding that plaintiff timely notified defendant of her injury, in awarding plaintiff fifty-two weeks temporary total disability benefits, and in determining that she suffered a 16% vocational impairment as a result of her injury. We disagree and therefore affirm the trial court’s decision.

State of Tennessee v. Kenny Ray O'Dell
E2006-02471-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

Defendant appeals his sentences as a result of guilty pleas to two counts of robbery, a class C felony. Defendant was sentenced by the trial court as a Range I Standard Offender to one six-year term for case number 0015 to be served in the Tennessee Department of Correction and one six-year term, suspended, for case number 0016 to be served on probation. Defendant was also ordered to pay $6,999.00 in restitution for case number 0015 and $621.00 in restitution for case number 0016. The sentences are to be served consecutively. On appeal Defendant argues that he should have received a sentencing alternative other than incarceration and that the sentences should have been ordered to be served concurrently with each other. He does not challenge the length of the individual sentences or the amounts of restitution. After a thorough review of the record, we affirm the judgments of the trial court.

Lillian A. Carpenter, et al. v. Michael E. Sims, et al.
E2007-0622-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge John A. Turnbull

Beneficiaries under a will sought to rescind the sale of a condominium in which they asserted an inheritance interest upon allegations that 1) the consideration paid by the purchasers was so inadequate as to shock the conscience; 2) the purchasers exerted undue influence over the seller; and 3) the seller was mentally incompetent at the time of the sale. Upon findings that the seller was mentally competent at the time of sale, that the purchasers did not exert undue influence over her, and that she had reason to sell the condominium for the amount she did, the trial court ruled that the sale of the condominium should not be set aside. Upon our determination that the evidence does not preponderate against the trial court’s conclusions, we affirm.

Timothy Roberson v. State of Tennessee
W2007-00230-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Allen W. Wallace

The Petitioner, Timothy Roberson, appeals the denial of his motion to reopen his post-conviction petition that alleged ineffective assistance of counsel. This Court is without jurisdiction to entertain this issue because the Petitioner has failed to comply with the statutory requirements governing review of a denial of a motion to reopen. See Tenn. Code Ann. § 40-30-117. Also, in this appeal, the Petitioner, convicted of first degree murder and especially aggravated robbery in 1995, challenges the denial of his motion for a sample of his own blood. The Petitioner sought to determine his blood type in order to compare it with the blood type found on a towel in the victim’s residence. The court determined that the motion for the Petitioner’s blood sample should be denied as there was substantial evidence of the Petitioner’s guilt presented at trial. Finally, the Petitioner appeals the dismissal of his petition for a writ of error coram nobis that alleged newly discovered evidence in the context of a Brady v. Maryland, 373 U.S. 83 (1963), violation. The coram nobis court1 concluded that any relief was time-barred and that the Petitioner had failed to state a cognizable claim. We affirm the judgment of the Gibson County Circuit Court.

State of Tennessee v. James Alton Campbell a/k/a Jamie Campbell
M2006-01817-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Thomas W. Graham

The defendant, James Alton Campbell, was convicted of aggravated assault and sentenced as a Range III, persistent offender to 15 years’ incarceration. In this appeal, he challenges the sufficiency of the evidence, the admission of a photograph depicting the victim’s injury, and the length of his sentence. Finding no reversible error, we affirm the judgment of the trial court.

Roy Clardy v. TRW Commercial Steering Division
M2006-01261-WC-R3-WC
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Judge J.O. Bond

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The employee, Roy Clardy, alleged that he had sustained gradual injuries to his right shoulder, right arm and thumb, and left arm. The trial court awarded 22.5% permanent partial disability to the body as a whole for the shoulder injury, 75% permanent partial disability to the right arm and 55% permanent partial disability to the left arm. The employer, TRW Commercial Steering Division (TRW), has appealed that ruling, asserting that the trial court erred by making separate awards, rather than a single award to the body as a whole; that the award is excessive; that the trial court erred in excluding portions of Mr. Clardy’s discovery deposition from evidence; and that the trial court did not have jurisdiction over the subject matter. We conclude that a single award should have been made in accordance with the concurrent injury rule and modify the award to 45% permanent partial disability to the body as a whole for the combined injuries. We also hold that the trial court erred in excluding Mr. Clardy’s deposition testimony. Finally, we hold that the trial court had jurisdiction over the subject matter of the case.

Dew Roy Neal v. TRW Commercial Steering Division
M2006-01091-WC-R3-WC
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Judge J.O. Bond

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court awarded 50% permanent partial disability for loss of hearing in both ears to the employee, Dew Roy Neal. The employer, TRW Commercial Steering Division (TRW), appealed, contending that the claim was barred by the statute of limitations; that the trial court erred in excluding excerpts from Mr. Neal's discovery deposition from evidence; that the trial court erred in apportioning the award to a scheduled member, rather than the body as a whole; that the amount of the award was excessive; and that the trial court did not have jurisdiction over the subject matter of the case. We hold that the award should have been apportioned to the body as a whole. As a result, Tennessee Code Annotated section 50-6-241(a)(1) limits the award to two and one-half times the impairment rating. The award is therefore modified to 5% permanent partial disability to the body as a whole. We also find that the trial court erred in excluding the deposition excerpts, but that the error was harmless. The judgment is affirmed in all other respects.

Catherine Evonne Flowers v. Jerome Bernard Flowers
W2006-02053-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Jerry Stokes

The trial court determined the Husband to be the primary residential parent of the parties’ minor child and awarded Wife rehabilitative alimony in the amount of $250 per month for eighteen months. Wife takes issue with these decisions and presents this appeal in which we affirm.

Roger T. Johnson v. Wayne Brandon, Warden
M2007-00182-CCA-RC-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Jeffery S. Bivins

The petitioner, Roger T. Johnson, appeals from the trial court’s denial of his petition for habeas corpus relief from his convictions for first degree murder and second degree murder. Because we find that the petitioner has failed to allege a cognizable claim for habeas corpus relief, we affirm the denial of the petition.

State of Tennessee v. Teresa L. Herman - Dissenting
M2006-01384-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Seth W. Norman

I believe that the trial court acted well within its authority in granting Appellee credit against the full forty-eight hours of incarceration ordered as a result of her conviction first offense DUI. I would not grant the State’s request to treat this appeal as a common law writ of certiorari and I would dismiss the appeal.

State of Tennessee v. Teresa L. Herman
M2006-01384-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

The defendant, Teresa L. Herman, pled guilty to possession of marijuana and driving under the influence (DUI). For each offense, she was sentenced to eleven months and twenty-nine days, to be served consecutively. The sentences were to be suspended after the defendant served forty-eight hours in a jail or workhouse as required by Tennessee Code Annotated section 55-10-401(a)(1) (2004). At the defendant’s request, the trial court granted the defendant jail credit for time she spent during an inpatient evaluation for competency to stand trial, which credit was to apply toward the mandatory service of forty-eight hours in a jail or workhouse. On appeal, the State challenges the trial court’s authority to grant such credit. Upon review of the record and the parties’ briefs, we conclude that the defendant was entitled to sentencing credit to be applied toward the satisfaction of her sentence; however, the credit should not have applied toward the mandatory service of fortyeight hours in the jail or workhouse. Therefore, we must remand to the trial court for further proceedings consistent with this opinion.

Paul S. Bush v. State of Tennessee
M2006-02442-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. O. Bond

The petitioner, Paul S. Bush, appeals the dismissal of his petition for post-conviction relief andcontends that he received ineffective assistance of counsel regarding his guilty plea. Specifically,the petitioner argues that counsel met with him only three or four times, failed to sufficiently reviewthe plea agreement with him, told him he had to take the plea, made no attempt to have him mentallyevaluated, failed to file a motion to suppress, and failed to review discovery materials with him priorto entering his guilty plea. After careful review, we conclude that no error exists and affirm thejudgment from the post-conviction court.