C.S.C., et. al. v. Knox County Board of Education, et al.
E2006-00087-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Daryl R. Fansler

In this class action lawsuit, the plaintiffs alleged that the defendants, the Knox County Board of Education and its superintendent, were guilty of statutory, regulatory, and constitutional violations in the design and implementation of theBoard’s evening alternative education program for students who are expelled or suspended from their regular schools.  The trial court rejected the plaintiffs’ challenges.  The plaintiffs appeal. We affirm.

In the Matter of: S. L. A.
M2006-01536-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Paul Crouch

Mother appeals the termination of her parental rights, contending the evidence was not clear and convincing that she abandoned her child and that termination of her parental rights is in the best interest of the child. The trial court found the mother had abandoned the child by engaging in conduct that exhibited a wanton disregard for the welfare of her child, which conduct included ingesting drugs while pregnant and while breast feeding, and the manufacture of methamphetamine in the family home. We affirm.

Lost Mountain Development Co. v. Rufus King v. Matthew B. Kezar, et al. - Concurring
M2004-02663-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Jeffrey F. Stewart

I concur in the opinion of the Court and write separately in order to re-emphasize and reaffirm the sound rules of law stated in Holt v. Citizen Central Bank, 688 S.W.2d 414 (Tenn.1984).  Prior to the decision of the Supreme Court in Holt, an innocent purchaser at a foreclosure sale had constantly to look back over his shoulder for fear that someone would challenge the validity of the foreclosure sale in equity under the “shock the conscience of the court” standard. Holt makes it clear that, in the absence of misconduct or fraud, a purchaser at a foreclosure sale where the property brings less than true value is free from a constant cloud upon his title.

Lost Mountain Development Co. v. Rufus King v. Matthew B. Kezar, et al.
M2004-02663-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Jeffrey F. Stewart

This case involves a creditor’s entitlement to a deficiency judgment after a foreclosure sale in which the creditor was the only bidder, and in which he paid considerably less for the large tract of mountaintop property than the debtor alleged it was worth. The trial court awarded the creditor’s successor-in-interest a deficiency judgment of over $4 million, holding that in accordance with the rule of Holt v. Citizens Central Bank, 688 S.W.2d 414 (Tenn. 1984), the debtor should not be permitted to challenge the legal presumption that the value of the property at the time of foreclosure was equal to the sale price because there was no evidence of “irregularity, misconduct, fraud or unfairness on the part of the mortgagee.” Since the Holt case did not involve a deficiency judgment, we believe it is inapplicable. After examining both the law of Tennessee and that of other jurisdictions, we conclude that the trial court should have permitted the defendant to challenge the presumption by attempting to prove that the sale price was grossly inadequate. We accordingly reverse.

Edwin R. Oliver, Individually as Next Friend of Edwin C. Oliver, a Minor v. Prologis Trust
W2006-00584-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John R. McCarroll, Jr.

In this premises liability case, the minor plaintiff received a severe foot injury while assisting an independent contractor straighten concrete poles with a forklift on defendant premises owner’s property. The plaintiff’s father sued the independent contractor and the premises owner on his minor
son’s behalf, alleging negligence and workers’ compensation liability. The trial court tried the workers’ compensation claim first and entered a judgment for the plaintiff. The Special Workers’ Compensation Panel of the Tennessee Supreme Court reversed as to the premises owner, finding that the premises owner was not the statutory employer of the plaintiff. The case returned to the trial court for trial of the negligence claim. The plaintiff voluntarily dismissed the independent contractor from the action, leaving the premises owner as the only defendant. The trial court granted summary judgment in favor of the premises owner, finding that the premises owner owed no duty to prevent the independent contractor from hiring the plaintiff, and finding that the facts of the case did not fall into any exception to the general rule that a premises owner is not liable for the negligence of its independent contractor. The plaintiff filed a notice of appeal, alleging that the trial court improperly granted summary judgment. We affirm.

Bobby Brown v. Nissan North America, Inc.
M2005-02691-WC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Robert E. Corlew, III

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 50-6-226(e)(3) for hearing and reporting of findings of fact and conclusions of law. In determining the appropriate vocational disability rating, the trial court considered conflicting medical testimony, the employee's work duties, and other factors such as the employee's education, age, and skill level. The employer contends the trial court erred when it awarded a 10% vocational disability rating to the plaintiff's right leg. After a careful review of the record, we conclude that the trial court's judgment should be affirmed.

Adam Charles Partin v. Delores Lourraine Wallis
E2006-418-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Bill Swann

Adam Charles Partin (“Father”) filed a petition to modify his child support obligation claiming that a significant variance existed between his income at the time his child support obligation was originally calculated and his current income. The case was tried and the Trial Court entered an order finding and holding, inter alia, that a significant variance did exist making the child support order eligible for modification. The Trial Court then reduced Father’s child support. Delores Lourraine Wallis (“Mother”) appeals claiming that the Trial Court erred in calculating Father’s income and that a significant variance does not exist. We affirm.

State of Tennessee v. Tulinague Thandiwe
W2005-02087-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Chris B. Craft

The Appellant, Tulinague Thandiwe, proceeding pro se, 1 appeals the sentencing decision of the Shelby County Criminal Court which resulted in the imposition of an eight-year sentence of incarceration. On appeal, Thandiwe challenges the trial court’s denial of alternative sentencing.  After review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Stephen D. Lamb
W2005-02953-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Roger A. Page

The Appellant, Stephen D. Lamb, was convicted by a Madison County jury of burglary, a Class D felony, and the misdemeanor offenses of possession of burglary tools and evading arrest. Lamb received an eight-year sentence for burglary and an eleven month and twenty-nine day sentence for each misdemeanor conviction. The misdemeanor sentences were ordered to run concurrently with each other but consecutively to the felony conviction. On appeal, Lamb raises the following issues for our review: (1) whether the trial court erred in failing to suppress certain items found in Lamb’s possession at the time of his arrest; (2) whether the trial court erred in admitting a police videotape; (3) whether the evidence is sufficient to support his convictions; and (4) whether Lamb’s sentence
for burglary is excessive and whether the imposition of consecutive sentences is warranted. After review, the judgments of conviction and resulting sentences are affirmed.

Oscar Sevilla v. Douglas Cox
W2006-01009-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. Weber Mccraw

The trial court awarded summary judgment in favor of Defendant in this negligence action.  We affirm.

State of Tennessee v. Albert R. Neese - Concurring and Dissenting
M2005-00752-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Monte D. Watkins

I concur in the results and most of the reasoning in the majority opinion. I disagree, however, with the opinion’s conclusion that the trial court properly instructed the jury that the culpable mental state of recklessness would satisfy the unlawful sexual penetration element in the offense of child rape.

State of Tennessee v. Albert R. Neese
M2005-00752-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte D. Watkins

The defendant, Albert R. Neese, appeals from jury convictions of two counts of aggravated sexual battery and two counts of rape of a child. The defendant also appeals the imposition of consecutive sentences which totaled twenty-eight years. The issues on appeal include challenges to the admissibility of a videotaped interview of the seven-year-old victim, the defendant’s pastor’s report to the police, and the victim’s statement to a social worker for medical diagnosis and treatment. The remaining issues are the propriety of the jury instructions as to the mens rea elements of child rape and the propriety of consecutive sentences. Having found no reversible error, we affirm the judgments of conviction and sentence as imposed.

Eugene L. Lampley, et al. v. Melvin D. Romine, et al.
M2005-01726-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Leonard W. Martin

In a boundary dispute, the trial court refused to find estoppel by deed since the party raising the estoppel had not relied on the erroneous deeds. We affirm.

State of Tennessee v. Michael Dale Rimmer
W2004-02240-CCA-R3-DD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: W. Fred Axley

Capital Appellant Michael Dale Rimmer appeals as of right his sentence of death resulting from the 1997 murder of Ricci Ellsworth. In November 1998, Appellant Rimmer was convicted of theft of property, aggravated robbery and premeditated first degree murder. He was sentenced to death for the murder conviction. On direct appeal, a panel of this Court affirmed  Appellant Rimmer’s convictions but, concluding that the sentencing verdict was “enigmatic and uncertain,” vacated the sentence of death and remanded for a new sentencing hearing. See State v. Michael D. Rimmer, No. W1999-00637-CCA-R3-DD, 2001 WL 567960, at *1 (Tenn. Crim. App., at Jackson, May 25, 2001). Accordingly, the case was remanded to the Criminal Court for Shelby County for re-sentencing. At the conclusion of the re-sentencing hearing in January 2004, the jury found the presence of one statutory aggravating circumstance, i.e., that the defendant was previously convicted of one or more felonies whose statutory elements  involved the use of violence to the person, T.C.A. § 39-13-204(i)(2) (1997). The jury further determined that the aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt and imposed a sentence of death. The trial court approved the sentencing verdict. Appellant Rimmer timely appeals presenting for our review the following issues: (1) whether the trial court erred in denying the motion for recusal; (2) whether the trial court erred in denying the motion for a continuance; (3) whether the trial court erred in excluding mitigation evidence; (4) whether the prosecutor engaged in misconduct; (5) whether the jury instruction on reasonable doubt was error; (6) whether the Appellant knowingly and voluntarily waived his right to testify; (7) whether it was error for the jury to be informed that the Appellant had been on “death row;” (8) whether the jury verdict was complete; (9) whether cumulative error requires reversal; and (10) whether the Tennessee death penalty statutes are constitutional. After review, we find no error of law requiring reversal. Accordingly, we affirm the jury’s imposition of the sentence of death in this case.

Willie Johnson v. State of Tennessee
W2005-01722-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The petitioner, Willie Johnson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his conviction of burglary and theft over $500, for which he is serving eight years. He was sentenced to eight years on the burglary conviction and four years for theft, to be served concurrently. The petitioner claims he received ineffective assistance of counsel and argues that his attorney: (1) failed to provide him a list of the grand jurors who indicted him, including their racial make-up; (2) failed to consult him on every peremptory challenge; (3) failed to advise him to testify on his own behalf; (4) failed to persuade him to wear something other than his prison uniform at trial; and (5) failed to fully investigate and interview the witnesses in his case.  After careful review, we conclude that no basis to grant relief exists, and we affirm the postconviction court.

Nathaniel Benton, a/k/a, Nathan Gray v. Tony Parker, Warden
W2005-02539-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Nathaniel Benton, a/k/a, Nathan Gray filed a pro se petition for a writ of habeas corpus. The habeas court denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends that his conviction and subsequent sentence for being a habitual criminal is void because the underlying convictions upon which the habitual criminal conviction is based are void. Finding no reversible error, we affirm the judgment of the habeas court.

State of Tennessee v. Myrna Jill Johnson Halle
W2006-00195-CCA-MR3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph H. Walker, III

The Defendant, Myrna Jill Johnson Halle, was convicted of reckless aggravated assault and received an effective sentence of twelve years in prison to be served at sixty percent. On appeal, the Defendant contends that: (1) the evidence was insufficient to support her conviction and established that the Defendant acted in self-defense; and (2) the trial court erred when it sentenced her. Finding no reversible error, we affirm the judgment of the trial court.

Holiday Hospitality Franchising, Inc., f/k/a Holiday Inns Franchising v. States Resources, Inc., et al.
W2006-00845-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

The issue presented in this priority dispute between a first deed of trust holder and a judgment lien creditor involves the legal effect of the inadvertent and erroneous release of the deed of trust. States Resources Corporation (SRC), Defendant/Appellant, holds two liens on the same real property: one as successor-in-interest to a judgment creditor and the other as assignee of a promissory note for a construction loan, secured by a deed of trust originally held by Trust One Bank. Plaintiff/Appellee Holiday Hospitality Franchising (Holiday) also holds a judgment lien that, in relation to SRC’s filings, was filed last in time. SRC appeals summary judgment entered in favor of Holiday and contends that as assignee of Trust One’s note and first-filed deed of trust, it occupies the most senior lien position, notwithstanding the mistaken release of the deed prior to the assignment. Because Trust One’s release was inadvertent and unintended, and because restoring the deed of trust to its original priority position would not prejudice the rights of Holiday, an intervening judgment lien creditor, we hold that, as a matter of law, the mistaken release should be cancelled in part and the deed as to Lot 30 should be restored to its position as first deed of trust. Accordingly, we reverse and remand.

Highwoods Properties, Inc., et al. v. City of Memphis, et al.
W2006-00732-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

The trial court dismissed Plaintiffs’ cause of action as time-barred under Tennessee Code Annotated §§ 6-51-102(a)(1) & 103.  We affirm.

Michael A. Sullivan, on Behalf of Himself and Others Similarly Situated Under T.C.A. 29-21-104 v. Karen Watson, et al.
CR-08554-04-2205-III
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Russell Heldman

The petitioner, Michael A. Sullivan, filed an application for habeas corpus relief in the Williamson County Circuit Court to challenge his conviction in the Williamson County General Sessions Court for sixth offense driving on a revoked license. He was sentenced to 11 months, 29 days, with all but 65 days suspended on supervised probation. He contends that Tennessee Rule of Civil Procedure 5(c) and Tennessee Code Annotated sections 40-1-109 and 40-3-101 are unconstitutional and should not allow a defendant to waive an indictment. After careful review of the record, we conclude no grounds exist for granting habeas corpus relief and we affirm the judgment of the trial court.

Jessie Gail Caruthers v. The Aerostructures Corporation, a/k/a Aerostructures Corporation, a/k/a Vought Aircraft Industries, Inc.
M2005-01370-WC-R3-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge Clara W. Byrd

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 50-6-226(e)(3) for hearing and reporting of findings of fact and conclusions of law. The employer, Aerostructures Corporation, has appealed the trial court’s award of permanent total disability benefits of 539.28 weeks in a reconsideration hearing. The employer asserts that Tennessee Code Annotated sections 50-6-241(a)(2) and (b) and 50-6-242(a) prevent a trial court from granting, in a reconsiderationhearing, any award greater than six times the employee’s medical impairment rating and in excess of 400 weeks. The employer claims that the trial court erred because it granted, in a reconsideration hearing, a permanent total disability award that exceeded such amounts. We disagree and hold that Tennessee Code Annotated sections 50-6-241(a)(2) and (b) and 50-6-242(a), which place limitations on permanent partial disability awards in a reconsideration hearing, do not apply to awards of permanent total disability. We therefore affirm the judgment of the trial court.

Felix Lopez v. State of Tennessee
M2005-01903-CCA-R3-PC
Authoring Judge: Senior Judge J. S. Steve Daniel
Trial Court Judge: Judge Mark J. Fishburn

Petitioner, Felix Lopez, pled guilty to manslaughter and received a negotiated out-of-range fifteen-year sentence, to be served at sixty percent. Subsequently, petitioner timely filed a post-conviction petition alleging he received the ineffective assistance of counsel. When the post-conviction court denied post-conviction relief, this appeal followed. After careful review of the record, we affirm the judgment of the post-conviction court.

State of Tennessee v. David Marsh
M2005-02879-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don R. Ash

Following a jury trial, Defendant, David Marsh, was convicted of two counts of forgery and sentenced to serve three years in the Department of Correction for each offense, to be served concurrently, for an effective sentence of three years. On appeal, Defendant argues that the evidence was insufficient to sustain his convictions for forgery. After a thorough review, the judgments of the trial court are affirmed.

Faris Adb Al-Ali v. State of Tennessee
M2006-00144-CCA-R3-PC
Authoring Judge: Senior Judge J. S. Steve Daniel
Trial Court Judge: Judge ames K. Clayton, Jr.

Petitioner, Faris Adb Al-Ali, was convicted by a Rutherford County jury of rape of a child and received a twenty-two year sentence. The conviction and sentence were affirmed on direct appeal. Petitioner timely filed his pro se post-conviction petition. Following the appointment of counsel and filing of an amended petition, the post-conviction court conducted an evidentiary hearing on the petition. On December 1, 2005, the post-conviction court entered an order dismissing the petition. Petitioner appealed. We affirm the post-conviction court.

Richard Hale Austin v. State of Tennessee
W2005-02591-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge C. Creed McGinley

The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5, 1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the basis of newly discovered evidence in the form of recanted testimony. Without holding an evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this appeal challenging the action. Upon review, we affirm the judgment of the lower court.