Opinions

Lafayette Romine Sr./Debra Romine vs. Julia Fernandez & Johnathan Isom
W2002-00703-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Childers

Lafayette Romine Sr./Debra Romine vs. Julia Fernandez & Johnathan Isom
W2002-00703-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Childers

Robert Stephenson vs. Mary Stephenson
W2002-01064-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Christy R. Little
This appeal involves a will contest. The trial court found the testator to be competent at the time the will was executed and held that the will was the "complete, whole, true and valid Last Will and Testament" of the testator. For the following reasons, we affirm.

Patsy Moss vs. John McGarvey
W2001-02347-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: George E. Blancett
This is an action to collect a child support arrearage. The mother and father of two minor children were divorced in 1973, and custody was awarded to the mother. In July 1981, the trial court entered a consent order requiring the father to pay the mother $35 per week in child support. In May 2000, nineteen years after the consent order was entered and ten years after the younger child turned eighteen, the mother filed a petition to collect the child support arrearage from the father. The father argued, among other things, that the mother's petition was barred by the doctrine of laches. The trial court granted the mother's petition and ordered the father to pay the child support arrearage, plus interest and attorney's fees. The father now appeals that order. We affirm, based on established caselaw holding that the doctrine of laches is not available as a defense in an action to recover child support arrearages.

State of Tennessee v. Marquez Winters
W2001-00740-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge W. Fred Axley

The Shelby County Grand Jury indicted the Defendant for two counts of especially aggravated kidnapping and for one count of criminal attempt to commit first degree murder. The Defendant was subsequently convicted of one count of aggravated kidnapping and of one count of criminal attempt to commit first degree murder. The trial court sentenced the Defendant to consecutive maximum sentences totaling thirty-seven years. The Defendant now appeals his sentences, arguing that the trial court erred in its application of enhancement factors, that the trial court improperly imposed maximum sentences for both convictions, and that the trial court erred in ordering the sentences to be served consecutively. Although the trial court erred in its application of certain enhancement factors, we conclude that it properly considered other enhancement factors which warranted sentencing the Defendant to consecutive maximum terms. Therefore, we affirm the sentences imposed by the trial court.

James E. Swiggett v. State of Tennessee
E2002-00174-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge James E. Beckner

The Defendant, James E. Swiggett, was convicted by a jury in 1992 of first degree premeditated murder. His conviction was affirmed on direct appeal. See State v. James Swiggett, No. 03C01-9209-CR-00312, 1994 Tenn. Crim. App. LEXIS 766 (Knoxville, Nov. 23, 1994), perm. appeal den. (Tenn. 1995). The Defendant subsequently filed for post-conviction relief, which petition was denied by the trial court as barred by the statute of limitations. This ruling was affirmed on direct appeal. See James E. Swiggett v. State, No. 03C01-9804-CR-00161, 1999 Tenn. Crim. App. LEXIS 422 (Knoxville, May 4, 1999), perm. appeal den. (Tenn. 1999). The Defendant then filed the instant petition for post-conviction relief, claiming grounds for tolling the statute of limitations. The trial court summarily dismissed the instant petition on the grounds that a prior petition had already been filed. This appeal followed. We affirm the judgment of the trial court.

State of Tennessee v. Roy L. Denton
E2001-03018-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Roy L. Denton, was convicted by a jury of DUI and public intoxication. The Defendant now appeals as of right, raising the following issues: whether the trial court should have dismissed the indictment; whether the trial court should have stayed the proceedings; whether the trial court should have suppressed evidence; whether the trial court erred in refusing to admit certain evidence proffered by the Defendant; whether the evidence is sufficient to sustain the Defendant's conviction of DUI; whether the prosecutor engaged in misconduct during trial; whether the trial court should have granted the Defendant's motions for mistrial and/or new trial; whether the Defendant received ineffective assistance of counsel; and whether the trial court erred with respect to advising the Defendant about his right to appeal. We affirm the judgment of the trial court.

Virginia Abernethy v. Robert S. Brand
M2002-00274-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Stella L. Hargrove
This is a malicious prosecution case. In the underlying case, plaintiff was sued by the defendants herein seeking recovery of damages for plaintiff's alleged fraud and embezzlement. In a bench trial, judgment was entered for plaintiff. Plaintiff filed the instant case alleging malicious prosecution. Defendants raise the defense of advice of counsel and their motion for summary judgment was granted. Plaintiff has appealed. We affirm.

State of Tennessee v. William A. Marshall
M2001-02954-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, William A. Marshall, appeals the Sumner County Criminal Court's revocation of his probation of a two-year sentence for sexual battery. Because we disagree with the trial court's view of whether the defendant satisfied a condition of his probation by "completing" a sexual offender treatment program, we reverse the revocation and dismiss the warrant.

State of Tennessee v. William Roy Gray
W2002-00460-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald H. Allen

Following a bench trial, the Defendant, William Roy Gray, was found guilty of possession of drug paraphernalia, a class A misdemeanor, and resisting arrest, a class B misdemeanor. He received consecutive sentences of eleven months and twenty-nine days and six months, respectively, to be served in jail. However, approximately two months later, the trial court entered an order allowing the Defendant to serve his sentences at home due to the Defendant's poor health. The court revoked this order based on the Defendant failing to comply with the conditions of his release from jail and the Defendant being arrested for theft. Moreover, the court ordered that the Defendant not be given credit for the portion of his sentences that he served at his home. In this appeal as of right, the Defendant argues that the order of the trial court denying him credit for the time he served outside of jail serves to increase his sentence and to effectively punish him twice for the same offense in violation of the double jeopardy clauses of the United States and Tennessee Constitutions. We disagree and affirm the judgment of the trial court.

Mark VII Trans. vs. Joseph Belasco
W2002-00450-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Kay S. Robilio
This appeal arises from a declaratory judgment action filed by Mark VII Transportation Co., Inc., in which it sought a judgment declaring the parties' respective rights and obligations under an asset purchase agreement. The trial court awarded summary judgment to the Defendant. We affirm.

Jacqueline McKinley vs. Samuel Simha
W2001-02647-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George H. Brown
Patient brought medical malpractice action against physician and medical group for complications that allegedly arose from injury to patient's right ureter suffered during total abdominal hysterectomy performed by defendant physician. The trial court denied defendants' Motion for Directed Verdict on the issues of cause and permanency of patient's condition. The trial court entered judgment on jury verdict for patient and subsequently awarded prejudgment interest to patient. Physician and medical group appealed. We affirm the trial court's denial of the directed verdict motion and its judgment on the jury verdict, and reverse the court's award of prejudgment interest.

State of Tennessee v. Andre Dealto Perkins
W2001-02635-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The defendant appeals his jury conviction for possession of a controlled substance with the intent to manufacture, deliver, or sell. He argues the evidence is insufficient to support his conviction. We find this issue is waived because the defendant has failed to include a trial transcript in the record. The judgment of the trial court is affirmed.

Jeremie Sparrow vs. John Sparrow
W2001-01290-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Joe C. Morris
This is a child support case. Although Mother received $4000 a month in rehabilitative alimony, the trial court set her child support obligation at nothing. Because the trial court did not fully set out its reasoning for this deviation from the Child Support Guidelines as required by statute, we reverse and remand.

State of Tennessee v. Jerry Waymon Travis, aka Jerry Waymon Ray
W2001-01914-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Julian P. Guinn

The defendant claims it was error for the trial court to sentence him to the Department of Correction for three years, then order one-year split confinement with the balance on Community Corrections. The defendant contends that a one-year split confinement sentence will require him to serve 1.2 months longer in confinement than a three-year sentence at 30% to the Department of Correction. We conclude the sentence imposed did not violate the principles of sentencing and, accordingly, affirm the judgment from the trial court as modified.

River Park Hospital v. BlueCross BlueShield & Volunteer State Health
M2001-00288-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Charles D. Haston, Sr.
This case involves a dispute over rates paid to a TennCare health care provider. The plaintiff hospital had been a participating provider for the defendant TennCare managed care organization ("MCO") for several years, being paid an agreed contractual rate for services provided to the MCO's enrollees. When the parties' contract expired, it was not renewed. After expiration of the contract, the hospital continued to provide emergency services to the MCO's enrollees, as it was required to do under federal law. For those emergency services, the hospital billed the MCO at its full, standard rates. The MCO refused to pay the hospital's standard rates, and instead paid the hospital the same rate it had paid under the parties' expired contract. This was the same rate the MCO paid hospitals that were participating providers. The hospital filed this lawsuit against the MCO, seeking to recover its full, standard rates for the emergency services provided to the MCO's enrollees after expiration of the parties' contract. After hearing proof on liability, but not damages, the trial court initially denied recovery on all grounds. The hospital moved for reconsideration and to reopen the proof. The trial court granted the motion and ultimately determined that the MCO had been unjustly enriched by the hospital's provision of services to its enrollees. Both parties appealed. We affirm, finding a contract implied in law, and remand to the trial court to determine a reasonable rate for services provided by the hospital and, based on this, for a determination of damages.

Urology Associates v. Cigna Healthcare
M2001-02252-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Ellen Hobbs Lyle
This case involves the interpretation of an arbitration agreement. The plaintiff physicians' group provided medical services to individuals who were insured by the defendant insurance company. Disputes arose regarding the insurance company's payment to the physicians' group for those medical services. Consequently, the physicians' group filed this lawsuit against the insurance company. Pursuant to the parties' contract, the insurance company moved to dismiss or to stay the proceedings and to compel arbitration. The contract contained a dispute resolution provision which stated, in part, that disputes arising between the parties "shall be submitted either to a dispute resolution entity, or to a single arbitrator selected by the American Arbitration Association, as the parties shall agree." The trial court denied the insurance company's motion to compel arbitration, determining that the dispute resolution provision "neither explicitly nor clearly" required the parties to arbitrate, and that the provision was "too vague, imprecise and impractical" to be enforced. The insurance company now appeals. We reverse, concluding that the provision at issue requires the parties to submit their disputes to a third party for binding resolution and, thus, constitutes a valid, enforceable agreement to arbitrate.

Ronald Moore v. Averitt Express
M2001-02502-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
Plaintiff was a former state employee and newly hired employee of Averitt when he was terminated by Averitt due to statements he made alleging illegal conduct of state officials. Plaintiff made the statements to the press prior to being hired by Averitt. Plaintiff filed suit alleging statutory and common law retaliatory discharge. The trial court dismissed the action. We affirm.

State of Tennessee v. Randy Tyrone Crawford - Order
M2001-03063-CCA-R3-CD
Authoring Judge: Judge David G. Hayes

The Appellant, Randy Tyrone Crawford, appeals from the order of the Sumner County Criminal Court revoking his probation and ordering him to serve his sentence in the Department of Correction. We affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

John Hessmer v. Rosa Hessmer
M2002-01024-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Clara W. Byrd
This appeal involves a state prisoner who is seeking a divorce from his wife. The prisoner filed a pro se divorce complaint in the Circuit Court for Wilson County. After the prisoner failed to obtain service on his wife, the trial court dismissed his complaint for failure to prosecute. On this appeal, the prisoner takes issue with the dismissal of his complaint because the trial court clerk failed to comply with a local court rule regarding notice before dismissing a complaint for failure to prosecute. Even though the trial court clerk may have failed to comply with the local rule, we have determined that the trial court did not err by dismissing the prisoner's divorce complaint for failure to prosecute.

State of Tennessee v. Rufus E. Neeley
E2001-02243-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge R. Jerry Beck
Defendant, Rufus E. Neeley, was convicted of the following offenses following a jury trial: (1) unlawful possession of a prohibited weapon, to wit: a short-barreled shotgun, a Class E felony; (2) possession of a knife with a blade length exceeding four inches with intent to go armed, a Class C misdemeanor; (3) driving on a revoked driver's license, a Class B misdemeanor; and (4) operating a motor vehicle while possessing an open container of beer, a Class C misdemeanor. Defendant was sentenced to serve three years and six months as a Range II multiple offender for the felony offense, thirty days for each Class C misdemeanor, and six months for the Class B misdemeanor. All sentences were ordered to be served concurrently with each other. He was ordered to serve the felony sentence in the Department of Correction. Defendant has appealed, challenging the sufficiency of the evidence to support the convictions for unlawful possession of a prohibited weapon and possession of a knife with intent to go armed, and argues that he should have been sentenced to split-confinement rather than total incarceration. We affirm the judgments of the trial court.

Larry Seal v. Charles Blalock & Sons
E2001-00050-SC-WCM-CV
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Kindall T. Lawson
In this workers' compensation case, we are asked to determine whether the trial court erred in awarding benefits for a 93% vocational disability to the body as a whole. The employer contends that compensation should be limited to an award for loss of a scheduled member. After reviewing the record and applicable authority, we conclude that the evidence preponderates against the trial court's award of benefits for disability to the body as a whole; accordingly, we modify the judgment of the trial court to provide for an award of 100% disability to the leg. Additionally, we find no error in the trial court's admission of the physical therapist's testimony.

State of Tennessee v. Thomas Dee Huskey - Order
E1999-00438-CCA-R3-CD
Authoring Judge: Per Curiam
Trial Court Judge: Judge Richard R. Baumgartner

On August 23, 2002, the defendant filed a petition to rehear claiming that the opinion of this court fails to consider material facts, contains misstatements of fact, and overlooks or misapprehends case law. We disagree.

Dept. of Transportation v. John Wheeler
M1999-00088-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Buddy D. Perry
This appeal involves a dispute between a farmer and the Department of Transportation arising from the Department's condemnation of a portion of his farm for a new highway and bridge. The parties agreed on the fair market value of the property taken but disagreed on the amount of incidental damages to the remaining property. Following a trial in the Circuit Court for Sequatchie County, a jury awarded the farm owner $200,000 in incidental damages. The Department asserts on this appeal (1) that there is no evidence that the remaining property suffered incidental damages, (2) that the trial court erred by permitting an unlicensed real estate appraiser to offer an expert opinion regarding the value of the remaining property, and (3) that the evidence does not support the jury's damage award. While we have determined that the trial court erred by admitting the opinion testimony of the unlicensed appraiser, we have determined that this error did not affect the judgment and that the evidence supports the jury's decision regarding the existence and amount of incidental damages.

Leslie Moore v. James DeVault
M2001-02225-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Landowners sought declaratory judgment against neighboring landowners to terminate an easement over their property. The trial court granted summary judgment to the neighbors holding that the easement was an express easement appurtenant, that necessity was not a required element, and that mere nonuse was insufficient to establish abandonment of the easement. We agree with the trial court and affirm.