Corey L. Malone v. State of Tennessee M2001-02133-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.
The petitioner originally pled guilty, pursuant to a negotiated plea agreement, to second degree murder and especially aggravated robbery for an effective sentence of twenty years. The petitioner filed a post-conviction relief petition, which was denied by the post-conviction court. In this appeal, the petitioner contends (1) he received ineffective assistance of counsel, and (2) his guilty pleas were unknowingly and involuntarily entered. After review, we affirm.
The Defendant, Mario Lambert, appealed as of right from the trial court's dismissal of his petition for writ of habeas corpus. This Court held that the trial court was without authority to sentence the Defendant as a Range I standard offender with a thirty percent release eligibility for the offense of second degree murder. We therefore concluded that, based on the record before us, the sentence imposed appeared to be an illegal sentence. We therefore reversed the judgment of the trial court dismissing the petition and remanded the case for further proceedings. See Mario Lambert v. Jack Morgan, Warden, No. M1999-02321-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 599 (Nashville, Aug. 7, 2001). On January 23, 2002, our supreme court remanded this case to us, directing us to reconsider our opinion in light of State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), and further directed us, on remand, to "clarify the action to be taken by the Criminal Court pursuant to the opinion of the Court of Criminal Appeals when the case is remanded to the trial court." We again reverse the judgment of the trial court summarily dismissing the habeas corpus petition and remand this case to the trial court for further proceedings.
A Hamilton County jury found the Defendant guilty of third offense driving under the influence and imposed a fine of $10,000. The trial court sentenced the Defendant to eleven months and twenty-nine days' incarceration, ordered him to attend an alcohol rehabilitation program, and revoked his license for a period of five years. In this appeal as of right, the Defendant contests the sufficiency of the convicting evidence and argues that the trial court erred by admitting evidence of his restricted driver's license. Although we conclude that sufficient evidence was presented at trial to support the Defendant's conviction, we conclude that evidence concerning the Defendant's restricted driver's license was improperly admitted at trial. We therefore reverse the Defendant's conviction and remand the case to the trial court for a new trial.
Hamilton
Court of Criminal Appeals
Robert Brown v. Dept of Labor and Workforce Development M2001-01625-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Walter C. Kurtz
The appellant suffered an injury while on the job. The Department of Labor and Workforce Development denied him workers' compensation benefits. Appellant sued the state for monetary damages. The trial court dismissed the complaint for lack of subject matter jurisdiction. We affirm.
Davidson
Court of Appeals
Columbia Advertising v. Ralph Isenhour M2001-01627-COA-R3-CV
Authoring Judge: Sr. Judge James L. Weatherford
Trial Court Judge: Carol L. Mccoy
In this suit to collect payments for advertising services allegedly rendered to defendant pursuant to an oral agreement, the plaintiff failed to file an order setting the case for trial within the time period allowed by an agreed scheduling order. Shortly thereafter, the trial court dismissed the case for failure to prosecute. The plaintiff filed a Tennessee Rule of Civil Procedure 60 motion seeking relief from the order of dismissal on the grounds that by mistake, counsel had failed to calendar the scheduling deadlines. The trial court found that plaintiff failed to offer an adequate basis to grant relief from the order of dismissal under Rule 60 and denied the motion. For the reasons set out in this opinion, we reverse the decision of the trial court and remand this case for a trial on the merits.
Davidson
Court of Appeals
Dawn Larsen Niceley v. James Jacob Niceley, IV M2001-02182-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol A. Catalano
After a sixteen-year marriage and one child, Husband and Wife both filed for divorce. After hearing the evidence, the trial court fashioned a parenting plan which named Husband the primary residential parent during the school year and named Wife the primary residential parent during the summer and most holidays and school breaks; valued and divided the marital property; and awarded Wife attorney's fees as alimony in solido. We affirm the parenting plan and the distribution of marital property but reverse the award of attorney's fees because the trial court found Wife was not economically disadvantaged.
Robertson
Court of Appeals
Margarette Adair v. Vincent Scalf d/b/a V & T Topsoil M2001-00677-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Claudia C. Bonnyman
This is an action to abate a temporary nuisance of dust and noise attributable to the removal, processing and sale of topsoil ostensibly incidental to the development of real property owned by the defendant Scalf adjacent to the residence of the plaintiff, and for damages. A declaratory judgment against the Metro Government that it failed to enforce its zoning regulations was denied. Metro Government cross-claimed for declaratory relief that Mr. Scalf's removal, processing and sale of topsoil on residential property was forbidden by Ordinance. This relief was granted. The judgment, as modified, is affirmed.
Davidson
Court of Appeals
Sonya Engstrom v. Todd Engstrom M2001-01448-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Clara W. Byrd
The trial court divided the marital property of a divorcing couple, awarding the wife the marital home and the husband his leather business. The husband appealed, arguing that the property division was inequitable because the home was worth much more than the business. We affirm the trial court.
Wilson
Court of Appeals
David Ogilvi v. Ronald Ligon M2001-01686-COA-R3-CV
Authoring Judge: Sr. Judge James L. Weatherford
Trial Court Judge: Russell Heldman
In this boundary line dispute case, the appellee, who moved to her property in 1967, used an unopened street and a garage on the unopened street located between her land and the adjacent property, which the appellants acquired in 1987. The appellee stored items in the garage, maintained the unopened street, and made improvements to the garage over the years. Later, a dispute arose between the parties and the appellants filed suit to establish the boundary line between the two properties, their ownership of half the unopened street, the garage and certain land behind the garage. The trial court concluded that the appellee had acquired: 1) a perpetual easement to use the west half of the garage; 2) a perpetual easement by prescription for the use of the entire driveway on the unopened street; 3) fee simple title to all of the land in the unopened street west of the joint driveway; and 4) easement and fee simple title to land to the north or rear of the garage enclosed within and underneath her fence. The trial court found the appellants entitled to an easement for the use of the easterly half of the garage and an easement by prescription for the use of entire driveway located on unopened street. For the reasons set out in this opinion, we affirm, as modified, the judgment of the trial court.
The Appellant, Terrance Perkins, appeals the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. In 1998, Perkins pled guilty to two counts of attempted first degree urder, five counts of aggravated assault, one count of felon in possession of a handgun, and one count of felony escape. Perkins, a Range I Standard Offender, received an effective thirty-one year sentence to be served in the Department of Correction. On appeal, Perkins, challenges the validity of his guilty plea upon grounds of: (1) voluntariness and (2) ineffective assistance of counsel. After a review of the record, the judgment of the post-conviction court dismissing the petition is affirmed.
The Appellant, Percy M. Cummings, was convicted by a Shelby County jury of second degree murder and was sentenced to twenty-four years in the Department of Correction. On appeal, Cummings contends that the evidence presented at trial was insufficient to support the jury's verdict. After review, we find no error and affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Darrel Howard v. State of Tennessee W2001-00813-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn Wade Blackett
Pursuant to a plea agreement, the Petitioner pleaded guilty to nine counts of aggravated robbery and five counts of aggravated assault. The trial court sentenced the Petitioner to an effective sentence of twenty years in the Tennessee Department of Correction. The Petitioner subsequently filed for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented at the time of the plea and because the plea was not voluntarily, knowingly, and intelligently entered. The post-conviction court denied relief. After review, we affirm the judgment of the post-conviction court.
Shelby
Court of Criminal Appeals
State of Tennessee v. Walter Byers E2001-00361-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.
The defendant, Walter Byers, appeals from the Blount County Circuit Court's revocation of his community corrections sentence imposed upon his guilty plea to delivery of one-half gram or more of cocaine. The defendant contends that the trial court abused its discretion in revoking his community corrections sentence and sentencing him to confinement. We affirm the judgment of the trial court.
Blount
Court of Criminal Appeals
James Burks v. Williams Typesetting, Inc. E2001-00252-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Lawrence H. Puckett, Circuit Judge
The trial court found the employee was permanently and totally disabled. The employee appealed insisting the award should be fixed as a permanent partial award payable for a period of 4 weeks. The judgment of the trial court is affirmed as to the 1 percent award of permanent and total disability, the denial of attorney's fees on unpaid medical expenses and the commutation of a lump-sum award for payment of attorney's fees. The judgment is reversed as to allowing a credit against the total disability award and the commutation of benefits in favor of the employee. The case is remanded for the purpose of amending the judgment to allow additional temporary total benefits and for further hearing on the employee's application for commutation benefits.
Knox
Workers Compensation Panel
Charles Watson v. Margaret Ashley M2001-00668-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Thomas W. Graham
In this action to set aside a deed, the Circuit Court of Franklin County held that the deed had been procured by persons in a confidential relationship with the grantor and that the presumption of undue influence had not been rebutted by clear and convincing evidence. We affirm the trial court's action in setting aside the deed.
Franklin
Court of Appeals
Charles Chapman v. Kathy Kelley M2001-00928-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Stella L. Hargrove
This is an appeal from the trial court's dismissal of an action filed by Plaintiff against the Maury County Circuit Court Clerk and the Maury County Deputy Circuit Court Clerk. This case concerns the application of the qualified judicial immunity defense and the related question of whether the trial court abused its discretion in refusing to allow the Plaintiff to amend the original complaint under Rule 15 of the Tennessee Rules of Civil Procedure. The gravamen of Plaintiff's original complaint is that the Plaintiff suffered damages as a result of negligence of the Deputy Court Clerk by her alleged negligent administration of the criminal court docket that ultimately led to the wrongful arrest and incarceration of the Plaintiff based on a capias issued by the judge. The Defendant Maury County Circuit Court Clerk, who was sued for negligent supervision, interposed the defense of qualified judicial immunity and upon a motion to dismiss, the trial judge dismissed the case against the Maury County Circuit Court Clerk. A Maury County Deputy Circuit Court Clerk was originally sued as Jane Doe for negligent administration of the criminal court docket; when the Deputy Clerk's identity was revealed, the Plaintiff amended his complaint to specifically name her. Subsequently, a second motion to dismiss was filed by the Maury County Deputy Circuit Court Clerk, likewise interposing the defense of qualified judicial immunity. The Plaintiff filed a motion to alter or amend the original dismissal as to the Maury County Circuit Court Clerk and the Plaintiff also filed a second motion to amend the original complaint to allege reckless conduct on the part of the Clerk and the Deputy Clerk. The trial court overruled the motion to alter or amend the original dismissal of the action against the Maury County Circuit Court Clerk , granted the motion to dismiss as to the Maury County Deputy Circuit Court Clerk, and denied Plaintiff's motion to amend. For reasons stated below, the court affirms the action of the trial court.
Maury
Court of Appeals
Sue Ann Bowser v. John Bowser M2001-01215-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
Prior to a determination on a complaint for divorce filed by Ms. Bowser, the trial court found the parties to be married pursuant to the common law of Ohio after their first divorce in that state in 1984. The trial court then classified and distributed the marital property and denied Ms. Bowser's request for rehabilitative or in futuro alimony. We affirm the decision of the trial court finding that a common law marriage existed, affirm the trial court's distribution of property, modify the alimony decision and remand the cause for further proceedings consistent with this opinion.
Maury
Court of Appeals
C.J.H. v. A.K.G M2001-01234-COA-R3-JV
Trial Court Judge: John P. Damron
In this appeal the mother and father of a young child appeal the order of the trial court denying the termination of the father's parental rights. An order establishing the father's paternity had been entered after the child's birth, and the father was ordered to pay child support and granted visitation. While the father has met his monetary obligations, he has not seen his daughter since her birth, or attempted to see her, and has no interest in establishing a relationship with his daughter. The mother and father submitted a joint petition to terminate the father's parental rights, and the trial court denied this petition, finding that termination was not in the best interest of the child. The parties appeal that denial to this court. We affirm.
Giles
Court of Appeals
Steven Jameson v. Katrina Redmund M2001-01108-COA-R3-CV
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Robert F. Corlew Iii
This is an appeal from the trial court's final order denying appellant's petition for a change of the sole care, custody and control of the parties' three minor children and the trial court's order denying appellant's alternative petition for an increase in visitation. We hold that the trial court properly denied a change of the sole care, custody and control and properly denied appellant's alternative petition for increased visitation. Counsel for the appellee has petitioned this court for attorney's fees assessed for the hearings in the trial court and for attorney's fees in the immediate appellate case contending that the appeal is frivolous. We decline to award attorney's fees.
Rutherford
Court of Appeals
Jeri Vincent v. CNA Insurance M2001-02213-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Russell Heldman
After being injured in an auto accident, Jeri Vincent entered into negotiations with CNA Insurance Company, the insurer of the driver of the other vehicle, attempting to settle her property damage and personal injury claim. The property damage claim was settled. Ms. Vincent filed a civil action against CNA Insurance to protect her personal injury claim from the statute of limitations. Later, Ms. Vincent filed a motion to substitute a party pursuant to Tenn. R. Civ. P. 15.03 in order to name the driver of the other vehicle as the defendant. The trial court denied the motion and dismissed the cause of action. We reverse and remand the decision of the trial court because we find that Ms. Vincent complied with the requirements of Tenn. R. Civ. P. 15.03.
Williamson
Court of Appeals
Tennsco Corp. v. Elias Attea M2001-01378-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: R.E. Lee Davies
This is a complaint to remove a cloud on the title to two parcels of property. The Chancery Court of Williamson County granted summary judgment to the plaintiff, holding that as a matter of law a restrictive covenant in a prior deed in the plaintiff's chain of title did not run with the land and did not create an equitable servitude. We affirm.
Williamson
Court of Appeals
Leslie Sweatt v. Michael Sweatt M2000-02537-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Muriel Robinson
Mother appeals the trial court's denial of her motion to set aside what she characterizes as a "default judgment" awarding custody of the parties' minor children to the Father. Because the Mother's procedural due process rights were protected by the trial court, and the trial court heard evidence regarding factors which must be considered by a court in making custody modifications, we affirm.
Davidson
Court of Appeals
State of Tennessee v. Tommy G. Benham M2000-02357-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge J. Randall Wyatt, Jr.
The defendant, Tommy G. Benham, was convicted of two counts of attempted aggravated robbery, a Class C felony. The trial court sentenced the defendant as a Range III, persistent offender to eleven years on each count, to be served concurrently. In this appeal of right, the defendant argues that the state failed to provide notice that it would seek enhanced punishment, as required by Tennessee Code Annotated section 40-35-202(a). The judgments of the trial court are affirmed.
Because I believe the majority opinion essentially reduces the requirements of Tennessee Code Annotated section 40-35-202 (a) to a superfluity, I must respectfully dissent.
Davidson
Court of Criminal Appeals
Maurice Schwegman v. Shelby Howard M2001-00845-COA-R3-CV
Authoring Judge: Judge Buddy D. Perry
Trial Court Judge: Irvin H. Kilcrease, Jr.
Maurice Schwegman filed a complaint alleging claims for breaches of fiduciary duty by appellees, Shelby D. Howard and Malcolm L. Greeno, in their capacity as shareholders with Schwegman in a closely held corporation, breaches of fiduciary duty by Howard and Greeno in their capacity as officers and directors of the closely held corporation, and for breach of contract between Howard and Schwegman with respect to the assignment of an interest in another closely held company. The chancellor granted the appellees' motion for summary judgment and dismissed the case. We reverse as to the breach of contract issue and affirm as to all other issues.
