Derwin Thomas v. Bruce Westbrook, Warden
E2011-02586-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Buddy D. Perry

The petitioner, Derwin Thomas, filed in the Bledsoe County Circuit Court a petition for a writ of habeas corpus, alleging that the indictment charging him with especially aggravated kidnapping, especially aggravated robbery, and first degree murder was defective for failure to allege the theory of criminal responsibility. The habeas corpus court summarily dismissed the petition, finding that the petitioner failed to allege grounds upon which habeas corpus relief could be granted. On appeal, the petitioner challenges the habeas corpus court’s ruling. Upon review, we affirm the judgment of the habeas corpus court.

State of Tennessee v. Bethany Lorraine Kuykendall
E2011-01350-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Donald Ray Elledge

The Defendant, Bethany Lorraine Kuykendall, pleaded guilty to theft of property valued at more than $1000 but less than $10,000, for which she was granted judicial diversion with the requirements that she complete two years of probation and pay $150 per month toward restitution. On appeal, she contends that the trial court abused its discretion in setting the restitution amount. Because we lack jurisdiction to consider her appeal, we dismiss it.

Ezra Williams v. Stephen Leon Williams, et al.
E2012-00162-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

In January of 2011, Ezra Williams (“Plaintiff”) sued Stephen Leon Williams and Regions Bank . Plaintiff died in May of 2011. Regions Bank filed a Suggestion of Death. No motion for substitution of proper party was made within ninety days after Plaintiff’s death was suggested upon the record. In July of 2011, the attorney who had represented Plaintiff prior to Plaintiff’s death filed a Motion for Voluntary Dismissal. In October of 2011, Regions Bank filed a Motion for Summary Judgment. The Trial Court granted the Motion for Voluntary Dismissal without prejudice. Regions Bank appeals to this Court. We hold that the Trial Court should have dismissed the case pursuant to Tenn. R. Civ. P. 25.01 for failure to timely move for substitution of proper party. We, therefore, vacate the Trial Court’s judgment and dismiss this case pursuant to Tenn. R. Civ. P. 25.01.

Ron Littlefield, et al. v. Hamilton County Election Commission, et al.
E2012-00489-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Jeffery Hollingsworth

This is the second time the attempt to recall Chattanooga’s mayor has been before this court. In the initial appeal, we concluded the trial court acted prematurely and without jurisdiction when it enjoined the election commission from placing the recall issue on the ballot, because the election commission, at that point in time, had not formally decided whether or not to certify the recall petition. After we vacated the void judgment of the trial court, the election commission certified the recall petition and the mayor again filed suit seeking a declaratory judgment that the petition process was flawed and to enjoin the placement of the recall issue on the ballot. The trial court found that the petition seeking the recall of the mayor is invalid and illegal because it does not comply with all the requirements of Tennessee Code Annotated section 2-5-151. The leaders of the recall effort appeal. We affirm in part and reverse in part.

Cedric Davis v. State of Tennessee
W2011-01864-CCA-MR3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley Jr.

The petitioner, Cedric Davis, appeals the summary denial of his petition for writ of error coram nobis. Following our review, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Miqwon Dean Leach v. Dwight Barbee, Warden
W2012-00652-CCA-R3-HC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Joe H. Walker III

Petitioner, Miqwon Deon Leach, appeals the summary dismissal of his petition for a writ of habeas corpus. He challenges his 2001 conviction for felony murder, for which a jury sentenced him to life imprisonment without the possibility of parole. He also challenges his conviction for conspiracy to commit second degree murder that arose from the same case. As grounds for habeas corpus relief, petitioner argues that: (1) conspiracy to commit second degree murder is not a cognizable offense under Tennessee law, rendering his conviction void; and (2) the evidence at trial did not establish his intent to commit felony murder. The habeas corpus court summarily dismissed the petition, and we affirm the judgment of the court.

Tracy L. Cope v. State of Tennessee
E2011-01198-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert H. Montgomery, Jr.

The Petitioner, Tracy L. Cope, appeals from the Sullivan County Criminal Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends that the postconviction court erred by concluding that all of his claims were previously determined. Following our review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Jay Dee Garrity
M2010-02592-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Monte Watkins

Jay Garrity ("the Defendant") was convicted of three counts of aggravated sexual battery, a Class B felony. After a hearing, the trial court sentenced the Defendant as a multiple offender to sixteen years on each count and ordered the sentences to be served consecutively for a total effective sentence of forty-eight years. The Defendant now appeals, arguing that the trial court erred "in allowing the State to call a ‘surprise’ witness." He also claims that the evidence is insufficient to support his convictions. Finally, the Defendant challenges the length and consecutive service of his sentences. After a thorough review of the record and the applicable law, we affirm the Defendant’s convictions. We, however, are compelled to vacate the Defendant’s sentence and remand for a new sentencing hearing.

State of Tennessee v. James L. Dowell, III
M2011-02096-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl Blackburn

A Davidson County jury convicted the Defendant, James L. Dowell, III, of first degree felony murder, and the trial court sentenced him to a life sentence in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court erred when it ruled that if the Defendant presented the testimony of his accomplice the State could cross-examine the accomplice about past criminal activities in which both the Defendant and the accomplice willingly participated; and (2) the evidence is insufficient to sustain his conviction. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Misty Phillips, on behalf of her minor son Jacob Gentry v. Robertson County Board of Education
M2012-00401-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

County appeals the trial court’s decision finding the County liable for injuries sustained by
a student with Asperger’s syndrome in an altercation with another student. Finding that the
evidence does not preponderate against the trial court’s determination, we affirm.

James Michael Pylant et al. v. Bill Haslam, Governor of the State of Tennessee
M2011-02341-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

Petitioners appeal from the dismissal of their complaint for declaratory relief, injunctive
relief, and damages wherein they challenged the constitutionality of a now superseded
section of the Tennessee Bail Reform Act, Tennessee Code Annotated § 40-11-118(a).
Petitioners contended that the 2011 statute prohibited night court judges or magistrates from
setting bail for persons charged with a second or higher driving under the influence violation,
thus requiring they be confined until a general sessions court judge or criminal court judge
was available. The trial court dismissed the claims for declaratory and injunctive relief on the
grounds of res judicata and collateral estoppel and dismissed the claim for monetary damages
against Governor Bill Haslam upon the ground of sovereign immunity. We find the challenge
to the constitutionality of the 2011 version of subsection (a) moot as the challenged
provisions of subsection (a) have been deleted and superseded. We also affirm the dismissal
of the claims against Governor Haslam for monetary damages as he has sovereign immunity.

Dan J. Marcum v. Paul F. Caruana, et al.
M2012-01827-COA-10B-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Franklin L. Russell

The defendant in this action filed a motion for recusal with the trial judge alleging bias against both himself and his counsel. The trial judge denied the motion, and the defendant filed this interlocutory appeal as of right pursuant to Tenn. S. Ct. R. 10B. We affirm the trial court’s denial of the motion for recusal.
 

In Re Estate of Nancy L. Josephson
M2011-01792-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

Husband and Wife executed wills in which each relinquished the right of survivorship in the
marital residence and ordered that the property be sold and that $152,000 of the sale proceeds
be distributed to Wife’s children. Following the death of Wife, her children brought action
to compel Husband to dispose of the property in accordance with Wife’s will. Husband
appeals the holding that the wills he and Wife executed created a valid, enforceable contract
that required him to sell their residence upon her death. We affirm the judgment of the trial
court.

Freddie L. Osborne v. State of Tennessee
M2012-00122-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

Petitioner, Freddie L. Osborne, appeals from the trial court’s summary dismissal of the pro se petition for habeas corpus relief filed by Petitioner. After a thorough review of the record and the briefs, we affirm the judgment of the habeas corpus trial court.

Bonnie Faith Rodgers v. Thomas Edward Rodgers
E2011-02190-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal arises from a divorce. Bonnie Faith Rodgers (“Wife”) sued her husband, Thomas Edward Rodgers (“Husband”), for divorce in the Circuit Court for Hamilton County (“the Trial Court”), alleging inappropriate marital conduct and irreconcilable differences. Wife and Husband had been married for more than 40 years. Husband answered and counterclaimed for divorce, also alleging inappropriate marital conduct. After a trial, the Trial Court divided the marital estate and awarded Wife periodic alimony. Husband appeals, arguing that the Trial Court erred in a host of ways, including its classification and division of the marital estate and its award of periodic alimony to Wife. Husband also appeals the Trial Court’s extending Wife’s Order of Protection against him for an additional five years. Wife raises her own issue regarding the allocation of certain vehicles. We affirm the judgment of the Trial Court in its entirety.

Stephanie and Eddie Woodard v. Lawrence B. Gross, M.D., Eduardo V. Basco, M.D., and Methodist Healthcare-Memphis Hospitals
W2011-02316-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Jerry Stokes

This is a medical malpractice case. The plaintiff patient presented at the hospital emergency room with chest pains; a stent replacement was performed. Three months later, the plaintiff’s treating physician told the plaintiff that she had suffered a heart attack during the stent replacement. The plaintiff obtained all her medical records and filed a lawsuit against the surgeon who performed the stent replacement. This lawsuit was later dismissed without prejudice. After the plaintiff substituted counsel and the plaintiff’s substituted attorney reviewed the medical records, the plaintiff filed a new lawsuit against the emergency room physicians, asserting that they were negligent prior to the stent replacement. The emergency room physicians filed a motion for summary judgment, based in part on the three-year statute of repose. The trial court granted summary judgment in favor of the defendant emergency room physicians, finding that the statute of repose had run on the plaintiff’s claim. The plaintiff patient appeals, arguing that there is an issue of disputed fact as to whether the defendant physicians engaged in fraudulent concealment, so as to toll the time limit under the statute of repose. We affirm.

Patricia Demarest v. Estate of Ronald Joseph Kroll
M2011-02385-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

Alleged creditor filed a claim against the decedent’s estate seeking $524,160 for personal
services she claims to have provided to the decedent during the last ten months of his life.
She claims the decedent agreed that she would reside in his home and provide the decedent with around the clock care. Upon motion for summary judgment filed by the administrator of the estate, the probate court denied the claim, finding there was no contract or quasi-contract between the alleged creditor and the decedent because the decedent was mentally incapable of entering into a contract, and that the family service rule barred the alleged creditor from recovering because the alleged creditor and the decedent were engaged to be married at the time of the decedent’s death. We affirm.

Cynthia Farrar v. State of Tennessee
M2011-02559-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Commissioner Robert Hibbett

This appeal involves the forfeiture of property that had been either used or furnished in
violation of the Drug Control Act. The property at issue was subject to a lien held by
Citizens Bank. Following the forfeiture of the seized property, Citizens Bank notified the
State of its lien and requested the return of the property. The State directed Citizens Bank
to file an appeal with the chancery court. Instead, Citizens Bank sued Claimant for the
balance owed on the property and an order of judgment was entered against Claimant.
Claimant filed suit against the State in the Claims Commission, alleging that the State was
negligent because it failed to notify the proper lienholder of the forfeiture. The State filed
a motion for summary judgment, which was granted by the Claims Commission. Claimant
appeals. We affirm the decision of the Claims Commission.

State of Tennessee v. Scot E. Vandergriff
E2011-02136-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mary Beth Leibowitz

Appellant, Scot E. Vandergriff, pled guilty to soliciting sexual exploitation of a minor by electronic means, a Class E felony, for which he received an agreed- upon sentence of two years. The trial court granted his request for probation but denied his application for judicial diversion. In this appeal, he claims that the trial court erred in denying his application for judicial diversion. Because the trial court failed to adequately state upon the record the basis for denying judicial diversion, we vacate the judgment and remand this matter for further proceedings consistent with this opinion.

State of Tennessee v. Timothy W. Ford
M2011-02414-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge David A. Patterson

Appellant, Timothy W. Ford, was convicted by a DeKalb County jury of the initiation of a process to manufacture methamphetamine, a Class B felony. The trial court imposed a sentence of eleven years and six months. Appellant challenges his conviction and sentence for the following reasons: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred in denying his motion in limine to exclude evidence of his prior conviction; and (3) the sentence was excessive because the trial court failed to give ample weight to the mitigation evidence. Discerning no error, we affirm the judgments of the trial court.

State of Tennessee v. Steven Woodrow Johnson
M2011-00859-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark J. Fishburn

Following a trial, a Davidson County jury found appellant, Steven Woodrow Johnson, guilty of felony murder, especially aggravated burglary, aggravated burglary, aggravated assault, and possession of a firearm during the commission of a dangerous felony. The trial court sentenced appellant to life in prison for felony murder. The trial court also sentenced appellant to serve sentences of ten years for especially aggravated burglary (count two) and five years for aggravated burglary (count four) and then merged the two convictions. Appellant was sentenced to five years for aggravated assault and three years for possession of a firearm during the commission of a dangerous felony. Some sentences were consecutive to each other, but all were concurrent to the life sentence for felony murder. Thus, appellant received an effective life sentence. On appeal, appellant contends that the evidence was insufficient to support his convictions. Following review of the record, we conclude that the conviction of especially aggravated burglary should be modified to aggravated burglary. Because only one judgment of conviction should have been entered as to the merged counts, we vacate the judgments in count two and count four and remand to the trial court for entry of a single judgment of conviction consistent with this opinion. We affirm the judgments of the trial court in all other respects.

Judy Kyle v. City of Jackson, Tennessee
W2011-02391-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Roger A. Page

This is a Governmental Tort Liability Case. The trial court determined that Appellant was at least 50% at fault for the injuries she sustained when she fell from an elevated stage at an event held at a building, which is owned and operated by Appellee City of Jackson. Discerning no error, we affirm.

Timothy Lynn Denton v. State of Tennessee
E2011-02429-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge R. Jerry Beck

A Sullivan County jury convicted the Petitioner, Timothy Lynn Denton, of first degree premeditated murder, and the trial court sentenced him to life in the Tennessee Department of Correction. This Court affirmed his conviction on direct appeal. State v. Timothy Lynn Denton, No. E2006-02557-CCA-R3-CD, 2008 WL 933200 (Tenn. Crim. App., at Knoxville, Apr. 7, 2008), perm. app. denied (Tenn. Oct. 27, 2008). The Petitioner then filed a petition for post-conviction relief, contending that he had received the ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition because his trial counsel was ineffective by failing to convey to him plea offers and by failing to appeal the trial court’s ruling that he was competent to stand trial. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s judgment.

State of Tennessee v. Fred Chad Clark, II
M2010-00570-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Fred Chad Clark, II, was found guilty by a Davidson County Criminal Court jury of seven counts of rape of a child and two counts of aggravated sexual battery. See T.C.A. §§ 39-13-522 (Supp. 2005, 2006) (amended 2007, 2011) (rape of a child), -504 (2006) (aggravated sexual battery). He was sentenced as a Range I offender to seventeen years for each rape of a child conviction and to ten years for each aggravated sexual battery conviction, to be served at 100% as a child rapist. The trial court ordered partial consecutive sentencing, for an effective thirty-four year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the convictions because the State failed to establish the corpus delicti; (2) there was a material variance between the proof and the State’s election of offenses; (3) the trial court erred in admitting surreptitiously recorded conversations he had with his wife on January 18, 2007; (4) the trial court erred in admitting evidence of the Defendant’s use of pornography; (5) the trial court erred in allowing a detective to offer opinion testimony about the Defendant’s truthfulness; (6) the trial court erred in instructing the jury on the mental state of recklessness for the counts involving rape of a child; and (7) the trial court erred in sentencing by using an inapplicable enhancement factor and in imposing consecutive sentences. We affirm the judgments of the trial court in Counts V, VI, VII, IX, and X. Due to deficiencies in the election of offenses relative to Counts I, II, III, and IV, we reverse those convictions and remand the case for a new trial for those counts.

State of Tennessee v. Albert Franklin Thompkins
E2011-02170-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Albert Franklin Thompkins, appeals as of right from the trial court’s revocation of his enhanced probation and reinstatement of his eight-year sentence for rape. The Defendant contends that the trial court abused its discretion in revoking his probation because the State failed to prove that he had violated the terms of his probation in a substantial way in that he had not committed any new crimes nor was there any evidence that he had failed any drug screens. Following our review, we affirm the trial court’s revocation of the Defendant’s probation and order that the Defendant execute his original sentence in confinement.