State of Tennessee v. Russel B. Cain
M2009-00754-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jane Wheatcraft

The defendant, Russel B. Cain, entered a plea of guilty to three counts of aggravated sexual battery of a victim under the age of thirteen, a Class B felony, but reserved a certified question of law to Counts Two and Three of the indictment. Specifically, he requests this
court to review: “If an indictment alleges multiple counts of child sexual abuse, and if the dates of the separate counts are state[d] as ‘the ___ day of _______, 2007,’ does the conviction of Count One of the indictment bar the conviction on Counts Two and Three of
the indictment under the double jeopardy protection of the Constitution.” The defendant also argues that he was improperly sentenced to consecutive sentences. After careful review, we conclude that the conviction on Count One of the indictment does not bar the convictions on subsequent counts of the indictment when the dates of the offenses are stated as “the ___ day of ____, 2007” and that consecutive sentencing was appropriate. Accordingly, we affirm the judgments from the trial court.
 

Joann Butler, et al. v. Marion County, Tennessee
M2009-01566-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Jeffrey F. Stewart

Landowners filed suit to determine ownership of that portion of Ann Wilson Road that crosses their property. Defendants sought and were granted summary judgment based on the running of several statutes of limitations. Landowners appealed. We affirm.

Tonya L. Gerakios v. Michael T. Gerakios, Jr.
M2009-01309-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Carol Soloman

This is an appeal from a final decree of divorce. The trial court granted the wife a divorce, equitably divided the parties' property, and awarded the wife alimony in solido. We affirm.

Ambreco Shaw v. State of Tennessee
W2008-02064-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John T. Fowlkes, Jr.

Petitioner, Ambreco Shaw, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Specifically, Petitioner contends that (1) counsel failed to fully investigate all possible defenses; (2) counsel failed to adequately meet with Petitioner and allow him to be involved in his defense; (3) counsel failed to properly convey and explain settlement offers; (4) counsel failed to properly advise Petitioner concerning his right to testify; (5) counsel improperly allowed Petitioner to appear at trial in prison clothing; (6) counsel failed to request a mental evaluation in a timely manner; and (7) counsel failed to cross-examine witnesses and provide proof at the sentencing hearing. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court.

State of Tennessee v. Quidon Clemons
W2008-02216-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

Following a jury trial, Defendant, Quidon Clemons, was convicted of assault, a Class A misdemeanor, aggravated stalking, a Class E felony, and violation of an order of protection, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to two years for aggravated stalking. As to the misdemeanors, Defendant was sentenced to eleven months, twenty-nine days for assault, and eleven months, twenty-nine days for violation of an order of protection. The sentences were ordered to be served consecutively. On appeal, Defendant argues that his sentence is excessive. After a thorough review, we affirm the judgments of the trial court.

Mark Allred v. Berkline, LLC, et al.
M2009-01236-WC-R3-WC
Authoring Judge: Senior Judge Walter C. Kurtz
Trial Court Judge: Chancellor Billy Joe White

The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers’ compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries. The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense. Upon review, we conclude that the evidence preponderates against the trial court’s findings and that the employee’s misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place.

Roy E. Keough v. State of Tennessee
W2008-01916-CCA-R3-PD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn Blackett

Petitioner Roy E. Keough appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On May 9, 1997, a jury found the Petitioner guilty of the premeditated murder of his wife, Betty Keough, and the attempted first degree murder of Kevin Berry. For the murder conviction, the jury found that the Petitioner had previously been convicted of one or more felonies for which the statutory elements involve the use of violence to the person. See T.C.A. _ 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The trial court imposed a forty-year sentence for the attempted murder conviction to be served consecutive to his sentence of death. The Petitioner's convictions and sentences were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000). On December 12, 2000, the Petitioner filed a pro se petition for post-conviction relief. An amendment was filed on February 14, 2003, and an addendum to the amended petition was filed on November 6, 2007. The post-conviction court held hearings on various dates in September, October, and November 2007. On July 23, 2008, the post-conviction court entered an order denying relief. On appeal to this Court, the Petitioner presents a number of claims that can be characterized in the following categories: (1) the Petitioner's trial counsel were ineffective, (2) the Petitioner's appellate counsel were ineffective; (3) the Petitioner was denied a fair trial and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Harold Lee Harden v. Judy Kay Harden
M2009-01302-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John Thomas Gwin

This is a divorce action. Husband/Appellant appeals from the trial court's division of marital assets, award of attorneys fees to the Wife, and the stay of the proceedings during the pendency of the appeal. Affirmed as modified.

Wilson County Board of Education v. Wilson County Education Association and Steve Johnson
M2005-02719-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor C. K. Smith

An assistant principal was transferred to a teaching position and grieved the transfer pursuant to a locally negotiated agreement between the local board of education and the organization representing teachers. After pursuing remedies through the school board, the teacher asked the trial court to compel the board to arbitrate resolution of the dispute. The trial court granted summary judgment to the school board, concluding that Tenn. Code Ann. _ 49-2-303 applied since "assistant principals" are statutorily the same as "principals" and, under the holding in Marion County Board of Education v. Marion County Education Association, 86 S.W.3d 202 (Tenn. Ct. App. 2001), the director of schools has the authority to transfer principals unrestrained by locally negotiated agreements. Mr. Johnson and the association appealed, claiming that Tenn. Code Ann. _ 49-2-303 does not apply to assistant principals and that the director of schools must comply with their agreement in making transfer decisions. We agree that the arbitration provision is not enforceable, but for a different reason. We hold that there was no meeting of the minds as to the procedure to be used as the final step in the grievance procedure. Consequently, there was no enforceable agreement to arbitrate.

Thomas M. Gautreaux vs. Chattanooga-Hamilton County Hospital Authority
E2009-00367-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Howell N. Peoples

Thomas M. Gautreaux ("Gautreaux") filed a petition pursuant to the Tennessee Public Records Act for access to a settlement agreement involving Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") in a previous lawsuit. The Hospital denied the request, claiming that the document was privileged under the Tennessee Peer Review Law. Gautreaux then filed a petition for a show cause hearing. After the hearing, the trial court determined that the settlement agreement was exempt from disclosure under the Peer Review Law. Gautreaux appeals. We affirm.

Charles D. Stechebar vs. Deere & Company & John Doe
E2009-01514-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wheeler A. Rosenbalm

This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere. The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date. Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. _ 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings.

Tracy Lynn Harris v. State of Tennessee - Concurring
E2008-02363-CCA-R3-HC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge E. Eugene Eblen

I concur with the result reached in the majority opinion, given existing precedent. I write separately, though, to express my dissatisfaction with the result reached. I believe that once the habeas court concludes that a judgment is void, whether for an illegal conviction or
illegal sentence, it should transfer the case to the convicting court—a court of equal jurisdiction—for further proceedings. The habeas court should not be allowed to act further regarding the convicting case by limiting the options available to the Petitioner or the convicting court after transfer of the case.

Tracy Lynn Harris v. Jim Worthington, Warden
E2008-02363-CCA-R3-HC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The Petitioner, Tracy Lynn Harris, appeals as of right from the Morgan County Criminal Court's denial of his petition for habeas corpus relief. Following our review, we affirm the judgment of the habeas corpus court.

Joseph Marion Barker v. Angel Chandler
W2010-01151-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge George R. Ellis

This is the second appeal from a parenting plan entered by the trial court. The only issue in both appeals involved the necessity of a "paramour provision" in the parenting plan. On remand from the first appeal, the trial court was directed by this Court to determine whether a paramour provision was in the best interests of the children. After a hearing, the trial court determined that it was in the best interests of the children to have a paramour provision in effect. Mother appealed. After reviewing the record, we find that the trial court abused its discretion by requiring a paramour provision as the record is devoid of any evidence to support a finding that the paramour provision is in the best interests of the children. Reversed.

State of Tennessee v. Ricky Lee Gann, Alias Rickey Lee Gann
E2009-01272-CCA-R3-CD
Authoring Judge: Judg D. Kelly Thomas, Jr.
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Ricky Lee Gann, alias Rickey Lee Gann, pled guilty to seven counts of theft of property valued $1,000 or more, a Class D felony, two counts of theft of property valued $500 or more, a Class E felony, and two counts of theft of property valued $500 or less, a Class A misdemeanor. Following a sentencing hearing, the Defendant was sentenced to an effective six-year term in the Tennessee Department of Correction, followed by twelve years of probation. In this appeal as of right, the Defendant contends that the trial court erred in ordering consecutive sentences and in denying alternative sentencing. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Alejandro Chevo Guana A.K.A. Alejandro Chevo Gouna
W2008-01304-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph H. Walker

Appellant, Alejandro Chevo Guana, was convicted of first degree premeditated murder for killing Tennessee State Trooper Calvin Jenks during a routine traffic stop. He was sentenced to life in prison. He was also convicted of possession of marijuana with intent to deliver, for which he was to serve one year. He appeals, arguing the trial court erred in: (1) limiting his cross-examination of his co-defendant to reveal alleged bias; (2) denying a change of venue; (3) refusing to use his proffered jury questionnaire; (4) denying his request for individual and sequestered voir dire; and (5) finding the evidence sufficient for conviction where, he claims, the only evidence of premeditation was the testimony of his accomplice. We affirm.

State of Tennessee v. George R. Fyke
M2009-01656-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge John H. Gasaway, III

On April 5, 2007, the Defendant, George R. Fyke, pleaded guilty to four counts of forgery, one count of identity theft, and three counts of passing worthless checks. Pursuant to the terms of the plea agreement, he received an effective six-year sentence to be served in the Community Corrections Program for these convictions. Thereafter, on April 21, 2008, the Defendant pleaded guilty to one count of identity theft, one count of theft over $10,000, two counts of theft over $1,000, one count of attempted theft, and two counts of forgery. Also on that day, the Defendant admitted his violation of his April 2007 community corrections sentence. The trial court granted the Defendant a furlough to attend and complete a one-year rehabilitation program before sentencing. Following the Defendant's failure to complete the program, a sentencing hearing was held. The trial court ordered that the remainder of the Defendant's six-year sentence be served in confinement and, for the April 2008 convictions, imposed an effective eight-year sentence to be served on community corrections. On appeal, the Defendant argues that the trial court abused its discretion in ordering revocation of his community corrections sentence and that his eight-year sentence his excessive. After review, we affirm the sentencing decision of the trial court. However, we must remand for entry of a corrected judgment.

State of Tennessee v. Karen Koons
M2009-01213-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert L. Jones

The Defendant-Appellant, Karen Koons, was convicted by a Lawrence County jury of driving under the influence, second offense, a Class A misdemeanor. She received a sentence of eleven months and twenty-nine days probation, following service of forty-five days in jail. On appeal, Koons challenges the sufficiency of the evidence. We affirm the judgment of the trial court.

State of Tennessee v. Linda M. Moran
M2009-00171-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert G. Crigler

Appellant Linda M. Moran pled guilty to a 207-count indictment after it was revealed that she had stolen approximately $73,000 from her employer over the course of nearly a decade. At sentencing, Appellant argued that she should be given some form of alternative sentencing. The trial court disagreed and imposed an effective sentence of nine years in custody. Appellant contends the trial court erred in denying alternative sentencing. We affirm.

Jerry Robertson, a/k/a Jere Robertson vs. Clara Robertson Hodges, et ux., et al
E2009-01335-COA-R3-CV
Authoring Judge: Herschel Pickens Franks, P.J.
Trial Court Judge: Hon. Telford E. Forgety, Jr., Chancellor
In this action plaintiff asked the Court to declare that he had an interest in property which he inherited by will, and for a partition and sale of the land. The trial court determined that plaintiff was judicially estopped to claim an interest in the land and dismissed the action. On appeal, we affirm the Judgment of the trial court.

James Erwin vs. Travelers Property Casualty Company of America
E2009-01288-COA-R3-CV
Authoring Judge: Herschel Pickens Franks, P.J.
Trial Court Judge: Hon. John S. McLellan, III., Judge
Plaintiff recovered a judgment in this medical malpractice action, and during the pendency of the case the workers compensation carrier for plaintiff's employer intervened asserting its subrogation interest in any recovery due to its having paid the medical bills plaintiff incurred as a result of his injuries. The trial court awarded attorney's fees and expenses to plaintiff's attorney and plaintiff has appealed, arguing that the trial court failed to make an adequate award. On appeal, we affirm the Judgment of the trial court.

Calvin Benn vs. Public Building Authority of Knox County, et al
E2009-01083-COA-R3-CV
Authoring Judge: John W. Mcclarty, J.
Trial Court Judge: Dale Workman, Judge
Plaintiff slipped off the sidewalk while removing trash during the course and scope of his employment with Knox County. Plaintiff sustained injuries to his hip and shoulder as a result of his fall. He then filed suit pursuant to the Government Tort Liability Act. After a bench trial, the trial court found that Plaintiff failed to prove constructive notice by a preponderance of the evidence and entered a judgment in favor of Defendants. Plaintiff appeals. We affirm.

In Re Estate of Billy Joe Stricklan
E2009-01086-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge J. Reed Dixon

This appeal involves contested wills and a settlement agreement involving minors. After the death of Billy Joe Stricklan ("Decedent"), his daughter, Teresa Diane Stricklan Coleman ("Daughter"), filed two wills for Probate. Finding the first will valid would result in the entirety of Decedent's estate being awarded to Daughter, while finding the second will valid would result in the estate, minus $100 to Daughter, being divided among Decedent's greatgrandchildren. After the probate court certified the case to circuit court for a will contest, Daughter and the guardian ad litem for the great-grandchildren negotiated a settlement. These parties obtained the probate court's approval of the settlement over the objection of the proponent of second will, Decedent's brother, Reed Stricklan ("Brother"). The probate court also ordered a partial distribution of the cash assets now held in the estate to Daughter. Brother appeals. We vacate the settlement order.

In Re Madison N.J.M.
E2009-01625-COA-R3-JV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Bill Swann

This is a case involving the custody of a minor child, Madison N.J.M. ("the Child"). The Child lived with her mother, K.S. ("Mother"), until she was four. After 1 the Child was adjudicated dependent and neglected, she was placed in the temporary custody of her maternal grandmother, L.R. ("Grandmother"). Grandmother later sought permanent custody. A paternity suit was filed and it was ultimately determined that C.A.M. ("Father") is the Child's biological father. Soon after paternity was established, Father entered into a mediated agreement which provided that Grandmother would remain as the Child's primary caregiver with parenting time for Father. A final order adopting the terms of the mediated agreement was entered and Grandmother was granted custody of the Child. Father actively pursued a parental relationship and increased time with the Child; he later sought full custody. Following a bench trial, the juvenile court ordered a change of custody from Grandmother to Father based upon its finding of a material change in circumstances and its determination that custody with Father is in the best interest of the Child. On appeal de novo to the trial court, the judgment was affirmed. Grandmother appeals. We also affirm.

Joseph Dejuan Webster v. State of Tennessee
M2009-01540-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve Dozier

Petitioner, Joseph Dejuan Webster, was convicted by a Davidson County jury of first degree murder. State v. Joseph Dejuan Webster, No. M2007-00050-CCA-R3-CD, 2008 WL 2229208, at *1 (Tenn. Crim. App., at Nashville, May 29, 2008), perm. app. denied, (Tenn. Dec. 8, 2008). He received a life sentence for the conviction which was ordered to be served consecutively to a prior sentence. Id. Subsequently, Petitioner filed a petition for postconviction relief. Petitioner filed an amended petition, and the post-conviction court held a hearing. After the hearing, the post-conviction court denied relief. We have reviewed the record and conclude that Petitioner has failed to show that he received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed.