Bernardo Lane v. State of Tennessee
W2008-02504-CCA-R3-CO
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James M. Lammey

The petitioner, Bernardo Lane, appeals the denial of relief from his petition for writ of error coram nobis. He was convicted of first degree felony murder, first degree premeditated murder, and four counts of aggravated robbery. On appeal, he argues that he has received newly discovered evidence in the form of an affidavit signed by a codefendant, which purports to exonerate the petitioner from all wrongdoing. After careful review, we affirm the denial of error coram nobis relief.

Joseph H. Johnston, Win Myint, William H. May, and Edward Hall v. Metropolitan Government of Nashville Davidson County and Paul G. Summers, Attorney General for the State of Tennessee
M2008-01570-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Richard H. Dinkins

This zoning appeal involves Tennessee’s Open Meetings Act. A municipal legislative body began considering legislation to implement a conservation zoning overlay in a neighborhood within the municipality. The ordinance adopting the zoning change passed on the first and second reading. Prior to the final meeting on the subject, members of the legislative body sent numerous emails to each other discussing the proposed zoning change. In addition, prior to the final meeting, some members viewed information on the zoning issue in a non-public conference room in the legislative body’s office. The legislative body then adopted the zoning change at a public meeting. Thereafter, residents of the neighborhood who opposed the zoning change filed the instant lawsuit seeking a writ of certiorari to review the adoption of the ordinance. The petitioner residents argued, inter alia, that the email correspondence and the non-public meeting violated the Open Meetings Act, that the enabling statute violated the separation of powers doctrine, and that the enactment of the ordinance violated due process and was arbitrary and capricious. The trial court determined that the legislative body’s actions did not violate the Open Meetings Act, and rejected the other challenges to the zoning overlay ordinance. The neighborhood residents appeal. We reverse in part and affirm in part, finding among other things that while the email correspondence constitutes a violation of the Open Meetings Act, the legislative body engaged in a “new and substantial reconsideration” of the issues in the final meeting so as to cure the violation.

State of Tennessee v. David Anthony Avery and Frederick Alexander Avery, (a/k/a Alex Avery)
M2008-01809-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County jury convicted the Defendants, David Anthony Avery and Frederick Alexander
(“Alex”) Avery , of aggravated robbery, especially aggravated robbery, reckless endangerment, and attempted second degree murder. The trial court sentenced David Avery to a forty-nine year effective sentence and Frederick Avery, a violent offender, to life without the possibility of parole. On appeal, David Avery contends: (1) the evidence is insufficient to sustain his convictions; (2) the trial court erred when it enhanced his sentences; and (3) the trial court erred when it ordered his sentences run consecutively. On appeal, Frederick Avery contends: (1) the evidence is insufficient to sustain his convictions; and (2) the trial court erred when it sentenced him as a violent offender. After thoroughly reviewing the record and applicable authorities, we affirm the trial court’s judgments.

Damon A. Tatum v. Mercedeas A. Tatum
W2009-00566-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Kay S. Robilio

Wife filed a divorce complaint in Judge Robilio’s court, which she later voluntarily dismissed. Wife then filed a complaint in the Court of the Judiciary against Judge Robilio. Subsequently, Husband filed a complaint for divorce, and the matter was set in Judge Robilio’s court. Wife filed a motion to dismiss for insufficient service of process of Husband’s divorce complaint, which was denied after the process server identified Wife as the person he had served.

Donnie D. McNeely v. Ucar Carbon Co., Inc., et al.
M2008-02407-WC-R3-WC
Authoring Judge: Special Judge E. Riley Anderson
Trial Court Judge: Judge Jim T. Hamilton

 This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. Employee had several compensable work injuries, the last of which was carpal tunnel syndrome. The trial court awarded benefits for permanent total disability (“PTD”). Liability was apportioned 90% to the Second Injury Fund (“The Fund”) and 10% to the employer. The Fund has appealed, contending, inter alia, that Employee’s claims as to it are barred by the applicable statute of limitations. We agree, and modify the judgment accordingly.

Chattanooga Area Regional Transit Authority et al. v. Mary K. Coleman
E2008-02160-WC-R3-WC
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge W. Neil Thomas, 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 50-6-225(e)(3) for a hearing and a report of findings of fact and  conclusions of law. Employee injured her ankle as a result of a fall. At the time the injury occurred, she was between two portions of a split work shift. She had undertaken a personal errand at a building adjacent to her workplace, and intended to return to an employee break room at her workplace to await the second half of her shift. The fall occurred on property owned by her employer, but the property was leased to an unrelated third party. The trial court held that the injury was compensable. Employer has appealed, asserting that the trial court erred by finding that the injury arose out of and occurred in the course of the employee’s employment. We agree with Employer, and therefore reverse the judgment of the trial court.

Forrest Construction Company, LLC v. James L. Laughlin, II, et al. v. Thomas V. Naive
M2008-01566-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Robert E. Lee Davies

This action involves a variety of claims arising from the construction of a residence in Williamson County. A homeowner, James Laughlin, entered into a cost plus contract with Forrest Construction Company, LLC to construct a home for he and his wife. Prior to the home being completed, Forrest Construction stopped work, filed a lien on the residence, and thereafter filed a breach of contract action against Mr. Laughlin and an action to recover damages based on the doctrine of quantum meruit against Mrs. Laughlin. Forrest Construction claimed that Mr. Laughlin was in breach of the contract for failure to pay according to the contract. Mr. and Mrs. Laughlin filed a counter-claim for negligent construction, gross negligence, negligence per se, breach of contract, and violations of the Tennessee Consumer Protection Act. The trial court found that Mr. Laughlin had materially breached the contract by failing to pay according to the terms of the contract, and awarded damages to Forrest Construction. Conversely, the trial court found for the Laughlins on their claim of negligent construction and awarded damages against Forrest Construction. Both parties appeal. Forrest Construction contends that the trial court erred in holding it liable for alleged defects because Mr. Laughlin committed the first material breach and failed to give Forrest Construction notice and the opportunity to cure the alleged defects. Mr. Laughlin contends the trial court erred in finding that he committed the first material breach. The Laughlins also contend the trial court erred in reducing the cost of the repairs to their residence and in failing to pierce the corporate veil. We find that Forrest Construction was the first to materially breach the contract by submitting requests for draws that were not properly supported by records of its costs and expenses as required by the contract, including submitting draws which erroneously included charges for work done on its other projects, and by failing to complete construction of the home. We, therefore, reverse the trial court’s determination that Mr. Laughlin committed the first material breach and hold that Forrest Construction was the first to materially breach the contract. We affirm the trial court’s determination that the Laughlins were excused from the duty to give notice of the alleged defects and an opportunity to cure; thus, the Laughlins are entitled to recover damages due to the negligent construction by Forrest. As for the trial court’s substantial reduction of the damages requested by the Laughlins for the cost to repair the yet unrepaired defects to their home, we are unable to determine whether the trial court considered or overlooked $55,000 of the estimated cost to repair the defects; therefore, we remand this issue to afford the trial court the opportunity to either restate its previous ruling or to increase the award of damages, if it so determines, based on the evidence presently in the record. As for the issue of piercing the corporate veil, we remand that issue for further proceedings.

Bobby Steve Simmons And Jeannie L. Simmons v. City of Murfreesboro, et al.
M2008-00868-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Robert E. Corlew, III

Appellants granted a sewer line easement to the City. The City hired a sub-contractor to install the sewer line and to restore the property following construction. Appellants, who were dissatisfied with the sub-contractor’s restoration, filed suit against the City and the sub-contractor. The sub-contractor subsequently went out of business, and the trial court entered a judgment against the City for $13,070.00, representing the value of Appellants’ land plus the cost to repair a fence. Appellants appeal, claiming the proper measure of damages is the cost to restore their property–$137,779.62. On appeal, the City contends that Appellants may not sue the City, that Appellants breached the contract by refusing the sub-contractor access to their property, and that the trial court’s award should be reduced by $132.00. The proper measure of damages in this case is the lesser of the cost to restore Appellants’ property or the difference in reasonable market value of the premises immediately prior to and immediately after the injury. Although neither party presented evidence regarding the property’s diminished value, we find that the trial court considered the appropriate factors in setting the amount of damages. Thus, the judgment of the trial court is affirmed.

State of Tennessee v. Cortez Griffin
W2007-00665-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge W. Otis Higgs, Jr.

The defendant, Cortez Griffin, and two co-defendants, Marquette Milan and Preston Deener, broke into a rooming house to rob the victim, Lannie McMillan, who was fatally shot. A grand jury indicted the defendant on charges of first degree murder, felony murder, and especially aggravated  robbery. The trial court sentenced the defendant to life imprisonment and a concurrent sentence of twenty years for his conviction of especially aggravated robbery. The defendant has appealed   raising issues which we summarize as follows: (1) whether the trial court erred in denying the defendant’s motion to suppress his statements which he asserts were not voluntary, were not made subsequent to a intelligent, knowing, and voluntary waiver of rights, were not recorded and were obtained subsequent to unlawful arrests; (2) whether the trial court erred in not granting a mistrial after a police officer testified regarding the content of a co-defendant’s statement; (3) whether the trial court erred in denying the defendant’s motion to dismiss the felony murder charge; and (4) whether the trial court erred in allowing the testimony of a police officer that it was common for a defendant to minimize his or her role in a crime. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court.

Sean Lanier, Individually and as Mother and Next of Kin of Jane Doe, A Minor v. City of Dyersburg, et al.
W2009-00162-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge William B. Acree

This is a negligence case filed by a student’s mother against the city, as operator of the city school system, due to an alleged assault on the student by another student. The trial court granted summary judgment to the city, finding the assault unforeseeable as a matter of law. The mother appeals. We affirm.

State of Tennessee v. Charles Hall
W2008-01883-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge James M. Lammey

On November 8, 2007, a Shelby County jury convicted the defendant, Charles Hall, of two counts of aggravated robbery. The trial court sentenced him to life without parole as a repeat violent offender. On appeal, the defendant submits that the trial court erred in (1) admitting prior convictions for aggravated robbery for impeachment purposes and (2) denying the defendant’s motion for mistrial. Upon our review of the record and the parties’ briefs, we affirm the judgments
of the trial court.

Joseph B. Thompson v. Tony Parker, Warden (State of Tennessee)
W2008-02399-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore Jr.

The Petitioner, Joseph B. Thompson, was convicted by a Sullivan County Criminal Court jury of aggravated robbery and aggravated kidnapping, Class B felonies. He was sentenced as a Range II, multiple offender to twenty years at thirty-five percent for the aggravated robbery conviction and as a Range II, violent offender to twenty years at one hundred percent for the aggravated kidnapping conviction, which were to be served consecutively, for an effective sentence of forty years in the Tennessee Department of Correction. He filed a pro se petition for habeas corpus relief in the Lake County Circuit Court, which was dismissed. On appeal, the Petitioner argues that his judgments are void because his sentences exceed the statutory minimum, thereby violating Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

Cassandra Lynn Rudd v. Howard Thomas Rudd - Concurring
W2009-00251-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Daniel L. Smith

I concur in the Court’s decision but write separately to clarify my view of the evidence as it relates to S.R. I believe that the evidence would support a finding by the trial court, by clear and convincing evidence, that any visitation with Father would result in harm to S.R. However, because the trial court did not make the required finding of harm, I agree with the decision to remand the case on the issue of visitation.

Cassandra Lynn Rudd v. Howard Thomas Rudd
W2009-00251-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Daniel L. Smith

I concur in the Court’s decision but write separately to clarify my view of the evidence as it relates to S.R. I believe that the evidence would support a finding by the trial court, by clear and convincing evidence, that any visitation with Father would result in harm to S.R. However, because the trial court did not make the required finding of harm, I agree with the decision to remand the case on the issue of visitation.

George Sanders and SMS Contracors,Inc. v. Dr. Sammy Holloway, et al. - Memorandum Opinion
W2008-02566-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Arnold B. Goldin

The Estate of Maynie Bess Morris, Deceased v. Anita Morris
W2009-00573-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge W. Michael Maloan

The trial court awarded summary judgment to Defendant based on the statute of limitations in this will contest action. We affirm.

Metropolitan Government of Nashville and Davidson County by and through The Office of The Assessor of Property v. Lamar Tennessee, LLC d/b/a Lamar Advertising of Nashville
M2009-00266-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Claudia C. Bonnyman

This case involves a subpoena issued by the Metropolitan Government of Nashville and Davidson County, on behalf of the Davidson County Assessor of Property, which required the appellant to provide information regarding its business operations. When the appellant did not comply with the subpoena, Metro filed a complaint seeking to enforce it. The trial court ruled that the appellant must provide the requested information. We reverse and remand for further proceedings.

State of Tennessee v. Vario Tally
W2008-01136-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Chris B. Craft

The defendant, Vario Tally, was convicted of aggravated robbery and carjacking, both Class B felonies, and sentenced as a Range II, multiple offender to eighteen years and twenty years, respectively. The trial court ordered that the sentences be served consecutively for a total effective sentence of thirty-eight years. On appeal, he argues that the proof was insufficient to sustain the conviction for aggravated robbery and that the trial court erred in imposing consecutive sentences.

State of Tennessee v. Nathaniel Banks
W2008-02202-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Carolyn Wade Blackett

A Shelby County jury convicted the defendant, Nathaniel Banks, of two counts of aggravated sexual battery. The trial court sentenced him as a Range II, multiple offender, to fifteen years in the Tennessee Department of Correction at one hundred percent. On appeal, he presents two issues for review: (1) whether the evidence was sufficient to support his convictions; and (2) whether the trial court erred in sentencing him as a Range II offender. Following our review of the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

State of Tennessee v. Jeffery Thomas
W2008-01944-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge John T. Fowlkes, Jr.

On August 14, 2007, the defendant, Jeffery Thomas, pleaded guilty to one count of DUI second offense, a Class A misdemeanor, in exchange for serving forty-five days in the workhouse followed by ten months and fourteen days of probation. Subsequently, the defendant moved the court to withdraw his guilty plea. The defendant argued that his guilty plea resulted in a manifest injustice because he entered the plea due to fear and ineffective assistance of counsel. The trial court denied the motion. Defendant now appeals. Following our review, we affirm the judgment below.

State of Tennessee v. Pierre Terry, A/K/A Pierre Walker
W2009-00169-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Otis Higgs, Jr.

The defendant, Pierre Terry, also known as Pierre Walker, was convicted by a Shelby County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; aggravated robbery, a Class B felony; and evading arrest, a Class A misdemeanor. He was sentenced to three years, ten years, and eleven months, twenty-nine days, respectively. The court ordered that the felony sentences be served consecutively to each other and the misdemeanor sentence be served concurrently for an effective term of thirteen years as a Range I offender. On appeal, the defendant challenges the sentences imposed by the trial court on his felony convictions. After review, we modify the defendant’s sentence for aggravated robbery to eight years and affirm the sentences imposed by the trial court in all other respects.

James L. Milligan, Jr. v. Board of Professional Responsibility of the Supreme Court of Tennessee
E2008-02692-SC-R3-BP
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Senior Judge Jon Kerry Blackwood

In this direct appeal, the issue presented is whether the trial court properly affirmed a Board of Professional Responsibility hearing panel’s denial of a suspended attorney’s petition for reinstatement of his law license. The trial court affirmed the hearing panel’s decision that the attorney failed to present sufficient proof of his moral qualifications to practice law in this state and that his reinstatement will not be detrimental to the integrity and standing of the bar or the administration of justice or subversive to the public interest. After reviewing the entire record, we hold that the attorney failed to present sufficient evidence that he has the moral qualifications to practice law in this state and that his reinstatement will be not detrimental to the integrity and standing of the bar or the administration of justice or subversive to the public interest. Accordingly, the judgment of the trial court denying the petition for reinstatement is affirmed.

Julie A. Bellamy v. Cracker Barrel Old Country Store, Inc., et al - Dissenting
M2008-00294-SC-R11-CV
Authoring Judge: Chief Justice Janice M. Holder
Trial Court Judge: Chancellor Charles K. Smith

I applaud the majority’s willingness to decide this case in an expeditious manner. I disagree,
however, that this case presents the appropriate opportunity to suspend the rules of appellate
procedure to do so. Moreover, I disagree that the Court of Appeals erred in considering the
conflicting statements of evidence. The Court of Appeals identified a statement made by the trial
court that was dispositive of the issue and that was not in dispute. Based on this statement, the Court of Appeals correctly remanded this case for a new trial.

Julie A. Bellamy v. Cracker Barrel Old Country Store, Inc., et al
M2008-00294-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor Charles K. Smith

The Applicants, Cracker Barrel Old Country Store, Inc., and Paul Ludovissie (“Cracker Barrel” and
“Mr. Ludovissie”), have filed an application for permission to appeal pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure. Upon consideration of the application and the record
before us, we hereby grant the application, summarily vacate the Court of Appeals’ judgment, and
remand the case to the Court of Appeals. Further, the Court of Appeals shall direct the trial court to
resolve the conflicts in the parties’ statements of the proceedings and certify and transmit a
supplemental record to the Court of Appeals. See Tenn. R. App. P. 24(c), (e).1
Tenn. R. App. P. 11; Judgment of the Court of Appeals Vacated; Case Remanded to the
Court of Appeals
 

Julie A. Bellamy v. Cracker Barrel Old Country Store, Inc., et al
M2008-00294-SC-R11-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Charles K. Smith

This cause was heard upon the record on appeal from the trial court and the application of
Cracker Barrel Old Country Store, Inc. and Paul Ludovissie for permission to appeal and the answer of Julie A. Bellamy. Upon consideration thereof, this Court is of the opinion that the Court of Appeals’ judgment should be vacated and the case remanded to the Court of Appeals with directions to order the Chancery Court to resolve the conflicts in the parties’ statements of the proceedings and to certify and transmit a proper supplemental record to the Court of Appeals for resolution of the issues. See Tenn. R. App. P. 24(e).