I respectfully dissent from the majority's holding that the trial court’s erroneous failure to instruct the jury on reckless homicide and criminally negligent homicide as lesser-included offenses of first degree murder is harmless beyond a reasonable doubt.
Davidson
Court of Criminal Appeals
Barbara Cochran vs. Jackie Cochran E2001-00848-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Rex Henry Ogle
This is a suit wherein the Plaintiff, Barbara K. Cochran, sues her former husband, Jackie D. Cochran, seeking specific performance of her claimed right of first refusal to purchase certain real estate. Thomas M. Crawford and his wife, who had purchased the property from Mr. Cochran, were also made parties Defendant. The Trial Court found that Mr. Cochran had met his obligation to give Ms. Cochran the right to purchase the property in accordance with her right of first refusal and that she had declined to accept the offer. We affirm.
The defendant, Daniel Ray Styles, was convicted of felony escape, aggravated assault, aggravated robbery, theft over $1,000, and aggravated criminal trespassing. The trial court imposed an effective sentence of fourteen years. On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing to dismiss his case on the ground that his right to a speedy trial was violated; (2) whether the trial court erred in allowing the State to amend the indictments; (3) whether the indictment charging felony escape was facially void because it was unsigned; and (4) whether the trial court erred by failing to require the State to make an election between aggravated assault and aggravated robbery. After a review of the record, we affirm the judgment of the trial court regarding Defendant's convictions and sentences for aggravated robbery, felony escape, and aggravated criminal trespassing. However, we reverse and dismiss Defendant's convictions for aggravated assault and theft as violative of constitutional prohibitions against double jeopardy.
The defendant, Edward Alan Scarbrough, failed to appear for a scheduled court date on September 21, 1999. Conditional forfeiture was taken on bail bonds in the total amount of $125,000.00. The surety for these bail bonds was International Fidelity Insurance Company, which was obligated through its agent, Gary's Bail Bonds, Inc. Defendant was not returned to custody until after the time period for final forfeiture had expired. International Fidelity Insurance Company filed a timely petition to be granted full exoneration. The trial court, after a hearing, granted partial exoneration and ordered International Fidelity Insurance Company to pay $55,000.00. We affirm the judgment of the trial court.
Knox
Court of Criminal Appeals
William R. Varner vs. City of KnoxviIle E2001-00329-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
By way of a complaint for writ of certiorari, the plaintiff challenges the decision of the Knoxville City Council ("the City Council") to deny his application to rezone his .5 acre lot from low density residential to commercial for the expansion of a used car lot located on adjacent property. Following a bench trial, the court below dismissed the complaint. We affirm.
Knox
Court of Appeals
Lane-Detman, L.L.C. , et al vs. Miller & Martin, et al E2001-00444-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Buddy D. Perry
In 1995, Lane-Detman, LLC, Clara Lane, and Darlene Lane-Detman ("Plaintiffs"), invested $600,000 in two businesses in which Samuel Cooper ("Cooper") had an ownership interest. This investment soured, and in December 1997, Plaintiffs obtained a default judgment against Cooper. Before Plaintiffs invested with Cooper, Plaintiffs' attorney, defendant W. Scott McGinness, Jr. ("Defendant McGinness"), performed a background search on Cooper at the request of Plaintiff Darlene Lane-Detman ("Plaintiff Lane-Detman"). In addition to other investigative efforts, Defendant McGinness had the co-defendant, Equifax Services, Inc. ("Defendant Equifax"), perform a background search on Cooper. Defendant Equifax's report revealed no questionable or negative history on Cooper. After Plaintiffs obtained their default judgment against Cooper, Plaintiffs hired other counsel to assist with collection of the judgment. In 1998, Plaintiffs' new counsel uncovered an abundance of questionable and negative history on Cooper. Thereafter, in 1999, Plaintiffs sued Defendant McGinness and his law firm, Miller & Martin ("Defendant Miller & Martin"), and Defendant Equifax. The Trial Court granted summary judgment to the defendants, finding that Plaintiffs' claim against Defendant Equifax was barred by an exculpatory clause in the contract between Defendant Equifax and Defendant Miller & Martin and that Plaintiffs' claim against Defendants Miller & Martin and McGinness was barred by the statute of limitations. Plaintiffs appeal. We affirm.
Hamilton
Court of Appeals
Meagan Arnold vs. Charles Arnold E2001-00596-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
This is a suit by a minor brought by her mother, and also by her mother individually against the minor's grandfather, Charles Arnold and her father Randy Arnold. The child was injured when she placed her hand into the fan belt of a tractor which was stationary with the engine running. The Trial Court granted the father's motion for summary judgment and denied the grandfather's. We affirm.
The Defendant, Michael J. McCann, was convicted by a jury of one count of aggravated criminal trespass on a habitation; two counts of assault; two counts of aggravated assault; one count of aggravated sexual battery; and two counts of especially aggravated kidnapping. After a hearing he was sentenced as a Range II multiple offender on the aggravated assaults, and as a Range I offender on the remaining convictions, to an effective sentence of thirty years. In this appeal as of right, the Defendant contends that his kidnapping convictions must be reversed and dismissed as violative of his due process rights under State v. Anthony; that the trial court erred in not requiring the State to elect between the proof presented in support of two sexual offenses charged; that the Defendant’s two assault convictions should have been merged into one of the aggravated assault convictions; that the prosecutor made improper and prejudicial remarks during closing argument; that his sentence is excessive; and that he received ineffective assistance of counsel. We reverse and dismiss one of the Defendant’s assault convictions. In all other respects, the judgment of the trial court is affirmed.
Lewis
Court of Criminal Appeals
2000-02837-COA-R3-CV 2000-02837-COA-R3-CV
Trial Court Judge: Thomas R. Frierson, II
Hamblen
Court of Appeals
Donna Sharon Presley vs. Clavin Herman Shadrick, et al . E2001-00015-COA-R3-JV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Patricia R. Hess
This is a custody and guardianship suit between petitioners, neither of whom is the biological or adoptive parent of the set of twins ("Children") who are at the center of this dispute. The parties in this appeal are, on one side, the Children's maternal great uncle and his wife, Calvin Herman Shadrick and Willie Mae Shadrick ("Shadricks"), and, on the other side, the children's paternal grandmother, Donna Sharon Presley ("Presley"). The trial court granted custody and guardianship of the Children to the Shadricks. Presley appeals. We affirm
Anderson
Court of Appeals
J.D. Hickman vs. TN Board of Paroles M2000-02846-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a prisoner's efforts to obtain a mandatory parole date. After the general counsel for the Tennessee Board of Paroles informed him that he was ineligible for mandatory parole, the prisoner filed a common-law writ of certiorari in the Chancery Court for Davidson County seeking a declaration either that he is entitled to a mandatory parole date or that the Board had been employing the wrong legal standards with regard to his parole date and the parole dates of all other prisoners sentenced after 1989. In response to the Board's Tenn. R. Civ. P. 12.02(6) motion, the trial court dismissed the prisoner's petition because it was not timely filed and because the Tennessee Criminal Sentencing Reform Act of 1982 had prospectively repealed mandatory parole by implication. On this appeal, the prisoner asserts that his suit was timely filed and that the trial court erred by concluding that he was not entitled to a mandatory parole date. We have determined that the prisoner's complaint was timely; however, we have also determined that he is not entitled to a mandatory parole date.
Davidson
Court of Appeals
Stacy Harris vs. 4215 Harding Road Homeowners Association M2000-02414-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
The appellant, a unit owner in a high-rise condominium, sued the Homeowners Association, claiming that her assessment for common expenses had been too high for the twenty years she had owned the unit. She sought reimbursement of the overpayment and an injunction against further assessments based on the percentage of her ownership stated in the Master Deed. The Chancery Court of Davidson County granted summary judgment to the Association and ordered the appellant to pay attorney's fees and costs. We affirm and remand the cause for the assessment of attorney's fees for the appeal.
A Carroll County jury convicted the appellant, Marion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after serving ten (10) days in confinement. On appeal, the appellant argues that the trial court erred in denying his motion for a continuance on the day of trial. We hold that the appellant has waived this issue for failing to prepare an adequate record for this Court's review. In addition, we conclude that, based on the limited record before us, the trial court did not abuse its discretion in denying the motion for a continuance. Therefore, we affirm the judgment of the trial court.
Carroll
Court of Criminal Appeals
Jessie Anthony vs. Melbourne Holland W2001-00745-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Donald H. Allen
This is an appeal from a judgment by the trial court, sitting without a jury, that the defendant's negligence was not the proximate cause of plaintiff's injuries. We hold that the evidence does not preponderate against the factual findings of the trial court. We therefore affirm.
Madison
Court of Appeals
Kevin Stumpenhorst vs. Jerry Blurton Jr. W2000-02977-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Roy B. Morgan, Jr.
This case arises from an automobile accident in which the Appellee was injured while a passenger in a truck driven by the Appellant's son. The Appellee filed a complaint in the Circuit Court of Madison County against the Appellant and his son. The Appellant and his son filed an answer which specifically pled an affirmative defense of comparative negligence. The Appellee filed a motion for summary judgment against the Appellant and his son. The trial court denied the motion for summary judgment against the Appellant and granted the motion for summary judgment against the Appellant's son. The Appellee filed a motion to strike the affirmative defense of comparative negligence. The trial court granted the motion to strike. Following a jury trial, the jury found that the Appellee's injuries were caused by the negligence of the Appellant's son and that the Appellee was entitled to recover $1,300,000.00 in damages. The jury found that the Appellant was liable under the family purpose doctrine. The Appellant filed a motion for a judgment notwithstanding the verdict, for a new trial, or for a remittitur. The trial court denied the Appellant's motion. The Appellant appeals the decision of the Circuit Court of Madison County disallowing the Appellant to introduce evidence of the Appellee's comparative negligence. The Appellant also appeals the jury verdict finding the Appellant liable under the family purpose doctrine for $1,300,000.00 in damages. For the reasons stated herein, we reverse and remand this case for a new trial in accordance with this opinion.
Madison
Court of Appeals
State of Tennessee v. Arhonda Rice W2000-03004-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.
The Defendant pled guilty to theft over $1,000.00, a Class D felony, and the trial court sentenced her to two years incarceration as a Range I standard offender. The trial court suspended the Defendant’s sentence and placed her on seven years probation. The trial court also ordered the Defendant to serve one hundred weekends at the Shelby County Correctional Center, perform five hundred hours of community service, and pay $8,400.00 in restitution. The Defendant now appeals, arguing (1) the trial court erred in denying her judicial diversion, and (2) that the trial court erred in denying her full probation. Finding no error, we affirm the judgment of the trial court.
Shelby
Court of Criminal Appeals
Richard Jolly vs. Lynette Jolly W2001-00159-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Martha B. Brasfield
This is a divorce case regarding the distribution of marital property. The wife moved from Tennessee to Kansas with the parties' four minor children and later filed a petition for divorce. The Kansas court awarded the wife a divorce, custody of the children, and child support but found that it did not have jurisdiction to order a division of the parties' marital property located in Tennessee. Thereafter, the wife filed this action in Tennessee seeking a division of the parties' marital property in Tennessee. The trial court ordered that the Tennessee property be sold and that the husband's share of the sale proceeds be reduced by the amount of unpaid child support. On appeal, the husband argues, inter alia, that the trial court erred in recognizing the Kansas divorce decree. We affirm, finding that the Kansas decree was entitled to full faith and credit and that the trial court did not err in dividing the parties' marital property in Tennessee.
McNairy
Court of Appeals
Sarah Whitten vs. Dale Smith W2001-01347-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ron E. Harmon
This is a suit for the failure to pay a real estate commission. The Appellant filed a complaint against the Appellees in the Chancery Court of Hardin County. The Appellees filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. The trial court denied the motion to dismiss. The Appellees filed an answer and counter-complaint. A trial was held on the complaint and counter-complaint. The trial court entered an order finding that the Appellees did not owe the Appellant a real estate commission and dismissing the counter-complaint. The Appellant appeals the order of the Chancery Court of Hardin County finding that the Appellees did not owe the Appellant
Hardin
Court of Appeals
Taylor Brown vs. Jerry Nowlin W2001-01455-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute addresses the applicability of the "made whole" doctrine to the subrogation rights of TennCare, Tennessee's medicaid waiver program, where the insured and the tortfeasor reached a settlement agreement without the participation or consent of TennCare. We hold that the made whole doctrine did apply to TennCare at the time this case was settled and the order entered. Affirmed.
Shelby
Court of Appeals
Tip's PackageStore, Inc. vs. Commercial Ins. Mgrs., Inc. E2000-02070-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
Plaintiffs H. Wayne Tipton ("Tipton") and Tip's Package Store, Inc., (Tip's) brought this lawsuit against George P. Taylor ("Taylor") and Commercial Insurance Managers, Inc., ("Commercial") seeking indemnification for an agreed judgment entered against Tip's in a lawsuit involving the tragic deaths of two young University of Tennessee students. Plaintiffs claim that Defendants improperly obtained for them an "occurrence" liability policy as opposed to a "claims made" liability policy, thereby resulting in a lack of insurance coverage for the wrongful death claims. After a jury trial, the Chancery Court entered judgment in favor of both Plaintiffs in the amount of $1,000,000 for indemnification based on the jury's answers to interrogatories. Defendants appeal, arguing, among other things, that: (1) the statute of limitations had run; (2) a covenant not to execute entered into between the families of the deceased young women and Plaintiffs extinguished any potential liability; and (3) the jury's responses to interrogatories were fatally inconsistent. We affirm in part, reverse in part, and remand.
Knox
Court of Appeals
E2000-02268-COA-R3-CV E2000-02268-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell E. Simmons, Jr.
The petitioner, Jeffrey E. Dunlap, appeals the trial court's denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.
The defendant was convicted by a Sullivan County Criminal Court jury of driving under the influence, third offense, a Class A misdemeanor, and driving while license suspended, revoked, or cancelled, third offense, a Class B misdemeanor. On appeal to this court, he argues, inter alia, that the trial court erred in denying his request for a mistrial and in admitting expert testimony on breath alcohol testing devices. After a careful review of the record, we affirm the judgment of the trial court. However, we remand for entry of corrected judgment forms to reflect that the defendant's convictions resulted from jury verdicts, rather than guilty pleas.
Sullivan
Court of Criminal Appeals
Gloria Neuenschwander vs. Roy Neuenschwander E2001-00306-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William M. Dender
Trial Judge refused to recuse, set amount of alimony, and established rental value of parties' property. On appeal we reverse the change in the amount of alimony by the Trial Court, but otherwise affirm.
Knox
Court of Appeals
Beal Bank vs. RBM Co., Est. of H.A. Webster, Michael Webster, and Richard Webster E2001-00520-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
The trial court admitted into evidence the loan records from NationsBank through a witness who was thoroughly familiar with the record-keeping process. On appeal, we affirm.
