Consumer Financial Services (Management) Inc., G. Ronald Hall, and Jacquelene O'Rourke Hall v. Consumer Financial Services Management, L.L.C. and Gabriel, L.L.C.
M2003-02030-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor R.E. Lee Davies

This is a contract action. The sellers sold to the purchasers a loan company dealing in sub-prime residential loans and mortgages and third-party finances, as well as equity interests in a related limited liability company. After closing the transaction, numerous financial and operational problems became apparent. The purchasers attempted to rescind the transaction, as the business foundered. Eventually, the sellers took back the business and sued the purchasers for breach of contract. The purchasers filed a counter-complaint, alleging that the sellers fraudulently induced the contract through multiple oral and written misrepresentations. After a bench trial, the trial court found that the sellers had committed fraud in inducing the contract. The purchasers were granted rescission of the sale agreement, as well as compensatory damages. The trial court dismissed the sellers' breach of contract complaint. The sellers appealed. We affirm.

Deane Elizabeth Church v. Thomas Neal Church
M2004-02390-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Donald P. Harris

The Trial Court granted the parties' divorce, divided the marital property, awarded alimony and fees. Issues on appeal are division of marital property, alimony award and fees. We affirm the Trial Court's Judgment, with modifications.

In Re: D.A.J.
M2004-02421-COA-R3-JV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Raymond Grimes

Romina Jessica Clifton (“Mother”) and Dwight Cain Jemison (“Father”) are the parents of a six year old daughter. In 2004, Father filed a petition to modify custody of the child by seeking to be designated the child’s primary residential parent. Following a hearing, the Juvenile Court concluded that there had been a material change in circumstances and that it was in the child’s best interest to designate Father the primary residential parent. The Juvenile Court also set forth Mother’s coparenting schedule as well as her monthly child support payments. Mother appeals challenging the propriety of the Juvenile Court’s decision to designate Father the primary residential parent as well as the amount of her child support. We affirm the designation of Father as the primary residential parent but modify the amount of Mother’s monthly child support.

Kaitlyn Calaway, ex. rel. Kathleen Calaway v. Jodi Schucker, M.D. - Dissenting
M2004-02856-SC-R23-CQ
Authoring Judge: Justice Janice M. Holder & Justice E. Riley Anderson
Trial Court Judge: Judge J. Daniel Breen

JANICE M. HOLDER, J., with whom E. RILEY ANDERSON, J., joins, dissenting
I write separately to express my view that the minority provisions of Tennessee’s legal
disability statute, Tennessee Code Annotated section 28-1-106 (2000), toll the three-year medical
malpractice statute of repose provided in Tennessee Code Annotated section 29-26-116(a)(3) (2000).

Kaitlyn Calaway ex rel. and Kathleen Calaway v. Jodi Schucker, M.D.
M2004-02856-SC-R23-CQ
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge J. Daniel Breen

Pursuant to Rule 23, we accepted four certified questions of law from the United States District
Court for the Western District of Tennessee. The third certified question is the central question of
the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice
in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled
during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical
malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language
of the statute and finding no exception for minority among the two express exceptions in it—and
cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs
in their minority are bound by the three-year medical malpractice statute of repose. However, in
order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and
lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute of repose.
 

Kaitlyn Calaway, ex rel. and Kathleen Calaway v. Jodi Schucker, M.D.
M2004-02856-SC-R23-CQ
Authoring Judge: Chief Justice William M. Barker
Trial Court Judge: Judge J. Daniel Breen

Pursuant to Rule 23, we accepted four certified questions of law from the United States District Court for the Western District of Tennessee. The third certified question is the central question of the four and is dispositive of the others: Is the three-year statute of repose for medical malpractice in Tennessee Code Annotated section 29-26-116, which contains no exception for minority, tolled during a plaintiff’s minority? Our answer is that the three-year statute of repose for medical malpractice actions is not tolled during the plaintiff’s minority. Giving effect to the plain language of the statute and finding no exception for minority among the two express exceptions in it—and cognizant of our constitutional role as interpreters, not makers, of the law—we hold that plaintiffs in their minority are bound by the three-year medical malpractice statute of repose. However, in order to avoid undue hardship to potential plaintiffs who have justly relied upon federal court and lower court precedents erroneously stating the opposite rule, the new rule we announce today is to apply prospectively only. Therefore, for cases commenced on or before December 9, 2005, we hold that the plaintiff’s minority tolls the medical malpractice statute of repose. For cases commenced after December 9, 2005, we hold that the plaintiff’s minority does not toll the medical malpractice statute of repose.
 

James Emmett Moses, Jr., v. State of Tennessee
W2005-01071-CCA-R3-HC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, James Emmett Moses, Jr., pleaded guilty to aggravated burglary, two counts of robbery, and theft of property under $500, for which he received an effective 26-year incarcerative sentence. On direct appeal, the petitioner unsuccessfully challenged his sentences as excessive. See
State v. James Emmett Moses, Jr. v. State, No. W1999-01509-CCA-R3-CD (Tenn. Crim. App., Jackson, Mar. 7, 2000) (hereinafter Moses I). The petitioner then sought and was denied post-conviction relief. See James Emmett Moses, Jr. v. State, No. W2001-01394-CCA-R3-PC (Tenn. Crim. App., Jackson, Feb. 22, 2002) (hereinafter Moses II). The petitioner subsequently filed a habeas corpus petition alleging that he received an illegal sentence pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the habeas corpus court summarily dismissed the petition. The petitioner now brings the instant appeal challenging that denial, and after a thorough review of the record and applicable law, we affirm the judgment of the lower court.

James Dubose v. Tony Parker, Warden
W2005-01320-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Lee Moore Jr.

The Defendant, James DuBose, appeals the denial of his petition for a writ of habeas corpus. The Defendant, serving a sentence of life in prison for first degree murder, raises four issues on appeal: 1) that the claims raised in his petition for habeas corpus relief were not previously adjudicated; 2) that his judgment of conviction is void because his indictment failed to allege an offense; 3) that his judgment of conviction is void because it is based on an unconstitutional statute; and 4) that the trial court erred in failing to appoint counsel for his habeas corpus proceedings. Finding the denial of the Defendant’s petition was appropriate, we affirm the judgment of the trial court.

In the Matter of: E.B., T.B., T.B., and R.B.
W2004-02821-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Dewey C. Whitenton

This is a dependency and neglect action. The four children at issue were in the custody of a nonparent.  The Department of Children’s Services filed a petition in juvenile court for protective custody of the children, alleging physical abuse. After an evidentiary hearing, the Juvenile Court concluded that the children were dependent and neglected, and transferred custody to the children’s biological mother. The non-parent temporary custodians appealed to the circuit court. The circuit court determined that the evidence was insufficient to conclude that the children were dependent and neglected. The circuit court then ordered that custody of three of the four children should remain with the biological mother, and that custody of the remaining child should be transferred back to the non-parent custodians. The biological mother appealed. We conclude that, once the circuit court found that the children were not dependent and neglected, it no longer had subject matter jurisdiction to determine the custody of the children. Therefore, we vacate the custody determination of the circuit court.

Annette Hale v. Lincoln County, Tennessee et al.
M2004-01963-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Franklin Lee Russell

In this appeal we are called upon to review a trial court's grant of summary judgment to a county in a lawsuit filed by an injured motorist pursuant to section 29-20-203 of the Tennessee Governmental Tort Liability Act. The trial court concluded that the plaintiff was unable to prove, as a matter of law, that the county had actual and/or constructive notice of the condition of the roadway at the time of the plaintiff's accident. The plaintiff appealed to this Court. We hold that the plaintiff established that genuine issues of material fact exist as to whether the condition of the roadway constituted a defective, unsafe, or dangerous condition, and whether the county had actual and/or constructive notice of such condition. Accordingly, we reverse the decision of the trial court and remand this case for further proceedings.

Peter Plotitsa v. Mila Plotitsa
W2004-01039-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Arnold B. Goldin

This is an appeal from a final order granting the parties an absolute divorce and dividing the marital property. The Final Order also incorporated a permanent parenting plan for the parties’ minor child.  Husband appeals and asserts, inter alia, that the division of marital property is inequitable and that the chancellor abused his discretion. We affirm and remand.

In Re: Adoption of L.L.C., Aaron Michael Darnell v. Nathan Ted Cook
W2005-00872-COA-R3-PT
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor D. J. Alissandratos

This appeal involves a petition for adoption and termination of the biological father’s parental rights filed by biological mother and her current husband. There is no transcript of the trial proceeding, and the record contains a statement of evidence filed by the biological father and objections thereto with an additional statement of the evidence filed by the petitioners, neither of which were signed by the trial court. The statements are different in several respects. The trial court granted the adoption and termination of the biological father’s parental rights on the ground of willful abandonment, but failed to make specific findings of fact as required by T.C.A. § 36-1-113 (k) (2005). The biological father has appealed. We vacate and remand for further proceedings.

State of Tennessee v. Delores Christina Armstrong
E2004-02957-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The appellant, Delores Christina Armstrong, was convicted of child abuse and neglect, and she received a sentence of four years. The trial court ordered the appellant to serve her sentence in community corrections. Subsequently, the appellant's community corrections sentence was revoked, and the appellant was ordered to serve the balance of her sentence in confinement. On appeal, the appellant challenges the revocation of her community corrections sentence and the imposition of a term of confinement. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Shannon Smith v. State of Tennessee
M2004-02494-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Don R. Ash

The Petitioner, Shannon Smith, pled guilty to domestic assault, and he was sentenced to eleven months and twenty-nine days. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the petition, and the Petitioner now appeals. Finding that there exists no reversible error, we affirm the judgment of the post-conviction court.

Byas Wofford, IV v. State of Tennessee
W2005-00116-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Donald H. Allen

The petitioner, Byas Wofford, IV, stands convicted of five counts of identity theft, one count of forgery in an amount over $1,000, and one count of forgery. Pursuant to his plea agreement, the petitioner pleaded guilty to these seven offenses and received an effective 12-year sentence to be
served as a Range III persistent offender. In the instant appeal, the petitioner challenges the post-conviction court’s denial of his post-conviction petition, alleging that he received ineffective assistance of counsel and that as a result, his guilty pleas were involuntarily and unknowingly made.  After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

In Re: Estate of Richard L. Leath, et al. v. David Leath
W2005-00195-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Dewey C. Whitenton

This case concerns the payment of income taxes, including penalties and interest, incurred by an estate. The trial court held that the taxes and interest due were to be prorated among the various heirs, devisees and distributees in proportion to the amount of the distribution that each party received. The trial court further held that all penalties on the taxes were to be paid by David Leath, executor of the Estate of Richard L. Leath, individually. Lastly, the trial court ordered that the court costs were to be paid one-half by the executor and one-half by the other heirs and distributees. The parties appeal. We affirm in part, reverse in part, and remand.

State of Tennessee v. Jerome Bond
W2004-02557-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Arthur T. Bennett

The defendant, Jerome Bond, was convicted of felony murder and especially aggravated robbery.  See Tenn. Code Ann. §§ 39-13-202, -403. The trial court imposed a life sentence for the felony murder and a sentence of twenty-five years for the especially aggravated robbery and ordered the sentences to be served consecutively. In this appeal, the defendant asserts that the trial court erred by (1) admitting into evidence a photograph of him taken by police; (2) denying his motion to modify Tennessee Pattern Jury Instruction 43.04; (3) denying his request to instruct the jury on the lesser included offenses of especially aggravated robbery; and (4) ordering his sentences to be served consecutively. The judgments of the trial court are affirmed.

In Re Estate of Edward Greenamyre - Concurring/Dissenting
M2003-00964-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Vernon Neal

The majority has provided a well reasoned opinion, based upon a strict interpretation of In
re Estate of Hume, 984 S.W.2d 602, 605 (1999), concluding that the sale and reorganization of other assets and bank accounts by the court appointed conservator effected an ademption by extinction of several of Mr. Greenamyre’s testamentary bequests. I, however, submit a strict interpretation of Hume is not required.

In Re Estate of Edward Greenamyre
M2003-00964-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Chancellor Vernon Neal

This appeal involves a dispute regarding the fate of specific bequests in a will prepared by a college professor without the assistance of counsel. The professor’s mental capacity declined after he prepared the will, and the Chancery Court for Putnam County appointed a conservator for the professor who, with the court’s approval, auctioned off his personal property, including property subject to specific bequests in the professor’s will. After the professor died, his executrix petitioned the trial court to construe several provisions of his will. The trial court heard the matter without a jury and, relying on In re Estate of Hume, 984 S.W.2d 602 (Tenn. 1999), concluded that several of the specific bequests had been adeemed by extinction. The trial court also concluded that the parties attorney’s fees and the court costs should be paid from the intestate funds in the estate. On this appeal, one of the beneficiaries of an adeemed bequest takes issue with the court’s conclusion that she was not entitled to the proceeds from the sale of the property bequeathed to her and that she was not entitled to recover all of her attorney’s fees. The professor’s sole surviving heir at law takes issue with the trial court’s decision to award this beneficiary any attorney’s fees. We have determined that the trial court’s decision regarding the fate of the specific bequests of personal property is correct but that the trial court erred with regard to the award of attorney’s fees.

Sunil Kawatra v. Neelam Mantri Kawatra
M2003-01855-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Chancellor Tom E. Gray

This case involves a petition to relocate pursuant to Tennessee Code Annotated section 36-6-108 (2001). To determine whether the parties in a relocation case are spending substantially equal intervals of time with their child, the "time actually spent" with each parent should be computed in units of a day. The number of days to be credited to each parent should be based upon an examination of the residential schedule, additional time not reflected in the residential schedule, and adjustments for any violations to the residential schedule. To allocate a day for which both parents claim credit, the trial court should examine the hours that each parent actually spent with the child on that day, the activities in which each parent participated with the child, the resources that each parent expended on the child's behalf, and any other factor that the trial court considers to be relevant. After careful consideration of the record, we conclude that the parties were not spending substantially equal intervals of time with the child. Because the mother was spending a greater amount of time with the child, she should be permitted to relocate with the child pursuant to Tennessee Code Annotated section 36-6-108(d) (2001). Accordingly, the judgment of the Court of Appeals is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Richard A. Demonbreun v. Metropolitan Board of Zoning Appeals of The Metropolitan Government of Nashville and Davidson County, Tennessee
M2004-02402-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Carol L. Soloman

The Metropolitan Davidson County Board of Zoning Appeals ("the BZA") granted Richard A. Demonbreun ("the Landowner") a special exception permit to use his residentially-zoned property as a special event site. The Landowner filed a petition for writ of certiorari and supersedeas, challenging the validity of several restrictions imposed upon the permit. The trial court held that several of the restrictions were unsupported by material evidence, and thus, according to the trial court, were arbitrarily imposed by the BZA. The BZA appeals the trial court's determination with respect to the conditions found to be arbitrary. We affirm in part and reverse in part.

State of Tennessee v. Alice Irene Thomas
W2005-00428-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William B. Acree

A Weakley County Circuit Court jury convicted the appellant, Alice Irene Thomas, of making a false report, a class D felony. The trial court sentenced her as a Range II, multiple offender to six years.  The appellant appeals, claiming that the evidence is insufficient to support the conviction. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

State of Tennessee v. Stephanie Ann Mays
W2005-00575-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge William B. Acree, Jr.

The State appeals the suppression of evidence by the Obion County Circuit Court. The Defendant, Stephanie Ann Mays, was arrested for criminal trespass, and a search of Mays’ person followed, which revealed the presence of a quantity of cocaine and marijuana. After an evidentiary hearing, the trial court granted Mays’ motion to suppress and dismissed the charges. The State argues that because the police had probable cause to arrest Mays, the resulting search and seizure of the evidence was valid. After review, we conclude that Mays’ arrest for trespass, which was based upon an erroneously generated police document, was invalid as no probable cause existed to arrest. As such, the evidence was properly suppressed. Accordingly, the judgment of the trial court is affirmed.

Byron C. Wells v. A. C. Wharton, Jr., et al.
W2005-00695-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor D. J. Alissandratos

In this appeal, we are asked to determine multiple issues including  whether the chancery court erred when it granted the defendants’ motion to dismiss for failure to state a claim upon which relief may be granted. The plaintiff contends that there were numerous claims made in his complaint sufficient to survive defendants’ motion to dismiss. The plaintiff, acting pro se, filed an appeal to this Court. We affirm in part and reverse in part and remand.

State of Tennessee v. Gustavo Chavez
W2005-02318-CCA-RM-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: C. Creed McGinley

This case is before us after remand by the Tennessee Supreme Court. The defendant, Gustavo Chavez, pled guilty to one count of aggravated sexual battery, a Class B felony. He was sentenced to ten years at 100% to be served in the Department of Corrections. On appeal, this Court originally affirmed the defendant’s conviction but modified his sentence to eight years due to our determination that the trial court improperly applied a statutory enhancement factor in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Subsequently, our supreme court held in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) that Tennessee’s sentencing scheme constitutes a non-mandatory scheme which does not violate the Sixth Amendment right to a jury trial as interpreted by Blakely. Accordingly, our supreme court remanded this case for reconsideration in light of Gomez. Upon consideration of Gomez, we affirm the conviction and sentence as originally imposed by the trial court.