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.
 

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.

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.

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.

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.

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.

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.

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.

Jackie F. Curry v. State of Tennessee
E2005-00418-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Jackie F. Curry, appeals the Knox County Criminal Court's summary dismissal of his petition for post-conviction relief. He claims the trial court erred in finding his petition barred by the Post-Conviction Procedure Act's one-year statute of limitations. He asserts that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), announced a new rule of constitutional law requiring retroactive application. We affirm the trial court's summary dismissal of the petition.

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.

Lipman Brothers, Inc. v. Arete Agencies, Inc.
M2004-02073-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiff Lipman Brothers, Inc. purchased 1,156 cases of French wine and hired Italia Di Navigazione, S.p.A. (“Italia”) to ship the wine to the United States from France. Italia subsequently hired Defendant Arete Agencies, Inc. (“Arete”) to transport the wine to Plaintiff’s Nashville warehouses. Arete placed the wine on a train bound for Nashville but, after reaching its destination, the wine was never delivered to Plaintiff and ultimately spoiled after sitting outside in the summer heat for thirty-six days. Arete’s insurance provider, The Hartford Insurance Company (“Hartford”), denied coverage for the incident. Plaintiff later obtained a judgment against Arete and, after learning that Arete was unable to pay, issued a writ of garnishment against Hartford. The trial court subsequently quashed Plaintiff’s writ after concluding that the debt was “contingent” because Plaintiff failed to first institute a declaratory judgment action to interpret the disputed insurance contract before seeking garnishment. We reverse.

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.

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.

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.

Thad Guerra, et al. v. State of Tennessee
M2004-02559-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Commissioner Stephanie Reevers

The issue presented in this appeal is whether the homeowners’ suit against the State of Tennessee was timely filed. The homeowners filed a complaint with the Tennessee Claims Commission against the State of Tennessee for the alleged unconstitutional taking of their property in connection with the State’s issuance of a permit to the homeowners to install a subsurface sewage disposal system. The Claims Commission ruled in favor of the State, finding among other things that the homeowners’ claim was time barred. The applicable statute of limitations allows a landowner one year within which to commence an action for the taking of land after the landowner realizes or reasonably should realize that his or her property has sustained an injury that is permanent in nature.  The homeowners contend that they did not realize that they had suffered permanent injury until the State eliminated the possibility that the injury to their property could be resolved. We affirm the judgment of the Claims Commission upon our finding that the homeowners should have reasonably realized that the injury to their propertywas permanent over one year prior to the time they filed their claim.

Gregory Norman v. Thomas C. Coleman, Jr.
M2004-01427-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge James B. Scott, Jr.

Former client appeals summary judgment dismissing his malpractice claim against former attorney and refusal of trial judge hearing malpractice case by interchange to grant recusal request. We affirm the trial court on both issues.

State of Tennessee v. James C. McWhorter
M2004-02804-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Michael R. Jones

The defendant, James C. McWhorter, was convicted of two counts of forgery, misdemeanor evading arrest, and felony reckless endangerment. The trial court imposed a four-year sentence for each of the forgery convictions, an eleven month and twenty-nine day sentence for the misdemeanor evading arrest conviction, and a four-year sentence for the felony reckless endangerment conviction. The sentences were ordered to be served concurrently, for a Range II, effective sentence of four years.  In this appeal, the defendant asserts (1) that the trial court erred by denying the motion to suppress evidence obtained during a search of his residence; (2) that the trial court erred by denying the motion to suppress the defendant's statement to police; (3) that the trial court erred by denying the motion to sever the offenses; (4) that there was a fatal variance between the indictment and the proof at trial; (5) that Count 3 of the indictment did not charge an offense; (6) that the offenses alleged were legally impossible under the facts of the case; (7) that the evidence was insufficient to support the convictions for evading arrest and reckless endangerment; (8) that the trial court erred by referring to his statement as a "confession;" (9) that the trial court should have given a curative instruction during a co-defendant's testimony; (10) that the sentence is excessive; and (11) that the trial court erred by denying probation. The judgments of the trial court are affirmed.

Melody D. Dickson vs. Roger Lee Dickson
E2004-01680-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Howell N. Peoples

In this post-divorce case, Melody D. Dickson ("Mother") filed a complaint against her former husband, Roger Lee Dickson ("Father"), seeking to modify an order of the trial court awarding her $876 per month in child support. Mother sought an increase in child support and an award of her attorney's fees. In addition, Mother requested that Father be required to pay "the educational expenses of the minor children," who she had recently enrolled at a private school. Following a bench trial, the court ordered that Father's child support obligation be increased to $913.50 per month; ordered Father to pay the children's private school tuition; and ordered Father to pay Mother's attorney's fees. Father appeals. As modified, the trial court's judgment is affirmed.

Melissa Barnett v. State of Tennessee
E2004-02771-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Steven Bebb

The petitioner, Melissa Barnett, appeals the trial court's order denying post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. The petition is barred by the statute of limitations and was properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.