State of Tennessee v. Donnie Lomax - Concurring/Dissenting
M2003-01443-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Allen W. Wallace

I concur in the named victims’ receiving restitution. However, I seriously question whether a person or entity situated as AFC was in this case could be viewed as a “victim” for restitution purposes. The persons buying the vehicles are the named victims–and victims in fact–relative to the theft offenses charged in the indictment. The defendant took their money. AFC, with the titles, could have repossessed the vehicles. However, it voluntarily chose to relinquish the titles to the named victims, thereby essentially removing their loss from their purchases.

Keith Allen, et al., v. State of Tennessee
M2003-00905-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: William Baker, Commissioner

The Claims Commission awarded damages to Plaintiffs individually and as administrators of the Estate of their son, Robert Keith Allen. The state was held liable under Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J). We affirm the judgment of the Claims Commission.

Susan Green v. Leon Moore, et al
M2003-01015-COA-RM-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge R.E. Lee Davies

This appeal pertains to an alleged breach of a settlement agreement arising from a prior dispute between the parties. The plaintiff brought this action to recover damages resulting from an insulting remark allegedly made by an executive of her former employer in violation of a prior settlement agreement that contained a non-disparagement provision. As a result of the alleged breach, the plaintiff claims she was not permitted to serve as Director of Sales for twenty-seven motels, for which she would have received additional compensation, and was precluded from advancing with her new employer. The trial court dismissed plaintiff's claims on summary judgment. Plaintiff appealed. We affirm.

John R. Albamont v. Town of Pegram, Tennessee
M2003-01624-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge George C. Sexton

Owner of commercial property in Pegram, Tennessee, filed suit against the Town of Pegram challenging the validity of Pegram's sewer tap privilege fee, asserting that the fee bears no reasonable relationship to the demand placed on the sewer system and therefore is capricious, arbitrary and unreasonable. The trial court granted summary judgment for the Town of Pegram and dismissed the action. We find there are material facts in dispute and therefore reverse the decision of the trial court granting summary judgment.

Bruce McGehee, M.D. v. Otis A. Plunk, M.D.
W2003-01332-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Arnold B. Goldin

A judgment was rendered against corporation, of which Defendant is 100% owner. Plaintiff sought to recover judgment from Defendant’s corporation but was unsuccessful. Plaintiff filed suit against Defendant alleging that conveyance made between corporation and Defendant was fraudulent. The trial court found the conveyance fraudulent and assessed the judgment against the Defendant, personally. For the following reasons, we affirm.

Robert L. Eubanks, Jr., et al., v. Procraft, Inc. et al.
E2003-02602-COA-R9-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Dale C. Workman

An applied liquid siding damaged the Plaintiffs’ house. By amended complaint the Plaintiffs joined the purported manufacturer, a Canadian corporation, pursuant to the Hague Convention. Held, not subject to jurisdiction in Tennessee. Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

Sheila Mcalpin v. Thyssen Krupp Elevator Mfg., Inc.
W2003-02578-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Martha B. Brasfield, Chancellor
In this appeal, the employer insists the trial court's award of permanent partial disability benefits based on 45 percent to both arms is excessive. As discussed below, the panel has concluded the judgment should be affirmed.

Frederick Todd Smith, et al., v. Jim Crossman, et al.
M2003-01108-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Carol L. Soloman

This appeal involves the interpretation of the attorney's fee provision in a lease agreement. The trial court awarded Landlord attorney's fees, and Tenants appeal. We reverse the award of attorney's fees, finding no contractual basis exists for the award.

State of Tennessee, ex rel., Reba Alexander v. Michael, Williams/State of Tennessee, ex rel., Michael Springfield v. Rita Alexander, Shelby
W2003-01485-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge J. Roland Reid

This is a consolidated appeal of two lawsuits in which the trial court refused to enforce or modify child support orders administratively issued under Tennessee Code Annotated 36-5-103(f). The trial court dismissed the State’s petitions in both actions. We vacate the orders of dismissal and remand for proceedings on the merits.

Norman Hamby v. State of Tennessee
W2003-02947-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Nancy C. Miller-Herron, Commissioner

Plaintiff filed suit against Defendant seeking damages for injuries caused by a fall that occurred on Defendant’s premises. The Tennessee Claims Commission ruled in favor of Defendant. Plaintiff appealed to this Court. This Court reversed the commission’s decision and remanded for a determination of comparative fault. Upon remand, the commission ruled that Defendant had breached its duty but found that Plaintiff was at least 50% at fault for his injuries, thereby barring Plaintiff’s recovery. In the absence of a transcript to support Plaintiff’s position, we must affirm the commission’s ruling.

Marion P. Gurkin, III v. Roy Wood, Individually, Associates General Insurance, Inc. Tennessee Insurance Company, Permanent General Assurance Corp, Permanent General Co, and INgram Industries Insurance Gp.
W2003-00793-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This case involves an automobile insurance claim. The insured’s family owned a chain of
convenience stores. The insured applied for a personal automobile insurance policy. The insurance agent completed the application, indicating that the vehicle was for personal use, and the insured approved it. Later, the insured suffered personal injuries from a traffic accident and submitted a claim to the insurance company. The insurance company asserted that the vehicle was owned by the family convenience store chain and was used for business purposes. On this basis, the insurance company refused to pay the claim and rescinded coverage, alleging there were material misrepresentations in the insured’s application. The insured filed this lawsuit against the insurance company and its agent, and the insurance company filed a cross-claim against the agent. After a bench trial, the trial court found that the vehicle was not owned by the family business and was not used for business purposes, and that consequently there was insurance coverage and the agent was not liable. The insurance company appeals. We affirm, finding that the evidence supports the trial court’s findings that the insured owned the vehicle individually, that the insured did not use the vehicle for business purposes, and that the agent was not negligent.
 

State of Tennessee v. Harry G. Sturgill
M2003-01817-CCA-R3-CD
Authoring Judge: Judge Jerry Smith
Trial Court Judge: Judge Steve R. Dozier

The appellant, Harry G. Sturgill, was convicted by a jury of eight counts of rape of a child and two counts of statutory rape. As a result, he received a twenty-five year sentence for each of his eight child rape convictions and a two-year sentence for each of his statutory rape convictions. Two of the child rape convictions were ordered to be served consecutively. All of the other sentences were ordered to be served concurrently, for an effective fifty-year sentence. In this direct appeal, the appellant challenges the sufficiency of the evidence in regard to his child rape convictions and the length and consecutive nature of the sentences. For the following reasons, we affirm the judgment of the trial court.

Jerry Lee Chilton v. David Mills, Warden
E2003-00667-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge E. Eugene Eblen

The Defendant appeals from the judgments of the trial court denying him habeas corpus relief. The trial court dismissed the petitions, finding that they failed to state cognizable claims for habeas corpus relief. We affirm the judgments of the trial court.

Edgar Foster, Individually and on Behalf of Wife, and Stanley Turner, v. St. Joseph Hospital, Mahir R. Awdeh, M.D., Raj. C. Dave, M.D.
W2003-00522-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Russell

This is a wrongful death case. The decedent was survived by her husband and two brothers. The husband gave his power of attorney to his grand-nephew. The grand-nephew filed a wrongful death lawsuit, alleging medical malpractice which resulted in the decedent’s death. The grand nephew voluntarily dismissed the claim. The grand-nephew refiled the action within one year of the nonsuit but beyond the expiration of the original statute of limitations. In the second action, the decedent’s husband was added as a plaintiff. The defendants filed motions for summary judgment, arguing that the second lawsuit was time barred. The trial court granted the motion, holding that because the grand-nephew was not a proper party plaintiff under the Tennessee wrongful death statute, the first lawsuit was a nullity and did not toll the statute of limitations. We reverse, holding that the original lawsuit was not void, but merely voidable, and that the second lawsuit was timely filed under the savings statute.
 

Marlin Financial & Leasing v. Nationwide Mutual Insurance Company
E2003-01045-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Howell N. Peoples

This is a declaratory judgment action filed by Marlin Financial & Leasing Corporation ("Marlin") against its insurer, Nationwide Mutual Insurance Company ("Nationwide"), seeking a determination as to coverage under Marlin's insurance policy with Nationwide. Specifically, the suit seeks to obligate Nationwide to pay $8,333.33, the amount of Marlin's settlement of a claim asserted by AmSouth Bank ("AmSouth" or "the Bank"), and associated attorney's fees and expenses of $52,654.05. The trial court granted summary judgment to Marlin, finding that AmSouth's claim against Marlin for "loss of use" of certain property was covered under the business liability feature of the policy and that Marlin was entitled to reimbursement for the amount of its settlement of AmSouth's claim and Marlin's related litigation expenses. The trial court ultimately awarded Marlin prejudgment interest, but it refused to assess a bad faith penalty against Nationwide. Nationwide appeals and both sides raise issues. We affirm.

Todd Hillman Rice v. Michelle E. Rice
E2003-01336-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Richard R. Vance

The Trial Court convicted respondent on "six counts" of contempt. On appeal, we hold evidence supports only one count of contempt.

State of Tennessee, Department of Children's Services v. CBH, in re: SB
E2003-03000-COA-R3-PT
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The Trial Court terminated the mother's parental rights after finding statutory grounds to terminate and clear and convincing evidence that it was in the child's best interest that the parent's rights be terminated. On appeal, we affirm.

Robert Ledford v. George Raudenbush
E2004-00170-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge John B. Hagler, Jr.

The defendant appeals from the Trial Court's awarding Judgment to plaintiff for $1,000.00. The record on appeal is insufficient to review alleged error. We affirm.

William Hackworth v. State of Tennessee
M2003-02148-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Petitioner, William Hackworth, pled guilty to four counts of incest and received an effective twelve-year sentence as a Range I offender. Petitioner filed a pro se petition for post-conviction relief, alleging, in part, that his trial counsel was ineffective for failing to seek DNA testing in order to establish the paternity of the child borne of the victim in this case. The trial court summarily dismissed the petition, finding that it was filed outside the one-year statute of limitations and that Petitioner was not entitled to post-conviction DNA analysis. Petitioner appeals the trial court's denial of post-conviction relief. We affirm the judgment of the trial court.

State of Tennessee v. Ydale Banks
W2000-00963-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph B. Brown

A Shelby County Criminal Court jury convicted the defendant, Ydale Banks, of first-degree felony murder, first-degree premeditated murder, conspiracies to commit both modes of first-degree murder, especially aggravated burglary, especially aggravated robbery, three counts of especially aggravated kidnapping, and three counts of aggravated assault. The defendant now claims on appeal that: (1) the trial court erred in denying the defendant's motion to suppress his pretrial statement; (2) the trial court erred in refusing to grant the defendant's motion for a judgment of acquittal; (3) the evidence presented at trial is insufficient to support the convictions for first-degree murder; (4) the trial court erred in admitting prejudicial photographs into evidence in the sentencing phase of trial; (5) the trial court erred in admitting victim-impact evidence during the sentence phase; (6) the provisions of Tennessee Code Annotated section 39-13-204(c) relative to the use of victim-impact evidence are unconstitutional; (7) the trial court erred in instructing the jury; and (8) the trial court erred in instructing the jury as to the definition of "knowingly." We reverse the judgment of conviction of conspiracy to commit felony murder but otherwise affirm the judgments of the trial court.

Vanderbilt Mortgage & Finance v. Joseph Rotello, et al.
E2003-01963-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Rex Henry Ogle

Joseph and Nina Rotello ("Defendants") purchased a mobile home from Clayton Sevierville and financed the purchase through Vanderbilt Mortgage & Finance, Inc. ("Plaintiff"). After Defendants defaulted on the installment contract, Plaintiff filed suit and then filed a properly supported motion for summary judgment seeking possession of the mobile home. Defendants, who were proceeding pro se, filed a response to the motion for summary judgment, but failed to offer any competent proof to establish a genuine issue of material fact for trial. The Trial Court granted Plaintiff's motion for summary judgment, and we affirm.

State of Tennessee v. David Lee Bellamy
E2003-02936-CCA-R3-CD-
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

The appellant, David Lee Bellamy, plead guilty to violation of an habitual traffic offender order, two counts of reckless aggravated assault, four counts of reckless endangerment, driving under the influence, driving under the influence, fourth offense, improper passing, and driving left of center, with the sentence to be determined by the trial court. After a sentencing hearing, the trial court sentenced the appellant to an effective sentence of twelve years. Unsatisfied with the denial of alternative sentencing, the appellant now appeals. We affirm the judgment of the trial court.

Dewayne Cathey v. State of Tennessee
W2003-00411-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The petitioner, Dewayne Cathey, petitioned the Hardeman County Circuit Court for a writ of habeas corpus to challenge his sentence in his 1993 Shelby County, guilty-pleaded conviction of first degree murder. The lower court summarily dismissed the petition, and on appeal, the petitioner claims that the trial court erred in dismissing his petition without a hearing. Upon our review of the record, we reverse and vacate the trial court’s order. Furthermore, we order the lower court to grant habeas corpus relief.

State of Tennessee v. Michael K. Miller
W2003-01621-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Bernie Weinman

Aggrieved of the order to serve 90 days of his two-year sexual battery sentence in confinement, the defendant, Michael K. Miller, appeals. We affirm the judgment of the trial court.

Mary Jean Upright v. Richard Upright
W2003-01834-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Bob G. Gray

Husband appeals trial court’s final decree of divorce pertaining to division of marital
property. We affirm.