Opinions

John Haws Burrell v. Howard Carlton, Warden
E2002-01613-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert E. Cupp

The petitioner, John Haws Burrell, has been convicted of twelve counts of sexual battery, three counts of rape, and two counts of coercion of a witness for which he is serving an effective twenty-four-year sentence. See State v. John Haws Burrell, No. 03C01-9404-CR-00157, 1997 WL 53455 (Tenn. Crim. App. at Knoxville, Feb. 11, 1997). The petitioner brings the instant appeal of the lower court's summary dismissal of his petition for writ of habeas corpus. We find that the lower court properly summarily dismissed the petition because several of the alleged bases for relief in the petition are not proper grounds for habeas relief and the remaining allegations lack merit.

State of Tennessee v. Angelee Prater
E2002-01774-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Curtis Smith

The appellant, Angelee Prater, was convicted by a jury of aggravated child abuse, a Class A felony and fined $25,000. As a result of the conviction, the trial court sentenced her to twenty-one years and six months incarceration as a Range I, standard offender and classified her release eligibility at 100% as a violent offender. After the trial court denied the appellant's motion for a new trial, she appealed. The appellant argues on appeal that the aggravated child abuse statutes, Tennessee Code Annotated sections 39-15-401 and -402 are unconstitutionally vague as applied to her conduct and that the evidence was not sufficient to support a verdict of guilt. After a thorough review of the record, we conclude that the statutes in question are constitutional and that the evidence is sufficient to support the verdict of guilt. Accordingly, the judgment of the trial court is affirmed.

In Re: Estate of Carl Myers & Commercial Bank
E2002-01154-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
The Trial Court voided agreements with Bank by Decedent creating survivorship accounts with his daughter on grounds of incompetency. On appeal, we affirm.

James Eugene Parks, Jr. v. State of Tennessee
E2002-02816-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, James Eugene Parks, appeals the Knox County Criminal Court's denial of his petitions for post-conviction relief from robbery-related convictions. He contends that he did not voluntarily enter guilty pleas because he was under the influence of alcohol at the time of the pleas. He also claims that he received the ineffective assistance of counsel because his attorneys did not investigate the case adequately. We affirm the trial court's denial of the petitions.

State of Tennessee v. Claude W. Cheeks
E2002-03083-CCA-RM-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Rebecca J. Stern

The appellant, Claude W. Cheeks, was convicted by a jury in the Hamilton County Criminal Court of one count of especially aggravated robbery and two counts of aggravated assault. The trial court sentenced the appellant to a total effective sentence of twenty-five years incarceration in the Tennessee Department of Correction. The appellant appealed and on July 22, 2002, this court reversed his convictions, finding that the appellant had met his burden of establishing his insanity at the time of the offenses. The State filed an application for permission to appeal to our supreme court pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. The supreme court granted the State's application for the sole purpose of remanding the case to this court for reconsideration in light of its opinion in State v. Flake, 88 S.W.3d 540 (Tenn. 2002). Upon reconsideration, we affirm the judgments of the trial court.

Hitchock Metal Sources vs. John D. Mulford
E2003-00738-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
Diane Hitchcock ("Mrs. Hitchcock") and Hitchcock Metal Sources, Inc. ("HMS") sued John D. Mulford, Jr. ("Mulford") and Mulford Enterprises, Inc. ("the defendant corporation") for breach of an oral contract between Mulford and Mrs. Hitchcock's deceased husband, James H. Hitchcock ("Mr. Hitchcock"). Mulford and the defendant corporation responded by filing a counterclaim against Mrs. Hitchcock and HMS, asserting, inter alia, breach of contract. At the conclusion of a bench trial, the court found in favor of Mrs. Hitchcock, awarding her damages of $87,896.74 jointly and severally against Mulford and the defendant corporation, and an additional amount of $8,855.93 against the defendant corporation. The trial court dismissed the counterclaim of Mulford and the defendant corporation, as well as the original claim of HMS. Mulford and the defendant corporation appeal the trial court's dual determinations that the parties' oral agreement did not prohibit either party from pursuing other business opportunities and that the defendant corporation converted Mrs. Hitchcock's steel by selling it without her knowledge or consent. In addition, the defendants contend that the trial court erred in failing to reform the parties' contract and in its calculation of damages. By way of a separate issue, Mrs. Hitchcock asserts that the trial court abused its discretion in failing to award her prejudgment interest. We affirm the trial court's judgment in toto.

Mary Ann Gurganus Eure v. Barry Lynn Eure
E2003-00745-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Lawrence H. Puckett
This is a post-divorce modification case involving the custody of, and support for, the parties' minor child, Matthew Chandler Eure (DOB: July 22, 1996) ("the child"). Mary Ann Gurganus Eure ("Mother") filed a complaint seeking custody of the child. Barry Lynn Eure ("Father"), the child's custodian, answered and filed a counterclaim seeking an increase in Mother's weekly child support obligation. Following a hearing, the trial court denied Mother's complaint. The court subsequently increased Mother's support obligation to $113 per week. Mother appeals, arguing, in so many words, that the evidence preponderates against both of the trial court's rulings. We affirm.

Monte Bounds vs. Zella Cupp
E2003-00692-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
The appellees filed suit against the appellant, alleging that the appellees, Lawrence R. Bozeman and wife, Imogene Bozeman ("the appellees Bozeman"), owned a 12-foot wide easement accross the property of the appellant. The appellant filed an answer, relying upon "the affirmative defense of abandonment plus adverse possession by the [appellant]." Following a plenary trial, the court below found that the appellees Bozeman had an express easement across the property of the appellant and that they "ha[d] not taken action of clear and unmistakable character indicating an abandonment of the easement." The appellant contends on this appeal that the trial court erred in failing to find abandonment of the easement. Since there is no transcript or statement of the evidence in the record before us, we affirm the judgment of the trial court.

Arthur Creech vs. Robert R. Addington
E2003-00842-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
The plaintiffs leased land in Mississippi from D.C. Parker and Richard B. Flowers ("Defendants") for the purpose of building motels on the land. Plaintiffs claim they were told by Defendants' agent that financing was in place to build immediately and that this representation induced them to enter into the leases. Financing never materialized and the motels never were built. Plaintiffs sued Defendants, the parties expected to provide financing, and others. Defendants filed a motion for summary judgment, which the Trial Court granted. Plaintiffs appeal. We vacate and remand.

Myra Pate vs. State
E2003-00297-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Myra Pate ("Plaintiff") filed a claim with the Tennessee Division of Claims Administration after she slipped and fell on her way to class at Pellissippi State Technical Community College ("PSTCC"). When her claim was denied, Plaintiff filed a complaint in the Tennessee Claims Commission ("Commission") against the State of Tennessee ("the State"). The State filed a motion for summary judgment claiming Plaintiff had filed for Chapter 13 bankruptcy and failed to disclose the existence of her claim against the State. The State argued Plaintiff was judicially estopped from pursuing this lawsuit and also that she lacked standing. When Plaintiff failed to file a timely response to the motion for summary judgment, the Commission granted the motion solely because no response had been filed. Plaintiff appeals. We vacate the grant of summary judgment and remand for further proceedings.

State of Tennessee v. Willie Ira Poteat, Jr.
E2003-00314-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Phyllis H. Miller

The Defendant, Willie Ira Poteat, Jr., was indicted by the Sullivan County Grand Jury for possession of more than 26 grams of cocaine for resale and criminal conspiracy to sell more than 26 grams of cocaine. The Defendant filed a motion to suppress evidence taken during the execution of a search warrant, which the trial court denied. Thereafter, the Defendant entered a plea of nolo contendere to the charges against him, reserving the right to appeal a certified question of law regarding the trial court's ruling on the suppression issue. We now address the Defendant's appeal based upon this certified question of law.

In Re: Estate of Gloria Eleanor Franklin vs. W. Jess Waltman
E2003-00926-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
The Trial Court following an evidentiary hearing, held decedent's holographic will to be conditional and inoperative. On appeal, we reverse.

Louis Laurent vs. Suntrust Bank
E2003-01408-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Dale C. Workman
Louis A. Laurent and Barbara Laurent ("Plaintiffs") sued SunTrust Bank ("Defendant") for alleged defamatory statements made by Defendant's attorney in a separate lawsuit. Defendant filed a motion to dismiss for failure to state a claim upon which relief can be granted. The Trial Court granted the motion to dismiss. Plaintiffs appeal. We affirm.

Shawn Vineyard vs. Bill Varner D/B/A Fountain City Auto
E2003-00436-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
Shawn T. Vineyard ("the plaintiff") purchased a 1991 Nissan automobile from Bill Varner, doing business as Fountain City Auto Sales ("the defendant"). Later, the plaintiff sued the defendant alleging a fraudulent misrepresentation and a violation of the Tennessee Consumer Protection Act ("the TCPA") in connection with the sale. In addition to other relief, the plaintiff sought compensatory damages; in the alternative, he asked for rescission of the sale agreement. After the trial court denied the defendant's motion for summary judgment, this matter proceeded to trial before a jury. The jury, in response to interrogatories, found the defendant guilty of violating the TCPA, but found no damages. The jury also found that the defendant had committed a fraudulent misrepresentation in connection with the sale of the automobile and assessed the plaintiff's damages at $2,100. In response to post-trial motions, the trial court decreed rescission and awarded the plaintiff the purchase price of $2,100. Defendant appeals, arguing that the trial court erred (1) in denying his motion for summary judgment; (2) in decreeing rescission and otherwise modifying the jury's verdict; and (3) in awarding attorney's fees of $12,000 to the plaintiff. We affirm.

Juanita W. Keylon vs. Robert A. Hill
E2003-01054-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Russell E. Simmons, Jr.
The plaintiff's motion for partial summary judgment, based upon the asserted failure of the defendant to countervail the motion, was denied by the trial judge. The plaintiff argues that the established rule that the denial of a motion for summary judgment, followed by a jury trial and verdict, is not reviewable, has no application in this case because there was no verdict. The rule is that the denial of a motion for summary judgment is not reviewable when the case proceeds to judgment, as distinguished from verdict. The motion of the defendant in this medical malpractice case for a directed verdict made at the close of all the evidence was granted upon a determination that all of the expert testimony established that the three-hour window to administer a blood clot dissolver had expired before the defendant treated the plaintiff. Whether the particular anticoagulant should have been administered in a timely manner was at the core of the claimed negligence. We find the question of negligence to be within the peculiar province of the jury, and remand the case for a new trial.

Kenneth Emert vs. City of Knoxville
E2003-01081-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Dale C. Workman
The original plaintiff, since deceased, tripped on an uneven brick sidewalk and injured his right knee. He was blind, or nearly so, and used a walking aid. The defendant's negligence is not an issue on appeal. The issue is one of causation in light of the medical proof that the plaintiff suffered knee problems before the accident. The trial judge found that the accident aggravated the plaintiff's pre-existing condition and awarded damages of $100,000.00 with fault apportioned 80 percent to the defendant. We affirm.

Polk Couty Bd of Education vs. Polk County Education Assoc.
E2003-01110-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jerri S. Bryant
The Trial Court ruled the School Board did not have to negotiate with the Teachers Association regarding a dress code policy adopted by the Board. On appeal, we reverse and remand.

State of Tennessee v. Carl Edward Bell
M2002-02503-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Cheryl A. Blackburn

In a plea agreement, the defendant pled guilty to the sale of under .5 grams of cocaine and agreed to a seven-year sentence. The manner of service of the sentence was to be determined at a sentencing hearing. The trial court ordered the defendant to serve the entire sentence in the Tennessee Department of Correction, because the defendant had not demonstrated the potential for rehabilitation or treatment. We find no error in the sentence and, therefore, affirm.

State of Tennessee v. Charles R. Palmquist
M2002-01047-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John A. Turnbull

Defendant, Charles R. Palmquist, pursuant to a negotiated plea agreement, pled guilty to DUI first offense and reserved a certified question of law for appeal pursuant to Tenn. R. Crim. P. 37(b)(2)(i). After a review of the record and the briefs of the parties, we affirm the judgment of the trial court.

W2002-02534-COA-R3-CV
W2002-02534-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: D. J. Alissandratos

Forrest L. Whaley &Amp; Margaret Ann Whaley v. First
W2002-01940-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Rita L. Stotts

W2002-01540-COA-R3-CV
W2002-01540-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert A. Lanier

Edward Hochhauser, Iii v. Annelle G. Hochhauser
W2003-00119-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Floyd Peete, Jr.

Jackie Cline vs. Emily Plemmons
E2002-02584-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Jerri S. Bryant
This is a dispute between brother and sister over the handling of the affairs as conservators of their mother. The brother appeals from the Trial Court's rulings as to compensation, attorney's fees and conservatorship. On appeal, we affirm.

Dayne O 'Bannon vs. Stephanie O'Bannon
E2002-02553-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: John B. Hagler, Jr.
This appeal from the Bradley County Circuit Court questions whether the Trial Court erred in denying the Wife's proposed relocation to South Dakota and in changing custody of the parties' children from Wife to Husband. We affirm the judgment of the Trial Court.