Marc Kayem v. William Stewart
M2002-01515-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jim T. Hamilton
Plaintiff filed suit to recover sums allegedly due under a contract of employment. The trial court awarded partial summary judgment to defendant, finding plaintiff was not entitled to certain percentages of accounts receivable. The trial court further found plaintiff had breached the contract and a covenant not to compete, and awarded defendant a judgment of $12,500. The trial court also awarded defendant's attorney's fees. We affirm in part, reverse in part, and remand.

Amprite Electric v. Tennessee Stadium Group
M2002-00892-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Ellen Hobbs Lyle
The electrical subcontractor on the Adelphia Stadium job was required by the contractor, on 212 occasions, to perform extra work. Although the subcontract provided that written change orders must precede and authorize extra work, this requirement was soon mutually abandoned because the contractor, encouraged by the owner, was concerned about a timely completion. The principal issue concerns the dollar amount of compensation for the extra work. Amprite priced its extra work according to manuals used in the construction industry, as contrasted to its actual costs plus 10 percent, as the subcontract provides. Amprite concedes that although its actual costs plus 10 percent were substantially less than the amounts claimed, the contractor was estopped to deny the greater compensation. The trial court held that the contract was abandoned and that, in lieu, a different contract would be implied. Amprite was accordingly awarded compensation for "8686 hours never worked, $90,245.00 for materials never purchased and $6,877.00 for taxes never paid,"for a total recovery of $1,131,311.66. Contractor appeals insisting that the contract was not abandoned and that its provisions control. We hold that the requirement of written change orders was waived by mutual agreement but that the remainder of the contract was enforceable. The judgment is modified to allow a recovery of $170,084.00.

Labor-Kraft v. Donald League
M2002-01573-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: C. K. Smith
This dispute arises from a tax sale of real property in Wilson County. The County failed to give notice of the sale to plaintiff, who held a properly recorded deed of trust. The trial court determined the debt secured by the deed of trust had been paid and that the County's failure to give notice accordingly was harmless error. We affirm.

John Hasty v. Bobbie Hasty
M2002-01756-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Russell Heldman
The Petitioner seeks a reduction/termination of his alimony obligation based upon asserted material change of circumstances. The divorce was granted in 1994; thereafter the Respondent began receiving her awarded share of the Petitioner's retirement benefits, and Social Security benefits, both of which were within the contemplation of the parties at the time of the divorce, and thus cannot constitute a material change of circumstances.

Earl Dewayne Holloway v. State of Tennessee
E2002-02127-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Rebecca J. Stern

The petitioner, Earl Dewayne Holloway, appeals the denial of his petition for post-conviction relief, alleging numerous instances of ineffective assistance of trial and appellate counsel. We conclude that the evidence does not preponderate against the findings of the post-conviction court and affirm the dismissal of the petition.

State of Tennessee v. Duane Brian Brooks
E2002-02040-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Duane Brian Brooks, was convicted of first degree murder and sentenced to life imprisonment. In this appeal, the defendant asserts that the trial court erroneously instructed the jury as to the culpable mental states for first and second degree murder and failed to provide an instruction on causation. Because it is our view that any error with regard to the jury instructions can be classified as harmless beyond a reasonable doubt, the judgment of the trial court is affirmed.

Robert I. Gwin v. State of Tennessee
M2002-02061-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Robert I. Gwin, appeals the trial court's denial of habeas corpus relief. The single issue presented for review is whether the trial court erred by denying an evidentiary hearing on the petition. The judgment is affirmed.

State of Tennessee v. Felix Bartolo Jose
W2002-02532-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Julian P. Guinn

The Appellant, Felix Bartolo Jose, was convicted of one count of aggravated sexual battery, a class B felony, following a jury trial. The trial court sentenced Jose to an eight-year sentence in the Department of Correction. On appeal, Jose raises the single issue of whether the evidence was sufficient to support the verdict. After review of the record, we affirm the conviction.

James C. Breer v. State of Tennessee
W2002-02545-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Julian P. Guinn

The Appellant, James C. Breer, appeals the summary dismissal of his  pro se petition for postconviction relief. The Henry County Circuit Court dismissed Breer’s petition upon the ground that it failed to state a colorable claim. Tenn. Code Ann. § 40-30-206(f) (1997). After review, we conclude that a colorable claim is presented and the postconviction   court erred in dismissing Breer’s petition without conducting an evidentiary hearing and without appointing counsel. Accordingly, we remand for proceedings consistent with this opinion.

State of Tennessee v. Alorra D. Puckett
E2002-01959-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Douglas A. Meyer
In a certified question of law, the defendant challenges the traffic stop that resulted in her plea of nolo contendere to DUI, first offense. We hold the stop was unlawful and reverse the trial court’s judgment.

State of Tennessee v. Alorra D. Puckett - Dissenting
E2002-01959-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Douglas A. Meyer
Although the issue is indeed close, I believe the stop was lawful. The officer observed three driving irregularities on a straight highway within a relatively short period of time, one of which occurred prior to activation of the videotape. Thus, I believe the facts here are distinguishable from the cases relied upon by the majority and are more similar to State v. Gary S. Greve, No. E2002-00999-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Mar. 27, 2003, at Knoxville), in which we upheld the stop.

State of Tennessee v. Eric James Taylor, alias
E2002-00966-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Richard R. Baumgartner

The Defendant, Eric James Taylor, Alias, was convicted by a jury of first degree premeditated murder and aggravated assault. The Defendant now appeals as of right from his murder conviction, alleging seven errors: (1) the trial court should have allowed him to cross-examine a prosecution witness about pending theft charges; (2) the trial court should have instructed the jury about the State's duty to preserve evidence; (3) the prosecutor impermissibly shifted the burden of proof to the Defendant during closing argument; (4) the trial court should have instructed the jury on the lesser-included offense of vehicular homicide; (5) the trial court should have allowed him to cross-examine a prosecution witness about the victim's pre-offense surgery; (6) the evidence is not sufficient to support his murder conviction; and (7) a police officer testifying for the State improperly referred to prior contacts with the Defendant. Finding no merit to the Defendant's contentions, we affirm the judgment of the trial court.

Vanessa Manning, v. City of Lebanon, et al.
M2002-02075-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor C. K. Smith

The Chancery Court of Wilson County invalidated the City of Lebanon's ordinance governing the demolition of unsafe structures, reasoning that it was inconsistent with state law and that it denied property owners the right to be heard before a demolition order issues. We hold that the ordinance is not inconsistent with the general law and that the post-order hearing provisions of the ordinance comply with the property owner's rights to due process. Therefore, we reverse and remand the cause for further proceedings.

Angela D. Siefker v. Gary C. Siefker
M2002-01081-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Muriel Robinson

This case is before the Court for the second time on a post-divorce Petition to reduce alimony. The trial judge denied the Petition, and we affirm the action of the trial court.

Cindy Lourcey, et al., v. In Re Estate of Charles Scarlett
M2002-00995-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Judge Clara W. Byrd

Charles Scarlett, in the middle of a domestic dispute with his wife, flagged down a postal worker, Cindy Lourcey, and asked for help. Without warning, and in the presence of Mrs. Lourcey, Mr. Scarlett shot his wife in the head and then killed himself. Mrs. Lourcey sued Mr. Scarlett's estate alleging negligent and intentional infliction of emotional distress. Mr. Lourcey also sued for loss of consortium. The estate filed a Motion to Dismiss pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure for failure to state a cause of action. The trial court granted the Motion to Dismiss. We hold that the Lourceys did in fact state a cause of action. Therefore, we reverse the decision of the trial court and remand for further proceedings in accordance with this opinion.

State of Tennessee v. Gene Booker
W2002-00133-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

The Appellant was convicted of aggravated robbery by a jury in the Criminal Court for Shelby County, and the trial court sentenced him to sixteen years of confinement as a Range II Multiple Offender. The Appellant raises the following issues on appeal: (1) whether sufficient evidence was presented at trial to convict the Appellant of the charged offense, and (2) whether the trial court erred in failing to charge the jury on the lesser-included offenses of robbery and theft. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. Joseph Harold Rucker
E2002-02486-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The defendant, Joseph Harold Rucker, appeals the Roane County Criminal Court's imposition of a 23-year Department of Correction sentence for the second-degree murder of his girlfriend, Tommy Jean Trinkle. Because we determine that the length of the Class A, Range I sentence is supported in the record, we affirm.

State of Tennessee v. Tracy Washington
E2001-02817-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Thomas W. Graham

A Rhea County grand jury indicted the defendant on one count of sexual battery. At the conclusion of a trial, the jury convicted him as charged and fined him one thousand dollars. The trial court subsequently imposed a sentence of one year and six months, of which the defendant was ordered to serve thirty days. After unsuccessfully pursuing a judgment of acquittal or alternatively a new trial in the trial court, the defendant brings this appeal. Herein, he asserts that the record lacks sufficient evidence to sustain his conviction, that the trial court erred in failing to give the jury a curative instruction to disregard a hearsay statement made by the victim in court, and that the trial court erred in permitting the victim's brother to testify regarding a hearsay statement made by the victim. After reviewing the record and relevant authorities, we find that the defendant has waived one of these claims and that the remaining issues merit no relief. We, therefore, affirm the defendant's conviction.

Anthony Jerome Stokes v. State of Tennessee
E2002-02597-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer
The petitioner, Anthony Jerome Stokes, appeals the trial court's denial of post-conviction relief. The petitioner argues (1) that he is entitled to a delayed application for permission to appeal to our supreme court based upon his post-conviction counsel's failure to either notify him of the results of his appeal or withdraw as counsel; and (2) that the trial court erroneously declined to rule on issues presented on remand from this court. Our opinion and judgment entered April 23, 1999, in Anthony Jerome Stokes v. State, No. 03C01-9710-CR-00477, are vacated and re-entered as of this date.  Because all other issues are beyond the scope of our remand, the judgment of the trial court is affirmed.

Charles Weston Elsea, Jr. v. State of Tennessee
E2003-00091-CCA-R3-PC
Authoring Judge: Judge Gary R Wade
Trial Court Judge: Judge Stephen M. Bevil

The petitioner, Charles Weston Elsea, Jr., appeals the trial court's denial of post-conviction relief. The single issue presented for review is whether he was denied the effective assistance of counsel at trial and on appeal. The judgment of the trial court is affirmed.

State of Tennessee v. Gregory Dale Clayton
M2002-00058-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Gregory Dale Clayton, was found guilty by a jury in the Davidson County Criminal Court of driving under the influence (DUI). The trial court imposed a sentence of eleven months and twenty-nine days incarceration in the Davidson County Jail. Additionally, the appellant pled guilty to a violation of the implied consent law and suffered the forfeiture of his driver's license for one year. On appeal, the appellant raises two issues relating to the rendering of the jury's verdict. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Marvin L. Jones, alias Al Amin Hasson
E2002-02419-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Ray L. Jenkins

The defendant, Marvin L. Jones, appeals the trial court's revocation of a community corrections sentence. The single issue presented for review is whether the trial court abused its discretion. The judgment is affirmed.

State of Tennessee v. Olean W. Thompson
M2001-03093-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Donald P. Harris

The defendant Olean W. Thompson, pled guilty to theft of property $1,000 or more in value and aggravated robbery. Pursuant to a bench trial, he was found guilty of his four remaining indicted charges, four counts of especially aggravated kidnapping. The trial court then sentenced the defendant to serve two years for his theft conviction, eight years for his robbery conviction, and twenty years for each of his kidnapping convictions. The court then ordered the defendant to serve these sentences concurrently, resulting in a twenty-year aggregate sentence. The defendant now appeals his convictions and sentence, claiming that his due process rights were violated by his four convictions for especially aggravated kidnapping and that the trial court erred by imposing excessive sentences for each of his kidnapping convictions. After a thorough review of the record, we find that none of the defendant's allegations merit relief and accordingly affirm the defendant's convictions and sentence.

Billy J. Coffelt v. State of Tennessee
M2001-03073-CCA-MR3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Billy J. Coffelt, was convicted of assault with intent to commit first degree murder and assault with intent to commit robbery with a deadly weapon. Subsequently, the petitioner filed a petition for post-conviction relief, alleging the ineffective assistance of counsel, which petition was dismissed by the post-conviction court without a hearing. The petitioner currently appeals this ruling. Upon review of the record and the parties' briefs, we reverse the judgment of the post-conviction court and remand for an evidentiary hearing on the petition for post-conviction relief.

State of Tennessee v. Tammy Annette Burruss
M2002-01261-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Lee Russell

The defendant, Tammy Annette Burruss, was convicted by a Bedford County Circuit Court jury of theft of a vehicle worth more than $10,000, a Class C felony, for which she received a four-year sentence as a Range I, standard offender. She contends that the evidence is insufficient to support her conviction and that the trial court erred by allowing the state to impeach her with a prior bad check conviction pursuant to Tenn. R. Evid. 609(b). We affirm the judgment of the trial court.