First National Bank of Chicago, et al. v. Cumberland Bend Investors, L.P., et al.
M2000-00001-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute between a buyer and a seller of commercial property in Nashville over the buyer's obligation to indemnify the seller for legal expenses incurred in a successful defense of a suit for commissions filed by the former manager of the property. The seller filed suit in the Chancery Court for Davidson County seeking to recover its legal expenses from the buyer under the theories of indemnification and contribution. The trial court granted the buyer's motion for summary judgment and dismissed the complaint because the seller failed to prove that it had an express or implied right to indemnification and because, as a matter of law, contribution was inappropriate under the circumstances. We concur and, therefore, affirm the trial court's dismissal of the complaint.

John T. King v. Anne B. Pope
M2000-02127-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Davidson County -In this case, we must decide whether a pay telephone sale-leaseback program marketed and sold by the plaintiff constitutes an investment contract, and thus a security under the Tennessee Securities Act of 1980. In finding that the program was a security, the trial court applied the definition of "investment contract" adopted by the Court of Criminal Appeals in State v. Brewer, 932 S.W.2d 1 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). Under this test, an investment contract exists where (1) An offeree furnishes initial value to an offeror, and (2) a portion of this initial value is subjected to the risks of the enterprise, and (3) the furnishing of the initial value is induced by the offeror's promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise, and (4) the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise. Brewer, 932 S.W.2d at 11 (quoting State v. Hawaii Market, 485 P.2d 105, 109 (Haw. 1971)). The Court of Appeals rejected the Brewer test and instead adopted the federal test for determining whether a particular transaction is an investment contract. See United Hous. Found., Inc. v. Forman, 421 U.S. 837 (1975); SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Applying this test, the Court of Appeals held that the pay telephone sale-leaseback program at issue in this case is not a security. After careful consideration, we agree with the trial court's finding that the appropriate test for determining the presence of an investment contract is set forth in Brewer. Applying this test, we agree with the trial court that the plaintiff's payphone sale-leaseback program is an investment contract and that the plaintiff was thus marketing and selling unregistered securities in violation of Tennessee law.

State of Tennessee v. William Marvin Brown
M2001-02287-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Charles Lee
The defendant, William Marvin Brown, appeals as of right his conviction by a Marshall County Circuit Court jury for child rape, a Class A felony, and the resulting twenty-three-year, nine-month sentence. He contends that the evidence is insufficient to identify him as the perpetrator of the crime and that the trial court erroneously failed to apply mitigating factors, which resulted in an excessive sentence. We affirm the judgment of conviction.

State of Tennessee v. Joel Christian Parker
M2001-00773-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Leon C. Burns, Jr.

On February 2, 2000, the defendant was convicted by a jury of the offense of aggravated robbery. He received a sentence of nine years in the state penitentiary. In this appeal he raises eight (8) issues for our review: (1) whether the evidence is sufficient to support the verdict; (2) whether the defendant was tried by a fair and impartial jury; (3) whether the trial court committed reversible error in failing to instruct the jury on the offenses of assault or aggravated assault; (4) whether there was prosecutorial misconduct; (5) whether the defendant was subjected to a constitutionally flawed show-up shortly after the robbery; (6) whether the trial court correctly instructed the jury as to what they must do if they have a reasonable doubt that the defendant possessed the requisite mental state for the offense; (7) whether the trial court should have dismissed the case because the state destroyed evidence fundamental to the defense; (8) whether the defendant's sentence is excessive.

State of Tennessee v. Dondie Tidwell
M2000-2628-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge James K. Clayton, Jr.

A Rutherford County jury convicted the defendant, Dondie Eugene Tidwell, of two counts of first degree murder, one count of conspiracy to commit first degree murder, one count of especially aggravated kidnapping, and one count of theft over $10,000. The trial court merged the defendant’s two first degree murder convictions and ordered the defendant to serve twenty-three years for his conspiracy to commit first degree murder conviction, twenty-three years for his especially aggravated kidnapping conviction, and four years and six months for his theft conviction.  The trial court ordered these sentences to run concurrently to each other and consecutively to the defendant’s sentence for his merged first degree murder conviction, life without the possibility of parole. Thus, the defendant received an aggregate sentence of life without the possibility of parole plus twenty-three years. The defendant now brings this appeal, challenging his convictions and his sentence on the bases that (1) the trial court erred by refusing to allow him to excuse a juror using a peremptory challenge; (2) the evidence introduced at trial is insufficient to support his convictions; (3) the prosecutor made inappropriate comments when delivering the state’s opening statement; (4) the trial court erred by allowing an expert to testify on subjects beyond the scope of that witness’s expertise; (5) the trial court erred by refusing to allow him to introduce evidence of the drugs that were present in the victim’s system at the time of the victim’s death; (6) the trial court instructed the jury incorrectly on the charge of conspiracy; (7) the trial court erred by admitting a photograph of the victim taken after the victim’s death during the sentencing phase of the trial; (8) the trial court erred by refusing, in the sentencing phase, to allow the defendant to compare his potential sentence to the sentence received by his co-conspirator; (9) the trial court erred by allowing the introduction of certain hearsay evidence; (10) the prosecutor exceeded the permissible scope of his rebuttal closing argument; and (11) the trial court erred by imposing consecutive sentencing. After reviewing the record, we find that the trial court did err by refusing to allow the defendant to exercise a peremptory challenge and that therefore the defendant is entitled to a new trial on this basis.
However, we find that the remainder of the issues presented in this appeal have either been waived or lack merit.

State of Tennessee v. Ricky Lee Inscore
E2002-01005-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge R. Jerry Beck

The defendant, Ricky Lee Inscore, pled nolo contendere to aggravated burglary and sexual battery. The Sullivan County trial court sentenced the defendant to three years for aggravated burglary and two years for sexual battery as a Range I standard offender to be served concurrently in the Department of Correction. In this appeal of right, the defendant presents the issue of whether the trial court erred in denying him probation or alternative sentencing. After reviewing the record, we affirm the judgments of the trial court.

State of Tennessee v. Joseph Jackson Jr.
W2001-02779-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Arthur T. Bennett

Defendant attempted to shoot and kill Johnny Maxwell, missed, and accidentally shot twelve-year-old Brittney Taylor, seriously injuring her. A jury convicted the defendant of attempted first degree murder of Maxwell and attempted first degree murder of Taylor. He appeals, claiming the trial court erroneously charged the jury, relative to the doctrine of transferred intent; that double jeopardy bars convictions of both offense; and the evidence was insufficient to sustain the attempted first degree murder convictions. We agree and affirm both convictions.

James Darrell Horn v.State of Tennessee
E2001-02616-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The petitioner, James Darrell Horn, appeals the Sullivan County Criminal Court's denial of post-conviction relief. In his post-conviction petition, the petitioner challenged his jury convictions on more than 30 aggravated burglary counts and nearly as many theft counts. As a result of his many convictions, the petitioner is serving an effective 90-year sentence in the Department of Correction. On direct appeal, his convictions and sentences were affirmed by this court. See State v. James D. Horn, No. 03C01-9712-CR-00537 (Tenn. Crim. App., Knoxville, Jul. 20, 1999), perm. app. denied (Tenn. 2000). The petitioner asserted that his previous appellate counsel was ineffective because she did not raise on direct appeal whether the trial court (1) erred in not suppressing the petitioner's pretrial statements and (2) in not suppressing physical evidence seized during a warrantless search of his residence. He also claimed that his trial and appellate counsel were ineffective because they did not properly challenge the sufficiency of the evidence on three or four specific counts of the indictments. After an evidentiary hearing, the trial court entered a very thorough order denying post-conviction relief. Upon our review, we affirm.

State of Tennessee v. Richard Bokanper
W2002-00748-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Richard Bokanper, appeals his Shelby County Criminal Court jury convictions of burglary and theft. Following the guilty verdicts, the trial court sentenced the defendant as a career offender to an effective term of twelve years in the Department of Correction. On appeal, the defendant challenges only the sufficiency of the convicting evidence. Because the evidence insufficiently corroborates the inculpative testimony of an accomplice, we reverse the convictions and dismiss the charges.

Sherry Lynn Hudgens v. Royal & Sunalliance Insurance
M2001-02984-WC-R3-CV
Authoring Judge: James L. Weatherford, Sr. J.
Trial Court Judge: J.O. Bond, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employer appeals the judgment of the trial court awarding the employee 45% permanent partial disability to her left arm. The employee, who was diagnosed with DeQuervain's Syndrome caused by repetitive use of her hands while working for the employer, had sustained a 2% anatomical impairment to the upper extremity and had permanent restrictions on the use of her left hand. The employer contends the trial court erred by 1) granting an excessive award; and 2) finding that the injury was to the arm rather than the hand. We hold that the evidence does not preponderate against the trial court's findings. Accordingly, the judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Criminal Court Affirmed. JAMES L. WEATHERFORD, SR. J., in which JANICE M. HOLDER, J., and JOE C. LOSER, JR., SP.J., joined. John W. Barringer, Jr., Nashville, Tennessee, for the appellants, Royal & Sunalliance Insurance and TennPlasco, Inc. Frank D. Farrar and William Joseph Butler, Lafayette, Tennessee, for the appellee, Sherry Lynn Hudgens. MEMORANDUM OPINION Mrs. Sherry Lynn Hudgens, the employee/appellee, was 42 years old at the time of trial, has a twelfth grade education, and has no special skills or training. All of the jobs she has held in the past involved some type of manual labor. She has worked as a dishwasher, hotel maid, custodian and school bus driver. She has also worked in factories and fast food restaurants, and on farms baling hay. From 1999 until 21, Mrs. Hudgens worked in the finishing department for TennPlasco, Inc., the employer/appellant, where she unpacked boxes of parts and loaded these parts onto an assembly line. On January 5, 21, Mrs. Hudgens felt burning and pain in her forearm and wrist area while working at TennPlasco. She was referred to Dr. Paul Abbey who gave her a wrist immobilizer to reduce the pain. Prior to her employment with TennPlasco, Mrs. Hudgens had never experienced or complained of pain or complications with her left wrist, hand, or arm.1 Still experiencing pain, Mrs. Hudgens sought additional treatment from Dr. Robert P. Landsberg, a board certified orthopedic surgeon. On July 18, 21, Dr. Landsberg conducted an evaluation of her left arm and also reviewed her prior medical records. Dr. Landsberg diagnosed Mrs. Hudgens with "DeQuervain's syndrome which is constrictive tenosynovitis in the first dorsal extensor compartment on the left." He found the anatomical problem to be above the wrist, but that it affected the use of her thumb and wrist. Dr. Landsberg assigned a 2% permanent partial impairment rating to the left upper extremity based upon the latest edition of the AMA Guides. On February 21, 21, Mrs. Hudgens was released to return to work with permanent restrictions of no repetitive gripping or squeezing with the left hand. She was laid off on February 24, 21, and has not been called back to work at TennPlasco. Mrs. Hudgens testified that she cannot return to any of her previous jobs because of her injury and permanent restrictions. She applied for eight or nine jobs within three weeks prior to trial, but had not been contacted by any employer. According to Mrs. Hudgens, "Whenever I use [my left arm] a lot, I have swelling that comes up in the arm area down into the wrist and thumb." She can only perform moderate physical activities with her left arm for 15 to 2 minutes before the pain and swelling begins. Mrs. Hudgens testified that before her injury she could feed her animals, mow the lawn, cook, clean, and perform other household chores. She now uses paper plates and cups because she is unable to lift her ceramic plates and glassware. The trial court found that Mrs. Hudgens had sustained a 45% permanent partial disability to 1 Mrs. Hud gens suffered a previous injury to her right arm while working for TennPlasco for which she received a 1% upper extremity impairment rating for loss of strength to her right side. This injury is not an issue in the present case. -2-

David C. Moss v. Feldkircher Wire Fabricating Co., Inc. and The
M2001-01634-WC-R3-CV
Authoring Judge: Gray, Sp. J.
Trial Court Judge: Iirvin Kilcrease, Jr.,Chancellor
This Worker's Compensation Appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Annotated _ 50-6-225(e) for hearing and reporting findings of fact and conclusion of law. In this case, the plaintiff contends that the trial court erred in (1) concluding that he did not sustain work related carpal tunnel syndrome and (2) in assigning him a vocational impairment of ten percent (10%) to the body as a whole. For reasons stated below we affirm the judgment of the trial court.

State of Tennessee v. Steven E. Smith
E2001-02892-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leon C. Burns, Jr.

In December 1997, the defendant was convicted of the sale of cocaine over .5 grams, a Class B felony, and sentenced to eight years, with all but sixty days suspended, and the balance to be served on probation. In October 1998, his probation was revoked because he was convicted that year of possession of marijuana, criminal impersonation, and contributing to the delinquency of a minor. He was incarcerated for ninety days and again placed on probation, this time in community corrections. In December 1998, another probation violation warrant was issued, this time alleging that the defendant had absconded. In September 1999, his probation was revoked and he was ordered to serve the balance of his sentence in the Department of Correction. Apparently, he was again placed on probation, with the case transferred to Michigan. In April 2001, another probation warrant was issued, charging the defendant with failing two drug screens and attempting to adulterate a drug screen. Following a hearing, the court revoked the defendant's probation and he timely appealed. We affirm the judgment of the trial court.

State of Tennessee v. Nicole Beaudion a/k/a Nikki Napier
M2001-01560-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Nicole Beaudion, also known as Nikki Jo Napier, appeals pursuant to Tennessee Rule of Criminal Procedure 35(b). After pleading guilty to facilitation of especially aggravated robbery, a Class B felony, and agreeing to accept a fifteen-year sentence to be served in the Department of Correction with a 30 percent release eligibility date, the defendant filed a timely Rule 35(b) motion to reduce her sentence to ten years. The trial court denied this motion, and the propriety of this action is now challenged on appeal.

State of Tennessee v. Jeffrey Lynn Murphy
M2002-00984-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Lillie Ann Sells

The Defendant, Jeffrey Lynn Murphy, pled guilty to one count of fraud and was placed on probation for three years. The Defendant's supervising officer subsequently filed a probation violation warrant and a hearing was held. The trial court revoked the Defendant's probation and ordered him to serve his sentence in the Department of Correction. The Defendant now appeals, claiming that the trial court should have extended his period of probation, instead. We affirm the trial court's judgment.

Tonya L. Merrick v. Metropolitan Government of Nashville and Davidson County
M2006-01169-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Walter C. Kurtz

State of Tennessee v. Harry Jamieson
W2001-02449-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Otis Higgs, Jr.
The defendant was convicted by a Shelby County Criminal Court jury of one count of aggravated robbery, a Class B felony, and two counts of aggravated assault, Class C felonies, based on his participation in an armed robbery of a Memphis restaurant. He was sentenced by the trial court as a standard, Range I offender to concurrent terms of nine years for the aggravated robbery conviction and four years for each aggravated assault conviction, for an effective sentence of nine years in the Department of Correction. He was fined $500 for each conviction. On appeal, the defendant argues that the trial court erred by failing to instruct the jury on the lesser-included offenses of facilitation of aggravated robbery and aggravated assault and by improperly applying enhancement factors to enhance his sentences from the minimum in his range. We conclude that the trial court’s failure to instruct the jury on the lesser-included offenses of facilitation constitutes reversible error under the circumstances of this case. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

State of Tennessee v. David Earl Palmer
W2001-02515-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge C. Creed McGinley

Defendant, David Earl Palmer, was convicted by a jury of aggravated burglary and aggravated rape. The trial court sentenced Defendant to five years for the aggravated burglary conviction and twenty-five years for the aggravated rape conviction. In his appeal, Defendant contends that the evidence presented at trial was insufficient to sustain either conviction. After a thorough review of the record, we affirm the judgments of the trial court.

State of Tennessee v. Ronald David Wallace, Jr.
E2002-00695-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Ronald David Wallace, Jr., was convicted of four counts of aggravated sexual battery. See Tenn. Code Ann. § 39-13-504(a)(4) (providing that “[a]ggravated sexual battery is unlawful sexual contact with a victim by the defendant . . . [where] [t]he victim is less than thirteen (13) years of age”). The trial court ordered concurrent sentences of eight years. In this appeal of right, the defendant argues that the evidence was insufficient to support his convictions. The judgments of the trial court are affirmed.

Kevin Haney vs. Brad Copeland
E2002-00845-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm.

Robert L. Wilks v. State of Tennessee
E2002-00846-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Robert L. Wilks, appeals from the trial court's denial of his petition for habeas corpus relief. The trial court did not appoint counsel. In this appeal of right, the petitioner alleges that the trial court erred by denying the appointment of counsel and by entering the order of summary dismissal. The judgment is affirmed.

Elizabeth Whitaker vs. Lawson Whitaker
E2002-00847-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jacqueline E. Schulten
In this post-divorce case, Lawson S. Whitaker, III ("Father") filed a complaint against Elizabeth Donahue Whitaker ("Mother"), seeking to hold her in contempt of court for depriving him of visitation privileges and parenting time with the parties' minor daughter, Grace Anne Whitaker (DOB: September 6, 1996) ("the child"). In response, Mother filed, inter alia, a counterclaim for contempt and for modification of the parties' Parenting Plan. The trial court found a substantial and material change in circumstances justifying a modification of the Parenting Plan. In addition, the trial court held Father in contempt due to his failure to follow the court's prior orders and for harassing Mother. Father appeals both the modification and the court's finding of contempt. Mother seeks attorney's fees for this appeal. We affirm and remand to the trial court for that court to set attorney's fees for Mother in connection with this appeal.

Ferryl McClain vs. Richard McClain
E2002-00913-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John S. Mclellan, III
This is a divorce case. The trial court dissolved the parties' marriage based upon a stipulated ground for divorce; divided the marital property; and awarded Richard Perry McClain ("Father") primary physical custody of the parties' two minor children. Ferryl Theresita McClain ("Mother") appeals the grant of custody to Father. In addition, she raises several procedural issues. We affirm.

Frances Jones ex rel. Nell Hampton vs. LaFollette Nursing Home
E2002-01183-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Conrad E. Troutman, Jr.
Frances B. Jones, on behalf of her mother, Nell Hampton, sues LaFollette Nursing Home, alleging Ms. Hampton was entitled to damages for improper care given to her while a resident patient there. The Trial Court granted a summary judgment in favor of the Nursing Home upon finding that Ms. Hampton's claim was barred by the applicable statutes of limitations and that she introduced no proof to rebut the Nursing Home's proof that they met the appropriate standard of care in ministering to Ms. Hampton. We dismiss the appeal.

Prudential Botts & Associates vs. R & E Properties
E2002-01827-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this case Prudential Botts & Associates Realtors, Inc., a real estate agency, sues R & E Properties, LLC, and one of its principals, Paula Ellis, and her father, James Runion, who advised and exerted influence over his daughter in connection with the business of R & E. The suit alleges that the Defendants violated the Tennessee Consumer Protection Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a real estate transaction did not close as a result of misstatements made by the individual Defendants, thereby causing Prudential to lose a commission it otherwise would have received. After a plenary trial the Chancellor found in favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000 in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss.

Leah Miller vs. Gary Hill
E2002-02018-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Wheeler A. Rosenbalm
Leah Michelle Miller, a minor, was injured while attempting to dismount a trampoline in the yard of a two-story duplex. Her parents, Robert G. Miller and Brenda Gail Miller ("the plaintiffs"), rented the lower unit of the duplex. The Millers sued their landlords, Gary Boyd Hill and Martha Hill ("the Landlords"). They also named as defendants the occupants of the upstairs unit, Steve Cooper and Tanya Caldwell. The suit against these latter two defendants was based upon their ownership of the trampoline. The Landlords moved for summary judgment. They essentially argued that they owed no duty of care to the plaintiffs or their child with respect to the trampoline. The trial court granted the motion and entered a final judgment pursuant to Tenn. R. Civ. P. 54.02. We affirm.