Gary Buck v. John Scalf
M2002-00620-COA-R3-CV
Authoring Judge: Chancellor Vernon Neal
Trial Court Judge: Walter C. Kurtz
This is an appeal from an order of the trial court granting a motion for summary judgment in favor of Hartford Underwriter's Insurance Company on the ground that plaintiff's uninsured motorist claim against Hartford is barred by the one-year statute of limitations. We reverse the judgment of the trial court and remand.

Ronnie Cox vs. Amy Cox
E2002-02034-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Steven C. Douglas
Ronnie R. Cox ("Husband") and Amy R. Cox ("Wife") were divorced in 1993. At that time, the parties had two minor children. They subsequently had another child. In 1998, the parties entered into an agreed order that provided for joint physical and legal custody with each parent having equal time with the children. The agreed order also required Husband to pay $200 per month to Wife for child-care expenses. In 2002, Husband filed a Petition for Modification seeking to be relieved of the $200 per month obligation because Wife's income had increased substantially and was equal to, or greater than, Husband's. The Trial Court found, inter alia, the $200 payments were contractual in nature and denied the Petition for Modification. Husband appeals. We reverse.

In Re: The estate of Nola Mae Mullins vs. Mary Panther
E2002-02094-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John D. Mcafee
Administrators of the Estate petitioned the Court to require respondent to account for funds held by her by virtue of her power of attorney for deceased. We affirm the Trial Judge's Order requiring an accounting.

Helen Cornell vs. State
E2002-02173-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Vance W. Cheek
Plaintiff's claim for injuries sustained from falling in hole in state park was dismissed by Commissioner. On appeal, we affirm.

Patrick Beaudreau vs. General Motors Acceptance
E2002-00850-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: O. Duane Slone
Patrick Beaudreau ("Plaintiff") purchased a new car from Thomas-Hill Auto Center ("Dealer"). In order to finance the purchase of the vehicle, Plaintiff signed a retail installment sales contract ("Contract") at an annual percentage rate ("APR") of 13.5%. The Contract listed Dealer as the creditor. General Motors Acceptance Corporation ("GMAC") purchased the Contract from Dealer at a rate of 11.25% ("buy rate"). GMAC paid Dealer the difference between the APR and the buy rate ("dealer reserve"). Plaintiff sued GMAC claiming GMAC had conspired with Dealer to defraud him by not revealing the dealer reserve and the buy rate, or what Plaintiff claims is the "real interest rate." GMAC filed a motion for summary judgment. The trial court found the business practices of GMAC detailed in the record are not unlawful or fraudulent and granted summary judgment. Plaintiff appeals, asserting that the trial court erred in its treatment of Plaintiff's expert's affidavit and in granting summary judgment. We vacate the grant of summary judgment and remand.

Brenda Buchanan vs. Berkley Buchanan
E2002-00915-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: James L. Weatherford
This is a divorce case. Both parties sought a divorce. Brenda Watson Buchanan ("Wife") was granted an absolute divorce from Berkley Ottie Buchanan ("Husband") on the ground of inappropriate marital conduct. In its judgment, the trial court decreed, among other things, that Wife was to be paid alimony in the amount of $750 per month for 24 months; costs of $579.70; and attorney's fees of $1,850. Husband appeals contending that the trial court erred in making all of these decrees. We affirm.

Susan Carroll vs. David Carroll
E2002-01021-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Steven C. Douglas
This is a divorce case. The only issues raised on appeal pertain to the trial court's award of alimony. That court awarded David William Carroll ("Husband") alimony of $2,000 per month "until the death of either party or his remarriage." Susan Elizabeth Carroll ("Wife") appeals, contending that Husband should be awarded rehabilitative alimony rather than alimony in futuro, and that, in any event, $2,000 per month "is excessive." We modify the trial court's award of alimony. As modified, the trial court's judgment is affirmed.

Denise Ashworth vs. Greene County
E2002-00500-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II
Denise Ashworth, the proprietress of a bed and breakfast in Greene County, filed a declaratory judgment action challenging the constitutionality of a hotel/motel privilege tax authorized by private act of the General Assembly ("the Act") and approved by the Greene County Commission. Among other relief, she seeks the return of approximately $3,000 in taxes collected by her from patrons and paid by her under protest to Greene County. While her suit was pending, the trial court permitted an individual who had stayed one night at a local motel to intervene in this case. The gravamen of his complaint was the same as that of Ashworth's. The trial court granted the defendants summary judgment as to Ashworth's claim, finding that she was not the taxpayer under the Act and, consequently, did not have standing to pursue her claim. As to the intervenor's claim, the trial court held that the Act was unconstitutional and ordered that he be refunded the sum of $1.61, the amount of the tax that he had paid under protest, plus interest. Only Ashworth appeals. She contends that the traditional concept of standing should be broadened to permit her to pursue her claim. We affirm the judgment of the trial court.

State of Tennessee v. Blake Shane Walker
E2002-00509-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County jury found the Defendant guilty of theft of property valued over $500 and of burglary of a motor vehicle. The trial court sentenced the Defendant as a Range II offender to three years for each conviction and ordered that the sentences run concurrently to each other but consecutively to prior sentences in Jefferson County. The Defendant now appeals, arguing that insufficient evidence was presented to convict the Defendant of theft and burglary. Finding no error, we affirm the judgments of the trial court.

Charles Whited vs. Christy Fleenor
E2002-01185-COA-R3-JV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: J. Klyne Lauderback
Trial Court ordered child's surname changed from mother's to father's. We reverse.

State of Tennessee v. Matthew Melton Jackson
M2001-01999-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Michael R. Jones

Defendant, Matthew Melton Jackson, appeals the sentence imposed upon him by the trial court following his guilty plea to aggravated kidnapping, aggravated robbery, theft of property over $500.00 and two counts of aggravated rape. We affirm the judgments of the trial court.

State of Tennessee v. Clarence Carnell Gaston, Migwon Deon Leach, and Marion Deangalo Thomas
W2001-02046-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The defendants, Clarence Carnell Gaston, Miqwon Deon Leach, and Mario Deangalo Thomas, were convicted by an Obion County Circuit Court jury of conspiracy to commit second degree murder, second degree murder, and first degree felony murder. Finding aggravating circumstances (3) and (7) applicable to both Leach and Thomas, and aggravating circumstances (2), (3), and (7) applicable to Gaston, the jury sentenced each defendant to life without the possibility of parole for the first degree murder convictions. The trial court merged the second degree murder convictions into the convictions for felony murder and sentenced the defendants to eight years for the conspiracy convictions, to be served concurrently to their life sentences without possibility of parole. All three defendants challenge the sufficiency of the convicting evidence. Leach and Thomas each raise issues regarding the appropriateness of their life sentences without parole, and Thomas raises two additional issues of whether his trial should have been severed, and whether the verdicts of first degree felony murder and conspiracy to commit second degree murder are impermissibly inconsistent. After a thorough review of the record and of applicable law, we affirm the judgments of conviction and the sentences imposed. However, we remand to the trial court for entry of a corrected judgment form for Gaston's conspiracy conviction to reflect that he was found guilty by a jury.

State of Tennessee v. Tony Martin - Concurring
W2001-02221-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Bernie Weinman
I concur in most of the reasoning and the result reached in the majority opinion. However, I conclude that the defendant waived the issue regarding the jury instruction on the definitions of “knowing.” I also conclude that the failure to limit the definition of “knowing” does not constitute plain error.

State of Tennessee v. Marlon Marktavias Fitzgerald
W2001-03096-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Fred Axley

The defendant appeals his convictions of first degree premeditated murder and first degree felony murder. The defendant argues that the State did not present sufficient evidence at trial to support his convictions. We disagree. The defendant also argues the trial court erred in not charging the jury on second degree murder and voluntary manslaughter as lesser-included offenses of felony murder. We agree but conclude the error was harmless and affirm the judgments of the trial court.

Donna Mancuso-Bertone v. Michael E. Braswell
M2002-00025-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Clara W. Byrd

The mother of a fourteen year old male child appeals the action of the trial judge in denying her Petition for a change of custody. The trial court found that no material change of circumstances had been established by the evidence that would justify change of custody. We affirm the action of the trial court.

State of Tennessee v. Michael Armstrong
W2001-01300-SC-R11-CD
Authoring Judge: Justice E. Riley Anderson
Trial Court Judge: Judge John P. Colton, Jr.

We granted this appeal to determine whether a trial court's entry of an order of correction filed after the entry of the final judgment satisfied the requirements for the defendant to appeal a certified question of law pursuant to Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure. The Court of Criminal Appeals concluded that neither the order nor the final judgment met the requirements for appealing a certified question of law set forth in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and dismissed the appeal. After reviewing the record, we conclude that the trial court's order of correction under Rule 36 of the Tennessee Rules of Criminal Procedure was entered while the trial court had jurisdiction before the filing of a notice of appeal and therefore complied with the prerequisites for raising a certified question of law on appeal under the circumstances of this case. Accordingly, we reverse the judgment and remand for the Court of Criminal Appeals to address the merits of the appeal.

Richard Lynn Norton v. State of Tennessee
E2002-00305-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James E. Beckner

The petitioner, Richard Lynn Norton, appeals from the trial court's denial of his petition for post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

Carl Bland v. American Freightways Corporation
W2002-01122-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Kay Spaulding Robilio, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employer insists (1) the trial court erred in finding that the plaintiff suffered an injury by accident to his body as a whole arising out of and in the course of his employment, (2) the trial court erred in not applying the doctrine of judicial estoppel to the facts of the case; and (3) the trial court erred in assigning vocational disability to the appellee because there was no expert proof. As discussed below, the panel has concluded the appeal is without merit. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Ronald L. Harper and R. Scott Vincent, Memphis, Tennessee, for the appellant, American Freightways Corporation Lincoln A. R. Hodges, Germantown, Tennessee, for the appellee, Carl Bland MEMORANDUM OPINION The employee or claimant, Mr. Bland, initiated this civil action to recover workers' compensation benefits for an injury that occurred in the course of his employment with the employer, American Freightways. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 3 percent to the body as a whole. The employer has appealed. Appellate review is de novo upon the record of the trial court, accompanied by a presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Mary Frances Wynn v. Heckethorn Manufacturing Co.,
W2002-00565-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: J. Steven Stafford, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the employee insists the award of benefits based on 55 percent to the body as a whole is inadequate and seeks an increased award. As discussed below, the panel has concluded the evidence does not preponderate against the trial court's findings. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR., SP. J., in which JANICE M. HOLDER, J., and JOHN K. BYERS, SR. J., joined. Jay E. DeGroot, Jackson, Tennessee, for the appellant, Mary Frances Wynn James H. Tucker, Nashville, Tennessee, for the appellees, Heckethorn Manufacturing Co., Inc. and Vigilant Insurance Company MEMORANDUM OPINION The employee or claimant, Ms. Wynn, initiated this civil action to recover workers' compensation benefits for an accidental injury to her left shoulder and neck occurring on March 5, 1998, while she was performing production welding. Following trial on November 28, 21, the trial court awarded, among other things, permanent partial disability benefits based on 55 percent to the body as a whole. The claimant has appealed. Appellate review is de novo upon the record of the trial court, accompanied bya presumption of correctness of the findings of fact, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2) (22 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Arthur Stigall v. Bronson M. Lyle, et al.
M2001-00803-COA-R3-CV
Authoring Judge: Presiding Judge Ben H. Cantrell
Trial Court Judge: Judge Leonard W. Martin

The plaintiff filed this action in the Chancery Court of Houston County seeking to quiet title to a parcel of property located there. The court granted the defendants' Tenn. R. Civ. P. 12.02 motion to dismiss the plaintiff's complaint, and imposed sanctions pursuant to Tenn. R. Civ. P. 11. Although the appellant raises legitimate issues as to the grounds cited for dismissing the complaint, we nevertheless affirm, finding that the complaint conclusively shows that the plaintiff has no colorable title to the subject property.

Boyd Stinson, et al., v. Brenda Sue Bobo
M2001-02704-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor R.E. Lee Davies

This appeal involves a conflict between neighbors over whether the Stinsons have a right to use a dirt lane that runs across the edge of Mrs. Bobo's property and connects the Stinsons' property to a county road. The trial court found a prescriptive easement was proved. Mrs. Bobo appeals that judgment to this court on two grounds: (1) that the Stinsons failed to show exclusive use of the easement during the prescriptive period; and (2) that there was no acquiescence to the Stinsons' claim of right to use the easement by the prior owners of what is now Mrs. Bobo's property during the prescriptive period. We affirm the trial court's judgment.

Bobby Bobbitt, et al., v. Dorothy B. Shell, Commissioner, et al.
M2002-00512-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Irvin H. Kilcrease, Jr.

Appellants, state employees, were subjects of a Reduction In Force ("RIF") and appeal the order of the chancery court dismissing their petition for review of the Commissioner of Personnel's decision that their respective positions were correctly resolved in the RIF.

Joe H. Parks v. George Eslinger, et al.
M1999-02027-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Jim T. Hamilton

This second appeal in this dispute involves the trial court's modifications of a special master's report regarding the liabilities of the parties after the dissolution of their partnership. The special master reported that one partner, Mr. Eslinger, owed the other partner, Mr. Parks, $10,051.30. Mr. Parks objected, and the trial court modified the special master's report, awarding Mr. Parks an additional $45,427.04, and ordered that Mr. Eslinger pay the costs of the special master. Mr. Eslinger now appeals the trial court's modifications and award of costs. Because the record does not support the trial court's modifications, we reverse and reinstate the master's findings as amended. We modify the award of the costs of the special master.

State of Tennessee v. Jessie Jones
W2001-02774-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge W. Fred Alxey

The defendant, Jessie Jones, appeals as of right his conviction by a Shelby County jury of attempted second degree murder, a Class B felony. The trial court sentenced him as a Range II, multiple offender to twenty years in the Department of Correction. The defendant contends (1) that the trial court should have instructed the jury on self-defense and (2) that attempted second degree murder is not an offense in Tennessee. Although we hold that attempted second degree murder is an offense, we reverse the conviction because the failure to instruct on self-defense is plain error. We remand the case to the trial court for a new trial.

Crystal Rena Sturgill v. State of Tennessee
E2002-00385-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge James E. Beckner

The petitioner, Crystal Rena Sturgill, appeals from the Greene County Criminal Court's denying her post-conviction relief from her convictions for three counts of first degree murder, one count of attempted first degree murder, two counts of especially aggravated kidnapping, two counts of aggravated kidnapping, and one count of Class D felony theft. Essentially, she contends (1) that her guilty pleas were not knowingly, intelligently, and voluntarily entered, (2) that due process was violated by the mass sentencing procedure, and (3) that she received the ineffective assistance of counsel. We affirm the judgment of the trial court.