State of Tennessee v. Otis Lee Price
E2002-00510-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County jury convicted the Defendant of attempted burglary, and the trial court sentenced the Defendant to three years incarceration. The Defendant now appeals, arguing that insufficient evidence was presented at trial to convict him of attempted burglary. Finding no error, we affirm the judgment of the trial court.

Andy R. Gann v. Flagstar Enterprises, Inc.
E2002-00272-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Rex Henry Ogle, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The appellant claims that the trial court erred in granting summary judgment that his claim for worker's compensation benefits was not timely filed as provided in T.C.A. _ 5-6-23. We affirm.

Sylvain Kinnon v. Wal-Mart Store, Inc.,
W2001-02428-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr, Sp. J.
Trial Court Judge: George R. Ellis, 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 employer insists the evidence preponderates against the trial court's findings as to causation, permanency and extent of permanent disability. As discussed below, the panel has concluded the judgment should be affirmed. Tenn. Code Ann. _ 5-6-225(e) (21 Supp.) Appeal as of Right; Judgment of the Chancery Court Affirmed JOE C. LOSER, JR, SP. J., in which JANICE M. HOLDER, J., and JOE H. WALKER, SP. J., joined. Jay L. Johnson, Jackson, Tennessee, for the appellant, Wal-Mart Stores, Inc. Christopher L. Taylor, Memphis, Tennessee, for the appellee, Sylvain Kinnon MEMORANDUM OPINION The employee or claimant, Kinnon, initiated this civil action to recover workers' compensation benefits, including permanent disability benefits, for a work related injury. The employer, Wal-Mart, denied liability. After a trial on the merits, the trial court awarded, among other things, permanent partial disability benefits based on 16 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) (21 Supp.). The reviewing court is required to conduct an independent examination of the record to determine where the preponderance of the evidence lies.

Billie Jo Lenear v. Rehab Care Group, Inc.
E2001-02935-WC-R3-CV
Authoring Judge: Howell N. Peoples, Special Judge
Trial Court Judge: Billy Joe White, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. _ 5-6-225(e) for hearing and reporting of findings of fact and conclusions of law. The appellant claims that the trial court erred in finding that she was not an employee and, thus, not entitled to worker's compensation benefits. We affirm.

State of Tennessee v. Eric T. Davis
M2002-00035-CCA-MR3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

Eric T. Davis appeals the Montgomery County Circuit Court's revocation of his probationary sentences and order that he serve the sentences as originally imposed in the Department of Correction. He claims that the lower court erred in finding that he committed a criminal offense based upon the uncorroborated testimony of a law enforcement informant. Because we are unpersuaded of error, we affirm.

State of Tennessee v. Kynaston Scott a.k.a Kynaston L. Olawumi
M2001-00707-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The appellant, Kynaston Scott a.k.a. Kynaston L. Olawumi, was convicted by a jury in the Davidson County Criminal Court of first degree murder and felony murder. The trial court merged the convictions and sentenced the appellant to life imprisonment in the Tennessee Department of Correction. On appeal, the appellant contends that the evidence was not sufficient to support his convictions, the trial court erred by instructing the jury on flight, and the trial court erred in admitting an inflammatory photograph. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Jerome D. Manning
M2001-03128-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Jane W. Wheatcraft

Jerome D. Manning appeals a certified question of law regarding a police officer's stop of him which resulted in his arrest for illegal possession of narcotics. Because we agree with the trial court that reasonable suspicion supported by specific and articulable facts existed for the stop and that the scope and duration of the detention were not unreasonable, we affirm the judgment of the trial court.

Glenn D. Gold v. State of Tennessee
M2001-02759-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

Glenn D. Gold appeals from the Montgomery County Circuit Court's dismissal of his pro se petition in which he seeks post-conviction, habeas corpus, and coram nobis relief. Because his attempts to receive post-conviction and coram nobis relief are untimely and his attempt for habeas corpus relief does not state a claim cognizable in that type of action, we affirm the lower court.

John H. Williams, Jr. v. Kevin Myers, Warden
M2002-00855-CCA-R3-CO
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jim T. Hamilton

The petitioner was convicted in 1988 of felony murder and is currently serving a life sentence. After exhausting his direct and post-conviction appeals, the petitioner filed a petition for a writ of habeas corpus, which the trial court subsequently denied. The petitioner now appeals the denial of his petition, arguing that the convicting court lacked subject matter jurisdiction due to a defective indictment and that the statute governing first degree murder at the time of his trial was unconstitutionally vague. He contends that for these reasons, his conviction is illegal. Having reviewed the petitioner's claims, we conclude that the original indictment upon which the petitioner's conviction was based was not defective and thus that the convicting court was not without subject matter jurisdiction. We further conclude that the statute governing the petitioner's conviction is not unconstitutionally vague. We therefore affirm the judgment of the trial court in denying the petition for a writ of habeas corpus.

State of Tennessee v. Theresa Hallsford
M2002-00959-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jim T. Hamilton

The State appeals from the order of the Maury County Circuit Court reversing the district attorney general's decision to deny the Defendant pretrial diversion for the charge of arson. We reverse the judgment of the trial court.

Michael Thomason v. Kevin Myers, Warden
M2002-01346-CCA-R3-CO
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Jim T. Hamilton

The defendant, Michael Thomason, petitioned for a writ of habeas corpus, which the trial court summarily denied. The defendant now appeals as of right. We affirm the judgment of the trial court.

State of Tennessee v. Deandre M. Broaden
W2001-03100-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

Defendant, Deandre M. Broaden, was indicted by the Shelby County Grand Jury for possession of marijuana and for possession of cocaine with intent to sell. Defendant pled guilty to both offenses, and the trial court sentenced him to four years probated under the Community Corrections Act of 1985. Defendant violated the conditions of his sentence, and the trial court resentenced him to five years confinement, crediting him four months for time served in community corrections until the date of his first violation. On appeal, Defendant argues that he should have received full credit for the amount of time served up until the filing of the petition seeking revocation of his community corrections sentence. We agree. We affirm the judgment of the trial court with respect to the revocation of Defendant's community corrections sentence and the new sentence of five years, but reverse the trial court's order insofar as it provides only four months of credit. We remand this case for entry of an amended judgment consistent with this opinion.

Jerry Burke v. State of Tennessee
W2001-01700-CCA-MR3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John P. Colton, Jr.

The petitioner, Jerry Burke, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to request a mental evaluation; (2) failing to investigate his case; and (3) failing to subpoena witnesses and cross-examine witnesses adequately. We affirm the trial court's denial of the petition.

State of Tennessee v. William Lee Clifton
W2002-00661-CCA-R9-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge C. Creed McGinley

In this interlocutory appeal, the defendant seeks review of the state's denial of pretrial diversion for the offense of sexual battery. We conclude that the prosecutor failed to consider and weigh all relevant factors and, under the circumstances of this case, improperly relied upon the defendant's refusal to take responsibility for his actions. Accordingly, we reverse the order of the trial court and remand this matter to the district attorney general for further consideration of the defendant's request for pretrial diversion in accordance with this opinion.

Kong C. Bounnam v. State of Tennessee
W2001-02603-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Bernie Weinman

The petitioner appeals the post-conviction court's denial of his petition for post-conviction relief from his convictions in the Shelby County Criminal Court for three counts of felony murder and four counts of robbery with a deadly weapon. On appeal, he contends that: (1) the trial court committed plain error by failing to instruct the jury on the lesser-included offenses of facilitation, reckless homicide, and criminally negligent homicide; and (2) his trial counsel provided ineffective assistance of counsel at trial and on direct appeal. We affirm the post-conviction court's denial of the petition for post-conviction relief.

Michael Joseph Spadafina v. State of Tennessee
W2001-02554-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Julian P. Guinn

The petitioner appeals from the denial of his writ of error coram nobis. In this appeal, he argues his first degree murder conviction should be set aside because his co-defendant, who testified against the petitioner at trial, recanted his testimony prior to the co-defendant's death. Following a hearing, the trial court denied the petition. We affirm the judgment of the trial court.

State of Tennessee v. Robert S. Neal
M2001-00441-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Leon C. Burns, Jr.
The defendant, Robert S. Neal, appeals as of right his convictions by a Putnam County jury of vehicular homicide, reckless endangerment, and child endangerment. He contends (1) that the evidence is insufficient to sustain his convictions, (2) that the trial court erroneously admitted laboratory test results regarding the presence of cocaine in his body, (3) that a Tennessee Bureau of Investigation (TBI) forensic scientist was not qualified to testify about the metabolism of cocaine, and (4) that his sentence is excessive. We merge the two child endangerment convictions pursuant to the Double Jeopardy Clause and affirm the judgments of conviction in all other respects.

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.

The Tennessee Department of Health, et al. v. Gary C. Boyle, M.D., et al.
M2001-01738-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
The issue in this case is the constitutionality of a Tennessee statute requiring a private clinic that performs a "substantial number" of abortions to acquire a certificate of need from the Health Facilities Commission and a license from the Department of Health. The Chancery Court of Davidson County upheld the statute, enjoined the defendants from operating without a certificate and a license, and imposed substantial monetary sanctions for civil contempt. We hold that the statute violates relevant provisions of the United States and Tennessee Constitutions. We therefore reverse the judgment below and dismiss the contempt charge.

The Estate of Alline Elizabeth Glasgow, Clarence E. Biggs, et al. v. Virgil S. Whittum, et al.
M2001-02263-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: C. L. Rogers
Proponents appeal judgment of the trial court on a jury verdict against the Will on a finding of undue influence by the proponents upon the testatrix. We affirm the judgment of the trial court.

State of Tennessee v. Glenda Ponder
M2002-00488-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Leon C. Burns, Jr.

Glenda Ponder appeals the DeKalb County Criminal Court's revocation of her probationary sentence and ordering into effect her incarcerative sentence in the Department of Correction. Upon review, we are unpersuaded that the lower court abused its discretion and therefore affirm.

John Jay Hooker v. Don Sundquist, et al.
M2002-01207-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Thomas W. Brothers
This case involves an appeal from an order denying a motion for Rule 11 sanctions. We reverse and remand.

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.

Gloria B. Lane v. W.J. Curry & Sons
W2000-01580-SC-R11-CV
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Judge Robert L. Childers

We granted review in this case to determine whether a landowner can bring a nuisance action against an adjoining landowner when tree branches and roots from the adjoining landowner's property encroach upon and damage the neighboring landowner's property. The plaintiff asserts that encroaching branches and roots from the defendant's trees constitute a nuisance for which she is entitled to seek damages. The defendant responds that the plaintiff's sole remedy is self-help and, therefore, the plaintiff may not recover for any harm caused by the defendant's trees. The trial court and Court of Appeals agreed with the defendant, and held that an adjoining landowner's only remedy is self-help and that a nuisance action cannot be brought to recover for harm caused by encroaching tree branches and roots. We have determined that self-help is not the sole remedy of an adjoining landowner and that a nuisance action may be brought when tree branches and roots from the adjacent property encroach upon and damage the neighboring landowner's property. Although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either above or below the ground, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or potential harm to the adjoining property. We further find that the record in this case is sufficient to establish liability for nuisance. Accordingly, the judgment of the Court of Appeals affirming the trial court's dismissal of the case is reversed. The case is remanded to the trial court for a determination of damages and other appropriate relief.

James Ward vs. Susan Ward
W2001-01078-COA-R3-CV
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Walter L. Evans
Mr. James Ward filed a Compliant for divorce on July 31, 1998. Mrs. Ward filed a Counter-Complaint for Absolute Divorce on November 30, 2000. The trial was held February 19, 2001 through February 22, 2001 and continued March 1, 2001 to March 2, 2001. On March 2, the Chancellor issued findings of fact and divided the marital property. Mrs. Ward asked the court to find Mr. Ward dissipated approximately $107,355 in marital assets, and requested the court award her attorney's fees as well as litigation expenses because the search for hidden funds resulted in a large portion of her attorney's fees. The Chancellor determined Mr. Ward did not dissipate marital assets, and denied the request for attorney's fees. The chancellor entered the final decree of divorce on April 6, 2001. This appeal followed.