State of Tennessee v. Opal Gause
W2002-01225-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Clayburn L. Peeples

Defendant, Opal Gause, entered a guilty plea to two counts of aggravated assault. The trial court sentenced Defendant to two consecutive three-year terms, for an effective sentence of six years. The sentences were suspended, and Defendant was placed on probation for the length of his original sentences. A violation warrant was subsequently issued alleging Defendant had failed to meet the conditions of his probation. Following a hearing, Defendant's probation was revoked, and he was ordered to serve his original sentence with credit for time served pre-trial. Defendant now challenges the revocation of his probation. Following a review of the record, we affirm the decision of the trial court.

Kevin Wilkins v. State of Tennessee
W2002-00436-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John P. Colton, Jr.

Petitioner, Kevin Wilkins, filed his petition for post-conviction relief in the Shelby County Criminal Court on December 6, 2001. The State filed a response moving the trial court to dismiss the petition because it was filed after the statute of limitations had expired. Without a hearing, the trial court entered an order granting the State's request and dismissed the petition on the basis that it was filed past the one-year limitation set forth in Tennessee Code Annotated section 40-30-202. Petitioner filed a timely notice of appeal. We reverse the judgment of the trial court and remand this case for a hearing.

Sammy Vest vs. Francis Goswitz
E2001-01613-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: James B. Scott, Jr.
This is a medical malpractice case filed on January 3, 2000, and amended on January 11 of the same year. The suit was by Sammy W. Vest and his adult children, Anglia M. Somner, Cheryl D. Travis, and Danny W. Vest, against Dr. Francis Goswitz and Dr. Helen Vodopick. The suit seeks damages for the Defendants' failure to refer Mr. Vest to a specialist, resulting in an injury to him as well as to his children. The Trial Judge sustained a motion by the Defendants to dismiss the children as parties Plaintiff, and later a motion for summary judgment as to Mr. Vest's suit. He further granted sanctions pursuant to Rule 11.03 against counsel for the Plaintiff. We affirm.

Michael Eugene Duff v. State of Tennessee
E2000-03041-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Mary Beth Leibowitz
The petitioner, Michael Eugene Duff, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his convictions for two counts of aggravated rape and one count of aggravated kidnapping for which he received three twenty-five-year sentences to be served consecutively. This court affirmed the judgments of conviction on direct appeal. See State v. Michael Eugene Duff, No. 03C01-501-CR-00008, Knox County (Tenn. Crim. App. Feb. 8, 1996), app. denied (Tenn. July 8, 1996). The petitioner claims that he received the ineffective assistance of counsel because his trial attorney (1) failed to call a DNA serologist to testify and (2) failed to present witnesses who could testify about his physical appearance at the time of the offenses. We conclude that the trial court’s findings are insufficient for us to determine whether the petitioner received the ineffective assistance of counsel. We reverse the trial court’s judgment and remand the case in order for the trial court to make findings of fact and conclusions of law consistent with this opinion.

Michael Eugene Duff v. State of Tennessee - Order
E2000-03041-CCA-R3-PC
The state has filed a Petition to Rehear relative to our opinion’s apparent imposition of limitations upon the trial court’s reconsideration of the facts upon remand. The state asserts that the trial court should have the ability to determine whether prejudice exists by considering the evidence in toto. The state notes that the trial court has not made any findings regarding prejudice and should not be restricted in its assessment. The petitioner responds that our court’s opinion foreclosed any need for the trial court to assess prejudice generally. He states that we have already concluded that prejudice exists if the trial court finds a particular witness to be credible.

Chelsea Pirkle vs. Justin Parker
E2002-01751-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Dale C. Workman
The trial court refused to set aside the Default Judgment. On appeal, we vacate and remand.

Nancy Crawford vs. Roger Crawford
E2002-00372-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Plaintiff/Appellant Nancy Crawford owns an interest in a parcel of real property located in Hawkins County, Tennessee as tenants in common with the Defendants/Appellees. Appellant Nancy Crawford filed suit seeking a partial partition in kind of the subject property and requesting a tract containing approximately .604 acre be set aside for her. The .604 acre adjoins land owned by Ms. Crawford. The .604 acre contains a barn, which Ms. Crawford and her late husband had maintained, improved, and used since the late 1980's believing it was located on their property. Appellees opposed a partition in kind and requested a partition sale. The Trial Court found it in the manifest best interest of all parties for the property to be sold, rather than partitioned in kind, and ordered a sale. We modify the judgment, affirm as modified, and remand.

Gweneth J. Freels vs. Evelyn Jones
E2002-00895-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
Defendant demanded a jury in Answer but the trial judge ruled defendant waived right to a jury trial. On appeal, we affirm.

Alica Rakestraw vs. Gregory Rakestraw
E2002-01151-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
The sole issue in this divorce case is whether the Trial Court reached the correct decision regarding custody of the parties' child. The Court granted primary custodial care of the parties' daughter, Kendra Paige Rakestraw, then 10 years old, to Gregory Keith Rakestraw ("Father"). Alica Delane Rakestraw ("Mother") argues on appeal that the evidence preponderates against the Court's exercise of discretion in rendering its custody decision, and that the Court erred in denying her motion to alter or amend the judgment and her motion for a new trial. We affirm the judgment of the Trial Court in all respects.

State of Tennessee v. George William King
M2001-02026-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve R. Dozier

Defendant, George William King, has appealed the sentence imposed upon him by the trial court after he pled guilty to one count of statutory rape. We affirm the judgment of the trial court.

State of Tennessee v. William Jerry Neal, aka William Jay Neal
M2001-02364-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Charles Lee

The defendant, William Jerry Neal, also known as William Jay Neal, appeals his jury convictions for especially aggravated burglary, a Class B felony, and vandalism under $500, a Class A misdemeanor, resulting in concurrent sentences of eleven years, three months and eleven months, twenty-nine days, respectively. On appeal, the defendant argues: (1) the evidence was insufficient to establish serious bodily injury, as required for a conviction for especially aggravated burglary; and (2) the trial court erred by failing to grant a new trial after learning that one of the jurors had once been incarcerated with the defendant. We affirm the judgment of the trial court.

State of Tennessee v. Venita Michelle Burchell
M2001-02153-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

Venita Michelle Burchell appeals from her aggravated child abuse and criminally negligent homicide convictions. Her convictions result from a jury trial in the Davidson County Criminal Court pertaining to fatal injuries inflicted upon Nicholas Boyd Cotton, who was sixteen months old at the time of his death. Ms. Burchell urges us to find error in the lower court's acceptance of the verdict, the admission of prior bad act evidence, and the limiting of defense expert testimony. Because no harmful error occurred, we affirm.

Lon S. Walker v. State of Tennessee
M2001-01090-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Leon C. Burns, Jr.

Petitioner, Lon Walker, filed a petition for post-conviction relief from his conviction for second degree murder, alleging that he was denied effective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied relief. In his appeal to this court, Petitioner raises the issue of whether the trial court erred in finding that Petitioner received effective assistance of counsel at trial. After a careful review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Kenneth R. Laws
E2001-00375-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert E. Cupp
The Defendant was charged with aggravated child abuse, a Class A felony. Pursuant to a plea agreement, the Defendant entered a "best interest" plea to abuse of a child under six years of age, a Class D felony, and the trial court sentenced the Defendant to a three-year term with the manner of service of the sentence to be determined following a sentencing hearing. Following a hearing, the trial court ordered the Defendant to serve the three-year sentence in the Tennessee Department of Correction. The Defendant now appeals, arguing that the trial court abused its discretion in denying judicial diversion and erred in denying alternative sentencing. We conclude that the record supports the trial court's denial of judicial diversion and alternative sentencing. Therefore, we affirm the judgment of the trial court.

State of Tennessee v. John Briggs
E2001-01933-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck

The appellant, John Briggs, a pharmacist, pled guilty in the Sullivan County Criminal Court to sixteen counts of unlawfully dispensing a controlled substance. The trial court sentenced the appellant to a total effective sentence of twenty years incarceration in the Tennessee Department of Correction, with all but eight years to be served on probation. On appeal, the appellant argues that the trial court erred in denying full probation. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

The Rogers Group vs. Anderson County
E2002-00409-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Telford E. Forgerty, Jr.
After case was tried, the Trial Judge recused and another Judge was designated who granted a new trial on all issues. On appeal, we affirm.

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney

David Lunsford v. State of Tennessee
E2002-00861-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Carroll L. Ross

The petitioner appeals the denial of his post-conviction relief petition, arguing his trial counsel was ineffective for failing to locate an alibi witness for his aggravated burglary trial. We affirm the judgment of the post-conviction court, which found trial counsel made reasonable efforts to locate the potential witness, and the petitioner was not prejudiced by the inability to present the witness's testimony at trial.

Carrol Preston Flannary v. Joyce Ann Flannary
E2002-00869-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben K. Wexler

James Thompson vs. Knoxville Teachers Federal Credit Union
E2002-00780-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Daryl R. Fansler
James L. Thompson ("Plaintiff") was the principal stockholder, director, and officer of People Personnel Industrial Corporation. Plaintiff began kiting checks when the corporation started having financial difficulties. Plaintiff's actions resulted in a substantial monetary loss to Knoxville Teachers Federal Credit Union ("Credit Union"). After both the corporation and Plaintiff filed for bankruptcy, the parties entered into an agreement whereby the Credit Union agreed not to pursue or assist any other party in pursuing a cause of action against Plaintiff based on the check kiting. Thereafter, Plaintiff was prosecuted in federal court. The Credit Union supplied information to the United States Government pertaining to the amount of its financial losses. After Plaintiff pled guilty in federal court to defrauding the Credit Union, he was ordered to serve a small amount of time in prison and pay restitution of $74,417.29 to the Credit Union. Plaintiff brought this lawsuit claiming the Credit Union pursued the order of restitution in the criminal proceeding and thereby violated the terms of the settlement agreement. The Trial Court granted summary judgment to Defendants, and Plaintiff appeals. We affirm.

Connie Lee Arnold v. State of Tennessee
E2001-02526-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp
The petitioner was convicted of child rape and especially aggravated exploitation of a minor and sentenced to consecutive sentences of twenty-five years and twelve years, respectively. Following the affirmance of his convictions and sentences on direct appeal, he filed a pro se petition for post-conviction relief. Concluding that the claims consisted of conclusory allegations without necessary supporting facts, the post-conviction court dismissed the petition without affording the petitioner the opportunity to amend the petition. The petitioner timely appealed. Following our review, we affirm the dismissal of the petition.

State of Tennessee v. Howard Duty, Jr.
E2001-03008-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

A Sullivan County Criminal Court jury convicted the defendant, Howard Duty, Jr., of stalking, a Class A misdemeanor, and the trial court sentenced him to eleven months, twenty-nine days at seventy-five percent and imposed a one thousand dollar fine. The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction, (2) that his sentence is excessive, and (3) that he should have received an alternative sentence. We affirm the judgment of the trial court.

Troy Buckles vs. Shira Riggs
E2002-00649-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Thomas R. Frierson, II
Shira Dawn McKay Buckles Riggs ("Mother") and Troy Dale Buckles ("Father") were divorced in 1994. Mother was awarded custody of the parties' minor son. In 2001, Father first sought increased visitation and then custody. Mother claimed Father was in arrears in his child support payments. After a trial, the trial court concluded there had been no material change in circumstances and custody should, therefore, remain with Mother. The trial court determined Father was in arrears in his child support payments in the amount of $13,894. The trial court also prohibited both parties from drinking alcohol "while in possession of the child." Father appeals. We modify the judgment to require the parties to undergo counseling, and affirm as modified.

Marisa Lovin vs. Charles Nave
E2002-00686-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Ben W. Hooper, II
Marisa R. Lovin ("Plaintiff") was involved in a one car accident on her way home from Dr. Charles E. Nave's ("Defendant") dental office. Although Plaintiff has no memory of the accident itself, she claims she suffered an adverse reaction to an anesthetic agent administered by Defendant, which caused the car accident. Plaintiff sued Defendant for dental malpractice claiming Defendant failed to warn her about potential side effects of the anesthesia and did not properly manage her treatment after administering the anesthetic agent. The Trial Court granted Defendant summary judgment. Plaintiff appeals. We affirm.

Kanta Keith, et al vs. Gene Ervin Howerton, et al
E2002-00704-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Dale C. Workman
This case is on appeal for the second time. In the first appeal, we held that the defendants violated the Tennessee Consumer Protection Act ("the Act") in certain pawn transactions with the plaintiffs. We remanded the case to the trial court for a determination of whether the plaintiffs were entitled to treble damages and attorney's fees under the Act. Following a bench trial on these issues, the court below determined that the plaintiffs were not entitled to treble damages, but that they were entitled to a slight augmentation of their compensatory awards. In addition, the trial court awarded attorney's fees and costs, in amounts which are substantially less than those claimed by counsel. The plaintiffs appeal, arguing that the trial court erred in refusing to award treble damages and in its award of fees and costs. By way of a separate issue, the defendants argue that the trial court erred in granting a declaratory judgment to the plaintiff, Kanta Keith ("Mr. Keith"), following the death of his wife, the plaintiff, Darlene Keith ("Mrs. Keith"). We affirm in part, vacate in part and remand.