William Duty vs. Joseph Daugherty
E2001-02861-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Billy Joe White
In this boundary line dispute, the Trial Court established the boundary line between the parties' properties based on testimony that prior owners had agreed on the location of the boundary, which altered the boundary established by an accurate survey. We reverse.

Billy Allan Braswell, et ux vs. AC and S, Inc., et al
E2002-00093-COA-R9-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
The trial court allowed plaintiff to add seller as party to products liability action more than one year after injury and denied seller summary judgment on defense of the statute of limitations. We affirm.

The Oceanics Schools vs. Clifford Barbour, Jr.
E2002-00181-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Sharon J. Bell
This matter is before us on the petition of the plaintiff for a rehearing pursuant to Tenn. R. App. P. 39.

State of Tennessee v. Wanda Hinson - Dissenting
M2000-02762-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Timothy L. Easter
I am unable to agree that the trial court’s error in admitting the victim’s hearsay statement is harmless error. I believe the error requires reversal of the conviction, and I therefore dissent.

State of Tennessee v. Alan Parrigan
M2001-00342-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert L. Jones

The appellant, Alan Parrigan, was convicted of the offense of aggravated sexual battery. He received a sentence of ten years incarceration to be served consecutively to a sentence he was serving at the time of the commission of the instant offense. On appeal he raises three errors for our consideration. First, the appellant maintains that the trial court erred in failing to instruct the jury on the lesser included offenses of child abuse and neglect. Second, he alleges that the evidence is insufficient to support the verdict. Finally, the appellant contends consecutive sentencing is unwarranted in his case. After a thorough review of the record, we find that although the failure to instruct the jury on the lesser-included offenses of child abuse and neglect was error, the error is harmless beyond a reasonable doubt. In addition, we find that the evidence is sufficient to support the verdict and that consecutive sentencing is fully supported by the record. Accordingly, the judgment of the trial court is affirmed.

State of Tennessee v. Wanda Hinson
M2000-02762-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Timothy L. Easter
A Lewis County jury convicted the defendant, Wanda Hinson, of criminally negligent homicide, for which she received a one and a half year sentence, and especially aggravated burglary, for which she received a twenty-two year sentence. The trial court ordered the defendant to serve these sentences concurrently. The defendant now appeals her convictions, alleging (1) that the trial court erred by admitting a hearsay statement, (2) that the trial court erred by failing to grant a mistrial when the state improperly impeached the defendant’s only alibi witness, (3) that the evidence is insufficient to support her convictions, and (4) that the trial court erred by failing to grant the defendant a new trial based on the state’s failure to provide certain exculpatory evidence. For the reasons outlined below, we find that none of these allegations merit relief and accordingly affirm the decision of the trial court.

Don Birchfield v. Hardwood Frames of America
E2001-02123-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Jerri S. Bryant, 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. The trial court dismissed the complaint finding the action was not filed within the one year period of the statute of limitations. Judgment of the trial court is affirmed. Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Chancery Court is Affirmed THAYER, SP. J., in which ANDERSON, J., and BYERS, SR. J., joined. Jimmy W. Bilbo, of Cleveland, Tennessee, for Appellant, Don Birchfield. Kent T. Jones, of Chattanooga, Tennessee, for Appellee, Hardwood Frames of America. MEMORANDUM OPINION Plaintiff, Don Birchfield, has appealed from the trial court's action in dismissing his complaint. The court ruled the action had not been filed within the one year period provided by the statute of limitations. Basic Facts Employee Birchfield was forty-one years of age and had completed the eleventh grade in school. He later obtained a GED certificate. On October 15, 1998, while employed by the defendant, Hardwood Frames of America, he was working on an assembly line when a load of wood pinned him against a metal buggy. He was sent to a medical facility, Health Works of Tennessee, where he was seen on several occasions. X- rays revealed a fracture in his right arm. He later saw Dr. Rickey Hutcheson for four visits from October 3, 1998 to February 5, 1999. Birchfield testified he never returned to work after the accident because he was on strong pain medication and because he had constant pain in his elbow and some numbness in his hand. His employer paid for his treatment at Health Works and for seeing and being treated by Dr. Hutcheson. It was stipulated that the last payment of a medical expense was in August 1999. During his employment career, he has had other workers' compensation claims with different employers and the record indicates he has other health problems for which he is being treated. The complaint was filed on January 16, 21, which was 27 months after the accident and over 16 months after the payment of a last medical expense. Medical Evidence Dr. Rickey Hutcheson, an orthopedic surgeon practicing in Cleveland, Tennessee, testified by deposition. He stated he examined the x-ray which was taken at Health Works and thought it might be an old fracture. He said he had mild swelling and his elbow was bruised. After several visits he released him to return to light duty work but did not realize until later that he did not go back to work. On a later visit during November 1999, he said the employee could straighten his arm completely and seemed to not have as much pain. The doctor was of the opinion he did not have any permanent impairment. Dr. Frank H. Wood, a family practice and emergency medicine physician practicing in McCoysville, Georgia, testified by deposition. He began seeing the employee on February 1, 1999 for some of his other health problems and he stated he was not given a history about any injury to his elbow until late October or early November 2. He initially testified the employee had a 1 percent impairment as a result of the accident in question but admitted he had not looked at the AMA Guidelines for two to three years. He said he had been using the 1987 Edition and had never seen the 4th Edition. During the examination he was given the 4th Edition and changed his opinion several times concerning impairment. As we read the record, he appeared to finally settle on 6 percent impairment to the right arm or 3 percent to the whole body. Other questions and answers indicated he was fixing a percentage of disability rather than impairment to the body as he was considering the employee's age, education, job opportunities, etc. Findings of Trial Court The trial judge was very troubled by the evidence of Dr. Wood and specifically found she could not rely on same. The complaint was dismissed because the statute of limitations had expired. -2-

Charles R. Rapier v. Jones Blair Paint
E2001-02915-WC-R3-CV
Authoring Judge: Thayer, Sp. J.
Trial Court Judge: Jerri S. Bryant, 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.' 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court dismissed the complaint finding the action was barred by the one year statute of limitations and because plaintiff's condition was not work-related. Judgment of the trial court is affirmed.

State of Tennessee v. Marthias S. Phillips and Lanard Keith Armstrong
M2000-02575-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury found the defendants, Marthias S. Phillips and Lanard Keith Armstrong, guilty of facilitation of first-degree murder, criminal attempt to facilitate especially aggravated kidnapping, and criminal attempt to facilitate especially aggravated robbery. The trial court sentenced both defendants to serve 4-year sentences for their criminal attempt to facilitate especially aggravated kidnapping convictions, 4-year sentences for their criminal attempt to facilitate especially aggravated robbery convictions, and 20-year sentences for their facilitation of first-degree murder convictions. The trial court sentenced both defendants as Range I offenders and ordered them to serve their 4-year sentences for criminal attempt to facilitate especially aggravated kidnapping concurrently to their 20-year sentences for facilitation of first-degree murder. The court then ordered them to serve their 4-year sentences for criminal attempt to facilitate especially aggravated robbery consecutively to their concurrent 20-year sentences, resulting in an effective sentence of 24 years. The defendants now bring the instant appeal. Defendant Armstrong and Defendant Phillips both challenge the sufficiency of the evidence to support their convictions, the propriety of the trial court's jury instructions, and the effectiveness of their trial counsel. Defendant Armstrong additionally challenges the propriety of his sentence. After thoroughly reviewing the record and applicable law, we find that none of these allegations merit relief.

State of Tennessee v. Damon L. Baugh
M2001-00895-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald P. Harris

The Williamson County Grand Jury indicted the defendant for one count of possession of more than 0.5 grams of cocaine for resale, a Class B felony, and for one count of simple possession of marijuana, a Class A misdemeanor. The defendant filed a motion to suppress the cocaine and marijuana obtained during his arrest, alleging that the search of his car was unconstitutional. Following a hearing, the trial court denied the motion to suppress. A Williamson County jury convicted the defendant of the charged offenses. The defendant now appeals, arguing that the trial court erred in failing to suppress the cocaine and marijuana obtained pursuant to his arrest. Concluding that the search of the defendant's car was constitutional, we affirm the judgment of the trial court.

State of Tennessee v. Christopher Robert Smith
M2001-02297-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Christopher Robert Smith, was convicted in the Criminal Court of Davidson County of conspiracy to possess with the intent to manufacture, deliver or sell 300 grams or more of any substance containing cocaine, a Class A felony. The trial court sentenced the appellant to twenty-four years incarceration in the Tennessee Department of Correction and imposed a fifty thousand dollar ($50,000) fine. On appeal, the appellant complains that the evidence was insufficient to support his conviction and that his sentence was excessive. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Robert Spooner v. State of Tennessee
M2001-02356-CCA-R3-CO
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Robert L. Holloway

Robert Spooner appeals from the Wayne County Circuit Court's denial of his petition for the writ of habeas corpus. The petition was filed in an effort to avoid Spooner's extradition to the state of Alabama, where he is charged with having violated his probation on a conviction of receiving stolen property. Because the lower court properly denied the petition, we affirm.

Terry W. Smith v. State of Tennessee
M2001-03062-CCA-R3-PC
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Robert E. Burch

This is an appeal from the denial of post-conviction relief concerning petitioner's conviction for aggravated kidnapping. The sole issue in this appeal is whether the petitioner was deprived of effective assistance of counsel when trial counsel, during the trial of the case, "opened the door" to the state's introduction of evidence of defendant's prior arrests. We agree with the post-conviction court's finding that petitioner failed to establish prejudice; thus, we affirm the judgment of the post-conviction court.

Charles William Young v. State of Tennessee
M2000-02007-CCA-MR3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge W. Charles Lee

The appellant, Charles WilliamYoung, was convicted in a jury trial of the offense of theft over $500. He was sentenced to one year and six months and ordered to serve 60 days of incarceration, to pay a $500 fine and restitution of $800. The appellant's probation was revoked for the first time in 1997, but he was again placed on probation for 18 months. Two years later his probation was again revoked and the appellant was ordered to serve his original sentence with 94 days of jail credit. He subsequently filed a petition for post-conviction relief, or in the alternative, a writ of habeas corpus and alleged inter alia that a number of alleged constitutional errors occurred at both probation revocation hearings. The trial court summarily dismissed the petition.

We hold that the Post-Conviction Procedures Act, Tennessee Code Annotated Section 40-30-201, et seq., does not provide a cause of action for a collateral attack on a probation revocation proceeding. Moreover, the appellant's allegations, taken as true, would at most render the results of the probation revocation proceedings voidable, not void, and therefore the writ of habeas corpus is not available to the appellant. The judgment of the trial court is therefore affirmed.

State of Tennessee v. Cornelius Devon Hicks
W2002-00334-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Clayburn L. Peeples

The Appellant, Cornelius Devon Hicks, appeals the sentencing decision of the Humboldt Law Court enlarging his community corrections sentence following revocation. Hicks argues on appeal that it was error to increase his sentence from eight to ten years, when no proof was introduced at the revocation hearing supporting an increased sentence and the trial court made no findings to justify the ten-year sentence. After review, we agree. Accordingly, the trial court's re-sentencing order is reversed, and this case is remanded to the trial court for a new sentencing hearing.

Kelso Oil vs. East West Truck Stop
E2001-02090-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
This main issue in this appeal involves an Unconditional Guaranty signed by Frank Webb ("Webb"), the president and owner of East West Truck Stop, Inc. In this document, Webb guaranteed the debt of the "buyer", which was identified as "Frank Webb d/b/a East West Truck Stop." The "buyer", however, was the corporate entity, East West Truck Stop, Inc. The Trial Court concluded the parties intended for the document to state the "buyer" was the corporate entity and entered judgment against Webb personally. Webb appeals, claiming the Trial Court improperly used parol evidence to supply an essential term of the Unconditional Guaranty (i.e. the identity of the "buyer") in violation of the Statute of Frauds. We affirm.

State ex Rel. Dorothy Phillips vs. James Phillips
E2001-02081-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a post-divorce case involving child support issues. James Daniel Phillips ("Father") appeals the order below, in which the trial court held that it lacked the authority to reduce the child support arrearage due Father's former spouse, Dorothy Ellen Phillips ("Mother"). Father argued below that he had recently discovered that one of his "children" is not actually his biological child. He contends that this entitles him to the requested relief. Father further challenges the trial court's refusal to declare his 1990 divorce judgment invalid on the ground that it was not signed by Father who was then proceeding pro se. We affirm.

E2001-02326-COA-R3-CV
E2001-02326-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Billy Joe White

State ex rel. Anne Pope vs. United States Fire
E2002-01092-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
This is a suit by the State of Tennessee, ex rel. Anne B. Pope, in her official capacity as Commissioner of the Tennessee Department of Commerce and Insurance, against the following Defendants: United States Fire Insurance Company; United States Fidelity and Guaranty Company; Employers Reinsurance Corporation; Utica Mutual Insurance Company; Insurance Company of North America; and Safeco Insurance Company of America. The suit seeks to require the Defendant Corporations to deposit with a Receiver approved by the Chancery Court the principal amount of the last rider to a bond that they had executed to ensure payment of worker's compensation benefits that might be owed by North American Royalties, Inc., and its subsidiaries, Wheland Holding Company, Inc., Wheland Manufacturing Company, Inc., and Wheland Foundry, LLC. The suit was initiated because North American Realties, Inc., which sought bankruptcy protection, was self-insured pursuant to T.C.A. 50-6-405. A number of employees who contended they were entitled to benefits under the Worker's Compensation Statute intervened, insisting that the Companies which had executed the bonds were liable for the aggregate amount thereof, rather than the amount shown on the last rider issued as to the bonds in question. The Trial Court found in favor of the Insurance Companies. We affirm.

Floyd Gabriel vs. Anna Hubbs
E2001-03102-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a will contest. Floyd Gabriel ("the contestant") filed this action contesting the validity of the purported last will and testament of his grandfather, Floyd A. Harmon ("the decedent") on the grounds of incapacity and undue influence. Following a bench trial, the court below declared the will invalid. Anna Faye Hubbs ("Hubbs"), the decedent's caretaker and the primary beneficiary under the will, appeals, arguing that the trial court erred in finding that she exercised undue influence over the decedent. In the alternative, Hubbs argues that any presumption of undue influence arising out of her relationship with the decedent was overcome by the clear and convincing proof that the decedent received independent advice before executing his will. We affirm.

Steven Belford vs. J & J Plastering
E2001-02575-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Jacqueline E. Schulten
Steven R. Belford (Plaintiff") sued Danny W. Cox ("Cox") and J & J Plastering, Inc., ("Company") after he was rear-ended by a vehicle owned by the Company and driven by Cox. The jury returned a verdict for $9,000 in favor of Plaintiff. Plaintiff appealed to this Court without first filing a motion for new trial. Plaintiff raises four issues on appeal, all of which center around the exclusion or admission of evidence at trial. Because Plaintiff did not raise these issues in a motion for new trial, we deem them to be waived and dismiss this appeal.

Kenneth Nelson v. Metric Realty
M2000-03204-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Plaintiffs appeal the action of the trial court in converting a T.R.C.P. Rule 12.02 motion of those referred to as "affiliated defendants" into a T.R.C.P. Rule 56 motion and then granting it, and in sustaining a motion for summary judgment in favor of those described as "advisor defendants." The action against all Defendants asserted tortious interference with contract. Defendants appeal the trial court action in overruling their motion for summary judgment based upon the statute of limitations. We affirm the action of the Chancellor in granting summary judgment to the "affiliated defendants" and in granting the motion for summary judgment of the "advisor defendants." We further hold that the statute of limitations had expired as to all defendants. As modified, the judgment of the trial court is affirmed.

Paul Summers v. Cherokee Children & Family Services
M2001-00880-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
In this appeal, the Attorney General filed suit to dissolve two nonprofit public benefit corporations. Both the Attorney General and the nonprofit corporations filed motions for summary judgment. The trial court granted summary judgment for the Attorney General finding that the nonprofit corporations had abandoned their charitable purposes and devoted themselves to private purposes. The trial court ordered the appointment of a receiver to marshal and preserve the remaining assets. For the following reasons, we affirm the decision of the trial court.

Kevin Shawn Taylor v. State of Tennessee
M2001-02203-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Charles D. Haston, Sr.

The petitioner, Kevin Shawn Taylor, pled guilty in the Warren County Circuit Court to one count of attempted aggravated sexual battery. He received a sentence of ten years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner  filed for post-conviction relief, alleging that he received the ineffective assistance of counsel and that his guilty plea was not knowing or voluntary. After a hearing, the post-conviction court denied relief. On appeal, the petitioner contends that the post-conviction court erred in denying his petition. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

State of Tennessee v. J. C. Bruce
M2001-02679-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Robert E. Burch

The Appellant, J.C. Bruce, was convicted after a trial by jury of robbery and, as a multiple offender, received a sentence of ten years in the Department of Correction. On appeal, Bruce raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict and (2) whether his sentence was proper. After a review of the record, the judgment of the Humphreys County Circuit Court is affirmed.