Gulf Insurance Co. vs. Construx, Inc., et al
M1999-02803-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Russell Heldman
This is an appeal from the grant of Plaintiff's motion for summary judgment. The case arises from a construction contract in which Gulf Insurance Co. provided Construx, Inc. the required payment and performance bonds, and in return obtained an indemnity contract with the individual Defendants as indemnitors. Additionally, a Settlement Agreement was executed in connection with the permanent loan financing and Gulf settled the subcontractor liens with the remaining proceeds of the construction loan. After payments were made, Gulf sued for indemnity under the indemnity contract for payments made. Construx asserted that the Settlement Agreement barred Plaintiff's claims or, alternatively, Gulf did not act reasonably and in good faith in settling the claims and is not entitled to recovery. Summary judgment was granted to Gulf and Construx appealed. For the reasons below, we reverse and remand finding that there are genuine issues of fact, making summary judgment inappropriate.

State of Tennessee v. Phillip Michael Cisson
E2000-02138-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James B. Scott, Jr.

The defendant, Phillip Michael Cisson, entered pleas of guilt on two counts of burglary and two counts of theft over $1,000. The plea agreement provided for concurrent two-year sentences on each conviction. The single issue presented for review is whether the trial court erroneously denied probation. The judgment is affirmed.

State of Tennessee v. Ronald W. Byrd
E2000-00520-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Phyllis H. Miller

The appellant, Ronald W. Byrd, was convicted in the Sullivan County Criminal Court of attempt to commit aggravated kidnapping, aggravated criminal trespass, and resisting arrest. The trial court sentenced the appellant to a total effective sentence of six years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the trial court should have permitted the jury to consider the issue of whether the appellant's conduct was fairly motivated by his desire to make a citizen's arrest; and (2) whether the evidence is sufficient as a matter of law to sustain a conviction of attempted aggravated kidnapping. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.

Dale Conrad McQuiston vs. Thomas Ward, Sheriff of Perry County
M2001-00201-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Russell Heldman
Dale Conrad McQuiston filed a pleading entitled "Writ of Replevin" wherein he sought to recover $1,000 cash and various items of personal property which were alleged to have been seized by the defendant Thomas Ward, Sheriff of Perry County, Tennessee. The trial court granted Defendant's motion for summary judgment. We affirm on the basis that Mr. McQuiston's suit was barred by the three year statute of limitations set forth in section 28-3-105 of the Tennessee Code Annotated.

State of Tennessee v. Floyd Allen Angela and Phyllis Mae Angela
M1999-00236-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Jane W. Wheatcraft

In this felony drug possession case, the state appeals from the trial court's order suppressing as evidence all items, including marijuana, seized during a search of the defendants' home. It contends that the trial court erred in determining that the affidavit for the search warrant did not establish probable cause to warrant a search. Based upon the record before us, we are constrained to affirm the trial court.

State of Tennessee v. Samuel K. Robinson
M1999-00559-CCA-MR3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert L. Jones

The appellant appeals from the dismissal of his post-conviction petition wherein he attacks the validity of a probation revocation proceeding. After a review of the record we affirm the decision of the trial court.

Warbington Construction, Inc. vs. Franklin Landmark, LLC
M2000-00676-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves the vacating of an arbitration award by the court below. The trial court applied nonstatutory grounds to vacate the decision of the arbitrator. Because we decline to adopt the nonstatutory grounds for judicial review of an arbitration award under the Federal Arbitration Act, we reverse.

State of Tennessee v. Frank R. Clark
M2000-00862-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Charles D. Haston, Sr.

The defendant was convicted in a jury trial of driving under the influence (DUI), third offense, and of driving on a revoked license. In this appeal, the defendant contends (1) that the stop of his truck was an unreasonable seizure, (2) that the state failed to lay a proper foundation for admission of his breath test results, (3) that the breath test was invalid because it was given when he had tobacco in his mouth, and (4) that his DUI sentence to confinement to be served at one hundred percent is legally impermissible. We affirm the convictions, but we conclude that the defendant is entitled to good conduct credits. Because of discrepancies between the sentencing transcript and the judgments of conviction, we remand the case for review of the sentences and entry of corrected judgments, if necessary.

State of Tennessee v. Allan Preston Brooks
M2000-00909-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Walter C. Kurtz

The appellant, Allan Brooks, appeals from the trial court's denial of his petition for post-conviction relief. The appellant claims that he was denied effective assistance of counsel due to trial counsel's failure to (1) demand a sequestered jury, (2) object to a display used by the prosecution during cross-examination of the appellant, (3) object to the mention of the appellant's first trial, and (4) seek an interlocutory appeal of the trial court's ruling regarding the testimony of Josh Peyton, the victim's six year old son. We find that the appellant received effective assistance of counsel and that his claims to the contrary are without merit. The decision of the trial court is affirmed.

Clifton D. Wallen v. State of Tennessee
E2000-02052-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge James E. Beckner

The summary dismissal of the petition for post-conviction relief is affirmed because the petitioner failed to adequately allege ineffective assistance of counsel based upon conflict of interests and the claim of incompetency to stand trial is waived.

Thomas Fulbright vs. Bevans Fulbright
E2000-02040-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: L. Marie Williams
Thomas Fulbright ("Husband") filed for divorce alleging inappropriate marital conduct on the part of Bevans Ramsey Fulbright ("Wife"). Wife filed a counter-claim seeking a divorce on the same basis. The Trial Court granted both parties a divorce, divided the marital property, awarded Wife rehabilitative alimony, and granted primary physical custody of the three minor children to Wife. Husband appeals all of these determinations, and Wife appeals the Trial Court's refusal to award her attorney fees. We affirm as modified.

State of Tennessee v. Clarence Boling
E2000-01985-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge D. Kelly Thomas, Jr.

After waiving his right to a trial by jury, the defendant was convicted of possession of marijuana with the intent to sell or deliver. For this offense he received a sentence of two years as a Range I, standard offender. However, the trial court ordered this sentence suspended after the service of thirty days. Through this appeal the defendant alleges that the trial court erred in allowing impeachment evidence to be introduced through Officer Steve Blankenship and that the evidence is insufficient to support his having possessed the marijuana with the intent to sell or deliver it. After reviewing the record, we find that neither of these claims merit reversal and, therefore, affirm the defendant's conviction, but remand for correction of the judgment to reflect the defendant was convicted at a bench trial.

Thomas Paul Gagne, Jr. v. State of Tennessee
E2000-03073-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Ray L. Jenkins

Thomas Paul Gagne, Jr. appeals the denial of his petition for post-conviction relief in which he alleged he received the ineffective assistance of counsel in his conviction proceedings, which ultimately caused him to plead guilty rather than take his case to trial. Gagne is serving an effective term of two consecutive life sentences consecutively to a prior twelve-year sentence. His petition involves his convictions upon guilty pleas for crimes of larceny, theft, aggravated burglary and two counts of felony murder. Following an evidentiary hearing, the lower court ruled that Gagne failed to establish his ineffective assistance claim. We hold that he has failed to demonstrate the error of that ruling, and we therefore affirm the lower court's dismissal of the petition.

Patricia Williams vs. Canada Life vs. James Williams/Deborah Elg
W2000-03096-COA-R3-CV
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: J. Steven Stafford
The plaintiff's husband died from a single gunshot wound to his chest which occurred while the two were alone in their home. By whose hand he died was the sole issue at both the trial and on appeal. If the plaintiff's husband shot himself, as she claims, she receives the proceeds from an insurance policy on his life. However, if she shot and killed her husband, as his adult children assert, they receive the insurance proceeds. Following the trial, the chancery court concluded that the death occurred as the result of a suicide. The defendants appealed, arguing that the presumption against suicide compels the conclusion that their father was shot to death by the plaintiff, their stepmother. Based upon our review, we affirm the judgment of the chancery court that the death occurred as the result of a suicide.

State of Tennessee v. John Wayman Orr
E2000-00931-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge D. Kelly Thomas, Jr.

The defendant, John Waymann Orr, appeals from his probation revocation which resulted primarily from his conviction for public intoxication and alcohol abuse. He contends that with his alcohol abuse and mental health problems, he should be receiving treatment and should not be confined in jail. We affirm the trial court.

Gatlinburg Airport Authority, Inc. vs. Ross B. Summitt, et al
E2000-02646-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Dale Young
An electrical transmission line owned and maintained by TVA is located about 1000 feet from the eastern end of the runway at the airport owned and operated by the Gatlinburg Airport Authority [GAA]. The transmission line was constructed before the Airport was established. The two have coexisted without mishap, and no official publication, State or Federal, warns of any danger to aircraft posed by the transmission line. However, because of the transmission line, 360 feet of the runway cannot be used by aircraft landing or taking off. The GAA, after 35 years, concluded that the transmission line was an airport hazard. TVA is immune from suit, but agreed to relocate its transmission line if GAA would acquire the necessary easement over lands of the defendants. The trial court dismissed the eminent domain action, holding that (1) the plaintiffs should seek relief against TVA if the transmission line is hazardous, (2) the line is not hazardous, (3) there is no necessity to remove the line, (4) the attempted condemnation is arbitrary and capricious. The judgment is vacated.

Dennis Plemons, et al vs. Larry Moses, et al
E2000-02781-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John B. Hagler, Jr.
Dennis Plemons ("Plaintiff") leased the Crossroads Market to Larry Moses ("Defendant") pursuant to a five-year lease. Prior to the expiration of the lease, Plaintiff found new tenants willing to pay significantly more to lease the property. Plaintiff informed Defendant about the new potential tenants and gave Defendant the opportunity to continue leasing the property if he would pay this higher rent. Defendant declined to lease the property for this increased amount. Plaintiff allowed Defendant to continue leasing the property until the new tenants were ready to assume possession of the property. When the new tenants were ready to assume possession, Defendant refused to vacate the premises claiming that he was a holdover tenant and entitled to possession of the property under a year-to-year tenancy after the expiration of the lease. The Circuit Court held that a new month-to- month tenancy had been created and, therefore, Plaintiff was entitled to possession. We affirm.

State of Tennessee v. Vincent Thomas Gallo
E2000-03025-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge O. Duane Slone

The defendant was convicted upon his guilty pleas to three counts of unlawfully photographing individuals in violation of their privacy, a Class A misdemeanor, and received concurrent eleven-month-twenty-nine-day sentences to be served in confinement in the county jail. The defendant appeals the trial court's denying him probation of any type. We affirm the denial of probation, but we remand the case for entry of corrected judgments.

State of Tennessee v. Larry D. Upshaw
E2000-02262-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Ray L. Jenkins

The defendant, Larry D. Upshaw, was convicted of second degree murder. The trial court imposed a sentence of 38 years in the Department of Correction. The sole issue on appeal is whether the evidence was sufficient to support his conviction for second degree murder. The judgment of the trial court is affirmed.

William P. Livingston, Jr. vs. Mike Hayes, et al
E2000-01619-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Richard E. Ladd
In this appeal from the Circuit Court for Hamblen County, the Plaintiff/Appellant, William P. Livingston, Jr., questions whether the Trial Court erred in entering a summary judgment dismissing his action for libel against the Defendants/Appellees, Mike Hayes, et al. We affirm the judgment of the Trial Court and remand for collection of costs below. We adjudge costs of the appeal against Mr. Livingston and his surety.

Tracy Lamar Belle, Sr. v. State of Tennessee
E2000-02787-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

The petitioner, Tracy Lamar Belle, Sr., appeals the denial of post-conviction relief contending that his right to due process has been violated by the application of the statute of limitations. Because the notice of appeal was not timely filed and because "the interest of justice" does not require the waiver of a timely notice, this appeal is dismissed. See Tenn. R. App. P. 4(a).

Karen Garrett Humphries vs. David Alison Humphries
E2000-02912-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Jean A. Stanley
In this divorce case, the trial court classified the parties' property, following which it divided the marital property, but declined to order spousal support. The husband appeals, arguing (1) that the trial court erred in classifying the increase in value of his separate property as marital property; (2) that the division of the marital property was not equitable; and (3) that the trial court erred in assigning, without classifying, the wife's credit card debt to the husband. By way of a separate issue, the wife argues that she is entitled to an award of alimony. We affirm.

E2000-01823-COA-R3-CV
E2000-01823-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: John L. Kiener

State of Tennessee v. Jerry Floyd Caldwell
M1999-02363-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Leon C. Burns, Jr.

After trial, a Putnam County jury found Defendant guilty of the unlawful possession of a controlled substance, to wit: cocaine over .5 grams, for resale, driving under the influence of an intoxicant, the unlawful possession of drug paraphernalia, and evading arrest. Further, the jury determined Defendant should pay fines of $100,000, $2,500, $2,500, and $1,500 for each respective offense. Subject to a sentencing agreement, the trial court imposed a sentence of nine (9) years on the cocaine offense and 11 months and 29 days for each misdemeanor. The trial court ordered the sentences to be served concurrently and imposed judgment for the fines in accordance with the verdict of the jury. Defendant presents two appellate issues: (1) Whether there is sufficient evidence to convict Defendant of sale of cocaine over 0.5 grams, driving under the influence and possession of drug paraphernalia?; and (2) Whether Defendant's fines are excessive? After a review of the entire record, briefs of the parties and applicable law, we affirm the trial court's judgment

State of Tennessee v. Augusto Oviedo
W2000-01003-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Joseph B. Dailey

The appellant, Augusto Oviedo, was convicted by a jury in the Shelby County Criminal Court of robbery and was sentenced as a Range III persistent offender to fifteen years incarceration in the Tennessee Department of Correction. On appeal, the appellant raises the following issues for our review: (1) whether the evidence in this case is sufficient to sustain his conviction, and (2) whether the trial court failed to fully consider all mitigating factors when it sentenced the appellant to the maximum in the range for the crime. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court.