Tammy L. Haggard vs. Santos Aguilar, et al
E2009-02452-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Thomas R. Frierson, II

This appeal involves the question of whether the trial court properly dismissed Plaintiff’s action when another related lawsuit, filed prior to this Hamblen County Chancery Court action, was pending in Knox County Chancery Court. We hold that the trial court properly dismissed Plaintiff’s action under the prior suit pending doctrine. Accordingly, we affirm.

Doyle Sweeney, et al vs. Charles Koehler, et al
E2009-02306-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Thomas R. Frierson

This appeal involves a boundary line dispute based on competing surveys. The plaintiffs, Doyle and Gloria Sweeney (“the Sweeneys”), and the defendants, Charles and Valerie Koehler (“the Koehlers”), own adjoining real properties. The Sweeneys brought a declaratory judgment action against the Koehlers, seeking to have the boundary line declared between the parties. The Koehlers counterclaimed. The trial court found that the statutory bar codified in Tenn. Code Ann. § 28-2-110 did not apply to the Koehlers and that the Sweeneys were not entitled to a rebuttable presumption of ownership to the disputed land under § 28-2-109 based upon the payment of property taxes on the tract for over 20 years. The trial court determined the common boundary line as contended by the Koehlers. The Sweeneys appealed. We affirm the decision of the trial court.

In the Matter of Jayden L. L.
M2009-02453-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Magistrate W. Scott Rosenberg

The father of a minor child appeals his conviction of eighteen counts of criminal contempt for willful failure to pay child support. He contends the evidence was insufficient to sustain the convictions because the State failed to present evidence he had the ability to pay or that his failure to pay was willful. We agree and reverse the holding of the trial court.

Sandra Newman et al. v. Rubye J. Jarrell et al.
M2010-00586-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Royce Taylor

The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner’s permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants. With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.

State of Tennessee v. Dana Kennedy Walls
M2009-00736-CCA-R3-CD
Authoring Judge: Camille R. McMullen
Trial Court Judge: Judge Larry B. Stanley, Jr.

Defendant-Appellant, Dana Kennedy Walls, was convicted by a Warren County Circuit Court jury of facilitation of initiating a process to manufacture methamphetamine in count one, a Class C felony; facilitation of promoting the manufacture of methamphetamine in count two, a Class E felony; and promoting the manufacture of methamphetamine in count three, a Class D felony. She was sentenced as a Range I, standard offender to serve concurrent sentences of five years with service of 365 days in confinement for count one, two years with service of 90 days in confinement for count two, and three years with service of 250 days in confinement for count three, for an effective sentence of five years with 365 days in confinement prior to serving the remainder of her sentence on probation. On appeal, Dana Walls argues: (1) the evidence was insufficient to support her convictions, (2) the trial court committed reversible error in failing to instruct the jury on the lesser included offense of attempt for each of the charged offenses, and (3) her sentence is excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Hubert Glenn Sexton
E2008-00292-CCA-R3-DD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Shayne Sexton

A Scott County jury found the Appellant Hubert Glenn Sexton guilty of two counts of first degree murder arising from the deaths of Stanley and Terry Goodman. Following penalty phase, the jury found the presence of one statutory aggravating circumstance, that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another, and that this aggravator outweighed any mitigating factors. See T.C.A. § 39-13-204(i)(6). The jury imposed sentences of death. Appellant Sexton seeks review by this court of both his convictions for first degree murder and his sentences of death. He raises the following issues for our review: (I.) Whether the trial court erred in denying a motion for change of venue; (II.) Whether the trial court erred in failing to properly admonish the jury before and during trial; (III.) Whether the trial court erred in failing to adequately voir dire the jury regarding extrajudicial information; (IV.) Whether the trial court erred in failing to excuse certain jurors for cause; (V.) Whether the trial court erred in admitting allegations of child sexual abuse; (VI.) Whether the trial court erred in admitting testimony regarding the Appellant’s
willingness and later refusal to take a polygraph examination; (VII.) Whether the trial court erred in admitting statements made by the Appellant’s wife; (VIII.) Whether the trial court erred in admitting evidence that was similar to the murder weapon; (IX.) Whether the trial court erred in admitting evidence of an unrelated speeding arrest; (X.) Whether the trial court erred in admitting evidence that Appellant alleges was unlawfully obtained from his vehicle; (XI.) Whether the trial court erred in admitting evidence relating to the preparation of Appellant’s IRS tax forms; (XII.) Whether individual and cumulative instances of prosecutorial misconduct
denied him a fair trial; (XIII.) Whether the convicting evidence was sufficient to support his convictions; (XIV.) Whether the verdict was contrary to the weight of the evidence; (XV.) Whether Tennessee’s death penalty scheme is constitutional; and (XVI.) Whether the trial court erred in denying the motion for new trial based on cumulative error. Following our review, we affirm the judgments of the trial court.

Charles Truax v. Memphis Light Gas & Water Division
W2010-00479-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

Plaintiff filed a cause of action asserting breach of contract and violation of the Tennessee Human Rights Acts. The trial court awarded summary judgment to Defendant Memphis Light Gas & Water Division based on the applicable statute of limitations. We affirm.

State of Tennessee v. Deredious Otis
W2009-02187-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Chris Craft

The defendant, Deredious Otis, stands convicted of aggravated assault, a Class C felony. The trial court sentenced him as a Range I, standard offender to four and a half years in the workhouse. On appeal, the defendant presents seven issues for our review: (1) whether the trial court erred in denying the defendant’s motion for judgment of acquittal; (2) whether the trial court erred by not allowing the defendant to enter his own statement to police as evidence; (3) whether the trial court erred by refusing to instruct the jury on the affirmative defenses of self-defense and defense of a third party; (4) whether the trial court erred by restricting defense counsel’s cross-examination; (5) whether the trial court erred by threatening defense counsel with contempt; (6) whether the trial court committed a Batson error in the composition of the final jury; and (7) whether the trial court improperly applied sentencing factors. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. Warren Parker
W2009-02578-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John T. Fowlkes, Jr.

The defendant, Warren Parker, appeals the trial court’s denial of any form of alternative sentencing. The defendant entered a guilty plea to three counts of aggravated assault, a Class C felony, and one count of evading arrest, a Class A misdemeanor. He was sentenced to concurrent six year sentences for the Class C felonies and to a concurrent eleven-month, twenty-nine-day sentence for the Class A misdemeanor. After careful review, we affirm the trial court’s judgments that deny alternative sentencing.

State of Tennessee v. Brandon Stacy Lambert
E2010-00350-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David R. Duggan

The appellant, Brandon Stacy Lambert, was convicted of numerous drug related offenses, aggravated burglary, theft, and burglary. The trial court imposed a total effective sentence of seventeen years. The appellant was granted probation and was ordered to complete the drug court program. After the appellant was dismissed from the drug court program, the trial court revoked his probation and ordered him to serve his original sentence in confinement. On appeal, the appellant concedes a "technical violation" of the conditions of probation but requests that he once again be granted probation. Upon review, we affirm the judgments of the trial court.

Lisdsi Allison Connors vs. Jeremy Phillip Lawson
E2010-00791-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Lawrence H. Puckett

Lindsi Allison Connors ("Mother") and Jeremy Phillip Lawson ("Father") are the parents of a daughter (the "Child") who currently is eight years old. Several parenting plans have been entered over the years. Mother eventually moved with the Child to Florida, and thereafter, Father filed a petition claiming there had been a material change in circumstances such that it was in the Child's best interest for him to be designated the primary residential parent. Father also sought to have Mother held in contempt of court. Following a hearing, the trial court found Mother in contempt but refused to mete out any punishment for the contemptuous conduct. The trial court made no mention in its final judgment as to the petition for a change in custody. The trial court then abdicated jurisdiction and instructed the parties to take up any future matters with the Florida courts. We vacate the trial court's judgment and remand for further proceedings consistent with this Opinion.

Melvin Christmas v. The Town of Smyrna
M2009-02589-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Robert E. Corlew, III

Property developer applied to the Town of Smyrna for a rezoning request for a planned development. The request was initially approved by the Planning Commission, but the Town Council later voted to deny the request. The developer appealed by writ of certiorari to the Rutherford County Chancery Court, which affirmed the decision. On appeal, the developer asserts that the Town Council’s action was arbitrary and capricious. We affirm.

State of Tennessee v. Dar Es Salaam Cole and Thomas Lopez
W2009-00174-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paula Skahan

The Defendant-Appellants, Dar Es Salaam Cole and Thomas Lopez, were convicted by a Shelby County Jury of facilitation of the sale of 300 grams or more of cocaine and unlawful possession of 300 grams or more of cocaine with the intent to sell or deliver. After a sentencing hearing, the trial court merged the above convictions and sentenced Cole and Lopez to nineteen years imprisonment in the Tennessee Department of Correction. In this consolidated appeal, Lopez argues that (1) the trial court erred in denying his motion to suppress and (2) the evidence was insufficient to sustain his convictions. In addition to these issues, Cole argues that (3) the traffic stop was racially motivated in violation of the Fourteenth Amendment’s equal protection clause; (4) the jury was “impermissibly influenced” by (a) the presence of the prosecutor and defense counsel in the jury room during deliberations, and (b) comments by the trial court while instructing the jury; and (5) the trial court failed to discharge the jury when there was no probability for agreement and failed to charge “a deadlock (Kersey) instruction.” Upon our review, we discern no reversible error and affirm the judgments of the trial court.

State of Tennessee v. Edward L. Hood Jr.
W2009-02501-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roger A. Page

The Defendant-Appellant, Edward L. Hood, Jr., was convicted by a Henderson County Circuit Court jury of two counts of rape of a child, a Class A felony, and two counts of incest, a Class C felony. He received consecutive sentences of twenty-three years and twenty-five years for the rape of a child convictions, and concurrent five-year sentences for each of the incest convictions, for an effective sentence of forty-eight years in the Tennessee Department of Correction. On appeal, Hood argues: (1) the evidence was insufficient to support his convictions; (2) his right to a fair trial was violated when trial counsel announced that Hood was pleading guilty at the start of trial; (3) the trial court erred in preventing the victim’s sister from testifying for the defense at trial; and (4) the trial court erred by failing to grant a new trial on the basis of newly discovered evidence. Upon review, we affirm the judgments of the trial court.

Ann Taylor Realtors, Inc. v. John N. Sporup, et al.
W2010-00188-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

This is an action to enforce a promissory note. The plaintiff/appellee, a realty company, entered into an exclusive listing agreement with John Sporup for the sale of real property. The listing agreement provided for an eight percent commission in cash on the sale of the property. The realty company secured a buyer, the sale closed, and it received a portion of the commission owed. As an accommodation to the client, however, the realty company agreed to defer the unpaid portion of the commission. Mr. Sporup and his wife, co-owners of the corporation selling the property, signed a promissory note in their individual capacities providing for payment of the deferred commission in monthly installments with a balloon payment due at the end of three years. After the buyer defaulted, the Sporups declined to honor the terms of the promissory note, maintaining that payment of the remaining commission was conditioned on their receipt of the buyer's payments. The realty company filed this action to recover the unpaid commission, pre-judgment interest, and attorney's fees under the terms of the promissory note. The Sporups counterclaimed. The trial court awarded the realty company a judgment in the amount of $85,327.82 after a bench trial. Because the Sporups have not established a breach of fiduciary duty entitling them to an offsetting award of damages, we affirm.

State of Tennessee v. Brian L. Tune
E2009-01619-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Brian L. Tune, was charged with driving under the influence (DUI), second offense. Following the Loudon County Criminal Court's denial of his motion to suppress the breath alcohol test results, the defendant pled guilty to DUI, first offense, a Class A misdemeanor. Pursuant to the plea agreement, the trial court sentenced the defendant to 11 months and 29 days in the county jail suspended to a community based alternative sentence. Pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, the defendant sought to reserve a certified question of law challenging the breath alcohol test results. However, we conclude the certified question is not dispositive. We also note that the defendant failed to file a timely notice of appeal and provides no reason to waive the timely filing of the notice of appeal. The appeal is dismissed.

State of Tennessee v. James Porter McFarland
M2009-01657-CCA-R3-CD
Authoring Judge: Judge J.C. Mclin
Trial Court Judge: Judge John D. Wootten

The defendant, James Porter McFarland, presents for our review a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). The defendant pleaded guilty to driving under the influence, second offense. As a condition of his guilty plea, the defendant reserved a certified question of law challenging the denial of his motion to suppress based upon his allegation that police subjected him to an unconstitutional investigative stop. Following our review, we affirm the judgment of the trial court denying the defendant's motion to suppress.

Denise Elizabeth Bailey (Price) v. Gregory Ross Price
M2009-01787-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge C. L. Rogers

The trial court reduced a divorced husband's alimony obligation because of a decline in his income from existing and expected future reductions in his overtime hours at the Post Office. The wife argues on appeal that her medical condition continues to prevent her from working, so her need remains the same as it was before, and that a reduction in alimony is therefore unjustified, even if the husband's ability to pay declines. She also argues that the trial court erred in taking future reductions in husband's overtime hours into consideration, which she characterizes as speculative. We find that under the circumstances of this case the reduction in alimony ordered by the trial court did not constitute an abuse of its discretion, and we therefore affirm its judgment.

The Estate of Ella Mae Cockrill
M2010-00663-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge David R. Kennedy

The son of a woman who died at the age of ninety-four filed a petition for probate in solemn form of his mother's lost will. After examining a photocopy of the alleged will and hearing proof from six witnesses, the trial court granted the petition. One of the granddaughters of the decedent appealed, and she has presented a number of arguments to suggest that the trial court erred. We have considered her arguments on appeal, but in the absence of a trial transcript or a statement of the evidence, we must assume that the trial court's decision is fully supported by the record. We accordingly affirm.

Donald M. Merriweather v. Luther Smith, Jr.
W2009-02656-COA-R3-CV
Authoring Judge: Holly M. Kirby, J.
Trial Court Judge: Lorrie K. Ridder, Judge
This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The defendant now appeals. We affirm.

Bobby Ervin v. State of Tennessee
M2010-01767-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Dee David Gay

The Petitioner, Bobby Ervin, appeals from the order of the trial court dismissing his petition for post-conviction relief as time-barred. The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State's motion and affirm the judgment of the trial court.

Wondimu Borena v. Yellow Cab Metro, Inc., et al.
M2010-00580-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas Brothers

The former attorney for the plaintiff, who is seeking to recover a contingency fee pursuant to an attorney's lien she filed after her services were terminated, filed this appeal challenging the trial court's finding that the parties did not enter into a binding settlement agreement and the involuntary dismissal of the underlying personal injury action. The action was dismissed because the pro se plaintiff did not comply with orders of the court. The plaintiff's former attorney claims she has the independent right to enforce a settlement she negotiated, but which her client rejected, in order to recover a fee. The pro se plaintiff also seeks to set aside the involuntary dismissal of his case. Finding no merit to the arguments asserted on appeal, we affirm the trial court in all respects.

State of Tennessee v. Jerry Len Angus
M2009-01151-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Jerry Len Angus, was indicted in a seventeen-count indictment by the Davidson County Grand Jury for three counts of official misconduct in violation of Tenn. Code Ann._ 39-16-402, nine counts of sexual battery by an authority figure in violation of Tenn. Code Ann. _ 39-13-527, four counts of statutory rape in violation of Tenn. Code Ann. _ 39-13- 506, and one count of rape in violation of Tenn. Code Ann. _ 39-13-503. Defendant was convicted by a jury of three counts of official misconduct, one count of attempt to commit sexual battery, a lesser-included offense of the charged offense of sexual battery, one count of sexual battery, and two counts of attempt to commit statutory rape, a lesser-included offense of statutory rape. The jury did not consider eight counts of the indictment as the trial court granted judgments of acquittal at the close of the State's proof, and defendant was acquitted by the jury of the remaining two counts. Defendant filed a motion for new trial, and following a hearing, the trial court vacated his conviction for official misconduct in Count 1 of the indictment for insufficiency of the evidence. The court granted a mistrial as to defendant's conviction for attempted sexual battery in Count 4, his conviction for official misconduct in Count 8, and his conviction for sexual battery in Count 11. In an amended order, the trial court also vacated defendant's conviction for official misconduct in Count 3 of the indictment. On appeal, defendant asserts that the trial court's polling of the jury was improper and that he is entitled to a new trial. Finding no error, we affirm the judgments of the trial court.

State of Tennessee v. Linda F. Cathey
M2010-00132-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Larry Wallace

A Humphreys County Circuit Court jury convicted the defendant, Linda F. Cathey, of one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. __ 39-14-104, -105(4) (2006). The trial court sentenced the defendant to six years' probation and ordered restitution to the victim in the amount of $27,000. On appeal, the defendant argues that the trial court erred by denying her request for judicial diversion, by imposing the maximum sentence of six years, and by ordering restitution without properly considering her ability to pay. Discerning no error, we affirm the judgment of the trial court.

State of Tennessee v. Ricky Lane McKnight
M2010-01092-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Crigler

A Marshall County grand jury indicted the Defendant, Ricky Lane McKnight, for violation of the Habitual Motor Offender Act and driving on a revoked license. The trial court ordered the defendant to serve an effective sentence of three and one-half years. On appeal, the dDefendant argues that the trial court's sentence is excessive. After a thorough review of the record and the applicable law, we affirm the trial court's judgment.