Shannon Wright Clement v. Mark Clement
M2009-00466-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Royce Taylor

The divorcing parents of two minor children entered into a parenting plan that named the mother as the primary residential parent of the children, but divided parenting time equally between the parties. Less than a year after their divorce became final, the mother moved from Murfreesboro to Franklin, and the parents filed competing petitions to modify the parenting plan. The trial court conducted two hearings and ultimately adopted a new parenting plan which provided that the mother would remain the primary residential parent and that the father would exercise only standard visitation. The father appealed. We affirm the trial court.

Mary Lawson v. Brad Lawson
M2009-00537-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Juidge C. L. Rogers

Uninsured motorist carrier voluntarily tendered the limits of its liability coverage into the probate proceeding administering the decedent's estate and not in the wrongful death tort action. The trial court dismissed the carrier from this wrongful death tort action since it had tendered its limits of liability. We find the dismissal was in error since any voluntary tender of insurance proceeds for wrongful death should be made into the wrongful death tort case, and tendering the limits elsewhere is not grounds for dismissal.

Rex Hubbard v. Helen Louise Hubbard
M2009-00780-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Thomas W. Graham

Wife argues on appeal that the trial court erred by awarding her a little more than half the parties' assets and alimony of $3,000 per month for 7 years while the physician Husband's earning capacity is considerably more than Wife's. During the parties' almost forty (40) year marriage, Wife reared 7 children and focused primarily on the family finances and not her individual finances. We agree with Wife and award her an additional $300,000 in marital assets. The matter is remanded to the trial court to determine reallocation of assets in accordance with this opinion.

Anthony Murray v. Charlotte Murray
M2009-01576-COA-R3-CV
Authoring Judge: Presiding Patricia J. Cottrell
Trial Court Judge: Chancellor Charles K. Smith

The trial court transferred primary residential placement of an eight year old girl from her mother to her father, finding that the mother's post-divorce conduct, including evidence of drug use and sexual indiscretions, amounted to a material change of circumstances, and that it was in the child's best interest for the father to become her primary residential parent. Because the evidence does not preponderate against the trial court's findings, we affirm.

Fred H. Gillham, Sr. v. Scepter, Inc.
M2009-01728-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Robert E. Burch, Judge
The owner of a parcel which has public road access via an easement appeals the trial court's decision regarding its width. The trial court found that the easement narrows from 60 feet to 30 feet along its course. The deed unambiguously states the easement is 60 feet in width. Reference in the deed to another narrower easement relied on by the trial court has no effect on the access easement width being described. Accordingly, we reverse.

William J. Reinhart v. Geico Insurance
M2009-01989-COA-R3-CV
Authoring Judge: Patricia J. Cottrell, P.J., M.S.
Trial Court Judge: Franklin L. Russell, Judge
The plaintiff owned a 1988 Porsche that was damaged by a collision with a deer. His insurer offered him $6,000 under his policy, after determining that the cost of repair was greater than the cash value of the car. The plaintiff, acting pro se, sued the insurer, and attempted to prove at trial that the auto was worth more than the insurer offered. After the plaintiff rested his case, the insurer moved for a directed verdict because the plaintiff had not introduced the insurance policy into evidence. The trial court granted the motion. The plaintiff argues on appeal that he did not intend to rest his case and that in any event the trial court should have allowed him to reopen his proof so he could introduce the insurance policy. Because there is neither a transcript of the proceedings nor a Rule 24 Statement of the Evidence in the appellate record, we must affirm the trial court.

Natalie Hagan v. Michael Phipps, et al.
M2010-00002-COA-R3-CV
Authoring Judge: Andy D. Bennett, J.
Trial Court Judge: Clara W. Byrd, Judge
This appeal involves claims by a home purchaser against a licensed contractor and a business associate of the unlicensed builder who built the home in question and sold it to the plaintiff. The trial court granted the contractor defendant's motion for summary judgment on all claims against him based upon its conclusions that the unlicensed builder was not the agent of the licensed contractor and that there was no predicate tort for civil conspiracy because the builder intended to use the house for his personal residence. Because we find that there are issues of material fact that must be resolved, we reverse the trial court's grant of summary judgment.

State vs. John Cote and Sarah Cote, In Re: Dr. Sandra Elkins
E2008-02483-CCA-R9-CD
Authoring Judge: Camille R. Mcmullen, J.
Trial Court Judge: Rex Henry Ogle, Judge
John and Sarah Cote, the Defendant-Appellees in this case, stand accused of offenses involving the death of a minor child. Dr. Sandra Elkins, the former 1 Knox County Medical Examiner, performed the autopsy of the victim in the Cotes' case. In a pre-trial motion for discovery, the Cotes requested disclosure of Dr. Elkins's personal medical records; namely, prescription records, drug treatment records, mental health records, University of Tennessee personnel records, an audit report of the East Tennessee Regional Forensic Center, and any records from the Tennessee Board of Medical Examiners. The trial court granted an in camera review of the requested information. Dr. Elkins originally sought an interlocutory appeal of the trial court's order granting the motion for discovery pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Interpreting the Rule 9 appeal as a common law writ of certiorari, this court granted review. Following this court's order accepting the Rule 9 appeal as a writ of certiorari, the Cotes filed a petition for a writ of certiorari with the Tennessee Supreme Court, which was denied. In this appeal, Dr. Elkins and the State raise largely the same issues: (1) whether this appeal should be construed as a petition for a common law writ of certiorari pursuant to Tennessee Code Annotated section 27-8-101 or as a petition for a statutory writ of certiorari pursuant to Tennessee Code Annotated section 27-8-102, or both; and (2) whether the trial court erred by ordering Dr. Elkins's personal records to be disclosed for an in camera inspection. Because the Cotes failed to make a plausible showing that the requested information contained material evidence that was favorable to their defense, we reverse the trial court's order permitting an in camera review of the records and remand the case.

David A. Lufkin, Sr. vs. Christopher W. Conner
E2009-01823-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Dale C. Workman

David A. Lufkin, Sr. ("Lufkin") sued attorney Christopher W. Conner ("Conner") for legal malpractice in January of 2009. Conner filed a motion for summary judgment. After a hearing, the trial court entered an order finding and holding, inter alia, that Lufkin knew or reasonably should have known of the existence of the facts forming this cause of action by September of 2007, and that Lufkin's complaint filed in January of 2009 was barred by the applicable statute of limitations. Lufkin appeals to this Court. We affirm.

Steven Williams v. United Parcel Service, et al.
M2009-02334-WC-R3-WC
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor C.K. Smith

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel. An employee who sustained a compensable injury to his left knee in 2006 filed suit in the Chancery Court for Wilson County seeking to recover benefits for an additional injury to his right knee allegedly caused by over-reliance on his right leg as a result of the earlier injury to his left knee. The employer denied liability and sought to introduce at trial a Medical Impairment Registry (“MIR”) report prepared in accordance with Tenn. Code Ann. § 50-6-204(d)(5) (Supp. 2009). The trial court sustained the employee’s objection to the introduction of the MIR report. Following a bench trial, the trial court determined that the 2006 injury to the employee’s left knee was compensable and awarded the employee 27% permanent partial impairment to each leg. On this appeal, the employer asserts that the trial court erred by excluding the MIR report, by finding that the injury to the employee’s right knee was a new, compensable injury, and by basing its award on the impairment rating of the employee’s physician. We affirm the judgment.

Leslie Louise Miller vs. Jeffrey Todd Miller
E2009-02252-COA-R3-CV
Authoring Judge: Charles D. Susano, Jr., J.
Trial Court Judge: Kindall T. Lawson, Judge
Leslie Louise Miller ("Wife") filed this action for divorce. Jeffrey Todd Miller ("Husband") coupled a counterclaim for divorce with his answer. Wife admitted inappropriate marital conduct in her answer. The parties had been married for 15 years and had two minor children. They stipulated to a division of all of their property except the marital residence, about which there remained unresolved issues. After three days of trial, the court granted Husband a divorce on the grounds of inappropriate marital conduct. The court awarded him the marital residence and ordered him to pay Wife one half of the equity, which the court determined to be $47,092.50, minus $4,500 representing that portion of Husband's attorney's fees assessed to Wife. The court awarded "primary parentage" of the children to Husband and gave Wife, a teacher at the children's school, parenting time limited to every other weekend and one weeknight every week. Wife appeals. The judgment of the trial court is affirmed in part and vacated in part.

Angela Merriman vs. Brian Merriman
E2010-00013-COA-R3-CV
Authoring Judge: D. Michael Swiney, J.
Trial Court Judge: O. Duane Slone, Judge
Angela Merriman ("Petitioner") filed for and obtained an ex parte order of protection against her husband, Brian Merriman ("Respondent"). Pursuant to statute, a hearing was conducted on whether to dissolve or to extend the order of protection. In accordance with Tenn. Code Ann. _ 36-3-605(b), a trial court has two options at such a hearing: (1) to dissolve the order of protection; or (2) to extend the order of protection for a definite period of time not to exceed one year. With respect to taxing costs, Tenn. Code Ann. _ 36-3-617(a) expressly prohibits taxing costs against a victim, even if the order of protection is dissolved. If the order of protection is extended, the costs must be taxed against the respondent. In the present case, following the hearing on whether to extend or dissolve the order of protection, the trial court instead entered a mutual restraining order and taxed costs equally to both parties. Because neither action was authorized by statute, we vacate the judgment of the trial court and remand for further proceedings consistent with this Opinion.

In Re Betty P., et al
E2010-00318-COA-R3-PT
Authoring Judge: Charles D. Susano., Jr., J.
Trial Court Judge: Sharon M. Green, Judge
This is a termination of parental rights case. Macaria L. ("Mother") appeals from the order terminating her parental rights to her five minor children and awarding full guardianship to the State of Tennessee. At the conclusion of a bench trial, the court ordered Mother's parental rights terminated upon its finding that she had abandoned her children by willfully failing to pay child support. Mother appeals. We conclude that the record contains clear and convincing evidence supporting the termination of Mother's rights. Accordingly, we affirm.

Darlene Manis Brown vs Allan Craig Vaughn
E2010-00373-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

Darlene Manis Brown, a Tennessee resident, filed a petition in the trial court seeking a protective order against her former boyfriend, Allan Craig Vaughn, a resident of the state of Georgia. Based upon her petition, the trial court issued an ex parte order of protection. Later, following an evidentiary hearing, the protective order was extended for one year. Vaughn appeals. He challenges the sufficiency of the evidence supporting the order of protection and claims the trial court lacked jurisdiction of this dispute. We affirm.

Antonio L. Fuller v. State of Tennessee
M2008-01421-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Antonio L. Fuller, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of trial and appellate counsel. Specifically, Petitioner contends that trial counsel's assistance was ineffective because he failed to (1) object to the trial court's instruction to the jury concerning the lesser included offense of aggravated kidnapping; (2) object to the trial court's consideration of Petitioner's prior convictions in determining his sentencing range and the length of his sentence; and (3) failed to raise these issues in the motion for new trial. Petitioner contends that appellate counsel's assistance was ineffective because he failed to raise these issues on appeal. Petitioner also contends that the length of his sentence violates the principles set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and asks this Court to grant him a new sentencing hearing. After a thorough review, we affirm the judgment of the post-conviction court.

State of Tennessee v. Orlando Daniel Garcia
W2009-00164-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Orlando Daniel Garcia, was convicted by a Tipton County jury of facilitation of first degree murder, a Class A felony, and possession of a Schedule VI controlled substance with intent to deliver, a Class E felony, and was sentenced to concurrent sentences of nineteen years and eighteen months for the respective convictions. On appeal, the defendant has raised three issues for our review: (1) whether the evidence was sufficient to support the conviction for facilitation of first degree murder; (2) whether the trial court erred in admitting portions of a video tape of the crime into evidence; and (3) whether the trial court erred in admitting evidence that the defendant purchased and wore a shirt with a Superman logo shortly after the incident. Following review of the record, we affirm the judgments of convictions.

State of Tennessee v. Donald Eugene O'Neal, Jr.
M2010-00191-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Michael R. Jones

The Defendant, Donald Eugene O'Neal, Jr., was sentenced as a Range I, standard offender to twelve years' confinement for attempted especially aggravated robbery, a Class B felony; to four years' confinement for reckless homicide, a Class D felony; and to three years' confinement for delivery of a schedule II drug, a Class C felony; all to be served consecutively for an effective sentence of nineteen years. On appeal, the Defendant contends that the sentences are excessive. The judgments of the trial court are affirmed.

Christopher Smith v. State of Tennessee
W2009-01228-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Paula Skahan

The petitioner, Christopher Smith, appeals the denial of his petition for post-conviction relief. On appeal, he argues that his trial counsel was ineffective and that his due process rights were violated when the trial court failed to grant a severance. After careful review, we affirm the judgment from the post-conviction court.

In Re: Aleksandree M. M. and Marie J.M.
M2010-01084-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor J. B. Cox

Mother of four children appeals the termination of her parental rights to two of those children on the ground that she failed to protect them from severe child abuse. Finding the evidence of record to clearly and convincingly support the ground for termination and that termination was in the children's best interest, we affirm the judgment.

Roland David Sheppard v. Wanda Elizabeth Sheppard
M2009-00254-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Laurence M. McMillan

The trial court granted the husband a divorce after a marriage of twenty-two years on the ground of the wife's inappropriate marital conduct. The court also divided the marital property and awarded the wife transitional alimony of $150 per month for 24 months. The wife argues on appeal that the trial court should have awarded her alimony in futuro of $2,240 per month. The husband argues that it was an error to award the wife any alimony at all. We affirm the award of transitional alimony, but modify it by increasing it to $350 per month.

In the Matter of: Madison K.
W2010-00183-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Christy R. Little

This is a termination of parental rights case. Father/Appellant appeals the trial court's termination of his parental rights to the minor child on grounds of: (1) abandonment by willful failure to support and willful failure to visit, as defined at Tenn. Code Ann. _ 36-1- 102(1)(A)(i); and (2) persistence of conditions as set out at Tenn. Code Ann. _36-1- 113(g)(3). Finding that there is clear and convincing evidence in the record to support these grounds, as well as clear and convincing evidence that termination of appellant's parental rights is in the best interests of this child, we affirm.

Charles Bryson, et al vs. The City of Chattanooga
E2009-01101-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

Before November 4, 1986, members of the Chattanooga Police and Fire Departments were allowed to buy back retirement credit for time served while employed in other departments within the City of Chattanooga. On November 4, 1986, a city-wide referendum was passed which established a cut-off date of June 1, 1987, in which to buy back these retirement credits. Almost nineteen (19) years later, this lawsuit was brought by fifteen (15) police officers ("Plaintiffs") against the City of Chattanooga (the "City") and the Chattanooga Fire and Police Pension Board (the "Pension Board"). Plaintiffs claimed, among other things, that the 1986 referendum unconstitutionally deprived them of a property right. Plaintiffs sought a declaration that they be allowed to buy back retirement credits for time served in other City departments. The Trial Court concluded that the statutes of limitation had run on all of the claims, with the exception of some of the plaintiffs' equal protection claim. The Trial Court then concluded that Defendants were entitled to summary judgment as a matter of law as to the one timely claim. Plaintiffs appeal, and we affirm.

State of Tennessee v. Mike Brotherton
W2007-02016-SC-R11-CD
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Donald E. Parish

This appeal involves an intoxicated driver who was stopped after a law enforcement officer saw what he believed to be a broken taillight on the driver's automobile. In his prosecution for driving under the influence in the Circuit Court for Carroll County, the driver asserted that the taillight did not provide the officer with reasonable suspicion to stop his automobile. After the trial court denied his motion, the driver pleaded guilty to driving under the influence but reserved the question of the legality of the traffic stop in accordance with Tenn. R. Crim. P. 37(b)(2). The Court of Criminal Appeals reversed the conviction and dismissed the indictment after finding that the officer lacked reasonable suspicion to make the traffic stop. State v. Brotherton, No. W2007-02016-CCA-R3-CD, 2009 WL 1097446 (Tenn. Crim. App. Apr. 23, 2009). We granted the State's application for permission to appeal to address the application of the reasonable suspicion standard in circumstances involving apparently broken taillights. Based on the undisputed facts, we conclude that the trial court's determination that the trooper had reasonable suspicion to initiate a traffic stop was correct.

East Tennessee Grading, Inc., vs. Bank of America, N.A., et al
E2009-02250-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor W. Frank Brown, III

Plaintiff brought this action to enforce a lien for excavation and road work done in a residential development, because the owner had not paid for the construction work performed. An agreed judgment was entered as to plaintiff's claims against defendant, Seven Lakes Development, awarding judgment against that defendant for materials and labor performed on the property. One parcel of property, however, totaling 6.36 acres was owned by defendants Coughlins, which was subject to a deed of trust in favor of Bank of America. The trial court held that Bank of America had priority over plaintiff as to 1.9 acres because plaintiff had not filed its Notice of Lien timely to maintain priority over the subsequent owners pursuant to Tenn. Code Ann. _ 66-11-112. The trial court also held that plaintiff had priority over Bank of America as to 4.46 acres because plaintiff's Notice of Lien was filed before the Amended Deed of Trust in favor of Bank of America was filed. On appeal, we affirm the Judgment of the trial court.

State of Tennessee v. Kathy M. Pennington
M2009-01125-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Robert L. Jones

Appellant, Kathy M. Pennington, was indicted by the Lawrence County Grand Jury for one count of possession of oxycodone, a Schedule II controlled substance. After the trial court denied appellant's motion to suppress, appellant pled guilty to the charge. As part of her guilty plea, appellant reserved a certified question for appeal arguing that the trial court erred in denying the motion to suppress. After a thorough review of the record, we conclude that the evidence does not preponderate against the factual findings of the trial court that appellant consented to the search. Therefore, we affirm the decision of the trial court.