State of Tennessee v. Andrei Ciobanu
The Defendant, Andrei Ciobanu, was charged with vandalism of property with a value of at least $1,000 but less than $10,000. See T.C.A. _ 39-14-408. The trial court granted his motion to suppress eyewitness identification evidence and dismissed the case. In this appeal filed by the State, we reverse the order of the trial court suppressing the evidence and dismissing the case. |
Knox | Court of Criminal Appeals | |
State of Tennessee v. Eric Maxie
The petitioner, Eric Maxie, appeals the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A jury convicted the petitioner of aggravated sexual battery, a Class B felony. The trial court sentenced him as a Range I violent offender to serve ten years and six months in the Tennessee Department of Correction. On direct appeal, this court affirmed the petitioner’s conviction. The petitioner filed a petition for post-conviction relief alleging the ineffective assistance of counsel, and the post-conviction court denied his petition. On appeal, the petitioner contends that the post-conviction court erred when it denied his petition for post-conviction relief. After reviewing the record, the parties’ briefs, and applicable law, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Franklin County Board of Education v. Lisa Crabtree and Franklin County Education Association
This appeal arises from a declaratory judgment action. The trial court determined that Defendant teacher's grievance against the Franklin County Board of Education was not subject to arbitration under the collective bargaining agreement between the Board and the Franklin County Education Association. The trial court also dismissed Defendant teacher's counterclaim under Tennessee Code Annotated _ 49-5-510. We affirm. |
Franklin | Court of Appeals | |
Harold Lee Harden v. Judy Kay Harden
This is a divorce action. Husband/Appellant appeals from the trial court's division of marital assets, award of attorneys fees to the Wife, and the stay of the proceedings during the pendency of the appeal. Affirmed as modified. |
Wilson | Court of Appeals | |
Tonya L. Gerakios v. Michael T. Gerakios, Jr.
This is an appeal from a final decree of divorce. The trial court granted the wife a divorce, equitably divided the parties' property, and awarded the wife alimony in solido. We affirm. |
Davidson | Court of Appeals | |
Joann Butler, et al. v. Marion County, Tennessee
Landowners filed suit to determine ownership of that portion of Ann Wilson Road that crosses their property. Defendants sought and were granted summary judgment based on the running of several statutes of limitations. Landowners appealed. We affirm. |
Marion | Court of Appeals | |
Blackburn & McCune, PLLC v. Pre-Paid Legal Services, Inc. and Pre-Paid Legal Services of Tennessee, Inc.
This appeal involves legal insurance. The defendants have sold legal insurance for many years. The plaintiff law firm provided legal services to policyholders pursuant to the defendants' legal insurance policies. After Tennessee began to regulate legal insurance, the defendants were required to obtain State approval of their insurance rates and plans. The defendants submitted plans to the State. The plans included proposed rates and anticipated claims expenses, consisting primarily of the fees paid to the plaintiff law firm. The State informed the defendants that the initial filings did not reflect a sufficient loss ratio, that is, ratio of expenses to premium rates. The defendants revised the State filings to reflect an increase in the compensation paid to the plaintiff law firm. At the same time, the defendants presented the plaintiff law firm with a contract that required the plaintiff to pay the defendants for certain administrative services. The amount to be paid to the defendants essentially equaled the amount by which the defendants increased the plaintiff's compensation rate. Years later, the plaintiff discovered facts that caused it to conclude that the contract was a subterfuge to allow the defendants to recoup the increased compensation to the law firm while appearing to comply with the State's loss ratio requirement. The plaintiff informed the State of these facts and of its suspicion that the purpose of the arrangement was to circumvent the loss ratio requirement. After receiving this information, the State took no adverse action against the defendants. The plaintiff then filed this lawsuit seeking restitution, asserting that the contract with the defendants was fraudulently induced and that it was void and unenforceable as against public policy. The plaintiff also asserted a claim under the filed rate doctrine, seeking to recover the difference between the pay rate that the defendants filed with the State and the rates actually paid to the plaintiff. The trial court granted summary judgment in favor of the defendants on all of the plaintiff's claims. The plaintiff now appeals. We reverse the grant of summary judgment as to the claims of fraudulent inducement and violation of public policy, finding that genuine issues of material fact exist as to those claims. We affirm the trial court's decision on all remaining claims. |
Davidson | Court of Appeals | |
Ambreco Shaw v. State of Tennessee
Petitioner, Ambreco Shaw, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial. Specifically, Petitioner contends that (1) counsel failed to fully investigate all possible defenses; (2) counsel failed to adequately meet with Petitioner and allow him to be involved in his defense; (3) counsel failed to properly convey and explain settlement offers; (4) counsel failed to properly advise Petitioner concerning his right to testify; (5) counsel improperly allowed Petitioner to appear at trial in prison clothing; (6) counsel failed to request a mental evaluation in a timely manner; and (7) counsel failed to cross-examine witnesses and provide proof at the sentencing hearing. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Joey D. Herrell v. Howard Carlton, Warden - Concurring
I concur in the result reached in the majority opinion, given existing precedent. I believe though, that once the habeas court concludes that a judgment is void, it should transfer the case to the convicting court—a court of equal jurisdiction—for further proceedings. The habeas court should not be allowed to act further regarding the convicting case by limiting the options available to the Petitioner or to the convicting court upon transfer of the case. |
Johnson | Court of Criminal Appeals | |
Joey D. Herrell v. Howard Carlton, Warden
The petitioner, Joey D. Herrell, appeals the trial court's dismissal of his application for his petition for the writ of habeas corpus. In six separate cases, the petitioner pled guilty to the following: theft of property under $500, aggravated robbery, aggravated burglary, especially aggravated robbery, three counts of attempted aggravated burglary, theft of property over $1000, and evading arrest. The offenses in four of the cases were committed while the petitioner was released on bond from the remaining two cases. All pleas were entered on the same day, and the trial court imposed concurrent sentencing, which resulted in the petitioner receiving an effective sentence of twenty years. He has filed the instant habeas corpus petition alleging that the imposition of concurrent sentencing resulted in illegal sentences because they were imposed in direct contravention of a statute, as he had been released on bond at the time some of the offenses were committed. The habeas corpus court and the State agreed that the sentences were illegal, and the court found that the illegal portion of the sentences was not "a material element" of the petitioner's guilty plea agreement and that, therefore, he was not entitled to withdraw the plea. Rather, the court remanded the case to the trial court for imposition of consecutive sentencing. On appeal, the petitioner disagrees and asserts that he should be allowed to withdraw the plea. Following review of the record, we agree with the petitioner, reverse the decision of the habeas court, and remand with instruction to conduct a hearing to determine whether the illegal sentences were a material, bargained-for element of the plea agreement. |
Johnson | Court of Criminal Appeals | |
Kenneth J. Cradic v. State of Tennessee
The Petitioner, Kenneth J. Cradic, appeals the summary dismissal of post-conviction relief by the Sullivan County Criminal Court. The Petitioner was convicted of three counts of rape of a child, a Class A felony, and three counts of incest, a Class C felony. He received a sentence of twenty years for each rape of a child conviction and a sentence of four years for each incest conviction. The trial court ordered that two of the twenty-year sentences for rape of a child be served consecutively to one another but concurrently with the third conviction and ordered that the three counts of incest be served consecutively to one another but concurrently with the rape of a child convictions, for an effective sentence of forty years. On appeal, the Petitioner contends that the post-conviction court erred in summarily dismissing his petition for post-conviction relief without appointing counsel. Upon review, we reverse the judgment summarily denying post-conviction relief and remand this case to the postconviction court for a full evidentiary hearing on the Petitioner's claim of ineffectiveassistance of counsel regarding the misapplication of the sentencing law. |
Sullivan | Court of Criminal Appeals | |
Roy E. Keough v. State of Tennessee
Petitioner Roy E. Keough appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. On May 9, 1997, a jury found the Petitioner guilty of the premeditated murder of his wife, Betty Keough, and the attempted first degree murder of Kevin Berry. For the murder conviction, the jury found that the Petitioner had previously been convicted of one or more felonies for which the statutory elements involve the use of violence to the person. See T.C.A. _ 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced the Petitioner to death. The trial court imposed a forty-year sentence for the attempted murder conviction to be served consecutive to his sentence of death. The Petitioner's convictions and sentences were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Keough, 18 S.W.3d 175 (Tenn. 2000). On December 12, 2000, the Petitioner filed a pro se petition for post-conviction relief. An amendment was filed on February 14, 2003, and an addendum to the amended petition was filed on November 6, 2007. The post-conviction court held hearings on various dates in September, October, and November 2007. On July 23, 2008, the post-conviction court entered an order denying relief. On appeal to this Court, the Petitioner presents a number of claims that can be characterized in the following categories: (1) the Petitioner's trial counsel were ineffective, (2) the Petitioner's appellate counsel were ineffective; (3) the Petitioner was denied a fair trial and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Reginald Denard Usher, son of Reginald Smith, deceased vs. Charles Blalock & Sons, Inc. et al.
Reginald Smith ("the Decedent") died when the exposed metal edge of a device known as a "Guardrail Energy-Absorbing Terminal" ("the crash cushion") penetrated the window of the cab of his moving overturned tractor-trailer and cut him nearly in half. His son, Reginald Denard Usher ("the plaintiff"), filed this action in the trial court against Charles Blaylock & Sons, Inc. The plaintiff also filed a claim against the State with the Tennessee Claims Commission. The essence of the claims is that the crash cushion was negligently placed at the end of a series of concrete barriers that served to separate traffic entering on and exiting from the roadway connecting to the temporary end of Interstate 140 in Blount County. The alleged negligence was the failure to install a "transition panel" between the last concrete barrier and the crash cushion. Such a panel is designed to cover the otherwise exposed edge of the crash cushion thereby preventing vehicles from "snagging" the exposed metal edge. Eventually, the claim against the State was joined with the claim against Blaylock. The case was tried to a jury with the circuit judge sitting as the Claims Commissioner; the jury was utilized by the trial judge in an advisory capacity with regard to the claim against the State. The jury returned a verdict in favor of the plaintiff. The jury found that the plaintiff's total damages were $2,000,000. It apportioned fault 25% to the Decedent, 37.5% to the State, and 37.5% to Blaylock. Acting as the Claims Commissioner, the trial court went against the advice of the jury and dismissed the claim against the State. The court found (1) that the plaintiff failed to carry the burden of proof with respect to the applicable standard of care for installing crash cushions; (2) that the plaintiff failed to prove a breach of duty; and (3) that, in any event, the Decedent was at least 50% at fault for speeding through a construction zone in foggy conditions. Later, the trial court granted Blalock's motion for judgment notwithstanding the verdict and entered judgment in its favor. The court held (1) that Blalock was not responsible, as a matter of law, for leaving off the transition panel because the State's inspector on the scene "directed" Blalock to leave it off; (2) that the plaintiff failed to carry the burden of proving, by expert testimony, what a reasonably prudent contractor would have done under the circumstances; and (3) again, that the Decedent was at least 50% at fault. The court, acting as 13th juror, conditionally granted Blalock a new trial in the event the judgment in its favor was vacated or reversed. The plaintiff appeals. We affirm the judgment in favor of the State. We vacate the judgment in favor of Blalock and remand for a new trial as to that defendant. |
Knox | Court of Appeals | |
Ty Amanns, et al vs. Jeff Grissom, et al.
This suit was filed in Circuit Court after first being filed and then voluntarily non-suited in Chancery Court. After multiple discovery abuses, the trial court entered an order pursuant to Tenn. R. Civ. P. 37 dismissing the plaintiffs' suit. Plaintiffs appeal to this Court. We affirm. |
Knox | Court of Appeals | |
Mark Allred v. Berkline, LLC, et al.
The employee sustained gradual injuries to his arms and shoulders as a result of repetitive motion in the course of his employment. His employer denied liability based upon the affirmative defense of misrepresentation of physical condition. Employee had sustained gradual injuries to his left shoulder and arm during a previous job. He was placed under permanent activity restrictions and received a workers’ compensation award as a result of those injuries. In applying for employment with appellant, he did not disclose the prior injuries. The trial court concluded that the employer did not prove the misrepresentation defense. Permanent total disability benefits were awarded. Employer has appealed, contending that the trial court erred by finding that it did not sustain its burden of proof as to the affirmative defense. Upon review, we conclude that the evidence preponderates against the trial court’s findings and that the employee’s misrepresentation was willful, was relied upon by the employer and was causally related to his subsequent injuries. Because we find that the employer sustained its burden of proving its affirmative defense, we reverse the awarding of benefits. Finally, we conclude that the employer is not entitled to recover the cost of retaining a consulting physician to view a surgical procedure that did not take place. |
Overton | Workers Compensation Panel | |
Wilson County Board of Education v. Wilson County Education Association and Steve Johnson
An assistant principal was transferred to a teaching position and grieved the transfer pursuant to a locally negotiated agreement between the local board of education and the organization representing teachers. After pursuing remedies through the school board, the teacher asked the trial court to compel the board to arbitrate resolution of the dispute. The trial court granted summary judgment to the school board, concluding that Tenn. Code Ann. _ 49-2-303 applied since "assistant principals" are statutorily the same as "principals" and, under the holding in Marion County Board of Education v. Marion County Education Association, 86 S.W.3d 202 (Tenn. Ct. App. 2001), the director of schools has the authority to transfer principals unrestrained by locally negotiated agreements. Mr. Johnson and the association appealed, claiming that Tenn. Code Ann. _ 49-2-303 does not apply to assistant principals and that the director of schools must comply with their agreement in making transfer decisions. We agree that the arbitration provision is not enforceable, but for a different reason. We hold that there was no meeting of the minds as to the procedure to be used as the final step in the grievance procedure. Consequently, there was no enforceable agreement to arbitrate. |
Wilson | Court of Appeals | |
State of Tennessee v. Quidon Clemons
Following a jury trial, Defendant, Quidon Clemons, was convicted of assault, a Class A misdemeanor, aggravated stalking, a Class E felony, and violation of an order of protection, a Class A misdemeanor. The trial court sentenced Defendant as a Range I, standard offender, to two years for aggravated stalking. As to the misdemeanors, Defendant was sentenced to eleven months, twenty-nine days for assault, and eleven months, twenty-nine days for violation of an order of protection. The sentences were ordered to be served consecutively. On appeal, Defendant argues that his sentence is excessive. After a thorough review, we affirm the judgments of the trial court. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Rodney A. Lucas
The Defendant-Appellant, Rodney A. Lucas, pled guilty in the Circuit Court of Montgomery County to possession of 0.5 grams or more of cocaine with intent to deliver, a Class B felony. He received a sentence of eight years to be served on probation. The trial court revoked Lucas' probation after his second violation. On appeal, Lucas admits that he violated his probation for a second time; however, he claims the trial court erred by revoking his probation and ordering confinement. Upon review, we affirm the judgment of the trial court. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Russel B. Cain
The defendant, Russel B. Cain, entered a plea of guilty to three counts of aggravated sexual battery of a victim under the age of thirteen, a Class B felony, but reserved a certified question of law to Counts Two and Three of the indictment. Specifically, he requests this |
Wilson | Court of Criminal Appeals | |
State of Tennessee v. Tremaine Nathaniel Pointer
The Defendant-Appellant, Tremaine Nathaniel Pointer, appeals the revocation of his probation by the Criminal Court of Davidson County. In case number 2006-D-2927, Pointer entered a guilty plea to possession with intent to sell .5 grams or more of cocaine, a Class B felony. In case number 2007-B-1142, Pointer pled guilty to felony failure to appear, a Class E [*2] felony. Pursuant to his plea agreement, he was sentenced as a Range I, standard offender to an eight year term of imprisonment for the drug conviction and was ordered to have a mental health and drug assessment. He was also sentenced to one year for the felony failure to appear conviction, which was imposed to run consecutively to the eight year sentence, for an effective nine-year sentence. The trial court ordered Pointer to serve six months in jail and the remainder of his sentence on supervised probation. After a revocation proceeding on September 19, 2008, Pointer was placed back on probation to be supervised by the community corrections program, and that placement was revoked on June 1, 2009, when the court ordered Pointer to serve his sentence. On appeal, Pointer contends that the trial court abused its discretion by ordering him to serve his sentence in confinement after revoking his probation. Upon review, we affirm the judgment of the trial court revoking Pointer's probation in cases 2006-D-2927 and 2007-B-1142. |
Davidson | Court of Criminal Appeals | |
Joseph Marion Barker v. Angel Chandler
This is the second appeal from a parenting plan entered by the trial court. The only issue in both appeals involved the necessity of a "paramour provision" in the parenting plan. On remand from the first appeal, the trial court was directed by this Court to determine whether a paramour provision was in the best interests of the children. After a hearing, the trial court determined that it was in the best interests of the children to have a paramour provision in effect. Mother appealed. After reviewing the record, we find that the trial court abused its discretion by requiring a paramour provision as the record is devoid of any evidence to support a finding that the paramour provision is in the best interests of the children. Reversed. |
Gibson | Court of Appeals | |
Thomas M. Gautreaux vs. Chattanooga-Hamilton County Hospital Authority
Thomas M. Gautreaux ("Gautreaux") filed a petition pursuant to the Tennessee Public Records Act for access to a settlement agreement involving Chattanooga-Hamilton County Hospital Authority ("the Hospital" or "Erlanger") in a previous lawsuit. The Hospital denied the request, claiming that the document was privileged under the Tennessee Peer Review Law. Gautreaux then filed a petition for a show cause hearing. After the hearing, the trial court determined that the settlement agreement was exempt from disclosure under the Peer Review Law. Gautreaux appeals. We affirm. |
Hamilton | Court of Appeals | |
Charles D. Stechebar vs. Deere & Company & John Doe
This case concerns a complaint for review by writ of certiorari and supersedeas. The initial action was a personal injury suit, arising from an automobile accident in which Plaintiff Charles D. Stechebar's vehicle was allegedly hit by a tractor-trailer owned by Defendant Deere and Company ("Deere") and driven by Defendant John Doe, an unidentified employee of Deere. The personal injury suit was dismissed with prejudice in the general sessions court when the plaintiff failed to appear for the initial trial date. The record reflects that twelve days before the initial trial date, the plaintiff had filed an amended civil summons and obtained a new trial date. Fifty days after the dismissal, the plaintiff filed an appeal to the circuit court, asserting that he had not been notified of the dismissal in time to file an appeal within the ten-day window required by Tenn. Code Ann. _ 27-5-108(a)(1). The circuit court dismissed the appeal for lack of jurisdiction. The plaintiff then filed the complaint for review by statutory writ of certiorari and supersedeas. The circuit court granted the defendant's motion to dismiss the writ on the ground that the plaintiff failed to state a claim for which review could be granted. We hold that the plaintiff stated a claim for relief under statutory writ of certiorari and supersedeas. The trial court's judgment is reversed and the case remanded to the trial court for further proceedings. |
Knox | Court of Appeals | |
State of Tennessee v. Alejandro Chevo Guana A.K.A. Alejandro Chevo Gouna
Appellant, Alejandro Chevo Guana, was convicted of first degree premeditated murder for killing Tennessee State Trooper Calvin Jenks during a routine traffic stop. He was sentenced to life in prison. He was also convicted of possession of marijuana with intent to deliver, for which he was to serve one year. He appeals, arguing the trial court erred in: (1) limiting his cross-examination of his co-defendant to reveal alleged bias; (2) denying a change of venue; (3) refusing to use his proffered jury questionnaire; (4) denying his request for individual and sequestered voir dire; and (5) finding the evidence sufficient for conviction where, he claims, the only evidence of premeditation was the testimony of his accomplice. We affirm. |
Tipton | Court of Criminal Appeals | |
State of Tennessee v. George R. Fyke
On April 5, 2007, the Defendant, George R. Fyke, pleaded guilty to four counts of forgery, one count of identity theft, and three counts of passing worthless checks. Pursuant to the terms of the plea agreement, he received an effective six-year sentence to be served in the Community Corrections Program for these convictions. Thereafter, on April 21, 2008, the Defendant pleaded guilty to one count of identity theft, one count of theft over $10,000, two counts of theft over $1,000, one count of attempted theft, and two counts of forgery. Also on that day, the Defendant admitted his violation of his April 2007 community corrections sentence. The trial court granted the Defendant a furlough to attend and complete a one-year rehabilitation program before sentencing. Following the Defendant's failure to complete the program, a sentencing hearing was held. The trial court ordered that the remainder of the Defendant's six-year sentence be served in confinement and, for the April 2008 convictions, imposed an effective eight-year sentence to be served on community corrections. On appeal, the Defendant argues that the trial court abused its discretion in ordering revocation of his community corrections sentence and that his eight-year sentence his excessive. After review, we affirm the sentencing decision of the trial court. However, we must remand for entry of a corrected judgment. |
Montgomery | Court of Criminal Appeals |