State of Tennessee v. Hyman E. Miller
M2009-01204-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge David Bragg

Appellant, Hyman E. Miller, pled guilty in Rutherford County to vehicular assault and second offense driving under the influence ("DUI"). Appellant was sentenced to eight years for the vehicular assault conviction. That sentence was suspended and the trial court ordered Appellant placed on supervised probation for a period of ten years. Appellant was sentenced to eleven months and twenty-nine days for the second offense DUI conviction. He received pre-trial jail credit of seven months and twenty-two days. The trial court ordered Appellant to serve this sentence on supervised probation for a period of four months and twenty-two days. Subsequently, a probation violation warrant was filed against Appellant. The trial court revoked probation, ordering Appellant to serve sixty days in jail before being reinstated to probation. A second violation of probation warrant was filed against Appellant, alleging that Appellant had violated his probation in various ways. After a hearing, the trial court revoked Appellant's probation and ordered him to serve his sentence in incarceration. Appellant appeals the trial court's revocation of probation. Because we determine that the trial court did not abuse its discretion in revoking Appellant's probation, the judgment of the trial court is affirmed.

John Cook, Jr. v. Permanent General Assurance Corp.
W2009-01352-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This appeal involves the alleged breach of an insurance policy. The plaintiff insured had an automobile insurance policy with the defendant insurance company. The insured paid his insurance premium by check. He subsequently was involved in an automobile accident and notified the insurance company of the accident. The check was later returned for insufficient funds. The insurance company notified the insured that if he did not bring the premium current by a date certain, his insurance policy would be cancelled. The insured gave the insurance company a valid check for the premium, which was negotiated. The insurance company later cancelled the policy, retroactive to a date prior to the insured’s automobile accident. The insured sued the insurance company for breach of contract. After a bench trial, the trial court held in favor of the plaintiff  insured. The insurance company appeals. We affirm.

Charles Patterson v. Tennessee Department of Correction, et al.
W2009-01733-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Tony Childress

This appeal involves a petition for writ of certiorari filed by an inmate seeking review of his disciplinary conviction for assaulting a fellow inmate. TDOC did not oppose the issuance of the writ, and the certified record was filed with the trial court. Upon review of the record, the trial court denied the petition, and we affirm.

Mary Jane Bridgewater v. Robert S. Adamczyk , et al.
M2009-01582-COA-R3-CV
Authoring Judge: Frank G. Clement, Jr., J.
Trial Court Judge: C. K. Smith, Chancellor
The appellee, Mary Jane Bridgewater, has filed a Petition to Rehear pursuant to Tenn. R. App. P. 39. In her petition to rehear, she asserts the court incorrectly stated a material fact and misapprehended a material fact or proposition of law. The issue raised in the petition pertains to Ms. Bridgewater's Affidavit of Heirship, filed in support of her motion for summary judgment, and whether all of the material facts stated therein are admissible. In our opinion we held that some of the material facts were not admissible and for that reason we reversed the trial court's grant of summary judgment in her favor and remanded the matter for further proceedings. In this opinion on her petition to rehear, we reaffirm and supplement our prior opinion in this matter as follows.

Mary Jane Bridgewater v. Robert S. Adamczyk , et al.
M2009-01582-COA-R3-CV
Authoring Judge: Frank G. Clement, Jr., J.
Trial Court Judge: C. K. Smith, Chancellor
The appellee, Mary Jane Bridgewater, has filed a Petition to Rehear pursuant to Tenn. R. App. P. 39. In her petition to rehear, she asserts the court incorrectly stated a material fact and misapprehended a material fact or proposition of law. The issue raised in the petition pertains to Ms. Bridgewater's Affidavit of Heirship, filed in support of her motion for summary judgment, and whether all of the material facts stated therein are admissible. In our opinion we held that some of the material facts were not admissible and for that reason we reversed the trial court's grant of summary judgment in her favor and remanded the matter for further proceedings. In this opinion on her petition to rehear, we reaffirm and supplement our prior opinion in this matter as follows.

Studsvik Logistics, LLC v. Royal Furniture Company
W2009-00925-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal involves a judgment creditor's attempt to enforce a Mississippi default judgment in the general sessions court of Shelby County. The trial court concluded that the general sessions court lacked jurisdiction to enforce the judgment, and it set aside a conditional judgment entered by the general sessions court based on the Mississippi judgment. The judgment creditor appeals. We affirm.

Eric H. McPherson v. William E. George, Inc., and John H. Roebuck & Associates, Inc.
W2008-02450-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Arnold B. Goldin

This appeal involves the breach of a real estate contract. The plaintiff hired the defendant  auctioneer to sell his home at auction. After the defendant corporate purchaser was the high bidder at the auction, it signed a sales contract and made a substantial down payment on the property. The down payment was retained by the auctioneer as his commission. Shortly after that, the auctioneer promised the purchaser that the purchaser’s real estate agent would be paid a commission on the sale. Later, the defendant auctioneer refused to pay the purchaser’s agent a commission and, consequently, the purchaser refused to close on the sale. The auctioneer retained the earnest money. The seller filed this lawsuit against the purchaser for failing to close on the sale, and against the auctioneer for breach of fiduciary duty. The purchaser filed a counterclaim against the seller and a cross-claim against the auctioneer for breach of contract. All of the parties filed cross motions for summary judgment. The trial court granted summary judgment in favor of the seller against the purchaser, but held in favor of the auctioneer against the seller. The trial court ordered the purchaser to pay damages to the seller for its breach of the sales agreement and permitted the auctioneer to retain the earnest money. The purchaser now appeals. We affirm, rejecting the purchaser’s claim of fraudulent inducement, and concluding that the seller is entitled to damages pursuant to the plain language of the sales agreement.

Studsvik Logistics, LLC v. Royal Furniture Company
W2009-00925-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Kenny W. Armstrong

This appeal involves a judgment creditor’s attempt to enforce a Mississippi default judgment in the general sessions court of Shelby County. The trial court concluded that the general sessions court lacked jurisdiction to enforce the judgment, and it set aside a conditional judgment entered by the general sessions court based on the Mississippi judgment. The judgment creditor appeals. We affirm.

Charles Patterson v. Tennessee Department of Correction, et al.
W2009-01733-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Tony A. Childress

This appeal involves a petition for writ of certiorari filed by an inmate seeking review of his disciplinary conviction for assaulting a fellow inmate. TDOC did not oppose the issuance of the writ, and the certified record was filed with the trial court. Upon review of the record, the trial court denied the petition, and we affirm.

Timothy Clayton Thompson v. State of Tennessee
E2008-02819-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mary Beth Leibowitz

Petitioner Timothy Clayton Thompson pled guilty to one count of especially aggravated kidnapping and one count of aggravated rape. This court affirmed his conviction and Petitioner did not request supreme court review. Five years later, Petitioner filed this petition for post-conviction relief, seeking a delayed direct appeal and collaterally attacking his conviction. The post-conviction court concluded the petition was filed outside the limitations period and dismissed it without a hearing. Upon review, we conclude Petitioner is entitled to an evidentiary hearing to determine whether due process concerns toll the statute of limitations. We therefore reverse the post-conviction court's judgment and remand for appointment of counsel and for an evidentiary hearing consistent with this opinion.

Bobby Gerald Riley, and wife, Tanya Riley, Individually and as next of kin for Hunter Riley v. James Orr
M2009-01215-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Lee Russell

This is an appeal of a jury verdict. The plaintiff was hunting with his son. The defendant was also hunting in the general area, and accidentally shot the plaintiff. The plaintiff filed a lawsuit against the defendant for negligence, and included a claim for negligent infliction of emotional distress on behalf of his son. The parties stipulated as to the defendant's liability, and a jury trial was held on the issue of damages. The jury instructions included instructions on the plaintiff father's mental pain and suffering and the son's emotional injury, but did not separately address the plaintiff father's emotional injury. After deliberating, the jury returned a verdict awarding damages to the plaintiff father as well as an award for the son's emotional injury. The trial court denied the defendant's motion for a new trial and approved the verdict. The defendant now appeals. On appeal, the defendant challenges the sufficiency of the evidence supporting the verdict on several elements of damages, and argues that the inconsistency in the jury instructions on emotional injury necessitates a new trial. We affirm in part, vacate in part, suggest remittitur as to the awards for future medical expenses and for emotional injury, and remand for further proceedings.

State of Tennessee v. Larry Gene Lay, A/K/A Big Ike
E2009-00819-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Larry Gene Lay, aka Big Ike, appeals as of right from the Campbell County Criminal Court's revocation of his community corrections sentences and order of incarceration. He contends that the trial court's revocation is erroneous and based upon insufficient proof. Following our review, we affirm the judgments of the trial court.

Raymond O. Long, Jr. v. State of Tennessee
M2008-01820-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Steve Dozier

Petitioner, Raymond Long, Jr., 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 challenges trial counsel's failure to call certain witnesses to testify at trial on his behalf. 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.

State of Tennessee v. Darryl Hubbard
W2008-02437-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Lee V. Coffee

The defendant, Darryl Hubbard, pled guilty in case number 07-01581 to possession of marijuana, third offense or greater, a Class E felony, and in case number 07-03060 to possession of more than 0.5 grams of cocaine with intent to sell, a Class B felony, and to possession of marijuana with intent to sell, a Class E felony. The trial court sentenced the defendant as a multiple offender to four (4) years for case number 07-01581, to run consecutively to 07-03060 and to a prior case. The trial court sentenced him as a multiple offender in case number 07-03060 to four (4) years for the Class E felony, concurrent with eighteen (18) years for the Class B felony, to be served consecutively to 07-01581 and the prior case. The defendant's effective sentence for 07-05181 and 07-03060 is twenty-two (22) years in the Tennessee Department of Correction, consecutive to a nineteen (19) year sentence in the prior case. On appeal, the defendant contends that (1) the trial court erred by imposing consecutive sentences and (2) that his sentences are disproportionate to the offenses, amounting to cruel and unusual punishment. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Christopher Lee Davis
M2008-01216-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wooten, Jr.

Following a jury trial, Defendant, Christopher Lee Davis, was found guilty of aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, all Class B felonies, and attempt to commit premeditated first degree murder, a Class A felony. The trial court sentenced Defendant as a Range I, standard offender, to twelve years for each Class B felony conviction and twenty-five years for his attempted premeditated first degree murder conviction. The trial court imposed a combination of consecutive and concurrent sentencing for an effective sentence of forty-nine years. On appeal, Defendant argues that (1) the trial court erred in denying his motion to suppress; (2) the evidence is insufficient to support his conviction of attempted premeditated first degree murder; (3) the trial court erred in determining the length of his sentences; and (4) the trial court erred in imposing consecutive sentencing. After a thorough review, we affirm Defendant's convictions and the length of his sentences. We remand this matter for a new sentencing hearing solely for the purpose of determining whether consecutive sentencing is appropriate under the Sentencing Act and State v. Allen, 259 S.W.3d 671 (Tenn. 2008).

State of Tennessee v. Bruce C. Reliford
W2007-02899-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Paula L. Skahan

The defendant, Bruce C. Reliford, entered guilty pleas to aggravated robbery charges, following a remand, and was convicted by a jury of felony murder. The trial court imposed a life sentence for the felony murder conviction and twelve years for each aggravated robbery conviction, to be served concurrently. On appeal, the defendant contends that: the trial court improperly allowed evidence to be introduced at trial; his statement to police was not given voluntarily; and the trial court erred in accepting his guilty pleas and in setting his sentence. After careful review, we affirm the judgments from the trial court.

Effie Rivers v. Northwest Tennessee Human Resource Agency
W2009-01454-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Donald E. Parish

This is a personal injury case. The defendant’s employee negligently backed the defendant’s vehicle into the vehicle in which the plaintiff was a passenger. Prior to the accident, the plaintiff had reported discomfort in her shoulders to her physician. At some point after the accident, the plaintiff reported to her physician that she had pain in her right shoulder. Ultimately, the plaintiff required shoulder replacement surgery. The plaintiff sued the defendant for negligence. The parties stipulated to the defendant’s liability, and a bench trial was held on causation and damages. Based in part on deposition testimony of physicians, the trial court found that the accident caused the plaintiff’s injury and the ensuing surgery and entered judgment for the plaintiff. The defendant appeals. We affirm.

Melinda Long, as Administrator of the Estate of Opal Hughes v. Hillcrest Healthcare - West et al. - Concur
E2009-01405-COA-R3-CV
Authoring Judge: Judge Charles D. Susano
Trial Court Judge: Judge Wheeler A. Rosenbalm

I agree with the majority’s conclusion that, to the extent the allegations of the complaint allege medical malpractice¹, the defendants are entitled to summary disposition of that claim. This is true because the material filed by the defendants in support of their motion clearly establishes that the plaintiff failed to satisfy the pre-filing requirements of the applicable statute as it pertains to a complaint sounding exclusively in medical malpractice. See Tenn. Code Ann. § 29-26-121 (Supp. 20092). I cannot concur, however, that the allegations of the complaint sound exclusively in medical malpractice.

Melinda Long, as Administrator of the Estate of Opal Hughes, v. Hillcrest Healthcare - West, et al.
E2009-01405-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Wheeler A. Rosenbalm

Opal Hughes sustained injuries while in the care of defendant Hillcrest Healthcare - West, and her administrator brought this action for damages. Defendant moved to dismiss on the grounds that plaintiff's complaint was a complaint for malpractice against defendant. Plaintiff argued that the complaint was for simple negligence, and the Trial Court held the complaint was for medical malpractice and since statutory requirements for filing a medical malpractice complaint had not been met, dismissed the case. On appeal, we affirm.

In Re Devon W., et al.
E2009-01326-COA-R3-JV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Dale Young

Former foster mother and her new husband filed a motion to intervene and to set aside the adoption of three children by the current foster parents. The trial court denied the motion. We affirm.

Kevin Joseph McHugh vs. Carole Ann McHugh
E2009-01391-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry M. Warner

This appeal concerns the distribution of marital property. After a bench trial, the court entered the Final Decree of Divorce and distributed the marital property. Wife subsequently filed a motion to reconsider and for attorney's fees. The trial court denied the motion in part and awarded approximately $2,087.50 in attorney's fees and litigation expenses to Wife. Wife appeals. We affirm.

Pam Webb v. Nashville Area Habitat for Humanity, Inc.
M2009-01552-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Barbara N. Haynes

In this action charging retaliatory discharge, the Trial Court granted defendant a dismissal of action based on its Tenn. R. Civ. P. Rule 12 Motion. On appeal, we vacate the Judgment of the Trial Court and remand.

Villas on Blue Mountain, L.P., et al., v. Tennessee Housing Development Agency
M2009-01250-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Carol L. McCoy

Plaintiffs attempted to submit an application for Low-Income Housing Tax Credit with the Tennessee Housing Development Agency. The Agency refused to accept the application and plaintiffs subsequently sued, asking the Court to require the Agency to accept and process their application. The Trial Court determined that the issue was moot and plaintiffs appealed. On appeal, we affirm the Trial Court's summary judgment that the case was moot.

State of Tennessee v. Conrad Earl Edwards
E2009-00394-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Don W. Poole

The Defendant, Conrad Earl Edwards, was convicted of rape, a Class B felony, incest, a Class C felony, and sexual battery, a Class E felony. He was sentenced to serve eight years as a Violent Offender for rape, three years as a Range I offender for incest, and one year as a Range I offender for sexual battery. On appeal, he challenges the trial court's failure to sentence him as an especially mitigated offender and the denial of alternative sentencing. We affirm the judgments of the trial court.

William Downey v. Griffin Industries
E2009-00313-WC-R3-WC
Authoring Judge: Special Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Frank W. Brown, III

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court approved a settlement of this workers’ compensation claim. The settlement was presented to the court by means of an affidavit executed by the employee and a telephone conference between the court and the employee. Approximately six weeks later, the employee petitioned to set aside the settlement under Tenn. Code Ann. § 50-6-206(a) and alternatively, Tenn. R. Civ. P. 60.02. The trial court dismissed the petition for relief from Judgment. The employee has appealed. We affirm the order dismissing the petition to set the settlement aside.