APPELLATE COURT OPINIONS

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State of Tennessee v. Tina Cunningham

E2002-00571-CCA-R3-CD

The defendant, Tina Cunningham, was convicted of two counts of introduction of contraband into a penal facility. The trial court imposed a six-year sentence and granted immediate probation. Later, the trial court extended the original six-year sentence by two years when the defendant was convicted of two counts of forgery, but permitted the defendant to remain on probation. The trial court imposed an effective sentence of four years for the forgery convictions, to be served on probation and consecutively to the sentence for introduction of contraband into a penal facility. At some point, the trial court ordered the defendant to complete a drug program. When she failed to do so, the trial court revoked the defendant's probation and ordered her to serve the balance of her sentence in a community corrections program. When the defendant failed to comply with the requirements of the program, the trial court revoked the community corrections sentence and ordered the defendant to serve the balance of her sentence in the Department of Correction. In this appeal as of right, the single question presented for our review is whether the trial court erred by ordering the defendant to fully serve the balance of her sentence. The judgment of the trial court is affirmed.

Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge D. Kelly Thomas, Jr.
Blount County Court of Criminal Appeals 12/13/02
Kevin Haney vs. Brad Copeland

E2002-00845-COA-R3-CV
Kevin C. Haney and his wife, Marilyn Sue Melhorn ("the buyers"), purchased a retail business from Brad Copeland ("the seller") for $200,000. When their business failed, the buyers sued the seller for rescission and, in the alternative, for compensatory and punitive damages, alleging fraud and breach of contract. Following a bench trial, the buyers were awarded incidental and punitive damages totaling $99,053. The buyers appeal, arguing that they were entitled to additional damages equal to the amount of the purchase price. We affirm.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Sharon J. Bell
Knox County Court of Appeals 12/13/02
State of Tennessee v. Jeffrey Lynn Murphy

M2002-00984-CCA-R3-CD

The Defendant, Jeffrey Lynn Murphy, pled guilty to one count of fraud and was placed on probation for three years. The Defendant's supervising officer subsequently filed a probation violation warrant and a hearing was held. The trial court revoked the Defendant's probation and ordered him to serve his sentence in the Department of Correction. The Defendant now appeals, claiming that the trial court should have extended his period of probation, instead. We affirm the trial court's judgment.

Authoring Judge: Judge David H. Welles
Originating Judge:Judge Lillie Ann Sells
DeKalb County Court of Criminal Appeals 12/13/02
Robert L. Wilks v. State of Tennessee

E2002-00846-CCA-R3-PC

The petitioner, Robert L. Wilks, appeals from the trial court's denial of his petition for habeas corpus relief. The trial court did not appoint counsel. In this appeal of right, the petitioner alleges that the trial court erred by denying the appointment of counsel and by entering the order of summary dismissal. The judgment is affirmed.

Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Robert E. Cupp
Johnson County Court of Criminal Appeals 12/13/02
State of Tennessee v. Antoinette Hill

E2001-02524-CCA-R3-CD

The defendant, Antoinette Hill, was convicted of first degree premeditated murder. The trial court imposed a life sentence. In this appeal of right, the defendant challenges the sufficiency of the evidence and argues that the trial court erred in its instructions to the jury. The judgment is affirmed.

Authoring Judge: Presiding Judge Gary R Wade
Originating Judge:Judge Richard R. Baumgartner
Knox County Court of Criminal Appeals 12/13/02
Prudential Botts & Associates vs. R & E Properties

E2002-01827-COA-R3-CV
In this case Prudential Botts & Associates Realtors, Inc., a real estate agency, sues R & E Properties, LLC, and one of its principals, Paula Ellis, and her father, James Runion, who advised and exerted influence over his daughter in connection with the business of R & E. The suit alleges that the Defendants violated the Tennessee Consumer Protection Act, T.C.A. Title 47, Chapter 17, resulting in damages to Prudential because a real estate transaction did not close as a result of misstatements made by the individual Defendants, thereby causing Prudential to lose a commission it otherwise would have received. After a plenary trial the Chancellor found in favor of the Plaintiff and awarded it $147,000 in compensatory damages; $97,000 in attorney fees; and $45,000 in pre-judgment interest. We reverse and dismiss.
Authoring Judge: Judge Houston M. Goddard
Originating Judge:W. Frank Brown, III
Hamilton County Court of Appeals 12/13/02
Elizabeth Whitaker vs. Lawson Whitaker

E2002-00847-COA-R3-CV
In this post-divorce case, Lawson S. Whitaker, III ("Father") filed a complaint against Elizabeth Donahue Whitaker ("Mother"), seeking to hold her in contempt of court for depriving him of visitation privileges and parenting time with the parties' minor daughter, Grace Anne Whitaker (DOB: September 6, 1996) ("the child"). In response, Mother filed, inter alia, a counterclaim for contempt and for modification of the parties' Parenting Plan. The trial court found a substantial and material change in circumstances justifying a modification of the Parenting Plan. In addition, the trial court held Father in contempt due to his failure to follow the court's prior orders and for harassing Mother. Father appeals both the modification and the court's finding of contempt. Mother seeks attorney's fees for this appeal. We affirm and remand to the trial court for that court to set attorney's fees for Mother in connection with this appeal.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Jacqueline E. Schulten
Hamilton County Court of Appeals 12/13/02
State of Tennessee v. David Earl Palmer

W2001-02515-CCA-R3-CD

Defendant, David Earl Palmer, was convicted by a jury of aggravated burglary and aggravated rape. The trial court sentenced Defendant to five years for the aggravated burglary conviction and twenty-five years for the aggravated rape conviction. In his appeal, Defendant contends that the evidence presented at trial was insufficient to sustain either conviction. After a thorough review of the record, we affirm the judgments of the trial court.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge C. Creed McGinley
Carroll County Court of Criminal Appeals 12/13/02
In Re: Estate of Donald Henderson, Jeff Henderson vs. Kenneth Henderson

E2002-01155-COA-R3-CV
Donald Ben Henderson ("Deceased") died in 1998. Jeff Henderson ("Appellant") is the Deceased's grandson. Kenneth Henderson ("Appellee") is the Deceased's son. Appellant and Appellee each submitted documents for probate purporting to be the last will and testament of the Deceased. In total, three wills and a revocation were filed with the Probate Court. The Probate Court entered its Order of Probate on October 18, 2001, holding that none of the three documents submitted should be admitted to probate as the Deceased's will. Based upon this determination, the Probate Court held the Deceased died intestate. More than thirty days after October 18, 2001, Appellee filed a motion to excuse the administrator ad litem and requested he be appointed personal representative of the estate. Appellant opposed the motion and filed a will contest. The Probate Court's order of April 23, 2002, appointed Appellee personal representative of the estate and stated its earlier order holding the Deceased died intestate was a final order. Appellant appealed. Appellee argues this Court lacks jurisdiction to hear the appeal because the notice of appeal was filed late. We hold the notice of appeal was not filed timely. We, therefore, are without jurisdiction to hear this appeal and, accordingly, dismiss the appeal.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Edwin C. Harris
Monroe County Court of Appeals 12/12/02
E2002-1735-COA-R3-CV

E2002-1735-COA-R3-CV

Originating Judge:L. Marie Williams
Hamilton County Court of Appeals 12/12/02
Taylor & Fleishman vs. Kenneth Seaton

E2002-00075-COA-R3-CV
This is a suit to recover a contractual attorney fee. By virtue of circumstances plaintiff Dudley Taylor had the exclusive standing to contest a petition for the involuntary bankruptcy of Taylor and Associates, LLP, from whom defendant and five other individuals had received preferential payments which were required to be returned to the Trustee if the bankruptcy was approved. Conversely, if the bankruptcy was not approved, the defendant and others similarly situated would retain the preferential payments. The plaintiffs had invested a substantial sum with Taylor and Associates, LLP, but had received no preferences. Dudley Taylor devised a plan whereby, for a fee, he would intervene in the bankruptcy and oppose it, and if he were successful the defendant would retain the preferential payments. The defendant proposed a contract by which the plaintiff, for a non-refundable up-front fee of $100,000.00, and a $200,000.00 additional fee contingent upon success, agreed to oppose the bankruptcy as a party litigant. He was successful, but the defendant refused to pay the fee, asserting the invalidity of the contract on various grounds, including ethical considerations. The Chancellor allowed a recovery. We affirm.
Authoring Judge: Sr. Judge William H. Inman
Originating Judge:Sharon J. Bell
Knox County Court of Appeals 12/12/02
State of Tennessee v. Melvin L. Harper

E2001-01089-CCA-R3-CD
The appellant, Melvin L. Harper, was convicted by a jury in the Criminal Court of Sullivan County of aggravated robbery, a Class B felony. The appellant was sentenced as a Range II multiple offender to twenty years incarceration in the Tennessee Department of Correction. On appeal, the appellant challenges: (1) the sufficiency of the evidence to support his conviction of armed robbery; (2) the trial court's granting of the State's motion to amend the indictment on the day of trial; (3) the wording of the trial court's jury instructions regarding lesser-included offenses; and (4) the sentence imposed by the trial court. After a careful review of the record and the parties' briefs, we affirm the judgment of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Phyllis H. Miller
Sullivan County Court of Criminal Appeals 12/12/02
State of Tennessee v. Adrianne Elizabeth Noles

W2002-01558-CCA-R3-CD

Pursuant to Tennessee Code Annotated section 39-13-213(a)(1) (1997), the defendant, Adrianne Elizabeth Noles, was charged with vehicular homicide by recklessness in the Haywood County Circuit Court. She submitted a guilty plea to the charge, a Class C felony, and agreed to have the trial court determine the length and manner of service of her sentence. After a sentencing hearing, the trial court imposed a three-year sentence to be served in the Department of Correction.  Aggrieved of the trial court’s rejection of any sentencing alternative to incarceration, she appeals.  We affirm.

Authoring Judge: Judge J. Curwood Witt, Jr.
Originating Judge:Judge Clayburn L. Peeples
Haywood County Court of Criminal Appeals 12/12/02
State of Tennessee v. Tracy R. Pipes

W2002-00433-CCA-R3-CD

The defendant, Tracy R. Pipes, appeals the Hardin County Circuit Court's revocation of her drug-offense probation. The court ordered her to serve the effective eight-year sentence in the Department of Correction. Because the record supports the lower court's actions, we affirm.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge C. Creed McGinley
Hardin County Court of Criminal Appeals 12/12/02
Nancy Webber vs. Gary Webber

E2002-01355-COA-R3-CV
The Trial Court held it had jurisdiction over marital property and alimony. Husband argued since the divorce was granted in Nevada, the Nevada Decree was res judicata on these issues. We affirm.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:William E. Lantrip
Anderson County Court of Appeals 12/12/02
Wanda F. Cherry, et al vs. First State Bank

E2002-00981-COA-R3-CV
Wanda F. Cherry and Daniel R. Greene ("Plaintiffs") are the owners of property located on the parkway in Pigeon Forge. Wayne Burroughs ("Burroughs") owned property adjacent to the Plaintiffs' property, but Burroughs' property did not adjoin the parkway. Burroughs leased Plaintiff's property and used their property and his property to operate a business. During this time, Burroughs borrowed money from First State Bank ("Defendant"). Burroughs' leasehold interest in Plaintiffs' property was part of the collateral for this loan. After Burroughs filed for bankruptcy, his leasehold interest in Plaintiffs' property was sold at auction. Defendant was the highest bidder at the auction. Defendant paid rent for a period of time, but then stopped paying rent. Plaintiffs sued for past due rent. The Trial Court granted summary judgment to Plaintiffs and awarded damages totaling $127,968.60. Defendant appeals the grant of summary judgment to Plaintiffs. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:Ben W. Hooper, II
Sevier County Court of Appeals 12/12/02
Jackie Wright & Kimberly Green vs. Azalea Rains

E2002-01107-COA-R3-CV
Cager M. Casey ("Deceased") executed a revocable inter vivos trust agreement in July of 1992. The trust named a number of family members and friends as beneficiaries ("Appellees"). In January of 1999, Deceased executed a will. While this will does not specifically reference the trust, it does direct Deceased's PaineWebber stock be sold at his death and the proceeds given to Jackie L. Wright, Kimberly A. Green ("Appellants") and other members of the Wright family. Deceased owned no stock in PaineWebber. However, the trust was administered by UBS PaineWebber, Inc. ("PaineWebber"). Appellants submitted the 1999 will for probate and were granted letters testamentary. PaineWebber refused to turn over the trust investments absent court order. Appellants sued Appellees and PaineWebber. After trial, the Probate Court entered its judgment on November 29, 2001, holding the 1999 will did not alter the trust and the trust would, by its terms, distribute the trust assets to the trust beneficiaries. Appellants appeal the November 29, 2001 judgment. We affirm.
Authoring Judge: Judge David Michael Swiney
Originating Judge:William H. Russell
Loudon County Court of Appeals 12/12/02
John Robert Benson v. State of Tennessee

M2001-02510-CCA-R3-PC

The petitioner was convicted of two counts of attempted first degree murder and three counts of reckless endangerment and received an effective sentence of thirty years. On direct appeal, this court affirmed the petitioner's convictions and sentence. The petitioner now contends that his trial counsel provided ineffective representation. After reviewing the record, we conclude that the petitioner has failed to meet his burden of demonstrating that his trial counsel provided ineffective assistance. Accordingly, we affirm the denial of the petition for post-conviction relief.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge W. Charles Lee
Bedford County Court of Criminal Appeals 12/12/02
Greg Melton v. Gerald Melton

M2002-00532-COA-R3-CV
Beneficiaries of irrevocable insurance Trust filed a Complaint against the Trustees, seeking to have the corpus of the trust distributed and the Trust terminated by its own terms. One Trustee, acting pro se, answered the Complaint. Beneficiaries filed a Motion for Summary Judgment supported by their joint affidavits. No response or countervailing affidavit was filed, and an Order was entered granting the Motion. Trustee appeals. We affirm
Authoring Judge: Judge W. Frank Crawford
Originating Judge:J. B. Cox
Bedford County Court of Appeals 12/11/02
State of Tennessee v. Sherrie Mae Crawford

E2002-01292-CCA-R3-CD

Pursuant to a plea agreement, the Defendant pled guilty to theft under $500 and to violating an habitual traffic offender order. She entered Alford pleas to possession of marijuana with intent to sell, possession of drug paraphernalia, and two counts of contributing to the delinquency of a minor. Her total effective sentence was two years as a Range I standard offender plus eleven months and twenty-nine days on supervised probation. The manner of service of the two-year sentence was to be determined by the trial court following a sentencing hearing. The trial court denied alternative sentencing and ordered the Defendant to serve the entire two years in the Tennessee Department of Correction. In this appeal, the Defendant argues that the trial court erred in failing to impose an alternative sentence. Concluding that the record supports the trial court's denial of alternative sentencing, we affirm the judgments of the trial court.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Phyllis H. Miller
Sullivan County Court of Criminal Appeals 12/11/02
John Garland vs. Tonia Garland

E2002-00949-COA-R3-CV
In this divorce action, the wife appeals the alimony award and amount of attorney's fees awarded to her. On appeal, we Affirm as Modified.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:James W. Mckenzie
Rhea County Court of Appeals 12/11/02
Herman Howard. v. American Industries Services

M2001-02711-COA-R3-CV
The Chancery Court of Davidson County dismissed the complaint in this case for the plaintiffs' failure to respond to discovery requests. The plaintiffs assert on appeal that the chancellor abused her discretion. We affirm the chancery court.
Authoring Judge: Judge Ben H. Cantrell
Originating Judge:Ellen Hobbs Lyle
Davidson County Court of Appeals 12/11/02
State v. Patty Grissom

M2002-00279-CCA-R3-CD
The appellant, Patty Francine Grissom, was convicted of the simple possession of a Schedule II controlled substance and she received a probationary sentence of eleven months and twenty-nine days. Subsequently, the trial court revoked the appellant's probation upon finding that she had possessed drugs and drug paraphernalia while on probation. On appeal, the appellant raises several issues concerning her probation revocation. Upon reviewing the record and the parties' briefs, we affirm the judgment of the trial court.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Charles D. Haston, Sr.
Warren County Court of Criminal Appeals 12/11/02
Pigeon Forge vs. William Loveday

E2002-00643-COA-R3-CV
Landowner seeks a new trial in eminent domain case on grounds that the Trial Court admitted in evidence the price paid for the land 19 years earlier. We reverse the Trial Court's Judgment.
Authoring Judge: Presiding Judge Herschel P. Franks
Originating Judge:Richard R. Vance
Sevier County Court of Appeals 12/11/02
State v. Phillip Wilcox

M2002-00667-CCA-R3-CD
The defendant contends the trial court erred in revoking his probation. He claims the trial court improperly considered evidence of probation violations, because he was not given proper notice of the violations by the probation revocation warrant. He further claims that the evidence adduced at the probation revocation hearing was insufficient to revoke his probation. The trial court heard evidence of probation violations that were not included in the probation warrant, but the trial court specifically stated it did not consider such evidence in revoking the defendant's probation. Because sufficient evidence exists to prove the defendant violated Rule One of his Rules of Probation, we affirm the judgments of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:L. Craig Johnson
Coffee County Court of Criminal Appeals 12/11/02