Cydnie B. O'Rourke v. James P. O'Rourke
M2007-01833-COA-R3-CV
In the last proceeding in this protracted post-divorce litigation, the trial court transferred custody, or primary residential placement, of three children of a divorced couple from the mother to the father. In this consolidated appeal, the mother claims that the trial court erred in a number of ways. However, a number of her arguments relate to orders or actions that have been rendered moot by the final order, including her challenges to the use of a"parenting coordinator." As to the final order modifying residential placement, we hold that the trial court did not err in declining to use Tenn. Code Ann. _ 36-6-406 to limit the father's visitation with the children and that the court acted within its discretion in limiting the testimony of Mother's expert witness as a discovery sanction. We also hold that the trial court's award of $330,000 in attorney fees to the father was not error. We affirm the trial court.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Robert E. Lee Davies |
Williamson County | Court of Appeals | 11/10/10 | |
State of Tennessee v. Jermaine Mitchell Gray
W2009-01260-CCA-R3-CD
A Madison County jury convicted the defendant, Jermaine Mitchell Gray, of aggravated robbery, a Class B felony. The trial court sentenced the defendant as a Range I, standard offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant contends that (1) the trial court erred by denying his motion to suppress his confession to police; (2) the evidence was insufficient to support his conviction; and (3) his sentence is excessive. Following our review, we conclude that there is no reversible error and affirm the judgment of the trial court.
Authoring Judge: Judge J.C. McLin
Originating Judge:Judge Donald H. Allen |
Madison County | Court of Criminal Appeals | 11/10/10 | |
William W. Griffin v. Walker Die Casting, Inc., et al.
M2009-01773-WC-R3-WC
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. The employee sought to compel the employer to provide a total left knee replacement surgery based upon court-approved settlement for a work-related left knee contusion. The trial court ordered the employer to provide the knee replacement surgery and awarded attorney’s fees to the employee. The employer has appealed, arguing that the trial court erred by finding that the proposed surgery was causally related to the work injury. We agree and reverse the trial court’s order.
Authoring Judge: Senior Judge Jon Kerry Blackwood
Originating Judge:Judge F. Lee Russell |
Marshall County | Workers Compensation Panel | 11/10/10 | |
State of Tennessee v. David Scott Winfrey
M2009-02480-CCA-R3-CD
The Defendant, David Scott Winfrey, pleaded guilty to twenty-nine Class A misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking, thirteen counts of harassment, and fourteen counts of violation of an order of protection. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine days for each offense and ordered that ten of his violation of an order of protection sentences run consecutively. In a previous decision, we remanded this matter for re-sentencing, concluding that the trial court erroneously applied Tennessee Code Annotated section 39-13- 113(g). See State v. David Scott Winfrey, No. M2008-01429-CCA-R3-CD, 2009 WL 2486180 (Tenn. Crim. App., Nashville, Aug. 14, 2009). The defendant now appeals the consecutive sentences imposed upon re-sentencing and contends that they are not in accordance with our previous opinion in this matter. After reviewing the record, we affirm the judgments of the trial court.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Dee David Gay |
Sumner County | Court of Criminal Appeals | 11/10/10 | |
Anne S. Phillips vs. Anderson County, Tennessee
E2009-01883-COA-R3-CV
This appeal involves a retaliatory discharge claim. Employee claims that she was discharged after reporting her supervisor's unlawful activities. Employer denied that employee was discharged, claimed that she quit, and demonstrated that the State terminated the grant funding the program overseen by employee. A jury trial commenced, and at the close of all proof, employer moved for a directed verdict. The trial court granted the motion for directed verdict and found that employee failed to prove a causal link between her discharge and her decision to engage in a protected activity. Employee appeals. We affirm.
Authoring Judge: Judge John W. McClarty
Originating Judge:Special Judge Jon Kerry Blackwood |
Anderson County | Court of Appeals | 11/10/10 | |
Christopher Lovin v. State of Tennessee
E2009-00939-CCA-RM-PC
The Petitioner, Christopher Lovin, appeals the Claiborne County Criminal Court's denial of post-conviction relief from his conviction for felony murder in the perpetration of aggravated child abuse. On appeal, he contends that trial counsel rendered ineffective assistance by (1) failing to object to the State's amendment of his indictment, (2) failing to examine and rebut the State's medical witnesses properly, (3) failing to object to the State's use of demonstrative evidence, and (4) failing to object to the State's presentation of two theories of causation. We affirm the judgment of the trial court.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge E. Shayne Sexton, Judge |
Claiborne County | Court of Criminal Appeals | 11/10/10 | |
Lamario Sumner A/K/A Lamario Fleming v. State of Tennessee
W2009-00453-CCA-R3-PC
Petitioner, Larmio Sumner a/k/a Lamario Flemming, appeals the post-conviction court's dismissal of his petition for post-conviction relief in which he alleged the ineffective assistance of trial counsel. Specifically, petitioner contends that trial counsel's assistance was ineffective because he failed to (1) request a jury instruction on aggravated assault as a lesser included offense of each count charged in the indictment; and (2) appeal the trial court's imposition of consecutive sentencing. After a thorough review, we affirm the judgment of the post-conviction court.
Authoring Judge: Thomas T. Woodall, J.
Originating Judge:Paula Skahan, Judge |
Shelby County | Court of Criminal Appeals | 11/10/10 | |
State of Tennessee v. Vincent Jordan
M2009-02488-CCA-R3-CD
The Defendant, Vincent Jordan, appeals the Montgomery County Circuit Court's order revoking his probation for robbery, a Class C felony, and ordering the Defendant to serve the remainder of his eight-year sentence in confinement. We affirm the judgment of the trial court.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge Michael R. Jones |
Montgomery County | Court of Criminal Appeals | 11/10/10 | |
State of Tennessee v. Viola Darlene Stephens
M2008-02847-CCA-R3-CD
Defendant, Viola Darlene Stephens, pled guilty to theft of property valued at less than $500, a Class A misdemeanor, and driving on a revoked license, a Class B misdemeanor. The trial court sentenced her to eleven months, twenty-nine days for the theft conviction, to serve six months, and six months for driving on a revoked license, to be fully served in incarceration. The sentences were ordered to be served concurrently with each other. On appeal, defendant contends that the trial court erred in not stating whether it had considered a sentence of community corrections. After a thorough review of the record, we affirm the judgments of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge J. Curtis Smith |
Franklin County | Court of Criminal Appeals | 11/10/10 | |
Victor L. Dobbins v. State of Tennessee
M2009-02652-CCA-R3-PC
Following a bench trial, the Petitioner, Victor L. Dobbins, was found guilty of being a convicted felon in possession of a handgun, a Class E felony. See Tenn. Code Ann. _ 39-17- 1307(b)(2). This Court affirmed his conviction on direct appeal. State v. Victor L. Dobbins, No. M2007-01751-CCA-R3-CD, 2008 WL 2648951 (Tenn. Crim. App., Nashville, July 3, 2008), perm. to appeal denied, (Tenn. Dec. 22, 2008). The petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the post-conviction court denied relief. In this appeal, the petitioner contends that the post-conviction court erred in denying him relief because: (1) trial counsel failed to properly investigate his case and (2) the cumulative effect of trial counsel's errors entitles him to a new trial. After our review, we affirm the post-conviction court's denial of relief.
Authoring Judge: Judge David H. Welles
Originating Judge:Judge Cheryl Blackburn |
Davidson County | Court of Criminal Appeals | 11/10/10 | |
State of Tennessee v. Kelvin Reed
W2009-00589-CCA-R3-CD
Following a jury trial, Defendant, Kelvin Reed, was convicted of first degree premeditated murder, felony murder, and aggravated burglary. The trial court merged the offenses of first degree murder and felony murder, and defendant was sentenced to serve concurrent sentences of life imprisonment for his murder conviction and three years for aggravated burglary. On appeal, defendant argues that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in admitting certain evidence, including testimony about the music played at defendant's birthday party, testimony that one witness had seen defendant with a gun, and photographs of the victim; and (3) that the judgment for aggravated burglary should be corrected to reflect defendant's actual sentence. Following review, we affirm the convictions and remand to the trial court solely for entry of a corrected amended judgment for aggravated burglary in accordance with this opinion.
Authoring Judge: Judge Thomas T. Woodall, J.
Originating Judge:Judge W. Mark Ward, Judge |
Shelby County | Court of Criminal Appeals | 11/10/10 | |
In Re: Pauline M., Stephen M., and Rachael M.
E2009-02649-COA-R3-PT
This is a termination of parental rights case. The trial court terminated both parents' rights to the children on grounds of: (1) abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. _ 36-1-102(1)(A)(ii); and (2)persistence of conditions as set out at Tenn. Code Ann. _ 36-1-113(g)(3). The trial court also terminated Father's parental rights on the additional ground of abandonment by failure to support pursuant to Tenn. Code Ann. _ 36-102(1)(A)(i), and Mother's parental rights on the additional ground of mental incompetence pursuant to Tenn. Code Ann. _ 36-1-113 (g)(8)(B). Finding clear and convincing evidence in the record to support each of these grounds, as well as clear and convincing evidence that termination of Mother's and Father's parental rights is in the best interests of the children, we affirm.
Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge Kenneth N. Bailey, Jr. |
Greene County | Court of Appeals | 11/10/10 | |
Phillip Lowell Bledsoe v. State of Tennessee
W2009-00684-CCA-R3-PC
The Petitioner, Phillip Lowell Bledsoe, appeals from the Gibson County Circuit Court's denial of post-conviction relief from his conviction for first degree premeditated murder. In his appeal, the petitioner argues that he received ineffective assistance of counsel because trial counsel failed to pursue potentially exculpatory evidence; failed to impeach a detective's credibility based on his police misconduct in a different case; failed to object to numerous references to the petitioner's gang membership; and failed to file a motion in limine, make an objection, or request a limiting instruction regarding references to a polygraph examination. Upon review, we affirm the judgment of the post-conviction court.
Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge Clayburn L. Peeples |
Gibson County | Court of Criminal Appeals | 11/09/10 | |
State of Tennessee v. Donna Harvey
E2009-01945-CCA-R3-CD
The Defendant, Donna Harvey, and a codefendant pled guilty in the Sevier County Circuit Court to theft of at least $1,000 but less than $10,000, a Class D felony. See T.C.A. __ 39- 14-103, -105(3) (2006). The defendant received a four-year sentence as a Range II, multiple offender, suspended to time served with the balance on supervised probation. The trial court ordered the defendant and codefendant to pay $64,852 in restitution with joint and several liability. At issue in this appeal is the amount of restitution for damages caused by the crime. We reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider the defendant's financial resources and ability to pay and determine the proper amount and schedule of restitution.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge Richard R. Vance |
Sevier County | Court of Criminal Appeals | 11/09/10 | |
Clarence E. Miller vs. Marian N. Miller
E2010-00492-COA-R3-CV
Husband filed for divorce after twenty-five years of marriage alleging inappropriate marital conduct as grounds for divorce. Wife filed a counter-claim for divorce also alleging inappropriate marital conduct. After a bench trial, the court found that the parties had lived separately for at least 10 years; awarded a divorce to Husband; and awarded alimony in futuro to Wife. Wife appeals challenging the trial court's award of a divorce to Husband, the division of the marital property, and the award of alimony. Upon review of the record, we affirm.
Authoring Judge: Judge John W. McClarty
Originating Judge:Chancellor William E. Lantrip |
Anderson County | Court of Appeals | 11/09/10 | |
Regions Bank, Successor-In-Interest to Union Planters Bank v. Lost Cove Cabins and Campgrounds, Inc., et al.
M2009-02389-COA-R3-CV
The trial court entered judgment against the borrowers and guarantors on two promissory notes. On appeal, the defendants argue that the trial court erred in striking their jury demand and that they are entitled to relief under an alleged written commitment for permanent financing or under various equitable theories. We find the defendants' arguments to be without merit and affirm the decision of the trial court.
Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Larry B. Stanley, Jr. |
Van Buren County | Court of Appeals | 11/09/10 | |
Joshua Todd Daniels vs. Kevin Grimac, et al
E2009-01510-COA-R3-CV
This is an appeal from a judgment summarily holding attorney Herbert S. Moncier in direct, criminal contempt of court. Because the trial court improperly exercised its summary contempt authority several weeks after the cited conduct occurred, we vacate its judgment and remand this case for additional proceedings.
Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Dale Workman |
Knox County | Court of Appeals | 11/09/10 | |
State of Tennessee v. Vershawn McCoy
W2009-01222-CCA-R3-CD
A Shelby County jury convicted the Defendant, Vershawn McCoy, of second degree murder, and the trial court sentenced him as a violent offender to twenty years to be served at 100%. On appeal, the defendant contends that the trial court inadequately responded to a jury question raised during deliberation requesting a definition of "state of passion." After a thorough review of the record and applicable authorities, we affirm the trial court's judgment.
Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge W. Mark Ward |
Shelby County | Court of Criminal Appeals | 11/09/10 | |
Wade Phelps/Phelps Harrington Construction Co., Inc. v. C & C Construction Co., LLC, et al.
M2010-00228-COA-R3-CV
Contractor agreed to build duplex for property owner, with plaintiff providing construction financing. At closing, contractor was paid, but contractor did not pay plaintiff as agreed. Plaintiff sued property owner, contractor, and bank. We previously affirmed the trial court's grant of summary judgment to the bank, finding that contractor and plaintiff were in a joint venture, such that payment to contractor was payment to plaintiff. Property owner then moved for summary judgment, which the trial court granted. Because we find no separate agreement between property owner and plaintiff requiring repayment directly to plaintiff, plaintiff's cause of action against property owner is precluded, and the trial court's grant of summary judgment is affirmed.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Chancellor Ellen Hobbs Lyle |
Davidson County | Court of Appeals | 11/09/10 | |
International Market and Restaurant, Inc., et al. v. Belmont University, et al.
M2010-00005-COA-R3-CV
International Market and Restaurant, Inc. and Patti Myint, owner of the P.M. Café, sued the Belmont University and the Metropolitan Government because representatives of Belmont and the United States Secret Service informed the plaintiffs that the streets and sidewalks around plaintiffs’ establishments would be closed for security purposes the evening of the Presidential debate at Belmont pursuant to a plan developed by the Secret Service. The plaintiffs closed the businesses that evening; however, the sidewalks were not closed. The plaintiffs claim that they lost revenue by closing and seek compensation based on negligent representation, constructive fraud and breach of the indemnity agreement between Belmont and Metro. The trial court granted Belmont’s motion for summary judgment and Metro’s motion to dismiss. Plaintiffs appealed. We affirm.
Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Amanda Jane McClendon |
Davidson County | Court of Appeals | 11/09/10 | |
Carol L. Brandon v. Williamson Medical Center, et al.
M2010-00321-COA-R3-CV
Plaintiff timely filed a complaint for medical malpractice, but failed to file a certificate of good faith within ninety days as required. Defendants filed a motion to dismiss, and plaintiff subsequently filed a motion for enlargement pursuant to Rule 6.02 and a proposed certificate of good faith. The trial court granted defendants' motion, finding plaintiff had failed to demonstrate "good cause" for failing to file the required certificate. Because we find that plaintiff has failed to demonstrate either "good cause" or "excusable neglect," we affirm the trial court's dismissal of plaintiff's complaint.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Judge James Martin |
Williamson County | Court of Appeals | 11/09/10 | |
Rick D. Hanebutt v. State of Tennessee
W2009-01346-CCA-R3-PC
The petitioner, Rick D. Hanebutt, appeals the Carroll County Circuit Court's denial of his petition for post-conviction relief. The petitioner is currently serving concurrent sentences of life and twenty years for his convictions for first degree murder and attempted first degree murder. On appeal, the petitioner contends that the trial court erred in: (1) denying his motion to continue the postconviction hearing; and (2) denying his petition for post-conviction relief. He contends that the court erred in denying relief because he claims he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective in failing to: (1) investigate the case and present viable witnesses, proof, and argument as to self-defense; (2) obtain a ballistics expert; (3) obtain unadulterated copies of phone records and obtain the phone records of another witness; (4) properly impeach a witness with inconsistent evidence, statements, and testimony; (5) contest the search warrant; (6) renew a motion to change venue; (7) object to statements made by the prosecution during voir dire; and (8) request additional jury instructions on drug usage and witness credibility. He further contends that the cumulative effect of all the alleged errors supports a finding of ineffective assistance of counsel. Following a thorough review of the record before us, we find no error and affirm the denial of the petition.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Donald Parish |
Carroll County | Court of Criminal Appeals | 11/09/10 | |
Arthur B. Roberts, et al vs. Robert Bailey, et al
E2010-00899-COA-R3-CV
Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey ("the Baileys") were sued by Arthur B. Roberts and Tia Roberts with regard to a boundary line dispute. The Baileys filed a third party complaint against Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee Littleton ("the Littletons"), and Charlotte Dutton seeking to quiet title to real property, including the property involved in the boundary line dispute. The Baileys filed a motion for partial summary judgment against the Littletons. After a hearing, the trial court entered an order denying the motion for summary judgment and certifying the judgment as final pursuant to Tenn. R. Civ. P. 54.02. The Baileys appeal to this Court. We affirm.
Authoring Judge: Judge D. Michael Swiney
Originating Judge:Chancellor Frank V. Williams, III |
Loudon County | Court of Appeals | 11/09/10 | |
State of Tennessee v. Evelyn Cotton Self
M2009-00343-CCA-R3-CD
Following a jury trial, Defendant, Evelyn Cotton Self, was convicted of driving under the influence (DUI), second offense, a Class A misdemeanor. The trial court sentenced defendant to eleven months, twenty-nine days with defendant's sentence suspended and defendant placed on probation after service of seventy-three days in confinement. On appeal, defendant argues that (1) the evidence is insufficient to support her conviction; (2) the trial court erred in denying defendant's request for a jury instruction on involuntary intoxication; (3) the trial court erred in instructing the jury concerning prescription medicines; (4) the trial court erred in excluding the testimony of defendant's psychologist; and (5) the trial court erred in ordering defendant to serve seventy-three days in confinement. After a thorough review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall, J.
Originating Judge:Judge Don Ash |
Warren County | Court of Criminal Appeals | 11/09/10 | |
Terrance Lowdermilk v. Tennessee Department of Safety
M2010-00417-COA-R3-CV
Petitioner filed this petition for judicial review in 2009 to challenge the propriety of the seizure of $5,518 in cash following the Tennessee Bureau of Investigation executing a search warrant on Petitioner’s residence in May of 2001. A notice of seizure was served on Petitioner; also a forfeiture warrant was issued and mailed to Petitioner at his residence. The Department of Safety subsequently entered a final administrative order forfeiting the money. When Petitioner filed this action almost eight years later, the trial court dismissed the petition on the ground that it lacked subject matter jurisdiction because the petition was not timely filed. The trial court dismissed the action. We affirm.
Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Chancellor Claudia C. Bonnyman |
Davidson County | Court of Appeals | 11/09/10 |