State of Tennessee, ex rel. Donnie Diane Little v. James Gearin
W2005-01844-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert W. Newell

This appeal involves a retroactive modification of a child support order.  The legal custodian of the child at issue received state benefits on behalf of the child. The State, on behalf of the custodian, filed a petition against the father to set child support.  In August 2000, the trial court granted the petition, set child support, and entered an order establishing that the father owed a child support arrearage of $14,000 as of the date of the order. This order was not appealed. Years later, the father filed a petition for custody of the child. After a hearing, the trial court granted him custody of the child and terminated his future child support obligation.  The trial court’s order also gave the father a $2,962 “credit” toward the arrearage established in the August 2000 order.  The State filed a motion to alter or amend, arguing that the trial court was not permitted to retroactively modify the arrearage established in the earlier order. This motion was denied. The State now appeals.  We reverse, finding that the trial court erred in retroactively modifying the arrearage amount set out in the original order.

Robin Davis v. State of Tennessee
W2005-02212-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge W. Otis Higgs, Jr.

The petitioner, Robin Davis, appeals the denial of his petition for post-conviction relief. In this appeal, he asserts that he was denied the effective assistance of counsel at trial. The judgment of the post-conviction court is affirmed.

Herman Phillips v. Tennessee Department of Correction
W2005-02187-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Martha B. Brasfield

This is a petition for a common law writ of certiorari arising out of prison disciplinary proceedings.  The prison disciplinary board charged the petitioner with money laundering, a state offense. After a hearing, he was found guilty of the charge and sentenced to punitive and administrative segregation. He filed this petition for a common law writ of certiorari, challenging the board’s disciplinary decision. The writ was granted, and the record of the disciplinary proceedings was sent to the trial court for review. Subsequently, the petitioner filed a motion for summary judgment. The respondent filed a notice that it did not intend to respond to the motion, because the record had already been sent to the trial court for review. The trial court dismissed the petition on the merits without first addressing the petitioner’s motion for summary judgment. The petitioner now appeals, arguing that the trial court was required to decide his motion for summary judgment before addressing the merits of his petition. We affirm, concluding that, under the circumstances, the trial court was under no obligation to address the petitioner’s motion for summary judgment prior to dismissing the action.

State of Tennessee v. Donald Eugene Fowlkes
W2005-02530-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Donald H. Allen

The Defendant, Donald Eugene Fowlkes, appeals from the order of the trial court revoking his probation and ordering that his eight-year sentence be served in the Department of Correction. On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and ordering that his sentence be served in confinement. We affirm the judgment of the trial court.

Ricky Butler v. State of Tennessee
M2004-01543-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jim T. Hamilton

The petitioner pled guilty to two counts of aggravated sexual battery. He later filed a petition for post-conviction relief. The post-conviction court held a hearing on May 8, 2003. The court then entered an order on May 9, 2003 denying the petition. The petitioner filed a pro se notice of appeal over a year and a month later on June 17, 2004. We now dismiss the petitioner’s appeal because the notice of appeal was filed outside of the thirty days required under Rule 4 of the Tennessee Rules of Appellate Procedure.

Betty G. Brown v. Gary A. Hugo
W2005-01356-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge James F. Russell

Betty Brown (“Plaintiff”) was involved in an automobile accident where her car was struck in the rear by the vehicle driven by Gary Hugo (“Defendant”). Plaintiff subsequently filed suit against Defendant in order to recover medical expenses for injuries Plaintiff claims to have incurred as a result of the accident along with other damages. At trial, the jury found that Plaintiff was not entitled to recover from Defendant. Plaintiff appeals arguing that the jury’s verdict was unsupported by competent and credible material evidence. For the reasons set forth below, we affirm.

Suntrust Bank v. Sheep Inc., and Marilyn Powell
E2005-02377-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Dale C. Workman

The Trial Court dismissed the case on the grounds the process issued more than one year after the issuance of the previous process was invalid. On appeal, we vacate.

Tracye Jenae Simpson (Brogden), et al. v. Ralph Edward Simpson - Concurring and Dissenting
E2005-01725-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

I concur in much of the judgment and rationale of the majority opinion. I agree with the majority’s statement “that the five payments made directly to the child totaling $2,740 were gratuitous or otherwise should not be considered as a credit against Father’s child support obligation.” I also agree with the majority’s treatment of Father’s issues pertaining to (1) the trial court’s refusal to permit Father to testify regarding child support payments made by him “when he had no documentary evidence supporting the amount of those payments,” and (2) the trial court’s award of attorney’s fees. However, I disagree with the majority’s judgment that Father should be granted credit against his general $60 per week child support obligation to Mother for payments made by him “at the direction of [Mother].” 

Tracye Jenae Simpson (Brogden), et al. v. Ralph Edward Simpson
E2005-01725-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge W. Neil Thomas, III

This appeal involves child support arrearages incurred by Ralph Edward Simpson (“Father”) over the course of many years. Following a trial, the Trial Court concluded that certain payments made directly to the child were gratuitous and should not count as a credit against Father’s child support obligation. The Trial Court also concluded that various payments made by Father to third parties for expenses incurred on the child’s behalf and which were made as expressly directed by Tracye Jenae Simpson (“Mother”) also should not count as credits against Father’s child support obligation. We affirm the Trial Court’s conclusion with respect to the money sent directly to the child. However, we conclude that the Trial Court erred in its conclusion that Father should not be given a credit for payments made to third parties for expenses related to the child and which were made by Father in accordance with the express directives of Mother. The judgment of the Trial Court is, therefore, affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.

Paul Dennis Reid, Jr. v. State of Tennessee - Concurring and Dissenting
M2005-00260-SC-S09-PC
Authoring Judge: Justice Adolopho A. Birch
Trial Court Judge: Judge Cheryl A. Blackburn

Paul Dennis Reid, Jr. v. State of Tennessee
M2005-00260-SC-S09-PC
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Cheryl A. Blackburn

We granted interlocutory review in this post-conviction capital case to clarify the procedure for determining competency to proceed in a post-conviction action. For the reasons explained herein, we hold that the civil standard for mental incompetence adopted in State v. Nix, 40 S.W.3d 459 (Tenn. 2001), applies to a competency determination during post-conviction proceedings. To trigger a hearing on competency, a petitioner must make a prima facie showing of incompetence by submission of affidavits, depositions, medical reports, or other credible evidence. A petitioner bears the burden of proving that he or she is incompetent by clear and convincing evidence. A finding of incompetence requires neither a stay of the post-conviction proceedings nor abeyance of individual issues. A trial court should appoint, if necessary, a “next friend” or guardian ad litem to pursue the action on behalf of the petitioner. Accordingly, the decision of the trial court is affirmed as modified, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Ennix Hariston, et al. v. Lillian B. Newsom
W2005-01939-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Roger A. Page

This appeal stems from a negligence action resulting from an automobile accident. A husband and wife filed suit against the defendant alleging personal injury and property damage resulting from the defendant’s alleged negligence that caused the automobile accident involving the wife and the defendant. In addition to the wife’s claims, the husband brought claims against the defendant for loss of consortium and loss of services. Additionally, the wife’s uninsured motorist insurance carrier was served but unnamed. Both Newsom and the uninsured motorist insurance carrier filed Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The circuit court granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. The order adjudicated the wife’s personal injury claims only. On appeal, the plaintiffs assert that the circuit court erred when it granted the defendant’s and the unnamed but served uninsured motorist insurance carrier’s Motions to Exclude All Medical Proof of Plaintiff and Motion for Summary Judgment. However, because we find that the circuit court failed to execute a final order disposing of all of the plaintiffs’ causes of action, we dismiss the appeal for lack of subject matter jurisdiction pursuant to rule 3(a) of the Tennessee Rules of Appellate Procedure.

Cynthia A. Fisher v. Plus Mark, Inc.
E2005-00992-WC-R3-CV
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Judge Benjamin K. Wexler

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and
conclusions of law. The trial court awarded the Employee a 50 percent vocational disability for
bilateral carpal tunnel syndrome. The Employer appeals asserting that the award is excessive. Thejudgment of the trial court is affirmed.

Susan v. Cespedes v. Sodexho Marriott Services, Inc., et al.
M2005-00284-WC-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Judge Donald P. Harris

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and
conclusions of law. The employee appeals the trial court’s finding that the preponderance of the
evidence failed to prove that the work accident caused the injury to her lower back. The judgment
of the trial court is affirmed.

State of Tennessee v. Kenneth Lyle Davis
W2005-02147-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Donald H. Allen

The defendant, Kenneth Lyle Davis, appeals from the trial court’s order revoking his probation and reinstating his original sentence of two years. Following our review, we affirm the judgment of the trial court.

Sedley Alley v. State of Tennessee
W2006-01179-CCA-R3-PD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Otis Higgs, Jr.

In 1985, the Petitioner, Sedley Alley, was convicted of aggravated rape, kidnapping, and first degree murder. For the capital crime of first degree murder, the jury imposed the sentence of death.  Petitioner Alley’s execution was scheduled for May 17, 2006; however, on May 16, 2006, the
Governor, upon recommendation of the Tennessee Board of Probation and Parole, granted a fifteenday reprieve to allow the Petitioner the opportunity to petition the trial court for DNA testing of “those additional items that were not included in his 2004 petition.” On May 19, 2006, Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition on May 31, 2006. Our supreme court, on June 2, 2006, rescheduled Petitioner Alley’s execution for June 28, 2006. See State v. Sedley Alley, No. M1991-00019-SC-DPE-DD (Tenn., at Nashville, June 2, 2006) (order). The Petitioner sought and was granted expedited review by this Court. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.

Janie Belle Corn v. Hhs and James Farmer, Director, Division of Worker's Compensation, Tennessee Dept. of Labor and Workforce Development
M2004-02319-WC-R3-CV
Authoring Judge: Special Judge Robert E. Corlew
Trial Court Judge: Judge Thomas W. Graham

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Tennessee Supreme Court in accordance with the provisions of Tennessee Code Annotated section 50-6-225 (e) (3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Plaintiff has appealed the action of the trial court, which determined that the Plaintiff's cause of action is barred by the statute of limitations and by failure to provide notice timely in accordance with the law. Upon our consideration of all of the evidence, we find that the evidence preponderates in favor of the findings of the trial court, and we affirm.

Betty Potter, et al. v. Ford Motor Company
E2005-01578-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Judge John J. Maddux, Jr.

While traveling on a rain-slick road at a moderate rate of speed, Betty Potter lost control of her 1997 Ford Escort which spun around and crashed into a tree. Her seat back collapsed into the rear seat and her spinal cord was severed. Betty Potter was rendered a paraplegic. She and her husband sued Ford Motor Company (“Ford”) for the enhanced injuries Ms. Potter received as a result of the collapse of her seat back. The jury found Ford to be 70% at fault, Ms. Potter to be 30% at fault, and determined Ms. Potter’s compensatory damages to be ten million dollars. Judgment was entered for Ms. Potter in the amount of seven million dollars. The primary issues Ford raises on this appeal are (1) whether the trial court erred in refusing to grant Ford a judgment notwithstanding the verdict; and (2) whether the trial court erred in refusing to instruct the jury on the doctrine of intervening cause.  We hold that Ms. Potter presented material evidence from which the jury could reasonably conclude that the Ford Escort was defective, and that the trial court correctly found the intervening cause doctrine inapplicable in a case such as this one, where the alleged intervening cause is the negligent conduct of the plaintiff. We therefore affirm the judgment of the trial court.

Betty Potter, et al. v. Ford Motor Company - Concurring
E2005-01578-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John J. Maddux, Jr.

While I agree with Ford, that Restatement (Third) of Torts § 2, comment f, requires:  “To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm . . .”, unless and until Tennessee adopts Restatement (Third) of Torts on this issue, Judge Lee in my view, has correctly summarized the state of Tennessee law on this issue.  Accordingly, I concur in her Opinion in affirming the Trial Court.

State of Tennessee v. James B. Sanders
M2005-00088-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The defendant, James B. Sanders, appeals from his conviction for third offense of driving under the influence of an intoxicant (D.U.I.) and from the resulting sentence. On appeal, the defendant claims that a prior facially valid judgment of conviction for a previous D.U.I. was insufficient to sustain enhanced punishment when the written waiver of counsel was not introduced and the defendant testified that he was not represented by counsel. We conclude the prior certified judgment of conviction is facially valid and is not subject to collateral attack in this proceeding. We affirm the judgment of the trial court.

Michele Safa v. Martha A. Loving
W2005-01011-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

This appeal stems from a negligence suit arising from an automobile accident. At trial, the circuit court entered two separate orders dismissing the case. One order dismissed the case based on the statute of limitations. The other order dismissed the case for a failure to prosecute based on the plaintiff’s failure to comply with a previous court order awarding discretionary costs to the defendant that was granted when the plaintiff voluntarily dismissed her first filing of the instant suit. On appeal, the plaintiff asserts that the circuit court erred when it dismissed her claims because the applicable statute of limitations was tolled pursuant to section 28-1-106 of the Tennessee Code as she was of “unsound mind.” The defendant has also asserted that the circuit court properly dismissed the case for a failure to prosecute based on the plaintiff’s failure to comply with a court order. We affirm.

State of Tennessee v. Rita Lynn Neff
E2005-01622-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Rita Lynn Neff, appeals from the order of the trial court revoking her probation and ordering that her effective eight-year sentence be served in the Department of Correction. On appeal, the Defendant argues that the trial court abused its discretion by revoking her probation and ordering that her sentences be served in confinement. We affirm the judgment of the trial court.

State of Tennessee v. M.L.
M2005-01733-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Buddy D. Perry

This is an appeal by a minor from a decision of the Circuit Court for Marion County declaring him a delinquent based upon a finding he was guilty of aggravated arson. The sole issue on appeal concerns the sufficiency of the evidence. Because the evidence is sufficient to support the finding of guilt of aggravated arson beyond a reasonable doubt, we affirm.

Riley Bolding, et al. v. Dentis Sisson, et al.
W2005-01507-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Roger A. Page

This is an appeal from a judgment entered on a Jury verdict. The appeal arises out of a commercial real estate sale and involves the alleged misrepresentation of a restrictive covenant attached to property at issue.  The Jury found that the Defendants/Appellants intentionally and negligently misrepresented the restrictive covenant that applied to the property. Finding that there is no material evidence to support the Jury’s finding that Plaintiffs/Appellants’ reliance upon Defendants/Appellees’ representation was justified, we vacate the Judgment entered on the Jury Verdict.

Richard Schneider, Tajuana Cheshier, Jamie Page, and The Gannett Satellite Information Network, d/b/a The Jackson Sun v. The City of Jackson
W2005-01234-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Butler

This case involves the Tennessee Public Records Act. The plaintiff newspaper sought access to investigative records generated by local law enforcement during the course of criminal investigations. The newspaper also sought financial documents relating to a license agreement between the municipal government and a private baseball franchise. The municipal government refused to disclose the criminal investigative records and failed to respond to the newspaper’s written requests for the baseball franchise documents. The newspaper filed suit against the municipal government in the Madison County Chancery Court. After a show-cause hearing, the trial court ruled that the Public Records Act required the disclosure of both types of documents, and awarded the newspaper attorney’s fees. The municipal government appeals. As to the criminal investigative records, we recognize the common-law law enforcement privilege, and on that basis we vacate the judgment of the trial court, reverse the award of attorney’s fees, and remand for further proceedings.