Wilma J. Solock Smarsh v. David A. Smarsh
E2011-01767-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Frank V. Williams

This is a divorce case of a marriage of approximately 34 years. After hearing the evidence, the Trial Judge awarded the divorce to the wife, "equally" divided the parties' marital property, ordered the husband to pay the wife permanent alimony of $500.00 a month, and awarded the wife $10,000.00 in partial payment of her attorney's fees. The husband appealed and contended inter alia that the wife was not entitled to permanent alimony, nor was she entitled to have an award of attorney's fees against him. We affirm the Judgment of the Trial Court.

State of Tennessee v. Scotty Lynn Edmonds
E2011-00380-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mary Beth Leibowitz

The Defendant, Scotty Lynn Edmonds, was convicted of driving under the influence (DUI), first offense, a Class A misdemeanor, and violation of the implied consent law, a Class C misdemeanor. See Tenn. Code Ann. §§ 55-10-401, -406. The trial court sentenced the Defendant to 11 months and 29 days with all but 5 days to be served on probation. In this appeal as of right, the Defendant contends (1) that the trial court erred in denying his motion to suppress evidence; and (2) that the evidence was insufficient to sustain his conviction for DUI, first offense. Following our review, we affirm the judgments of the trial court.

Victor Raymond Peterson v. Kathleen Adelle Peterson
E2011-01928-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Mike Davis

Husband appeals the trial court’s division of property and award of alimony in solido to Wife. We remand to the trial court for further findings.

James E. Kenner v. State of Tennessee
M2011-01131-CCA-R3-CO
Authoring Judge: Presiding Judge Joseph M.Tipton
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, James E. Kenner, appeals the Davidson County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his convictions for five counts of aggravated burglary, five counts of theft of property valued at $1000 or more, and one count of unlawful possession of a weapon, for which he is serving an effective seventy-five year sentence as a career offender. The Petitioner contends that the trial court erred in summarily dismissing his petition. We affirm the judgment of the trial court.

Leon Goins v. State of Tennessee
W2011-00668-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge R. Lee Moore

The petitioner, Leon Goins, appeals the denial of his petition for post-conviction relief challenging his Dyer County Circuit Court jury conviction of possession with intent to sell or deliver .5 grams or more of cocaine and resulting 25-year sentence. In this appeal, he asserts that he was denied the effective assistance of counsel. Discerning no error, we affirm.

Courtenay D. Robertson v. State of Tennessee
W2011-01464-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Roy B. Morgan Jr.

The petitioner, Courtenay D. Robertson, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief attacking his jury convictions of attempt to commit second degree murder, aggravated arson, and felony evading arrest on the basis of ineffective assistance of counsel. Following our review, we affirm the order of the post-conviction court.

William Mise, et al. v. Methodist Medical Center of Oak Ridge, et al.
E2011-01325-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald R. Elledge

This is an appeal from the grant of summary judgment in a medical malpractice case. Virginia Mise was admitted to Methodist Medical Center of Oak Ridge following complaints of abdominal pain, nausea, and vomiting. She was diagnosed with chronic renal failure. Several days later, she died following a medical procedure. Her sons filed suit, alleging that Virginia Mise’s treating physicians and nurses failed to comply with the requisite standard of care, causing her death. Methodist Medical Center of Oak Ridge and the treating physicians filed motions for summary judgment. The trial court granted the motions for summary judgment. We affirm the grant of the motions for summary judgment.

Charles E. Orange v. State of Tennessee
M2011-01168-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Robert G. Crigler

The Petitioner, Charles E. Orange, appeals the Bedford County Circuit Court’s denial of post-conviction relief. On appeal, he contends that the trial court erred by summarily dismissing his petition without appointing counsel or giving him an opportunity to amend his petition. We affirm the judgment of the trial court.

Michael Blaine Ward, II v. State of Tennessee
M2011-00122-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Vanessa A. Jackson

The Petitioner, Michael Blaine Ward, II, appeals the Coffee County Circuit Court’s denial of post-conviction relief from his convictions for especially aggravated kidnapping, attempted second degree murder, aggravated spousal rape, aggravated robbery, and aggravated burglary, and resulting effective sentence of  twenty-one years. On appeal, he contends that trial counsel rendered ineffective assistance by failing to (1) adequately investigate and prepare for trial, (2) give proper written notice of an alibi witness, (3) present material evidence at the trial, (4) object to inadmissible evidence and prosecutorial misconduct, (5) require the State to elect a single means by which the charged offenses were committed, (6) object to improper jury instructions, (7) preserve issues for appeal, and (8) object to his prosecution under Tennessee Code Annotated section 39-14-404. We affirm the judgment of the trial court.

Timothy C. Watson v. State of Tennessee
M2011-01726-CCA-R3-HC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Timothy C. Watson, pro se, appeals the Hickman County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus from his 2009 conviction for sale of cocaine over one-half gram and resulting fifteen-year sentence. The Petitioner contends that he was denied the right to counsel at his trial and that he was entitled to an evidentiary hearing. We affirm the judgment of the trial court.

Sherrie L. Durham v. Tennessee Department of Labor and Workforce Development by and through James Neeley in his Official Capacity et al.
M2011-01515-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol McCoy

This petition was filed pursuant to the Tennessee Uniform Administrative Procedures Act. The petitioner seeks judicial review of an administrative decision by the Tennessee Civil Service Commission to uphold the termination of her employment with the Tennessee Department of Labor. On motion by the petitioner, the entire administrative record was struck from the record in the judicial proceedings. Having no administrative record upon which to review the Department’s decision, the trial court dismissed the petition. We affirm.
 

State of Tennessee v. Mark Demcovitz
W2010-02459-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Paula Skahan

Mark Demcovitz (“the Defendant”) pled guilty to unlawful possession of marijuana with intent to sell and received an eight year sentence. The trial court entered a judgment reserving two certified questions of law. On appeal, the Defendant asks that this Court answer the following certified questions: 1. Whether the stop of the defendant for “following too close” violated the
defendant’s state and federal constitutional rights when the statute is absent any objective criteria for the officer to base his determination on, thereby granting the officer unbridled discretion in determining when a violation occurs? 2. Whether the stop of a defendant for a minor “cite and release” traffic violation which provided for a fine only, the detention of the defendant exceeded the reasonable length and scope to effectuate the purposes of the stop, placement of the defendant in the secured area of the officer’s patrol car, the use of a drug dog “run” around the defendant’s vehicle, and the subsequent search of defendant’s vehicle violated the rights of the defendant under the federal and state constitutions and, therefore, all evidence resulting from the seizure and search should be suppressed? After a thorough review of the record, we answer each question in the negative and hold that the Defendant’s constitutional rights were not violated. Accordingly, we affirm the judgment of the trial court.

Cyrus Deville Wilson v. State of Tennessee
M2009-02241-SC-R11-CO
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Seth Norman

The primary issue presented in this appeal is whether a notation in the prosecutor’s file written by an assistant prosecutor expressing her opinion as to the lack of credibility of two of the State’s witnesses is newly discovered evidence on which the defendant may base a petition for writ of error coram nobis. Over fifteen years after the defendant’s conviction for first degree murder became final, he filed a petition for writ of error coram nobis alleging that he had recently discovered a note written by the assistant prosecutor before his murder trial in which she expressed her opinion that it was a “good case but for most of Ws are juveniles who have already lied repeatedly.” The petition alleged that the note was exculpatory, newly discovered evidence and that the State’s failure to produce it before trial affected the outcome of the trial and undermined the reliability of the verdict. The trial court tolled the one-year statute of limitations on due process grounds, but summarily dismissed the petition. On appeal, the Court of Criminal Appeals reversed the trial court’s dismissal of the defendant’s petition, concluding that the State had waived the statute of limitations defense by failing to raise it as an affirmative defense, and remanded the case for an evidentiary hearing. We hold that the State did not waive the statute of limitations defense and that the trial court did not err in tolling the statute of limitations. We further hold that the handwritten note expressing the assistant prosecutor’s opinion as to the witnesses’ credibility was attorney work product. As such, it was neither discoverable nor admissible. Accordingly, the note was not newly discovered evidence on which a petition for writ of error coram nobis could be based. The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court dismissing the petition is reinstated.
 

Larry Holmes v. State of Tennessee
W2010-02672-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Paula Skahan

The Petitioner, Larry Holmes, appeals the Shelby County Criminal Court’s denial of post conviction relief from his convictions for four counts of especially aggravated kidnapping, two counts of aggravated robbery, and one count of aggravated burglary, and resulting effective sentence of seventy years. The trial court merged the aggravated robbery convictions with the especially aggravated kidnapping convictions. The Petitioner contends that he was denied due process when the trial court failed to dismiss the kidnapping convictions and that he received the ineffective assistance of counsel on appeal. We affirm the judgment of the trial court.

Betty Saint Rogers v. Louisville Land Company et al.
E2010-00991-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor Jerri S. Bryant

In this appeal, the defendants seek a review of the trial court’s decision to award the plaintiff compensatory and punitive damages based on the tort of intentional infliction of emotional distress arising out of inadequate maintenance of the cemetery where the plaintiff’s son was buried. To recover damages for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was either intentional or reckless, was so outrageous that it is not tolerated by civilized society, and caused a serious mental injury to the plaintiff. The primary question presented is whether the plaintiff in this action proved the requisite serious mental injury to support the trial court’s award of compensatory and punitive damages. We hold that the plaintiff’s proof was deficient. The judgment of the Court of Appeals is affirmed.
 

Jeffery Ratliff A/K/A Jeffery Absher v. State of Tennessee
E2011-00133-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert H. Montgomery

The petitioner, Jeffery Ratliff, appeals the Sullivan County Circuit Court’s denial of his petition for post-conviction relief. The petitioner stands convicted of six counts of rape of a child, six counts of incest, one count of especially aggravated sexual exploitation of a minor, and one count of aggravated sexual battery. He is currently serving an effective sentence of one hundred twelve years in the Department of Correction. On appeal, he contends that the post-conviction court erred in denying his petition because: (1) he was denied his right to the effective assistance of counsel; (2) his convictions violate the principle of double jeopardy; and (3) the State’s Notice of Intent to Seek Enhanced Punishment failed to comply with statutory requirements. Following review of the record, we conclude that there was no error in the post-conviction court’s decision and affirm the denial of relief.

John Durling Kemper v. Joe C. Baker, individually and in his capacity as City Manager of Berry Hill, Tennessee, et al.
M2011-00407-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Barbara Haynes

This is a GTLA action against a city and city official following a construction accident in which an exterior wall of a building collapsed,causing serious injuries to one of the plaintiffs and causing the death of the other plaintiff. The building was being demolished and the plaintiffs were employed by a private company that was to disconnect gas utilities on the privately owned building. The plaintiffs claim the collapse was caused, in part, by the failure of the city and the city manager to enforce certain OSHA regulations and provisions of the municipal building code. The trial court dismissed the plaintiffs’ claims against the city and the city official on the defendants’ motion for summary judgment based on governmental immunity. We affirm.
 

Michael H. Gaw, et al. v. The Vanderbilt University, et al.
M2011-00306-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Hamilton V. Gayden

This is an appeal from a jury verdict in a medical malpractice case. A surgeon performed a procedure on an infant to repair a birth defect at the defendant hospital. The infant sustained permanent injuries after the surgery. The parents filed suit on the infant’s behalf against the hospital for failing to adhere to the expected standard of care. At the conclusion of trial, the hospital moved for a directed verdict on all claims, with only the claims for informed consent and post-operative negligence being denied. The jury entered a judgment in favor of the infant. The hospital has appealed. We affirm the trial court’s judgment.
 

Jennifer Lynn Monroe v. Travis Monroe
M2011-01005-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Jim T. Hamilton

Husband appeals an order denying his motion to set aside a default judgment and the final judgment entered in his divorce action. On the facts presented, we hold that the default judgment should have been set aside; accordingly, we reverse the order denying Husband’s motion to set aside, and the case is remanded.
 

Consulting and Financial Services, Inc., et al. v. John H. Friedmann, Sr.
M2011-00093-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Tom E. Gray

This suit arises as a result of the installation of tile flooring in a home. Homeowners sued the contractor for breach of warranty, breach of contract, and unjust enrichment. The trial court awarded $106,103.92 to homeowners and assessed $4,252.00 in discretionary costs. Contractor appeals asserting that, in finding liability, the trial court failed to apply the standard of performance set forth in the contract and that the court erred in calculating and measuring the damages. We have determined that the trial court applied an implied warranty or workmanship rather than the contractual standard; however we have reviewed the evidence de novo and modify the judgment to hold that the contractor breached the contractual standard. We remand the case for a determination of the appropriate amount of damages.
 

In Re Gina A.
M2011-00956-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Franklin L. Russell

Mother argues that the divestment of custody of her child from the Department of Children’s Services to a relative in another state constitutes de facto termination of her parental rights. We find no merit to this argument since the parent-child relationship was not terminated by the court’s custody decision.
 

State of Tennessee ex rel. Amy Trisler v. Scott A. Collins
M2011-01164-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Betty K. Adams Green

Defendant Collins challenges his conviction for criminal contempt, claiming that the evidence was insufficient to convict him and that the use of certain evidence violated his constitutional rights. We affirm the conviction.
 

Estate of Thomas R. Ralston v. Estate of Fred R. Hobbs
M2011-01037-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David M. Bragg

The defendant appeals from an Order of Sale of real property, which was sold pursuant to Tennessee Rule of Civil Procedure 69.07 to satisfy a money judgment against the defendant. We have concluded that the defendant waived many of the issues raised and, as for its issue challenging the sufficiency of the notice of the sale, the sale may not be set aside on this ground because Rule 69.07(4) expressly provides that bona fide purchasers for value at the sale shall take free of any defects concerning notice. The purchaser here is a bona fide purchaser for value; thus, we affirm.

Vivian Kennard v. Methodist Hospitals of Memphis a/k/a Methodist Healthcare Memphis Hospitals, et al.
W2010-01355-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert L. Childers

Plaintiff filed a medical malpractice action against the Anesthesia Defendants, among others.   Prior to trial, one of Plaintiff’s experts, Dr. McLaughlin, was excluded for failure to meet the requirements of the locality rule. Plaintiff proceeded to trial, and a jury verdict was rendered in favor of the Anesthesia Defendants. Plaintiff now appeals the expert’s exclusion and the subsequent jury verdict.  In light of our previous vacation of the order excluding Dr. McLaughlin in Kennard 2, we remand this case to the trial court for reconsideration of Dr.  McLaughlin’s qualifications in light of Shipley. If the trial court determines that Dr. McLaughlin meets the requirements of the locality rule, as set forth in Shipley, it shall then consider whether he, as an OB-GYN, may testify against the Anesthesia Defendants. Finally, if the trial court determines that Dr. McLaughlin is competent to testify, it shall then determine whether his erroneous exclusion warrants a setting aside of the jury verdict rendered in favor of the Anesthesia Defendants.

State of Tennessee v. Tiffany Davis
M2010-01779-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Robert G. Crigler

The Defendant, Tiffany Davis, was indicted on eighteen felony drug counts following a series of controlled drug purchases conducted by law enforcement officers. The jury convicted the Defendant of one count of the sale of less than 0.5 grams of cocaine, a Class C felony; three counts of the sale of 0.5 grams or more of cocaine, all Class B felonies; three counts of the delivery of less than 0.5 grams of cocaine, all Class C felonies; three counts of the delivery of 0.5 grams or more of cocaine, all Class B felonies; two counts of conspiracy to sell 0.5 grams or more of cocaine, both Class C felonies; and one count of the lesser included offense of facilitation of the sale of 0.5 grams or more of cocaine, a Class C felony. She was found not guilty on the remaining five counts. At her sentencing hearing, the trial court found the Defendant to be a career offender based upon her seven prior Class B felony convictions, for which she previously had received a sixteen-year sentence. After merging alternative counts in this action, the trial court sentenced her to the mandatory sentence of fifteen years for each Class C felony and thirty years for each Class B felony. The trial court then ordered each of these sentences to run concurrently. After finding that the Defendant had an extensive prior record of criminal activity and that the present offenses were committed while she was on probation, the trial court ordered its effective thirty-year sentence in this case to run consecutively to the Defendant’s prior sixteen-year sentence. On appeal,the Defendant challenges the sufficiency of the evidence supporting each conviction. She also challenges her effective sentence, arguing that it is excessive. After a careful review of the record, we affirm the judgments of the trial court.