State of Tennessee v. Brandon Ray Roland
E2002-00927-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Curtis Smith

Following a jury trial, Defendant, Brandon Ray Roland, was convicted of first degree premeditated murder, first degree felony murder and theft of property over $10,000. The trial court merged the felony murder conviction into the premeditated first degree murder conviction and sentenced Defendant to life imprisonment. After a sentencing hearing, the trial court sentenced Defendant to three years for the theft conviction and ordered the sentence to run concurrently with the life sentence. In his appeal, Defendant argues that (1) the evidence is insufficient to sustain his conviction for first degree murder; (2) the trial court erred in not granting a new trial because of improper juror conduct; (3) the trial court erred in not suppressing a letter written by Defendant while in juvenile detention; and (4) the Rhea County Juvenile Court erred in transferring Defendant to stand trial as an adult. Defendant does not appeal his conviction for theft. Following a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. John A. Turbyville
E2002-00629-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Phyllis H. Miller

The appellant was convicted by a jury of the offense of reckless aggravated assault. He received a sentence of seven years incarceration as a Range II multiple offender convicted of a Class D felony. On appeal the appellant contends that the evidence is insufficient to support the verdict and that the trial court erred in denying him any form of alternative sentencing. Appellate review is available for these two issues despite the fact that the appellant failed to file a timely motion for new trial under Tenn. R. Crim. P. 33(b). However, review of these issues is dependent on either a timely filed notice of appeal, or in the interest of justice, a waiver of the timely filing of a notice appeal. Tenn. R. App. P. 4(a). Because the appellant filed a late motion for a new trial, his notice of appeal is likewise tardy. Neither has the appellant sought a waiver of the timely filing of the notice of appeal. Under these circumstances the appeal is DISMISSED.

Roy Malone vs. Scott Probasco
E2002-03135-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Circuit Court for Hamilton County the Plaintiff/Appellant, Roy Michael Malone, Sr., argues that the Trial Court erred in granting the Defendant/Appellee, Scott L. Probasco, Jr., a summary judgment. We affirm and remand.

R. Scott Martin v. John Curtis King
E2002-03055-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
This is a breach of contract case. R. Scott Martin ("Plaintiff") sued John Curtis King ("Defendant"), alleging that Defendant had breached his agreement to give Plaintiff a 3% interest in Defendant's landfill venture. The trial court found that the parties' agreement did not pertain to or cover the particular landfill business out of which Plaintiff sought a 3% interest. The trial court did conclude that Plaintiff was entitled to a judgment against Defendant for $4,500 for monetary contributions made by Plaintiff in connection with the parties' agreement. Plaintiff appeals, contending that the trial court erred in finding that a novation had occurred, in admitting parol evidence, and in calculating damages. We affirm.

Lynn Raiteri Ex Rel. Mary Cox v. NHC Healthcare
E2003-00068-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Harold Wimberly
Lynn Raiteri, as the daughter and next friend of the late Mary Helen Cox ("Mrs. Cox"), sued NHC Healthcare/Knoxville, Inc. ("the defendant"), as well as others, for the wrongful death of Mrs. Cox, whose death allegedly resulted from improper care at the defendant's nursing home. We granted the plaintiff's Tenn. R. App. P. 9 application for an interlocutory appeal in order to review the trial court's order granting the defendant's motion to compel mediation and arbitration pursuant to the dispute resolution procedures contained in the defendant's nursing home admission agreement. We reverse.

Conchita Johnson vs. Greg Johnson
E2003-00130-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Ben W. Hooper, II
The Trial Court entered Judgment for back child support, ordered increase in continuing child support, and awarded custodial parent attorney's fees. Father, who sought change of custody, appealed. We affirm.

Clarence Matz, et ux vs. Wuest Diagnostics
E2003-00167-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
Defendants granted summary judgment in medical malpractice action on grounds the statute of limitation had run. On appeal, we vacate and remand.

Bobby Cunningham v. Terry Lester
M2002-00887-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: J. B. Cox
This dispute arises from an auction sale of real property. The trial court awarded plaintiff buyer specific performance of one contract and denied specific performance of a second contract. We affirm.

Angela Taylor vs. Douglas Fezell
E2002-02937-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas R. Frierson, II
In post-divorce action by husband, the Trial Court refused to void trust provision in Marital Dissolution Agreement and calculated child support. Husband appealed, we affirm.

J.S. Haren Company vs. Kelly Services
E2002-03116-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Sharon J. Bell
This appeal asserts that the Trial Court erred in entering judgment against the Appellant/Defendant, Kelly Services, Inc., for breach of contract. We reverse and dismiss the judgment of the Trial Court and remand.

Judy Longmire vs Kroger
E2002-03119-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Wheeler A. Rosenbalm
In this action for damages for injuries suffered when plaintiff fell on defendant's premises, the Trial Court granted defendant summary judgment. On appeal, we vacate and remand.

Steve Conklin vs. State
E2002-03130-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Approximately seventeen years ago, Steve Conklin (Plaintiff") was convicted by a jury in the McMinn County Criminal Court of raping a child under the age of thirteen years. Plaintiff's conviction was affirmed by the Court of Criminal Appeals in 1987. Plaintiff was represented by appointed counsel, Fredric J. Chester, Jr. ("Chester"). Chester represented Plaintiff both at trial and on the direct appeal. Many years later, Plaintiff was granted post-conviction relief based on ineffective assistance of counsel and a new trial was ordered. The State of Tennessee ("State") declined to retry Plaintiff, who then was set free. Plaintiff filed this lawsuit in the Claims Commission ("Commission") against the State seeking monetary compensation for the alleged legal malpractice of Chester which Plaintiff claims resulted in his being imprisoned improperly for fourteen and one-half years. According to Plaintiff, Chester should be deemed a state employee because he was appointed by the court. The State disagreed and filed a motion to dismiss the complaint. The State argued that the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim because Chester was not a "state employee". The Commission dismissed the lawsuit solely because Plaintiff failed to respond timely to the State's motion to dismiss. We hold Chester was not an employee of the state and, therefore, the Commission lacked subject matter jurisdiction over Plaintiff's legal malpractice claim. The result reached by the Commission is affirmed.

Ronald W. Rice v. David Mills, Warden
E2003-00328-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge E. Eugene Eblen

The petitioner, Ronald W. Rice, filed in the Morgan County Criminal Court ("the habeas court") for habeas corpus relief, alleging that he received an illegal sentence for his conviction for an aggravated rape which occurred in 1983. The habeas court granted the petitioner relief. On appeal, the State contends that the habeas court erred in finding that the petitioner was entitled to relief. Upon review of the record and the parties' briefs, we reverse the judgment of the Morgan County Criminal Court, reinstate the petitioner's aggravated rape conviction, and remand to the Williamson County Criminal Court ("the convicting court") for correction of the judgment of conviction.

State of Tennessee v. Shun D. Jones
W2001-01313-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Bernie Weinman

The Appellant, Shun D. Jones, was convicted by a Shelby County jury of two counts of rape and was sentenced to twenty years in the Tennessee Department of Correction. On appeal, he argues that the evidence presented at trial was insufficient to support the verdict. After review, we find no error and affirm the judgment of the trial court.

Angelina Gilley v. Express Check Advance,
W2002-02506-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr. J.
Trial Court Judge: Joe C. Morris, Chancellor
The trial court found that the employee was permanently and totally disabled through age sixty-five as a result of compensable injuries, including a herniated disk and Post Traumatic Stress Disorder. In this appeal, the employer questions the court's findings as to causation, amount of disability, temporary benefits and medical benefits. As discussed below, the panel has concluded the evidence fails to preponderate against the findings of the trial court. Therefore, We affirm the judgment of the trial court.

Tommy Carey v. Camden Castings
W2002-01367-WC-R3-CV
Authoring Judge: Allen W. Wallace, Sr.J.
Trial Court Judge: C. Creed McGiley, Circuit Judge
The trial court found this action barred by the statute of limitations. We affirm the trial court.

Donna Taylor v. Doris Holt
E2003-00901-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Telford E. Forgerty, Jr.
Steve Godfrey prepared his last will and testament on his computer and affixed his computer generated signature at the end. He had two neighbors witness the will. Mr. Godfrey died approximately one week later. Doris Holt ("Defendant"), Mr. Godfrey's girlfriend, submitted the will for probate. Donna Godfrey Taylor ("Plaintiff"), Mr. Godfrey's sister, filed a complaint alleging, in part, that the will was not signed and claiming that Mr. Godfrey had died intestate. The Trial Court granted Defendant summary judgment holding there were no undisputed material facts and that all legal requirements concerning the execution and witnessing of a will had been met. Plaintiff appeals. We affirm.

State vs. E.G.P.
E2003-00433-COA-R3-CV
Trial Court Judge: C. Van Deacon
The Juvenile Court of Bradley County ordered that a placement should be found by the Department of Children's Services ("DCS") for a sixteen-year-old mother with her two and one-half-year-old child, the latter of whom had been in foster care most of his life. Time constraints were imposed and DCS did not or was unable to comply with the judgment, which resulted in a finding of contempt. The DCS appeals, and presents a litany of issues for review, one of which alleges that the juvenile court lacked jurisdiction to adjudicate a placement. The judgment is vacated in toto and the case is remanded.

James Wilkerson vs. PFC Global
E2003-00362-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: W. Dale Young
On May 3, 2002, James and Judith Wilkerson ("Plaintiffs") filed this lawsuit against PFC Global Group, Inc. ("PFC") claiming PFC had defaulted on a Promissory Note. Plaintiffs also sued Don and Brenda Dorris who had personally guaranteed PFC's debt to Plaintiffs. All three Defendants were served with process on May 16, 2002, and their attorneys entered an appearance on Defendants' behalf the following day. Plaintiffs' counsel informed defense counsel that Plaintiffs would move for a default judgment if an answer was not filed by September 6, 2002. When no answer was filed by that date, Plaintiffs moved for and were granted a default judgment. After hearing testimony from Plaintiff James Wilkerson regarding the amount due under the various contracts, the Trial Court granted Plaintiffs a judgment against each Defendant in the total amount of $1,492,353.52, plus an additional $15,000 in attorney fees. Thereafter, Defendants filed a motion to have the default judgment set aside under Tenn. R. Civ. P. 60. After a hearing, the Trial Court determined Defendants were not entitled to relief from the default judgment. We affirm.

Donald Lacy v. Wesley Cox
E2003-00709-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Richard R. Vance
Donald R. Lacy ("Plaintiff") sued Jennifer Brandon for damages arising from an automobile accident. After deliberating for approximately two hours, the jury asked the Trial Court if they were required to award Plaintiff any monetary damages if they found fault on the part of Brandon. Based on the question, Plaintiff surmised the jury's deliberations were not going his way. As a result, Plaintiff moved for a voluntary dismissal without prejudice, believing he was entitled to do so as a matter of right. The Trial Court, also believing Plaintiff was entitled to dismiss his lawsuit without prejudice as a matter of right even though the jury was deliberating, granted the motion. We conclude Plaintiff was not entitled to voluntarily dismiss his lawsuit without prejudice as a matter of right at that stage in the proceedings, and as a consequence the dismissal is with prejudice.

Doris Cannon vs. Peninsula Hospital
E2003-00200-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Harold Wimberly
Criminal proceedings against the Plaintiff involving a controlled substance were dismissed upon the Plaintiffs agreement to pay the costs. She thereupon filed this action for damages for malicious prosecution, which was dismissed on motion for summary judgment because the Plaintiff could not prove a necessary element: that the prosecution was terminated in her favor, because she agreed to pay the costs of the criminal prosecution. We affirm.

02825-COA-R3-CV
02825-COA-R3-CV
Trial Court Judge: Jacqueline E. Schulten

State of Tennessee v. Howard B. Higley
E2001-02525-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Douglas A. Meyer

A Hamilton County jury convicted the Defendant of driving under the influence (DUI), second offense. The trial court sentenced the Defendant to the following: "11 months, 29 days suspended after 6 months day for day (11 months, 29 days suspended probation after the 6 months)." The trial court also revoked the Defendant's driver's license for two years, ordered the Defendant to pay a $610 fine, and ordered the Defendant to avoid alcohol throughout the probation period. In addition, the trial court imposed twenty days of community service to be completed within one year. The Defendant now appeals, arguing the following: 1) that the trial court erred by denying the Defendant's motion to suppress the results of a breathalyser test, 2) that the trial court erred by limiting the testimony of the Defendant's accident re-construction expert's testimony about the Tennessee Department of Transportation's statistics regarding traffic accidents that occurred at the intersection in question, and 3) that the trial court abused its discretion by sentencing the Defendant to a sentence in excess of the maximum sentence available by statute for a DUI second offense. Finding no reversible error as concerns the conviction, we affirm the conviction. We vacate the sentence and remand for entry of an amended judgment.

Barry Winfred Ritchie v. State of Tennessee
E2002-02609-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Douglas A. Meyer

In a series of steps designed to challenge his 1981 convictions for armed robbery and aggravated rape, Petitioner, Barry Winfred Ritchie, filed various pro se motions including (1) a motion for post-conviction relief and/or writ of error coram nobis, (2) a motion for relief of judgment pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, (3) a petition for common law writ of certiorari, and (4) a motion to quash the indictments and correct an illegal sentence. All pleadings are predicated on the same allegation that the Hamilton County Criminal Court lacked territorial jurisdiction to try and convict Petitioner of the charged offenses. Following a careful review of the record, we affirm the judgments of the trial court.

E2003-00132-COA-R3-CV
E2003-00132-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Thomas R. Frierson, II