Kathryn A. Duke v. Harold W. Duke, III - Concur/Dissent
M2012-01964-COA-10B-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge James G. Martin, III

I agree with the majority’s affirmance of the trial court’s denial of Father’s recusal motion. However, I would have held that the grounds previously raised by Father two years earlier were not subject to our review under Tenn. Sup. Ct. R. 10B and, therefore, would have dismissed that part of the appeal. I would affirm denial as to the new grounds upon the reasoning set out in the majority opinion.

Tina Marie Hodge v. Chadwick Craig
M2009-00930-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Jim T. Hamilton

This appeal requires the Court to determine whether current Tennessee law permits the
former husband of a child’s mother to pursue a claim against his former spouse for
intentional or negligent misrepresentation regarding the identity of the child’s biological
father. Following the dissolution of their nine-year marriage, the former husband of the
child’s mother discovered that he was not the child’s biological father. He filed suit against
the child’s mother in the Chancery Court for Maury County, alleging that she had
intentionally misled him into believing that he was the child’s biological father. Following
a bench trial, the trial court found that the mother’s former husband had proved that his
former wife had intentionally misrepresented the parentage of the child and awarded him
$134,877.90 in compensatory damages for the child support, medical expenses, and
insurance premiums he had paid following the divorce, emotional distress, and attorney’s
fees. The child’s mother appealed. Even though the Court of Appeals determined that the
evidence supported the trial court’s finding that the child’s mother had intentionally
misrepresented the identity of the child’s biological father, it (1) reversed the damage award
based on the post-divorce payments for child support, medical expenses, and insurance
expenses on the ground that these damages amounted to a prohibited retroactive modification
of a child support order, (2) reversed the damage award for emotional distress, and (3)
reversed the award for attorney’s fees. Hodge v. Craig, No. M2009-00930-COA-R3-CV,
2010 WL 4024990, at *12 (Tenn. Ct. App. Oct. 13, 2010). The former husband filed an
application for permission to appeal arguing that Tennessee should permit recovery in cases
of this sort for intentional or negligent misrepresentation of a child’s paternity. We have
determined that the existing common-law action for intentional misrepresentation
encompasses the claims made in this case by the former husband and that the trial court’s
damage award based on the former husband’s post-divorce payments for child support,
medical expenses, and insurance premiums is not an improper retroactive modification of the
former husband’s child support obligation.

State of Tennessee v. William Thomas Mayers
M2011-00954-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt

After a trial by jury, the defendant was found guilty of aggravated burglary, a Class C felony, attempted aggravated burglary, a Class D felony, and theft of property over $500, a Class E felony. He was sentenced to a total effective sentence of 25 years. On appeal, the defendant claims that the trial court erred by (1) denying his motion to dismiss his indictment or suppress testimony regarding destroyed evidence; (2) allowing the State to present certain photographs taken of the defendant, on grounds that they were not properly authenticated; and (3) ordering him to serve his sentence on the attempted aggravated burglary consecutively to his sentence for aggravated burglary because both crimes should have been considered part of the same criminal episode. We conclude that the defendant has waived the first claim by virtue of his failure to prepare an adequate brief and record and that the trial court did not err by allowing admitting the photographs and ordering consecutive sentences. We affirm the judgments of the trial court accordingly.

Kevin DeWitt Ford v. State of Tennessee
M2011-02105-CCA-R3-CO
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl Blackburn

On January 18, 2011, Petitioner, Kevin DeWitt Ford, filed a pro se petition for writ of error coram nobis. He subsequently submitted two amended petitions, also pro se. Petitioner attacked seven convictions in the Davidson County Criminal Court for aggravated robbery. Petitioner pled guilty to the offenses but reserved for appeal a certified question of law. On appeal, this court affirmed the convictions. State of Tennessee v. Kevin DeWitt Ford and Clifford Sylvester Wright, No. M2003-00957-CCA-R3-CD, 2005 WL 677280 (Tenn. Crim. App. Mar. 23, 2005) perm. app. denied, (Tenn. Oct. 24, 2005). Petitioner’s post-conviction relief petition was denied by the trial court. This Court affirmed. Kevin DeWitt Ford v. State of Tennessee, No. M2007-01727-CCA-R3-PC, 2009 WL 564226 (Tenn. Crim. App. Mar. 5, 2009) perm. app. denied (Tenn. June 15, 2009). The coram nobis court dismissed the petition, as amended, without an evidentiary hearing, on two bases. First, the petition was filed outside the applicable statue of limitations. Second, even if the petition had been timely field, it did not state a cognizable claim for a writ of error coram nobis. We affirm the judgment of the coram nobis court.

Pete C. Jenkins v. State of Tennessee
M2011-02240-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge J. Randall Wyatt

On March 31, 1994, the petitioner entered a plea of nolo contendere to two counts of aggravated rape, a Class A felony, and was sentenced as a Range I offender to fifteen years for each count. The plea agreement required the sentences to be served consecutively. The petitioner brought a petition for the writ of habeas corpus, alleging that the trial court lacked jurisdiction to impose consecutive sentences and that the judgments were consequently void. The trial court denied the petition. Following our review, we affirm the judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

State of Tennessee v. Wanda F. Russell
M2010-00852-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge David M. Bragg

A defendant was indicted on four counts of theft. At trial, the trial court ruled that the defendant’s prior misdemeanor convictions for passing worthless checks were admissible to impeach her credibility pursuant to Tennessee Rule of Evidence 609, which states that a conviction punishable by less than one year of imprisonment is admissible if the crime involves dishonesty or false statement. See Tenn. Code Ann. § 39-14-121 (2010). The defendant elected not to testify, and the jury convicted her on three of the four counts of theft. We hold that the crime of passing worthless checks involves an element of dishonesty or false statement and that the trial court did not abuse its discretion when it determined that the defendant’s prior convictions could be used to impeach her credibility if she testified. We affirm the decision of the trial court.
 

Mitzi Bayne Ruth, executrix of the Estate of Fred W. Bayne, et al., v. Home Health Care Of Middle Tennessee, LLC, et al.
E2011-02681-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jerri S. Bryant

This action was appealed before to this Court and this appeal follows our remand back to the Trial Court for determination of the ambiguous terms found in the contract between the parties. Upon remand, the Trial Court conducted an evidentiary hearing and made a finding as to what the parties intended as to the terms of the contract previously found ambiguous. On appeal, we affirm the Judgment of the Trial Court's determination of what the document provided and determined the rights of the parties, and remand.

State of Tennessee v. Larry A. Wade
E2011-01538-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don W. Poole

Defendant, Larry Wade, was indicted by the Hamilton County Grand Jury for premeditated murder, felony murder, and especially aggravated robbery. Following a pretrial hearing on Defendant’s motion to suppress, which the trial court took under advisement, Defendant entered a guilty plea to second degree murder on the same day as the suppression hearing. Defendant subsequently filed a motion to withdraw his guilty plea, which the trial court denied after two separate hearings. On appeal, Defendant asserts that the trial court’s failure to rule on his motion to suppress prior to accepting his guilty plea violated his due process rights, and consequently, Defendant’s guilty plea was unknowingly and involuntarily entered, and Defendant asserts that it was a manifest injustice to deny Defendant’s motion to withdraw his guilty plea. After a careful review of the record, we affirm the judgment of the trial court.

Earl Thomas Burgess v. Ford Motor Company
M2011-00654-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen H. Lyle

A management employee working for Ford Motor Company was to become an employee of Ford’s wholly owned subsidiary when the subsidiary was made an independent company. The manager wanted to remain employed by Ford and sought to transfer back to an hourly position before the spinoff took effect. The manager’s supervisor promised the manager his benefits and pay would not change as an employee of the subsidiary and that he could return to an hourly position with Ford after the spinoff until such time that the subsidiary was purchased by a third party. The subsidiary was purchased by a third party five years later, but Ford did not permit the employee to transfer back to Ford at that point. After the employee asked to transfer back to Ford, Ford offered its hourly employees a special retirement plan whereby they were offered lifetime health and pension benefits. The employee would have been eligible to participate in this plan if he had been allowed to transfer back to Ford. The employee filed suit against Ford, claiming promissory estoppel and seeking damages based on the amount he would have received under the special retirement plan. A jury found Ford liable for promissory estoppel and awarded the employee damages. Ford appealed, arguing (1) the employee’s claim was preempted by the Labor Management Relations Act and (2) the employee failed to prove all the elements of promissory estoppel. We affirm the trial court’s judgment.
 

Susan Daniel v. Brittany Smith
M2011-00830-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge L. Craig Johnson

In this negligence case, the jury returned a verdict in the amount of the plaintiff’s medical
evaluation and treatment immediately following the accident as well as pain and suffering.
We find material evidence to support the verdict and, therefore, affirm the judgment of the
trial court.

Metropolitan Government of Nashville and Davidson County, Tennessee v. James E. Brown
M2012-00354-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

Defendant in suit to recover property taxes appeals from the trial court’s grant of summary
judgment to Plaintiff. Finding no error, we affirm.

W. Stanford Blalock v. Preston Law Group, P.C., et al.
M2011-00351-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge James G. Martin, III

A plastic surgeon entered into a five year lease on office space, and defaulted on the lease after the first month. The landlord’s attorney filed separate lawsuits in general sessions court for breach of the lease contracts against the lessee, who had personally guaranteed the lease, and against the lessee’s personal corporation. The landlord obtained duplicate judgments for unpaid rent as well as for attorney fees. The general sessions judge informed the landlord that he was only entitled to collect one judgment. The lessee appealed to the circuit court, but paid the general sessions judgment in full while the circuit court action was still pending. The landlord’s attorney then filed a “partial satisfaction of judgment” and another complaint for attorney fees in general sessions court, followed by another complaint in circuit court, alleging that additional rents had accrued while the litigation continued. The lessee responded by filing a complaint for abuse of process against the landlord’s attorney, alleging that the attorney filed meritless complaints in order to drive up the fees he could collect. The landlord’s attorney filed a motion for summary  judgment on the ground that the statute of limitations for abuse of process had passed, and that in any case no abuse of process could be shown. The trial court granted the motion. We affirm.

In Re Daysia D. et al.
M2012-00608-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Anthony L. Sanders

Mother appeals the trial court’s termination of her parental rights. She asserts the trial court
erred in holding that she engaged in conduct exhibiting a wanton disregard for the welfare
of the children prior to her incarceration and that termination was in the children’s best
interest. We have determined there is clear and convincing evidence in the record to support
the trial court’s finding that Mother abandoned her children as proscribed by Tenn. Code
Ann. § 36-1-102(1)(A)(iv) and that terminating her parental rights is in the children’s best
interest. We affirm.

Michael B. Adams v. State of Tennessee
E2012-01476-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Commissioner William O. Shults

This Court issues a show cause order on July 19, 2012, directing the pro se incarcerated appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. The appellant is seeking a review of the decision on a claim pending on the small claims docket of the Tennessee Claims Commission. "No appeal may be taken from a commissioner's decision regarding claims appearing on the small claims docket." Tenn. Code Ann. § 9-8-403(a)(2).

James Bostic v. State of Tennessee and Warden David Sexton
E2012-01710-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Thomas J. Seeley, Jr.

This is an appeal from a final order of dismissal in the Circuit Court, entered on April 11, 2012. The appellant did not filed a notice of appeal until August 9, 2012. This Court issued a show cause order directing appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. The appellant has responded to the show cause order by motion which does not show good cause why the appeal should not be dismissed.

State of Tennessee v. Devarick D. Nicks
M2011-02395-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John H. Gasaway

The appellant, Devarick D. Nicks, pled guilty in the Montgomery County Circuit Court to two counts of possession of .5 grams or more of cocaine with intent to sell or deliver. Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentences. After a sentencing hearing, the appellant received an effective eight-year sentence to be served in the Tennessee Department of Correction (TDOC). The appellant contends on appeal that the trial court erred by ordering him to serve his sentences in confinement. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Karen Stoner v. Brittany C. Amburn
E2012-00075-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Karen Stoner (“the Executrix”), in her capacity as the Executrix of the Estate of Irma M. Collins, brought suit against Brittany C. Amburn seeking to divest ownership of certain real property out of Amburn and into her name in her representative capacity. The suit was grounded in the Executrix’s claim that the subject property was fraudulently conveyed to Amburn by the latter’s stepfather, Larry C. Collins (“the Judgment Debtor”), a judgment debtor of the Estate. The Executrix alleged that the transfer was made for the purpose of shielding the property from execution on her judgment. At the conclusion of the proof in a jury trial, the court held that no reasonable minds could reach a conclusion other than that the conveyance was fraudulent in nature. The court directed a verdict in favor of the Executrix. The court vested all right, title and interest to the property in the Executrix. Amburn appeals. We affirm.

William Fisher v. Jerry Lester, Warden
M2012-00306-CCA-R3-HC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, William Fisher, appeals from the Hickman County Circuit Court’s denial of his petition for the writ of habeas corpus. He contends that his sentence has expired. We affirm the judgment of the trial court.

Francisco Miquel Jose v. State of Tennessee
M2011-00295-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Leon C. Burns

The Petitioner, Francisco Miquel Jose,appeals from the Putnam County Criminal Court’s denial of his petition for post-conviction relief. On appeal, he contends that his 2004 guilty plea to misdemeanor theft of property was not knowingly made because he was not advised of the immigration consequences of his guilty plea, that the statute of limitations should be tolled because Padilla v. Kentucky, 130 S. Ct. 1473 (2010), announced a new rule of constitutional law that did not exist at the time of his plea, and that due process requires tolling of the statute of limitations due to the circumstances surrounding his guiltyplea. We affirm the judgment of the trial court.

Calvin D. Norris v. State of Tennessee
M2010-00404-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Monte D. Watkins

The Petitioner, Calvin D. Norris, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2007 conviction for possession with intent to sell one-half gram or less of cocaine and his ten-year sentence. On appeal, the Petitioner contends that his guilty plea was unknowing, involuntary, and unintelligent because he was denied the effective assistance of counsel. We affirm the judgment of the trial court.

Phillip A. Corbitt et al. v. Rolanda Amos
M2011-01916-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

The sellers of real estate brought this action against the successful bidder at a real estate auction after the bidder failed to close because she was unable to obtain a loan sufficient to purchase the property. The sellers later auctioned the property for a substantially lower price. It is undisputed that the buyer breached the contract by not closing and that the sellers are entitled to recover certain special damages; the buyer challenges the trial court’s award of $55,300 for the seller’s general damages for their loss of the benefit of the bargain. We have determined the trial court’s decision is not supported by competent evidence in the record and that the sellers failed to prove the fair market value of the property on the date of the breach was less than the contract price. Therefore, we reverse the award of $55,300 for the loss of the benefit of the bargain. We, however, affirm the award of special damages, specifically the expense of conducting a second auction and sale, property taxes paid between the date of the breach and the second sale, and prejudgment interest, which shall be calculated based upon the judgment as modified.

Chas Alan Sandford v. Kristine Elaine Sandford McKee
M2010-00562-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Robbie T. Beal

Husband and Wife were married for eight years when Husband filed for divorce. Husband had purchased 63 acres of real property before marrying Wife and split the property into two parcels. When dividing the property between the parties, the trial court determined the house and ten acres was Husband’s separate property, but the appreciation on that parcel was marital property pursuant to Tenn. Code Ann. § 36-4-121(b)(1)(B). The trial court determined the remaining 53 acres was Husband’s separate property and that Wife had no interest in that parcel. Wife appealed, claiming both parcels transmuted into marital property during the marriage. In the alternative, Wife argued that the increase in value of the other 53 acres was marital property due to work she performed on a guesthouse located on the 53-acre parcel. We disagree and affirm the judgment of the trial court.

In the Matter of Darion X. Y., Darius D. Y.
M2012-00352-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Special Judge Alan Edward Calhoun

Father’s parental rights to his son were terminated on the ground that Father is confined in a correctional facility for more than ten years as a result of a criminal act and that the child was under the age of eight at the time of Father’s sentencing. Father contends that the trial court should have considered the possibility of his receiving parole in determining whether grounds for termination of his rights were present and whether termination was in the child’s best interest. Finding no error, we affirm the trial court.

Orlando Ladd v. Turney Center Disciplinary Board
M2011-02599-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Timothy L. Easter

Appellant, an inmate with the Tennessee Department of Correction (“TDOC”), appeals the trial court’s dismissal of his appeal for review of disciplinary actions taken against him by the prison, and affirmed by the TDOC Commissioner. The trial court dismissed the appeal for lack of subject matter jurisdiction based upon the expiration of the applicable statute of limitations, Tennessee Code Annotated Section 27-9-102. Discerning no error, we affirm.

Carol Ann Graybeal v. Howell H. Sherrod, Jr.
E2011-01825-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Thomas R. Frierson, II

In 2003, Carol Ann Graybeal (“the Client”) filed this action against her former attorney and lover, Howell H. Sherrod, Jr. (“the Lawyer”), after he refused to give her an accounting regarding an investment she had made through him. In response to her demand for an accounting, he had accused her of stealing and damaging property, the value of which allegedly exceeded the value of her investment. In the answer later filed to her suit, he demanded a setoff; his answer was joined with a counterclaim seeking relief with respect to the stolen and damaged goods. Six years later, the case came on for trial. The court entered its first judgment on April 23, 2010 (“the April 2010 judgment”). The court found in favor of each of the parties regarding various of their respective claims, with the result that the Lawyer received a net judgment of $10,760.13, before interest. The Client filed a motion to alter or amend the April 2010 judgment. The court entered a second, almost identical, judgment on September 15, 2010 (“the September 2010 judgment”), in which it denied the Client’s motion. The Lawyer later filed a motion for discretionary costs as well as a motion to alter or amend the September 2010 judgment. In March 2011, the Client filed a motion for relief from the September 2010 judgment. In an order entered August 5, 2011 (“the August 2011 judgment”) and designated as “final,” the court granted the motion for discretionary costs in part, denied the Lawyer’s motion to alter or amend, and granted the Client’s motion for relief with respect to the calculation of prejudgment interest and the taxing of costs. The Lawyer appeals from the August 2011 judgment. The Client attempts to raise several issues of her own. We conclude that the merits of one of the earlier judgments – the September 2010 judgment – are not before us because what the Lawyer has labeled as a “motion to alter or amend” that judgment is not, despite its label, one of the motions recognized by Tenn. R. Civ. P. 59.01 as having the effect of “extending the time for taking steps in the regular appellate process.” We find no reversible error in the August 2011 judgment. Accordingly, we affirm that judgment.