State of Tennessee v. Herman Sowell, Jr.
M2008-02358-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don R. Ash

Defendant, Herman Sowell, Jr., appeals the dismissal of his motion requesting the trial court to modify his sentence of confinement to a suspended sentence. On appeal, Defendant argues that the trial court abused its discretion in finding no change in circumstances which would justify the requested modification. After a thorough review, we affirm the judgment of the trial court.

State of Tennessee v. Ricky Eugene Scoville
M2009-00538-CCA-MR3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Robert G. Crigler

A Marshall County jury convicted the defendant, Ricky Eugene Scoville, of two
counts of harassment. The trial court merged the convictions and sentenced the defendant as a Range I, standard offender, to two years in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the convicting evidence. After review of the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

Barry I. Chook v. Tashawn N. Pirela Jones and Kenneth Jones
W2008-02276-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is an appeal of a discovery matter. The plaintiff was involved in a motor vehicle
accident with the defendants. One year and one day after the accident, the plaintiff filed a
lawsuit asserting negligence. The complaint sought money damages for damage to property
and personal injury. The defendants filed a motion to dismiss based on the statute of
limitations. The plaintiff sought extensive discovery of the defendants’ personal records.
The trial court denied the plaintiff’s motion to compel discovery and granted the defendants’
motion to dismiss. The plaintiff now appeals. We find that the order from which the
plaintiff appeals is not a final judgment. Accordingly, we dismiss the appeal.

State of Tennessee v. Michael Collins Reed
M2009-00550-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant-Appellant, Michael Collins Reed, appeals his sentence following the revocation of his probation. He originally pled guilty to attempted aggravated robbery, a Class C felony, and was sentenced as a multiple offender to eight years of confinement in the Tennessee Department of Correction. This sentence was suspended to ten years of supervised probation. Because this was Reed’s third probation violation, the trial court placed his eight-year sentence for attempted aggravated robbery into effect. On appeal, Reed concedes the probation violation, but argues the trial court should have reinstated his probation or imposed a rehabilitative sentence that addressed his drug addiction. Upon review, we affirm the judgment of the trial court.

Clarence Carnell Gaston v. State of Tennessee
W2009-01690-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The petitioner, Clarence Carnell Gaston, appeals the trial court’s denial of his petition to reopen his post-conviction petition. The State has filed a motion requesting that this court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petitioner did not comply with the statutory requirements for seeking discretionary review of the denial of his motion, this court has no jurisdiction in this case. Accordingly, the appeal is dismissed.

State of Tennessee v. Joe Marvin Ellison
W2009-01134-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Joe Marvin Ellison, pled guilty to aggravated assault, aggravated robbery, aggravated kidnapping, and rape for an effective sentence of twenty-five years in the Department of Correction. He subsequently filed a motion to withdraw his guilty pleas, which was denied by the trial court. On appeal, he argues that the trial court erred in denying his motion. After review, we affirm the judgment of the trial court.

State of Tennessee v. Thomas Christopher Hayes, alias Christopher Hayes
E2009-00218-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Don W. Poole

The Defendant, Thomas Christopher Hayes, appeals as of right his Hamilton County Criminal Court jury conviction for sexual battery, a Class E felony. The trial court sentenced the Defendant to four years as a Range II, multiple offender to be served in the Department of Correction. His sole issue on appeal is whether the evidence is sufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

Frankie E. Casteel v. State of Tennessee
E2008-01526-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Jerry Scott

The Petitioner, Frankie E. Casteel, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his convictions for three counts of first degree murder. In this appeal, the Petitioner contends that the trial court erred in finding that he received the effective assistance of counsel. We affirm the judgment of the trial court.

Clifton Lake, et al. v. The Memphis Landsmen, L.L.C., et al.
W2009-00526-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John R. McCarroll, Jr.

This is an appeal from a jury verdict in a negligence and products liability case. Appellant-
Husband was injured when the bus, on which he was a passenger, collided with a concrete
truck. Appellant-Husband and Appellant-Wife filed suit against Appellees- the bus
manufacturer, the bus owner, and the franchisor. Following trial, the jury found that the
Appellants had suffered $8,543,630.00 in damages, but found that none of the Appellees
were at fault and apportioned one hundred percent of the fault to a non-party. Appellants
appeal. We find that Appellants’ claims based on the use of tempered glass in the side
windows of the bus, and the lack of passenger seatbelts in the bus are preempted by the
National Traffic and Motor Vehicle Safety Act, 49 U.S.C. §30101 et seq. Further, we find
that the Appellants failed to present evidence that the use of perimeter seating in the bus
caused the injuries. Consequently, we find that the trial court erred in not granting
Appellees’ motions for directed verdict on the Appellants’ claims based on the use of
perimeter seating. Reversed and remanded.

Joanne Wells v. Mark Wells
W2009-01600-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Robert L. Childers

This is divorce case, ending a fifteen year marriage. Appellant-Husband appeals from the trial court’s classification and division of marital property. Appellee-Wife appeals from the trial court’s decision to impute income to her. Finding no error, we affirm.

Tina Taylor, et al. v. Lakeside Behavorial Health System
W2009-00914-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Special Judge Charles O. McPherson

This is a medical malpractice case. Appellant filed suit against Appellee Hospital
after Appellant’s decedent suffered several falls and a broken hip while a patient at Appellee
Hospital. The trial court granted Appellee Hospital’s Tenn. R. Civ. P. 12.02(6) motion,
thereby dismissing Appellant’s amended complaint. Specifically, the trial court held: (1) that
the amended complaint was ineffective to give notice to Appellee Hospital because it did not
reference the date(s) of decedent’s falls, (2) that the medical malpractice claim and hedonic
damages of the widow arising therefrom were dismissed by previous orders of the court, and
(3) that the proof did not support the averments made in the amended complaint. After
review, we conclude: (1) that the amended complaint is sufficiently specific to satisfy Tenn.
R. Civ. P. 8, and to state a claim for medical malpractice against the Appellee Hospital, (2)
that the previous orders of the trial court only dismissed the wrongful death claims and
widow’s loss of consortium claims arising therefrom, and not the medical malpractice claims,
and (3) that the trial court reviewed matters outside the pleadings so as to trigger summary
judgment analysis under Tenn. R. Civ. P. 12.03, and (4) that there are disputes of material
fact in this case so as to necessitate a full evidentiary hearing on the medical malpractice
claim. Reversed and remanded for an evidentiary hearing on the medical malpractice claim
against Appellee Hospital and on the widow’s loss of consortium claims arising from the
alleged medical malpractice.

Areties McKamey v. Lockheed Martin Energy Systems, Inc., et al.
E2009-00715-WC-R3-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Donald R. Elledge

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The trial court found that the employee had sustained a hearing loss as a result of exposure to noise during her work from 1944 to 1989 as a telephone operator for her employer, and awarded 50% permanent partial disability (“PPD”) of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court’s finding on the issue of causation. Alternatively, it argues that the award is excessive. We reverse the judgment and dismiss the complaint.

Brenda Duncan Albright vs. Randolph & Sherry Tallent - Concur
E2009-01983-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Jerri S. Bryant

I concur with the majority’s decision to affirm the Trial Court’s denial of Plaintiff’s claim for adverse possession of the property in dispute. I also concur in the majority’s decision to affirm the Trial Court’s ruling that Defendants may construct the fence where proposed as that fence is constructed entirely on Defendants’ property and does not, as found by the majority, interfere with Plaintiff’s use of the easement in any way.

Corey Lynn Clark v. State of Tennessee
W2009-01610-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Clayburn L. Peeples

State of Tennessee v. Michael Dewayne Brown
W2009-01742-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: R. Lee Moore Jr.

Marco Butler v. State of Tennessee
W2009-00860-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Otis Higgs, Jr.

The Petitioner, Marco Butler, appeals from the Shelby County Criminal Court’s denial of post-conviction relief from his guilty pleas to first degree murder and especially aggravated robbery, a Class A felony, and his concurrent sentences of life and twenty-five years, respectively. On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to communicate his release eligibility date. He also contends that his plea was involuntarily and unknowingly entered. Upon review, we affirm the judgment of the post-conviction court.

George Cecil Resh v. Building Materials Corporation D/B/A GAF Fiberglass Corporation
M2009-00028-WC-R3-WC
Authoring Judge: Senior Judge Donald P. Harris
Trial Court Judge: Judge Clara Byrd

In this workers’ compensation case, the employee, George Cecil Resh, alleged that he sustained
hearing loss due to exposure to a harmful level of noise in his workplace. The employer, Building
Materials Corporation, denied that the employee’s hearing loss was work-related. The trial court
found in favor of the employee and awarded 50% permanent partial disability of the hearing of both ears. The employer has appealed, contending that the evidence preponderates against the trial court’s finding. Because we find that the expert medical evidence failed to establish that Mr. Resh’s hearing loss was work-related, we agree and reverse the judgment.1

Michael Joseph Grant v. Foreperson For The Bradley
E2009-01450-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Jerri S. Bryant

This appeal arises from the trial court’s order overruling a pro se petition for writ of mandamus by the appellant. In the petition, the appellant sought access to the grand jury for Bradley County to present evidence of purported wrongdoing by the investigating officer of his case. The trial court denied the petition. On a different basis, we affirm.

Johnny Menifee v. State of Tennessee
M2009-00446-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stella L. Hargrove

The petitioner, Johnny Menifee, was convicted in 2004 of Class D felony evading arrest with risk of injury, misdemeanor theft, Class E felony reckless endangerment with a deadly weapon, and resisting arrest. He received an effective sentence of eighteen years as a persistent offender. After his convictions and sentences were affirmed by this court in 2006, he filed a petition for post-conviction relief. Following an evidentiary hearing, the postconviction court denied the petition; and, after our review, we affirm that denial.

Teresa Gard v. Dennis Harris, M.D.,
2008-01939-COA-R3-CV
Trial Court Judge: Wheeler A. Rosenbalm

Plaintiff filed a complaint alleging false light invasion of privacy and defamation after her physician sent a letter she considered defamatory. After finding that plaintiff consented to the disclosure by signing a consent form, the trial court granted summary judgment in favor of the defendants. We affirm.

Johnny C. Hensley vs. wharton Duke and Sharon Duke
E2009-00482-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
The landlord brought this action against tenants under the lease agreement for damages allegedly caused by tenants and their animals to plaintiff's property. After an evidentiary hearing, the Trial Court entered Judgment for damages to plaintiff's property and defendants have appealed. On appeal, we modify the Judgment downward and affirm the Trial Court, as modified.

Edward P. Landry, et al vs. South Cumberland Amoco, et al
E2009-01354-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Kindall T. Lawson
Plaintiffs brought this wrongful death action against defendants for the wrongful death of Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an underage intoxicated driver who had purchased intoxicating beverages from South Cumberland Amoco. Defendants moved for summary judgment on the grounds that plaintiffs would be unable to prove essential elements of their claim. The Trial Court held that the alleged underage driver had stated initially that he was over the age of 21, but later, in another statement, represented that he was a minor at the time of the accident. The Trial Judge held that his statements cancelled each other and there was no evidence to establish that he was a minor at the time of the accident. The Court also held that plaintiffs could not prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages to a minor". On appeal, we vacate the summary judgment and remand for further proceedings.

City of Murfreesboro v. Thomas Leon Norton
M2009-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: J. Mark Rogers
This case involves an appeal from a judgment entered by a city court following a traffic citation. The circuit court found that the defendant had not violated the city ordinance alleged to have been violated, but the court sua sponte determined that the defendant had violated a different city ordinance. The defendant appeals. We reverse and remand.

James Morton Burris v. Lisa Estes Burris
M2009-00498-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Royce Taylor
This is a divorce case ending a twenty-one year marriage. Following a three day trial, the trial court entered a parenting plan naming Appellee/Father as the primary residential parent, granting Father decision making authority, and providing Appellant/Mother with visitation. The trial court also entered judgment against Mother for retroactive child support since the parties separation and for marital debts that had been paid by the Father during the separation. Discerning no error, we affirm.

State of Tennessee v. Suzanne D. Burkhart
E2009-00092-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Richard R. Vance

The defendant, Suzanne D. Burkhart, appeals certified questions of law from the Sevier County Circuit Court, where she pleaded guilty to driving under the influence of an intoxicant (DUI) and violation of the implied consent law. The reserved certified question challenges on constitutional grounds a Sevierville police officer’s basis for stopping her vehicle and also his authority for doing so outside the City of Sevierville. We affirm the action of the trial court.