Opinions

State of Tennessee, ex Rel. Elisa Crippen, v. Lawrence Johnson
E1999-01855-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Carey E. Garrett

This case concerns the modification of a child support award. In addition to the child for whom support was set in the instant case, the obligor father had three other children. At one point in the past, he was required by court order to support these three other children; but, by the time of the hearing below, his obligation had been terminated except for an arrearage on which he was continuing to pay. In determining the proper award in the instant case, the trial court considered the father's other three children and deviated from the Child Support Guidelines due to the father's "hardship." The State, as assignee of the mother's right to child support, appeals. We modify the trial court's award.

Evelyn Logue, v. Shelbyville Housing Authority, et al.
M1999-02555-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Tyrus H. Cobb

The controlling issues in this appeal are (1) whether under the terms of an employee policy manual the dismissed employee was something other than an employee at will, and (2) whether the action of the Board of the Shelbyville Housing Authority in upholding the dismissal was arbitrary or illegal or lacked material evidence to support it. The Chancery Court of Bedford County reviewed the record and found that the Board’s action was supported by substantial and material evidence and was not arbitrary nor illegal. We affirm.

State of Tennessee v. Billy J. Coffelt
M1998-00337-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner appeals the trial court's denial of his motion for delayed appeal regarding his petition for post-conviction relief. We remand the case to the trial court.

State vs. Ewing
W2000-01190-COA-R3-PC
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Roy Morgan
This is an appeal by a juvenile from an order of the circuit court granting the State's motion to dismiss her petition for post-commitment relief. The grounds stated in the petition are that she was given an illegal sentence when the juvenile court, having found her delinquent in that she committed "theft under $500.00, violation of aftercare," imposed a determinate sentence of 2 years. We reverse and remand.

William Paul Bogus v. State of Tennessee
W2000-00348-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge J. Steven Stafford

The petitioner appeals from the Dyer County Circuit Court's dismissal of his petition for post-conviction relief. In 1994, the petitioner was tried and convicted of first degree murder in the perpetration of a felony and aggravated burglary. His convictions were affirmed, after which he timely filed a petition seeking post-conviction relief, claiming ineffective assistance of trial and appellate counsel, juror misconduct because an alternate juror had lied during voir dire about not knowing the petitioner, insufficient evidence to support the felony-murder conviction, and suppression of exculpatory evidence. After an evidentiary hearing, the post-conviction court denied relief. We affirm the post-conviction court's denial of the petitioner's request for post-conviction relief.

Walter Cunningham/David Cunningham vs. John Patterson
W2000-01486-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Robert L. Childers
This is a tort case involving trespass, assault and battery. The plaintiffs, father and son, sued the defendant, the son's neighbor, after an altercation between the father and the neighbor. Following a bench trial, the trial court found, by a preponderance of the evidence, that the defendant committed trespass against the son, and assault and battery against the father, and the trial court awarded compensatory and punitive damages. The defendant neighbor appeals. We affirmed in part, reverse in part and modify, finding that there is not clear and convincing evidence to support an award of punitive damages, and that the evidence preponderates in favor of a reduced amount of compensatory damages.

State of Tennessee v. Robert Ervin
W2000-01035-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Jon Kerry Blackwood

Robert Ervin, also known as Muhammad Jabbar, was convicted of attempted second degree murder and sentenced to twenty-five years in the Tennessee Department of Correction. On appeal, Ervin raises one issue for our review: Whether the evidence produced at trial was sufficient to support the verdict. After review, we find the evidence sufficient and affirm the judgment.

State of Tennessee v. Sammy Goff
W1999-01976-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roger A. Page

The defendant, after being convicted by a jury of first degree murder and sentenced to life without the possibility of parole, appeals his conviction and asserts that the trial court erred in three respects: (1) the trial court incorrectly allowed testimony from three witnesses attacking the defendant's reputation for truthfulness; (2) the trial court erred in allowing the State to question the defendant about a prior felony conviction; and (3) the trial court erred in allowing testimony about a prior statement made by the defendant. After review, we affirm the trial court's rulings in all respects.

Kristen Bridges vs. Carla King
W2000-01919-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: George E. Blancett
Paternity of minor child was established by a juvenile court consent order entered November 26, 1991, and custody of the child was awarded to Mother. In January, 2000, Father filed a petition to change custody on the basis of change of circumstances and the best interest of the child which was granted by the juvenile court referee. The referee's findings and recommendations were confirmed and made the decree of the court on May 25, 2000. Subsequently, on Mother's petition, an evidentiary hearing was held before the juvenile judge, and on July 6, 2000, after the evidentiary hearing, an order was entered reconfirming the referee's ruling of May 25, 2000. Mother has appealed. We reverse.

Daniel Sherwood v. Microsoft
M2000-01850-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz

Daniel Sherwood v. Microsoft
M2000-01850-COA-R9-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Walter C. Kurtz

Sharon Glenn v. Gordon Construction, Inc., et al.
M2000-01805-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Carol L. Mccoy
Plaintiff filed suit against construction company for negligent repair of tornado damage to her home. Parties submitted an Agreed Order of Compromise, Settlement, and Dismissal which was signed by the trial court and filed on the same day it was received. The construction company retained new counsel and filed a motion to set aside the order. Plaintiff sought contempt because the construction company refused to comply with the Agreed Order. Months later Plaintiff issued execution against construction company after failure to comply with the terms of the Agreed Order and garnished over $11,000 from its bank account. The trial court denied a motion to quash execution filed by the construction company. The construction company appeals arguing that the agreed order could not have been entered after one of the parties withdrew consent for the settlement. We affirm the decision of the trial court.

Orion Pacific, Inc. vs. Exchange Plastics Company
M2000-02345-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Robert E. Corlew, III
The defendant Ohio company purchased truckloads of plastic from the Tennessee division of a Texas company. When the Ohio company refused to pay for all the plastic, the Texas company filed suit for the balance in a Tennessee court. The defendant argued that it did not have sufficient contact with Tennessee to subject it to personal jurisdiction in this state's courts. The trial court disagreed, and following a hearing, rendered a judgment for the plaintiff in the amount of $11,288. We affirm.

Katrinka Stalsworth, et al vs. Robert Grummon
M2000-02352-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Arthur E. Mcclellan
This appeal involves the dismissal of a patient's medical malpractice complaint pursuant to Tenn. R. Civ. P. 41.02. After the patient voluntarily dismissed her first complaint following opening arguments, the Circuit Court for Sumner County ordered her to pay her surgeon $3,023.85 in discretionary costs. The patient did not pay the discretionary costs she had previously been ordered to pay. After the patient refiled her complaint, the trial court stayed the proceedings on the surgeon's motion and later dismissed the patient's complaint for failure to prosecute and for failure to comply with the court's order directing her to pay the surgeon's discretionary costs. On this appeal, the patient asserts that the trial court erred by dismissing her renewed complaint. We affirm the trial court because the patient had ample warning that her claim was subject to dismissal and had been afforded a reasonable opportunity to comply with the trial court's order directing her to pay the surgeon's discretionary costs.

Michael Ray Brenneman vs. Margaret Ann Redd Brenneman
M2000-00890-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Clara W. Byrd
This appeal involves the dissolution of a 31-year marriage by the Circuit Court for Wilson County. Following a bench trial, the trial court declared the parties divorced and divided their marital property but declined to award the wife spousal support. On this appeal, the wife asserts that the trial court erred by declining to grant her spousal support. We have determined that the trial court placed too much emphasis on the value of the wife's share of the marital estate when it declined to grant her spousal support. Accordingly, we have determined that the judgment should be amended to award the wife spousal support in the amount of $200 per month until she reaches sixty-five years of age. We also remand the case to the trial court to calculate a reasonable award for the wife's legal expenses.

Elizabeth Moxham vs. Eric Crafton, et a l
M2000-00803-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
During the trial of a construction dispute, the parties reached a settlement in the hallway of the courthouse, and subsequently announced the terms of their agreement to the trial court. Before the agreed order was entered, however, the plaintiff attempted to withdraw her consent. The plaintiff argues on appeal that the trial court erred by signing and entering the agreed order, and by denying her motion to set it aside. We affirm the trial court.

State of Tennessee v. Keith T. Dupree
W1999-01019-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Chris B. Craft

This is an appeal from defendant's conviction for second degree murder for which he received a sentence of twenty-three years and six months. In this appeal, defendant presents two issues for our review: (1) whether the evidence is sufficient to support the verdict; and (2) whether the trial court erred in defining the mental state of "knowing" for the offense of second degree murder. We conclude the evidence was sufficient to support the verdict; however, we conclude the jury charge constituted plain error by failing to instruct on the applicable definition of "knowing." Accordingly, the judgment of the trial court is reversed, and the case is remanded for a new trial.

State of Tennessee v. Reco R. Douglas
W2000-00085-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge W. Fred Axley

The defendant's conviction for first degree murder during perpetration of robbery was reversed by this court in 1998. The defendant was subsequently retried, again convicted of first degree murder during the perpetration of a robbery, and sentenced to life imprisonment. This appeal followed, whereby the defendant alleges the evidence is insufficient to sustain his conviction, and the trial court erroneously admitted the audio recording and transcript of the victim's phone call to 911. After a thorough review of the record, we affirm the defendant's conviction and sentence.

State of Tennessee v. Robert D. Walsh
W1999-01473-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge W. Fred Axley

The defendant, Robert D. Walsh, was convicted after a jury trial in the Shelby County Criminal court of the aggravated sexual battery of a foster child who was in his care. He appeals this conviction, alleging various errors in evidentiary admissions, impermissible comment on the evidence by the trial court, and improper sentencing. We modify the defendant's sentence to Range I classification and remand for correction of a clerical error in the judgment form. Otherwise, the judgment of the trial court is affirmed.

State of Tennessee v. Courtney Anderson
W2000-00244-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Joseph B. Dailey

The defendant was convicted by a Shelby County jury of theft of property valued greater than $10,000 and forgery. The trial court sentenced him to consecutive sentences of 15 years for theft as a persistent offender and six years for forgery as a career offender. In this appeal as a matter of right, defendant alleges (1) the evidence is not sufficient to support the convictions, and (2) his sentence is excessive. After a thorough review of the record, we affirm the judgment of the trial court.

Charter Lakeside Behavioral Health vs. Tennessee Health Facilities Comm., et al
M1998-00985-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ellen Hobbs Lyle
This appeal involves a dispute arising out of the construction of a mental health treatment facility in Shelby County. As the facility neared completion, a corporation operating a competing facility filed a petition with the Tennessee Health Facilities Commission seeking a declaratory order that the new facility could not begin operating until it obtained a certificate of need. After the Commission declined to render a declaratory order, the competing corporation petitioned the Chancery Court for Davidson County for a declaratory judgment that the new facility could not begin operating without a certificate of need. The trial court initially dismissed the petition because of the competitor's delay in challenging the construction of the facility. After this court reversed and remanded the case for further consideration, the trial court remanded the case to the Commission to determine whether the new facility had been constructed before the certificate of need laws had been expanded to cover such facilities. On this appeal both the competing corporation and the Commission assert that the trial court erred by not rendering a declaratory judgment based on the existing administrative record. While this appeal was pending, the competing corporation sold its Shelby County facility to another corporation but retained its interest in this litigation. We have determined that this appeal no longer involves a justiciable issue because the competing corporation no longer operates a facility in Shelby County and, therefore, is not entitled to judicial relief. Accordingly, we vacate the judgment and remand the case to the trial court with directions to dismiss the petition for declaratory judgment.

Marcia Hackett vs. Roy Hackett
M1999-01576-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
This is a divorce case wherein Wife appeals from the distribution of marital property and seeks attorney's fees and costs on appeal. We affirm the action of the trial judge.

County Residents Against Speedway Havoc, et al vs. Wilson County Commission, et al
M2000-01561-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: C. K. Smith
Opponents of a proposed motor speedway in Wilson County filed a petition which challenged on numerous grounds the zoning change that made construction of the speedway possible. The trial court dismissed the complaint, finding that the county government had acted in accordance with the applicable laws. We affirm.

In the Matter of: All Assessments, Review of Ad Valorem Assessments of Public Utility Companies for Tax Year 1999 and Tax Year 2000
M2000-00399-COA-R12-CV
Authoring Judge: Judge William B. Cain

In these consolidated cases, a consortium of counties and cities appeals the actions of the Tennessee State Board of Equalization in reducing public utility assessments by fifteen per cent. Acknowledging that all sub-constitutional issues involved in the cases have been foreclosed by the decision of the Tennessee Supreme Court in In Re: All Assessments 1998, No. M1998-00243-SC-R11-CV, 2000 WL 1710174 (Tenn. Nov. 16, 2000), Appellants challenge the constitutionality of Tennessee Code Annotated section 67-5-903(f) and section 67-5-1302(b)(1). We hold both sections of the Code to be constitutional and affirm the decision of the Tennessee State Board of Equalization.

Kevin Johnson vs. Donna Johnson
M2000-00358-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This appeal involves the dissolution of a ten year marriage. The trial court awarded the husband a divorce after concluding that the wife was guilty of inappropriate marital conduct. The trial court granted custody of the parties' three minor children to the father and refused the mother visitation rights, and held her in criminal contempt of court. The wife now appeals. We have determined that the trial court properly awarded custody to the father but the trial court erred in refusing the mother visitation, and in convicting her of criminal contempt. Accordingly, we affirm in part and reverse in part.