Linda Ottinger, et al. v. Shelly Evans Ottinger
E2003-02893-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge Jacqueline E. Schulten

Linda Ottinger and Marion Ottinger (“Plaintiffs”) are the paternal grandparents of H.O. (“the Child”). The Child’s father died in 2000. Plaintiffs sought visitation with the Child. This visitation was opposed by the Child’s mother, Shelly Evans Ottinger (“Defendant”). Plaintiffs filed a petition to obtain grandparent visitation under Tenn. Code Ann. § 36-6-306. After trial, the Trial Court held, inter alia, that the Child has had a significant existing relationship with the Plaintiffs and the loss of that relationship presents the danger of direct and substantial harm to the Child. The Trial Court granted Plaintiffs visitation. Defendant appeals. We reverse.
 

Ricky D. Watkins, Sr. v. State of Tennessee, Department of Human Services, ex rel, Dorothy M. Prather, et al.
W2003-02577-COA-R3-JV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Steve Hornsby

This case involves an order for child support for three children of three different mothers. The Juvenile Court of Hardeman County consolidated the three matters into one cause. The trial court ordered Father to pay the child support amount for three children under the Child Support Guidelines and divided the amount equally into thirds. The State of Tennessee Department of Human Services filed this appeal. We reverse and remand for further proceedings consistent with this opinion

Rickey Hogan v. David G. Mills, Warden
W2004-00182-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner filed a petition for habeas corpus relief claiming that the judgments entered are void. He contends that he was on parole when the current offenses were committed; therefore, the concurrent sentences that he received are illegal. We conclude that in order to receive relief, the fact that the petitioner was on parole when he pled guilty must be proved by satisfactory proof contained in the record or proceedings underlying the convictions sought to be set aside. We reverse the trial court’s summary dismissal and remand for appointment of counsel and a hearing to determine whether the record of the underlying convictions or proceedings contained satisfactory proof that the petitioner was on parole at the time he committed second degree murder and robbery with a deadly weapon.

State of Tennessee v. Andre Baldwin
W2003-02253-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: JudgeW. Otis Higgs, Jr.

The Defendant, Andre Baldwin, was convicted by a jury of first degree premeditated murder. The Defendant was subsequently sentenced to serve a life sentence of imprisonment. In this direct appeal, the Defendant challenges the sufficiency of the evidence. Finding the evidence legally sufficient to support the Defendant’s conviction, we affirm the judgment of the trial court.

Lenita Oatsvall v. Baptist Memorial
W2003-02474-WC-R3-CV
Authoring Judge: William B. Acree, Jr., Sp. J.
Trial Court Judge: C. Creed Mcginley, Judge
The employer, Baptist Memorial Hospital-Huntingdon appeals a judgment awarding the employee benefits based upon a permanent partial impairment of fifty (5%) percent to the body as a whole. The hospital contends that the judgment should be reversed and dismissed because the employee failed to give proper notice of the accident and because her injury was a preexisting condition rather than an injury caused by a job-related accident. Alternatively, the employer insists that the award of fifty (5%) percent permanent partial disability to the body as whole should be modified and reduced. For the reasons stated in this opinion, We affirm the judgment of the trial court.

Joseph Cox v. Mcclane Food Service, Inc.,
W2003-01465-WC-R3-CV
Authoring Judge: Larry B. Stanley, Jr., Sp. J.
Trial Court Judge: D.J. Alissandratos, Chancellor
This is a scheduled injury case in which the trial court awarded the Employee a recovery based on a disability rating of five percent (5%) to the Employee's right lower extremity. The Employee appealed. The issue raised on appeal is whether the trial court's findings with regard to the Employee's proper anatomic impairment rating and vocational impairment rating were contrary to the preponderance of the evidence. We remand the case to the trial court for clarification.

J.C. King, et al., v. Gatlinburg Sportsman's Club, Inc.
M2002-02949-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

Lessors, who are descendants of the original lessor, filed suit against the Gatlinburg Sportsman's Club, Inc., to declare that the real estate lease had been breached by the Club due to its failure to build a clubhouse as required by the lease. The Club argued that it built a clubhouse that satisfied the lease for the lease did not contain specifications for the type or size of clubhouse. It further argued that it was not in breach for the lessors had extended the deadline indefinitely to build a more substantial clubhouse. The Club also argued that the lessors' claim was barred by the six-year statute of limitations, equitable estoppel, waiver and laches and that the lessors' violated the Club's right of first refusal to purchase the property by not selling the property as the decedent's will directed and for making transfers of partial interests in the property amongst the beneficiaries and descendants of the original lessor. The trial court ruled that the parties mutually suspended the deadline by which the Club was to build a clubhouse, that the Club failed to build a clubhouse, that the Club was in material breach and, therefore, the lease was terminated. We reverse in part finding that the parties did not mutually suspend the obligation or deadline to build a clubhouse, that the completion date for the clubhouse was June 30, 1990, and that the lessors did not file suit until May 5, 2000; therefore, the lessors are barred by the six-year statute of limitations. We affirm the trial court's ruling that the lessors did not violate the Club's right of first refusal to purchase the property, finding that the inter-family transfers did not violate the Club's right of first refusal.

Barbara D. Lowe v. Ruth F.Chenevert, A/K/A Ruth Robertson
M2003-00450-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John W. Rollins

This case arises from an automobile accident in which Ms. Lowe was injured by an uninsured motorist. Ms. Lowe and her husband filed suit against the motorist and were awarded a total of $25,000 in damages, which they sought to have satisfied by Tennessee Farmer's Mutual Insurance Company under the terms of their uninsured motorist insurance policy. Tennessee Farmer's refused to pay the claim, asserting that Ms. Lowe had already signed a complete release in exchange for a settlement in excess of $5,000. In the ensuing litigation, the trial court granted Tennessee Farmer's motion for summary judgment, finding that Ms. Lowe had, indeed, signed a release as part of a settlement with Tennessee Farmer's. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

State of Tennessee v. Ben Thomas Dowlen
M2003-00508-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge John H. Gasaway, III

In this action which originated as a post-conviction proceeding seeking the grant of both a delayed appeal and a new trial due to ineffective assistance of counsel, Ben Thomas Dowlen appeals. We affirm the lower court's ruling on the sentencing issue raised in the delayed appeal, and we likewise affirm the lower court's denial of post-conviction relief.

Crystal Jill Cunningham v. John W. Gill
M2003-01374-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Chancellor Vernon Neal

Plaintiff filed a complaint seeking a reversion of Defendant's mineral interests in Plaintiff's land, alleging that Defendant had abandoned the interests. The trial court held that the mineral interests had not been abandoned because Defendant had made use of the mineral interests by paying taxes on the mineral interests. We affirm.

Randall Mills v. State of Tennessee
M2003-01770-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge W. Charles Lee

The petitioner, Randall Mills, appeals the denial of post-conviction relief. The single issue presented for review is whether the petitioner was denied the effective assistance of counsel at trial. The judgment is affirmed.

State of Tennessee v. Harold David Haney, Sr.
M2003-01821-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Buddy D. Perry

Following a bench trial, the defendant, Harold David Haney, Sr., was convicted of violation of a motor vehicle habitual offender ("MVHO") order and DUI, second offense. He was sentenced as a Range I, standard offender to two years for the MVHO violation and eleven months, twenty-nine days for the DUI conviction, to be served concurrently in the Department of Correction. In addition, he was fined a total of $1100 and his driver's license was revoked for two years. On appeal, he argues that the State failed to establish venue. After review, we affirm the judgments of the trial court.

Patricia Albright v. Lloyd A. Button, et al
E2003-01591-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William H. Russell

This case involves the construction of a will. Lloyd A. Button, a widower (“the Deceased”), executed his last will and testament on April 1, 2002, while hospitalized at Parkwest Hospital in Knoxville. Under the heading “Conditional Bequest to Patricia Albright,” the Deceased left Ms. Albright his Loudon County residence, one of his automobiles, and “all . . . tangible personal property,” except the property mentioned in a specific bequest in the will. The Deceased died one week later, on April 8, 2002, having never left the hospital.1 Ms. Albright sued the personal representatives of the Deceased’s estate (“the Personal Representatives”) seeking to establish her entitlement to the property left to her in the will. On cross motions for summary judgment, the trial court granted summary judgment to Ms. Albright. The Personal Representatives, who are the Deceased’s son2 and Shirley Reno, a residuary beneficiary under the will, appeal. We reverse and dismiss Ms. Albright’s complaint.
 

Randall Watson v. State of Tennessee
W2003-02399-CCA-R3-HC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Bernie Weinman

The Defendant, Randall Watson, pled guilty to second degree murder. He subsequently filed a petition for habeas corpus relief. After considering the Defendant’s petition as presented and also as a petition for post-conviction relief, the trial court dismissed the Defendant’s pleading. This appeal followed. We affirm the trial court’s judgment.

Mable Longmire v. State of Tennessee
W2003-01566-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey

The Defendant, Mable Longmire, was convicted by a jury of first degree premeditated murder. Her conviction was affirmed on direct appeal. See State v. Mabel1 J. Longmire, No. W1999-00216- CCA-R3-CD, 2001 WL 128561 (Tenn. Crim. App., Feb. 15, 2001, Jackson). The Defendant subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. After an evidentiary hearing, the trial court denied relief and this appeal followed. We affirm the judgment of the trial court.

State of Tennessee v. Adam Betts
W2003-01910-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. C. McLin

The Defendant, Adam Betts, was convicted by a jury of first degree premeditated murder. In this direct appeal, he argues that: 1) the evidence is insufficient to support his conviction; 2) the trial court erred by admitting a photograph of the victim; and 3) the trial court erred by denying the Defendant’s request for special jury instructions. We affirm the judgment of the trial court.

Bernard Keys v. State of Tennessee
W2003-01846-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bernie Weinman

A Shelby County jury convicted the Petitioner, Bernard Keys, of aggravated burglary and evading arrest. The trial court sentenced the Petitioner to fifteen years in prison for the aggravated burglary conviction, and eleven months and twenty-nine days for the evading arrest conviction, and ordered that the sentences run consecutively. The Petitioner filed a petition for post-conviction relief, alleging that his attorney was ineffective for failing to investigate his case and prepare properly for trial. Following a hearing, the post-conviction court denied the petition. Finding no error, we affirm the post-conviction court’s judgment.

Patricia Albright v. Lloyd A. Button, et al. - Concurring
E2003-015910COA-R3-CV - F
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William H. Russell

While I concur with the majority to reverse the decision of the Trial Court and to dismiss Ms. Albright’s Complaint, I write separately to express my disagreement with the majority’s decision to take judicial notice of certain facts. I agree completely with the majority’s discussion of what the law is as to summary judgment, interpretation of a will, conditional bequests, and judicial notice. However, I cannot agree with the majority that this Court can take judicial notice that e]ssentially all of the services recited as conditions in the Deceased’s will are services that would be rendered by a hospital such as Parkwest for individuals admitted to the hospital on an inpatient bases.” While I suspect that such is true, I cannot say that such a “fact” is “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tenn. R. Evid. 201(b). This being so, I cannot agree that this is a “fact” which is appropriate for judicial notice.

Sharon Parker v. Emerson Electric Company
W2003-02328-WC-R3-CV
Authoring Judge: William B. Acree, Jr., Sp. J.
Trial Court Judge: Julian P. Guinn, Judge
In this appeal, the employer contends that the trial court erred in considering the testimony of Dr. Joseph C. Boals, III, and that the award of thirty-five (35%) percent permanent partial disability to the body as a whole was excessive. We find these issues are without merit and affirm the judgment of the trial court.

State of Tennessee v. Michael Wayne Poe
E2003-00417-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Douglas A. Meyer

Indicted for aggravated child abuse, the defendant, Michael Wayne Poe, was convicted by a jury of child abuse, a Class D felony. The trial court sentenced the defendant to four years, with all but 11 months, 29 days suspended. In this appeal of right, the defendant argues that the evidence was insufficient, that the sentence was excessive, and that the trial court erred by denying full probation. The sentence is modified to three years; otherwise, the judgment of the trial court  affirmed.

The Realty Store, Inc., et al. v. Tarl Partnership, L.P., et al.
E2003-01415-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The Trial Court awarded plaintiffs commission for lease of real estate pursuant to Agreement between the parties. Defendants appealed - we affirm.

State of Tennessee v. Julius E. Smith
E2003-01059-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Rebecca J. Stern

The defendant, Julius E. Smith, entered pleas of guilty to two counts of driving under the influence, third offense, and four counts of vehicular assault. As to the first driving under the influence offense, the trial court imposed a sentence of eleven months and twenty-nine days, to be suspended to probation after the service of 120 days of confinement. The second was merged into the convictions for vehicular assault. The trial court imposed consecutive sentences of three years for each vehicular assault conviction. The sentences were ordered to be served consecutively to the sentence for driving under the influence, third offense. The effective sentence is, therefore, twelve years, eleven months, and twenty-nine days. In this appeal, the defendant asserts that the effective sentence for the vehicular assault convictions is excessive. It is our judgment that the misapplication of an enhancement factor to three of the four vehicular assault convictions warrants a reduction to two years for each of those crimes. Otherwise, the judgments of the trial court, including the imposition of consecutive terms, are affirmed.

State of Tennessee v. Tammy Kincannon
E2003-01564-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge E. Eugene Eblen

Following a jury trial, the defendant, Tammy Kincannon, was convicted of aggravated sexual battery, a Class B felony, and sentenced as a violent offender to eight years in the Tennessee Department of Correction. On appeal, she argues that the evidence was insufficient to support her conviction and that the trial court erred in not requiring the State to make an election of the offenses and in not instructing the jury as to the lesser-included offenses of aggravated sexual battery. Following our review, we agree that the State failed to make an election and reverse the judgment of the trial court.

State of Tennessee v. Joe France
E2003-01293-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge O. Duane Slone

The defendant, Joe W. France, pled guilty to the sale of cocaine in excess of .5 grams. A Range II, 12-year sentence was imposed but the defendant was granted probation supervised under a Community Corrections program after a term in jail. After the issuance of a revocation warrant, the defendant agreed to an increase of the sentence to 20 years in exchange for continued probation supervised by the Community Corrections program. Later, the defendant violated the terms of the agreement and was ordered to serve the 20-year sentence. In this appeal, the defendant complains that even though he entered into the sentence modification by agreement, he was entitled to a hearing before the sentence was increased. The judgment of the trial court is reversed. Because both the original plea agreement and the amended agreement provided for illegal sentences, the conviction must be set aside and the cause remanded for trial.

State of Tennessee v. Terry Lynn Byington
E2003-02316-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Terry Lynn Byington, was convicted of DUI, fourth offense, and sentenced as a Range II, multiple offender to three years in the Department of Correction, with 150 days to be served day-for-day. On appeal, the defendant argues that (1) the evidence was insufficient to support his conviction; (2) his sentence is excessive; (3) the trial court erred in allowing the State to introduce evidence of a prior conviction which was more than ten years old; and (4) the trial judge erred in not recusing herself. After review, we affirm the judgment of the trial court.