Opinions

Stefan Olaru vs. John Cooper, et al
E2001-00243-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Samuel H. Payne
This case arises out of an automobile accident. The plaintiff, Stefan Olaru, brought a personal injury action against John Cooper, the driver of the other vehicle involved in the accident. The plaintiff also sued Roberts Express, Inc., from whom the plaintiff had leased the 1995 GMC van involved in the accident. Roberts was sued for medical expenses, lost wages, and disability benefits under Personal Injury Protection ("PIP") insurance coverage provided to him by Roberts. By way of a special verdict, the jury found the plaintiff 60% at fault for the accident; assessed Cooper with the remaining 40% of fault; and determined that the plaintiff had not suffered any injuries as a result of the accident, thereby precluding the plaintiff's recovery under his PIP insurance coverage. The plaintiff appeals, arguing one issue, i.e., that the jury's verdict is contrary to the evidence. We affirm.

2000-00197-COA-R3-CV
2000-00197-COA-R3-CV

Trial Court Judge: Pat Hess

State of Tennessee v. Brenda Redwine
E2000-01824-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert E. Cupp

The defendant, Brenda Redwine, after pleading guilty to possession of Schedule II drugs and simple possession of marijuana, properly reserved a certified question of law for our review. The Johnson County Criminal Court denied her motion to suppress a search warrant that was issued on January 6, 1999. The defendant asserts, by certified question of law, that the search warrant was not properly issued because the affidavit that was the basis for the warrant contained material misrepresentation by the officer. After review, we affirm the trial court's denial of the defendant's motion to suppress.

Esseoc Cement Corp. vs. PLC
E2002-01992-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
ESSROC Cement Corp. ("ESSROC") brought this action against PLC, Inc., formerly known as Paty Lumber Company, seeking judgment in amount of $112,551.43, plus service charges and attorney's fees, as payment for cement and masonry materials which it sold to PLC. After ESSROC filed a motion for summary judgment, the parties reached a settlement agreement whereby PLC agreed to pay ESSROC two installments of $25,000.00. PLC paid the first installment under the agreement but not the second. This prompted ESSROC to file a motion to rescind the settlement agreement on grounds of fraudulent misrepresentation. The Trial Court granted ESSROC rescission of the settlement agreement, and granted summary judgment in ESSROC's favor. We affirm the judgment of the Trial Court.

Curtis Majors v. State of Tennessee
M1999-02138-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner was indicted for three counts of aggravated robbery and convicted by a Davidson County jury of one count of aggravated robbery and two counts of aggravated assault. The trial court sentenced him as a Range II, multiple offender to an effective sentence of seventeen years, and on direct appeal, this Court modified his sentence to an effective sentence of fifteen years. The Tennessee Supreme Court denied permission to appeal. The Petitioner subsequently filed a petition for post-conviction relief, arguing that he received ineffective assistance of counsel at trial because his attorneys failed to challenge two of his indictments prior to trial. Following a hearing, the trial court denied post-conviction relief, and the Petitioner now appeals the trial court's denial of relief. We hold that the Petitioner received effective assistance of counsel at trial and therefore affirm the judgment of the trial court.

Gregory Hatton v. State of Tennessee
M2000-00756-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Jim T. Hamilton

The petitioner, Gregory Hatton, sought post-conviction relief on the grounds that his trial counsel was ineffective, that his guilty pleas were not knowing and voluntary, and that his sentence is illegal. The trial court concluded that the petition was barred by the statute of limitations. Insofar as an illegal sentence is subject to correction at any time, the trial court's dismissal of the petitioner's illegal sentence claim was erroneous. Because, however, the petitioner is not entitled to relief on that claim, the judgment of the trial court is affirmed.

State of Tennessee v. Ricky A. Burks
M2000-00345-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Walter C. Kurtz

Ricky A. Burks was convicted by a Davidson County jury of the first-degree murder of his wife. The trial court granted Burks' motion for judgment of acquittal and entered a judgment for second-degree murder. Following a sentencing hearing, the trial court sentenced Burks, as a range II offender, to forty years confinement in the Department of Correction. Burks now appeals both the judgment of conviction and the sentence entered by the Davidson County Criminal Court, challenging the trial court's (1) denial of his motions to suppress; (2) admission of prior bad acts of the defendant; (3) jury instructions regarding prior bad acts; (4) admission of autopsy photographs of the victim; (5) refusal to instruct on the lesser-included offense of reckless homicide; (6) finding that the evidence is sufficient to support a conviction of second-degree murder; and (7) imposition of the maximum sentence of forty years. The State cross-appeals challenging the trial court's ruling in reducing the jury's verdict of first-degree murder to that of second-degree murder. Finding no error, we affirm.

State of Tennessee v. Robert A. Hayden
M2000-00901-CCA-MR3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Timothy L. Easter

Indicted for aggravated burglary, aggravated robbery, aggravated sexual battery, two counts of aggravated rape, and especially aggravated kidnapping, the defendant entered negotiated pleas of guilt to aggravated robbery, two counts of aggravated rape, and especially aggravated kidnapping.  The remaining charges were dismissed. After a hearing, the trial court sentenced the defendant as a Range I offender to 12 years for the robbery, 25 years for each of the rapes, and 25 years for the kidnapping. The rape sentences were ordered to be served consecutively to one another and to the robbery sentence, for an effective sentence of 62 years. In this appeal of right, the defendant claims that one of the aggravated rape convictions and the especially aggravated kidnapping conviction violate due process. He asserts that his sentences are excessive and should not have been ordered to be served consecutively. The judgment of the trial court is affirmed.

Kwan & Han-Lee vs. John Doe & Allstate Ins. Co.
M2000-03208-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Walter C. Kurtz
This is a lawsuit against an uninsured motorist insurance carrier arising from a cat jumping out of a car. The plaintiffs were injured in a car accident allegedly caused when a cat leapt from a vehicle and into the plaintiffs' lane of traffic. The plaintiffs filed suit against several parties, including the plaintiffs' uninsured motorist carrier. The uninsured motorist carrier moved for summary judgment, asserting that the negligent actions of the unidentified driver did not arise "out of the ownership, maintenance, or use of a motor vehicle." The motion was granted. The plaintiffs then sought to amend their complaint, and this motion was also denied. A trial was then held on the claims against the remaining defendants and the jury apportioned fifty percent of the fault to the unidentified driver. The plaintiffs now appeal the grant of summary judgment to the uninsured motorist carrier and the denial of the plaintiffs' motion to amend their complaint. We affirm.

Citizen's Tri-County Bank vs. Frank Hartman, et al
M2000-03087-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Jeffrey F. Stewart
After a dispute arose between the widow and executor of husband's estate concerning ownership of two bank accounts, the bank filed a declaratory judgment action to determine ownership. The trial court determined that the checking account was owned by the widow, and the savings account was part of the decedent's estate. Both parties appealed. We reverse in part and affirm in part, declaring that both accounts are part of the husband's estate.

Delois Armstrong vs. James Coleman
W2000-01122-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert W. Newell
In two cases consolidated for appeal, the petitioners, mothers that are provided child support enforcement and paternity establishment services by the State of Tennessee pursuant to federal and state law, appeal the orders of the trial court setting periodic child support and establishing child support arrearages. The trial court failed to follow the child support guidelines, stating that the guidelines are an unconstitutional violation of the equal protection clause of both the state and federal constitutions insofar as the guidelines do not allow credit to a payor-parent for obligations imposed by child support orders concerning children born to the payor-parent subsequent to the subject child. We reverse and remand.

Dept. of Children's Svcs. vs. S.S.S., J.S., and K.S.
M2000-01248-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: John P. Hudson
This case involves the termination of parental rights. The trial court terminated the parental rights of the mother in her son and daughter, and those of the children's two separate fathers. The mother and father of the daughter had been convicted of aggravated child abuse in criminal court. The mother filed a petition for post-conviction relief, which was denied, and she appealed to the Court of Criminal Appeals. Both the mother and the father of the daughter appeal the termination of their parental rights. The mother argues that her conviction for child abuse was not sufficient to satisfy the statutory grounds for termination of parental rights because it was on appeal, and the father argues that there was no direct evidence presented that he abused the children. We affirm, finding ample evidence to support the termination of both parents' rights.

Fred Hodges vs. Virginia Lewis, Warden
M2000-02309-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
Inmates of Tennessee Department of Correction filed in the chancery court a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The chancery court dismissed the inmates' petition for lack of subject matter jurisdiction. Inmates have appealed. We affirm.

David Nevills vs. South Central Correctional Disciplinary Board
M2000-02324-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert L. Holloway
This appeal involves the denial of a petition for writ of certiorari brought in chancery court by a state prisoner. The prisoner requested review of actions allegedly in violation of due process taken by a prison disciplinary review board. The chancery court granted a motion for summary judgment in favor of the disciplinary review board and for the following reasons, we affirm.

Johnny Conaway vs. Semiko L. Lewis (Conaway)
M2000-00617-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Muriel Robinson
This is a suit by an incarcerated prisoner seeking a divorce from his unincarcerated wife. The complaint alleges that the parties have no children and seeks divorce on the grounds of adultery and desertion. The defendant was before the court by personal service of process and did not answer the complaint. The prisoner sought default judgment which motion was never acted upon by the trial court. The circuit court clerk served a notice on the parties in this case on January 7, 2000, that since the case had been filed since December 9, 1998 and not prosecuted, it was subject to dismissal for failure to prosecute. On February 29, 2000, the case was dismissed for failure to prosecute. The prisoner/plaintiff timely appealed and we reverse the action of the trial court.

Michael Pine vs. Dept. of Correction
M2000-02410-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action by an inmate regarding his eligibility for sentence reduction credits. The inmate pled guilty to raping a child. A Tennessee statute requires that anyone convicted of the rape of a child must serve his entire sentence. Notwithstanding this, the inmate was sentenced as an especially mitigated offender eligible for parole after serving twenty percent of his sentence. The inmate filed a petition for declaratory judgment, arguing that he should be eligible to earn sentence reduction credits because he was sentenced as a mitigated offender. The trial court held that the inmate was not eligible for sentence reduction credits. We affirm, finding that the inmate's sentencing as a mitigated offender did not alter the statutory requirement that he serve his entire sentence.

Gerald Hopper vs. Patricia Hopper
M2000-01444-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Marietta M. Shipley
Wife appeals final decree of divorce as it pertains to a division of marital property and alimony in futuro award. The trial court charged Wife with entire amount of advance from house-sale proceeds and failed to award Wife one-half of Husband's retirement. Wife appeals. We modify the division of marital property and affirm as modified.

Pamela Jean Anness vs. Michael Mario Chapdelaine, Sr.
M2000-01792-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Russell Heldman
This appeal arises from the appellee's filing of a Petition to Change Custody in the Chancery Court of Williamson County. Following a hearing, the trial court entered an Order granting custody of the parties' minor children to the appellee. The trial court ordered the appellant to pay child support in the amount of $1,480.00 per month. The appellant appeals the amount of child support set by the trial court. For the reasons stated herein, we affirm in part, reverse in part, and remand the trial court's decision.

Darrell Cannon vs. Dept. of Correction, et al
M2000-01950-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Irvin H. Kilcrease, Jr.
The petitioner sought a declaratory judgment regarding the computation of his prison sentence by the Department of Correction. The Department made a correction, essentially consistent with the petitioner's request, and filed documents demonstrating that all but two of the petitioner's sentences have expired. We affirm the trial court's dismissal of the claims remaining in the petition because the petitioner has failed to demonstrate his entitlement to additional sentence reduction credits for a sentence imposed in 1983 which has expired or to pretrial jail credits for a sentence imposed in 1983 but to be served consecutively to four other sentences.

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Alan Hall v. State of Tennessee
E2000-01522-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge R. Jerry Beck

On April 30, 1996, the petitioner, Alan Hall, pled guilty in the Sullivan County Criminal Court to first degree murder, especially aggravated robbery, especially aggravated burglary, aggravated burglary, theft over $1000, and possession of burglary tools. The petitioner received a total effective sentence of life plus twelve years. Subsequently, on September 15, 1999, the trial court entered an order correcting the petitioner's judgment of conviction for especially aggravated robbery to reflect that the petitioner would serve one hundred percent (100%) of his sentence in confinement instead of thirty percent (30%) as was erroneously reflected on the original judgment. Within a year after the entry of the corrected judgment, the petitioner filed a pro se petition for post-conviction relief. The post-conviction court dismissed the petition as being barred by the statute of limitations. On appeal, the petitioner contests the dismissal of his petition for post-conviction relief. Upon review of the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Melissa Jane (Nichols) Steen vs. Evans Harrington Steen
M2000-00313-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Robert P. Hamilton
In this custody case the General Sessions Court of Wilson County changed its custody order from joint care and control with primary custody in the father to exclusive custody in the father and standard visitation to the mother. The record shows, however, that the mother has had primary custody of the children since the divorce and that both parties are fit parents. They each love the children and take good care of them. Under those circumstances, we hold that there is a presumption in favor of continuity of placement. Therefore, we reverse the lower court's order and grant primary custody to the mother.

State of Tennessee v. Darryl A. Larkins
M2000-00249-CCA-MR3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County jury convicted the defendant, Darryl A. Larkins, of two counts of aggravated rape, two counts of especially aggravated kidnapping, one count of attempted aggravated rape, and one count of aggravated burglary. The trial court sentenced the Defendant as a Range I offender to serve an effective sentence of fifty-years of incarceration. On appeal, the Defendant raises the following issues for our review: 1) whether the evidence was sufficient to convict the Defendant of aggravated rape and attempted aggravated rape; 2) whether the especially aggravated kidnapping convictions were obtained contrary to Tennessee law in State v. Anthony, 817 S.W.2d 299 (Tenn. 1991); and 3) whether the Defendant was denied his constitutional rights to a fair trial and a fair and impartial jury, regardingthe aggravated burglary conviction. The judgment of the trial court is hereby affirmed in part and reversed in part, and remanded to the trial court for re-sentencing on the offense of attempted aggravated rape.

Franklin County, TN vs. The Town of Monteagle, TN, et al
M2000-02453-COA-R3-CV
Authoring Judge: Sr. Judge William H. Inman
Trial Court Judge: Jeffrey F. Stewart
This is an annexation by referendum case. Monteagle is located in Grundy County. Its corporate limits extend to Franklin County. Interested residents of the area sought to be annexed in Franklin County petitioned Monteagle to be annexed. Monteagle adopted a Resolution for the referendum. Nineteen out of twenty eligible voters favored annexation. Franklin County filed a complaint for injunctive relief, which was granted upon a finding that the Resolution was not properly published. Monteagle appealed, but in the interim, adopted another Resolution for a referendum. The voters again favored annexation. The County challenged the second referendum by a Rule 52 motion alleging that Monteagle repealed the Resolution for the second referendum thus making it a nullity.

State of Tennessee v. Judy K. Caruso
M2000-01265-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Timothy L. Easter

The defendant, Judy K. Caruso, entered pleas of guilt to two counts of aggravated burglary and two counts of theft of property over $1,000. As a part of the plea agreement, the state agreed to dismiss two charges of possession of stolen property and one charge of misdemeanor vandalism. The defendant negotiated concurrent sentences of four years on the burglary convictions and two years on the theft convictions. The trial court denied a request for probation, ordered a 200-day jail sentence to be served day for day, and required the balance of the four-year sentence to be served in a Community Corrections program. In this appeal of right, the defendant claims that she should have been granted an alternative sentence involving immediate release. The judgment is affirmed.