Lawrence County v. Jerry Brewer, et al . M2001-00078-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Robert L. Holloway
This matter involves a dispute over payment of solid waste disposal fees, which the Lawrence County Commission attempted to charge the citizens of Lawrence County, and application of late payment penalties to these fees. Lawrence County filed complaints in order to collect overdue solid waste fees that the Commission allegedly enacted on May 25, 1999 by Resolution #11052599. The trial court determined that Resolution #11051599 did not impose any solid waste fees on the residents of Lawrence County and dismissed Plaintiff's complaints. We affirm the trial court.
Lawrence
Court of Appeals
In Re: Estate of Vivian McSwain M2001-02309-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Frank G. Clement, Jr.
Robert L. Poe, in his capacity as the executor of the Estate of Vivian K. McSwain, filed a motion to set his fee and expenses. Following a bench trial on the executor's motion, the trial court awarded the executor $20,000. The executor appeals, arguing that the award is inadequate. We affirm.
Davidson
Court of Appeals
K. Mahendra Chowbay v. Brian Davis, et al. M2001-01838-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Marietta M. Shipley
In this premises liability case, K. Mahendra Chowbay ("Plaintiff") sued the owners of a club, Silverado's Saloon and Dance Hall ("Silverado's"), for injuries Plaintiff received during an assault by one of Silverado's patrons, Brian Davis. Plaintiff also sued Davis. Silverado's owners, Pat Patton and Eight Track Management Company, LLC, d/b/a Silverado's Saloon and Dance Hall ("Defendants"), filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss which must be treated as a motion for summary judgment because matters outside the pleadings were submitted to the trial court. Defendants contended in their motion that since Davis' assault of Plaintiff occurred on property neither owned nor operated by Defendants, Defendants owed no duty of care to Plaintiff to protect him from such an assault. The trial court granted Defendants' motion. Plaintiff appeals. We affirm.
Davidson
Court of Appeals
Joe Livingston v. Jennifer Elaine Livingston M2001-02697-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: John W. Rollins
This is a divorce case. The trial court granted Joe Phillip Livingston ("Father") a divorce from Jennifer Elaine Livingston ("Mother") on the ground of inappropriate marital conduct and awarded primary physical custody of the parties' two minor children to Father. Mother was granted visitation rights; however, the court ordered that she "refrain from allowing the parties' children to be at the residence of [Mother's] maternal grandmother" during visitation. Mother appeals the award of custody and the granting of the divorce to Father. In addition, Mother also raises a procedural issue and questions the admission of certain evidence. We affirm.
Coffee
Court of Appeals
Tracey L. (Yanusz) Taylor v. John J. Yanusz M2001-02760-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: C. L. Rogers
This appeal involves a dispute over the custody of a five-year-old boy. His parents were divorced following his mother's extramarital affair. Their marital dissolution agreement established a joint custody arrangement with the father having primary physical custody. Following an unsuccessful two-year reconciliation effort, the child's mother petitioned the Sumner County General Sessions Court for sole custody. The father insisted that the child's circumstances had not changed and that he continued to be more fit than the mother to be the child's primary custodian. The trial court, sitting without a jury, determined that the child's circumstances had changed and that the child's interests would be best served by placing him in his mother's custody. The father asserts on this appeal that the child's circumstances have not changed materially and that the evidence does not support giving sole custody to the mother. While we have determined that the child's circumstances changed following his parents' divorce, we have determined that the evidence preponderates against the trial court's conclusion that the changes are so escalating and dangerous that they required a change in the original custody arrangement. Accordingly, we vacate the order awarding the mother sole custody of the child and remand the case for further proceedings.
Sumner
Court of Appeals
Tonya Ray v. William Ray M2002-01553-COA-R10-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Soloman
This extraordinary appeal involves a dispute over the custody of four-year-old twins. On October 5, 2001, this court vacated an order of the Circuit Court for Davidson County granting custody of the twins to the former husband of their biological mother and remanded the case for the purpose of determining whether the twins' biological father is currently fit to have custody and whether placing the twins in his custody will expose them to substantial harm. On June 27, 2002, the trial court declined to permit the biological father to continue visitation with the twins pending court-ordered psychological evaluations of the biological father and the twins. We have determined that the June 27, 2002 order must be vacated because it lacks evidentiary support and is based on a significant misinterpretation of our October 5, 2001 opinion.
Davidson
Court of Appeals
Kuehne & Nagel, Inc. v. Preston, Skahan & Smith International, Inc. M1998-00983-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Walter C. Kurtz
This appeal involves a contract dispute between a customs broker and an importer of Russian vodka. The customs broker sued the importer in the Davidson County General Sessions Court seeking to recover $4,781.16, and the importer counterclaimed alleging fraud, breach of fiduciary duty, and usury. After the general sessions court dismissed both cases, the parties appealed to the Circuit Court for Davidson County. On the day of trial, the trial court denied the importer's motion to exclude nine invoices that the customs broker had failed to produce during discovery. Thereafter, the trial court, sitting without a jury, awarded the customs broker a $4,623.16 judgment and dismissed the importer's countersuit. On this appeal, the importer asserts that the trial court erred by refusing to exclude the nine invoices and that the evidence preponderates against the judgment. We have determined that the trial court did not abuse its discretion by denying the importer's motion in limine and that the evidence supports the judgment for the customs broker. Accordingly, we affirm the judgment.
Davidson
Court of Appeals
Charles Dallas Cauthern, et al. v. City of White Bluff, Tennessee M1998-00991-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Leonard W. Martin
This appeal stems from two landowners' efforts to change the zoning classification of their property from residential to commercial and industrial. After the White Bluff Town Council denied their request, the landowners filed a petition for writ of common-law certiorari in the Chancery Court for Dickson County alleging that the council's action was invalid because one council member who had recused himself from voting on the proposed zoning change actively opposed their request and caused another council member to recuse himself. The trial court, sitting without a jury, denied the landowners' petition, and the landowners have appealed. Treating the petition as a complaint of declaratory judgment, we have determined that the effectiveness of the council member's recusal is a nonjusticiable political question. Accordingly, we affirm the trial court's conclusion that the landowners were not entitled to judicial relief.
Dickson
Court of Appeals
Calvin Tankesly v. Sgt. Pugh, et al. M2000-01520-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Davidson
Court of Appeals
State of Tennessee v. Steven Lee Whitehead W2002-00484-CCA-RM-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roy B. Morgan, Jr.
The Defendant, Steven Lee Whitehead, was convicted by a jury of three counts of rape. The trial court subsequently sentenced the Defendant to ten years in the Department of Correction for each conviction, with the sentences running concurrently. On direct appeal by the Defendant, this Court reversed all three convictions due to the trial court’s failure to instruct the jury on sexual battery as a lesser-included offense of rape. See State v. Steven Lee Whitehead, No. W2000-01062-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 732, at *68-69 (Jackson, Sept. 7, 2001). The State then filed an application for permission to appeal to our supreme court pursuant to Tennessee Rule of Appellate Procedure 11. The supreme court granted the State’s application for the sole purpose of remanding the case to this Court for reconsideration in light of its recent opinion in State v. Allen, 69 S.W.3d 181 (Tenn. 2002). Upon reconsideration, we again reverse the Defendant’s three convictions of rape and remand this matter for a new trial.
Because I have no difficulty concluding that the trial court’s failure to instruct the jury on sexual battery constitutes harmless error according to the standard enunciated in State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002), I must respectfully dissent from the majority’s reversal of the appellant’s convictions of rape. As acknowledged by the majority, our supreme court emphasized in Allen that, “[w]hen a lesser-included offense instruction is improperly omitted, . . . the harmless error inquiry is the same as for other constitutional errors” and entails an examination of both the evidence adduced at trial and the defendant’s theory of defense. Id. As also acknowledged by the majority, RB unequivocally testified at trial that the appellant’s sexual assault upon her included three separate acts of sexual penetration, and her testimony was uncontradicted with the exception of the appellant’s statements to the police denying any sexual activity whatsoever between himself and RB. In other words, the appellant’s defense in this case did not hinge upon the nature of the sexual activity between himself and RB but rather upon whether any sexual activity occurred. Accordingly, with respect to the evidence underlying each count of rape, the appellant was either guilty of the charged offense or entirely innocent. Under these circumstances, the trial court’s failure to instruct the jury on sexual battery should not afford the appellant relief.
The petitioner, William R. Diaz, appeals the Anderson County Criminal Court's denial of his petition for post-conviction relief, claiming that he received the ineffective assistance of counsel. He contends that his trial attorney was ineffective for (1) failing to file a motion to suppress his statement to the police on the grounds that it was coerced and (2) failing to file a motion to suppress evidence that the police took from his garage without a search warrant. We affirm the judgment of the trial court.
Anderson
Court of Criminal Appeals
Stanley Alford vs. Pamela Alford E2001-02361-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Joyce M. Ward
In this divorce case, the trial court dissolved a marriage of 21 years and divided the parties' marital property. Stanley David Alford ("Husband") appeals, arguing that the division of property was not equitable and that the trial court erred in requiring him to pay the post-separation debts of his wife, Pamela Ward Alford ("Wife"). By way of a separate issue, Wife contends that the trial court erred in refusing to award retroactive child support. We affirm.
Hamblen
Court of Appeals
E2001-02860-COA-R3-CV E2001-02860-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Billy Joe White
Campbell
Court of Appeals
Rita Jones vs. Clinton Jones E2001-03112-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Steven C. Douglas
In this divorce case, the issues raised on appeal all pertain to the trial court's alimony award. That court awarded Rita Jo Findley Jones ("Wife") alimony of $756 per month "until the death or remarriage of [Wife] or until such time as the court modifies its order in this regard." Clinton Garland Jones ("Husband") appeals, contending that Wife is not entitled to alimony; that, if she is entitled to spousal support, she should be awarded rehabilitative alimony rather than alimony in futuro; and that, in any event, $756 per month "is excessive." We modify the trial court's award of alimony. As modified, it is affirmed.
Cumberland
Court of Appeals
James Raulston vs. Montgomery Elevator E2002-00216-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Dale C. Workman
This is a negligence action stemming from injuries allegedly sustained by Plaintiff James Michael Raulston when the elevator in which he was riding allegedly fell approximately five floors and came to an abrupt stop. Mr. Raulston sued Defendant Montgomery KONE, Inc. ("Montgomery KONE"), alleging it was negligent in failing to properly maintain the subject elevator in a safe condition. Montgomery KONE filed a motion for summary judgment, which the Trial Court granted. Mr. Raulston argues on appeal that the Court's grant of summary judgment was improper. We find there are genuine issues of material fact and therefore vacate the judgment of the Trial Court.
Knox
Court of Appeals
Roy Jones vs. Perry Spurling E2001-02875-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Frank V. Williams, III
This is a suit by Roy Jones, a tenured teacher in the Morgan County School System, against Perry Spurling, Keith Adcock, Cassandra Duncan, Debbie Lively, and Conrad Strand, Members of the Morgan County Board of Education, Paul Scarbrough, Superintendent of the Morgan County Schools, and the Morgan County Board of Education. The suit seeks, by means of a writ of certiorari, to overturn a determination of the Board that Mr. Jones' employment should be terminated because of an altercation between him and a student. We vacate and remand.
Morgan
Court of Appeals
City of Gatlinburg vs. James Odom, d/b/a Thomas Kincade Galleries E2001-02934-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Richard R. Vance
On nine separate occasions, the defendant was cited to the Gatlinburg Municipal Court by the City of Gatlinburg for building without a permit. The citations were consolidated for trial on October 17, 2001. Following an adverse ruling, the defendant attempted to appeal to the Sevier County Circuit Court. In doing so, he filed his appeal bonds in the circuit court. The City moved to dismiss the appeals, contending that the appeal bonds should have been filed in the municipal court. The circuit court dismissed the appeal, finding that it had no jurisdiction of the appeal. We affirm.
Sevier
Court of Appeals
Janet Bolton, et al vs. State of Tennessee E2001-02960-COA-R9-CV
Authoring Judge: Judge David Michael Swiney
Janet Bolton and Jack Bolton ("Plaintiffs") sued the State of Tennessee ("State"), alleging the State was liable for injuries Janet Bolton received in a motor vehicle accident which occurred on a State highway in Loudon County. The State filed a Motion for Summary Judgment, arguing it was entitled to judgment as a matter of law under the defense of discretionary function immunity. The Tennessee Claims Commission denied the motion. The State appeals. We affirm, in part, and reverse, in part, and remand.
Loudon
Court of Appeals
State of Tennessee v. Judy Johnson and Stanley Johnson W2001-01272-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge George R. Ellis
The husband and wife defendants, Stanley and Judy Johnson, were convicted of eleven counts of cruelty to animals, as the result of conditions at a kennel in Gibson County where they were keeping approximately 350 dogs. Stanley Johnson was sentenced to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, and, as to these sentences, to serve ninety days in the county jail with the remainder on probation. Judy Johnson was sentenced, likewise, to eleven months and twenty-nine days on each count, with all sentences to be served concurrently, but she was to serve six months before being put on probation. Both defendants were fined $1000 in each of the eleven counts. On appeal, they argue that the trial court erred in allowing testimony as to a prior similar complaint against Stanley Johnson and in denying total probation for both. Additionally, they argue that the proof is insufficient to sustain the verdicts. We affirm the judgments of conviction.
Gibson
Court of Criminal Appeals
State of Tennessee v. Judy Johnson and Stanley Johnson - Concurring W2001-01272-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge George R. Ellis
While I concur in the result reached by the majority, I disagree on three points. First, it is my view that the trial court erred by permitting the state to cross-examine Stanley Johnson on a 1993 animal cruelty charge that did not result in a conviction. Tennessee Rule of Evidence 608 permits limited use of character evidence for impeachment purposes. Rule 608 provides in pertinent part as follows:
The appellant, Herman Holston, was convicted after a trial by jury of sale of cocaine, a Class C felony, and was sentenced as a Range II offender to eight years and six months confinement in the Department of Correction. On appeal, Holston raises the following issues for our review: (1) whether the evidence was sufficient to support the verdict, and (2) whether his sentence was proper. After a review of the record, we find that Holston's issues are without merit. Accordingly, the judgment of the Shelby County Criminal Court is affirmed.
Shelby
Court of Criminal Appeals
Jimmy Pardue vs. Theresa Pardue W2001-01731-COA-R3-CV
Authoring Judge: Judge D'Army Bailey
Trial Court Judge: Dewey C. Whitenton
This is an appeal from the trial court's decision denying appellant's motion to void an Irreconcilable Differences divorce decree because it was granted within ninety-days of the divorce's filing. Though the appellant sought the voiding of the decree as alternative relief, it appears the essence of the relief sought is child support modification. Thus, the attempt to void the decree is a collateral attack on the judgment and the ninety-day requirement cannot be used in a collateral attack to void a divorce decree.
The defendant, Patsy Webster, appeals the Henry County Circuit Court's ordering her to serve one year of her effective two-year sentence in continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only a two-year sentence for release after serving thirty percent of her sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for resentencing.
