Larry A. Renfro v. Starnet Insurance Company
E2011-00839-WC-R3-WC
Authoring Judge: Judge Larry H. Puckett
Trial Court Judge: Chancellor Frank V. Williams

In this workers’ compensation case, the employee, a truck driver, sustained a compensable back injury. After having surgery, he returned to his pre-injury job for a year and was able to drive with the aid of narcotic medications prescribed to treat his back pain. He subsequently left his employment after results of an annual U.S. Department of Transportation (“DOT”) medical examination determined that his use of the narcotics prohibited him from driving. The trial court found that the employee did not have a meaningful return to work and awarded benefits in excess of one and one-half times the anatomical impairment rating. The employer’s workers compensation insurance carrier has appealed, asserting that the employee’s loss of employment was unrelated to his work injury and that the award should have been limited to one and one-half times the impairment. We affirm the judgment.

Blair Wood, et al v. Tony Wolfenbarger, et al.
E2011-01953-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Donald R. Elledge

Blair Wood and Gary Wood (“Plaintiffs”) sued Tony Wolfenbarger and Brenda Wolfenbarger (“Defendants”) alleging, in part, that Defendants had wrongfully cut down six trees on Plaintiffs’ real property. After a trial, the Trial Court entered its judgment finding and holding, inter alia, that Defendants were liable for negligently cutting the trees, that the current market value of the timber cut was $840, and that Plaintiffs were entitled to a judgment in double the amount of the current market value of the timber pursuant to Tenn. Code Ann. § 43-28-312. Plaintiffs appeal to this Court alleging that the Trial Court erred in awarding damages based upon the timber value. We find and hold that the evidence preponderates against the finding that timber value was the correct measure of damages in this case. We modify the Trial Court’s judgment to award Plaintiffs damages of $62,100 based upon the trunk formula method of valuation and affirm the judgment as so modified.

Leslie Newpher Tachek v. David James Tachek
M2011-02661-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Judge Carol Soloman

In this divorce action the Trial Court granted the parties a divorce, gave custody of the children to the father, divided the marital property and ordered a monetary judgment against the mother to the father, as an equitable distribution of the marital property. The mother has appealed and questioned the Trial Judge's award of custody of the children to the father, and the Trial Judge ordering a monetary judgment against the mother to the father. We affirm the Judgment of the Trial Court.
 

In Re: Layla C.S.
E2012-00392-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor W. Frank Brown, III

Petitioner filed a Rule 60.02 motion to set aside a parental termination and adoption decree. The motion asked relief from the Judgment on the ground set forth in Tenn. R. Civ. P. 62.02(1) and (2). The Trial Court held that petitioner did not establish a basis to set aside the Judgment on the grounds relied upon in the Rule 60.02 motion. On appeal we affirm the Judgment of the Trial Court.

Charles A. Harmon, et al. v. James J.J. Jones, et al.
E2010-02500-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Mary Beth Leibowitz

Property of the appellants was seized following a traffic stop. Requests for return of the property were denied by the Knox County Sheriff’s Department. The appellants, who were not facing any criminal charges, filed an action in criminal court seeking the return of all the seized property. The Sheriff’s Department subsequently filed drug forfeiture warrants and property receipts. The appellants argued that the Sheriff’s Department was attempting to initiate Department of Safety jurisdiction in disregard of their earlier filing in criminal court. The criminal court dismissed the action, asserting lack of jurisdiction. The appellants appeal. We affirm.

Tennessee Department of Safety ex rel. Charles A. Harmon, et al. v. Carltone E. Bryant, IV, et al.
E2011-01295-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Mary Beth Leibowitz

This is an appeal from an order denying a petition to have the appellees held in criminal contempt based upon their failure to comply with various subpoenas commanding them to appear at depositions and produce documents to be used by the appellants in the context of an administrative asset forfeiture proceeding on the docket of the Tennessee Department of Safety. The petition was filed in the Criminal Court for Knox County, Tennessee. It was denied on grounds that the court in which the petition was filed had no jurisdiction to grant the relief requested. The appellants appeal. We affirm.

Waste Services of Decatur, LLC v. County of Lawrence, et al.
M2011-01947-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Stella L. Hargrove

Losing proposer for solid waste management services challenges Lawrence County’s decision to contract with another proposer. Because we find that the County acted arbitrarily and illegally in making its decision, we reverse the decision of the trial court and remand for further proceedings.
 

E. Ron Pickard and Linda Pickard, as Trustees of the Sharon Charitable Trust and as Individuals v. Tennessee Department of Environment and Conservation, Tennessee Water Quality Control Board and Tennessee Materials Corporation
M2011-01172-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

The Tennessee Department of Environment and Conservation issued a permit allowing a proposed rock quarry to discharge storm water and wastewater into a nearby creek. Owners of property allegedly affected by the discharge filed an appeal challenging the issuance of the permit with the Water Quality Control Board, as well as a petition seeking a declaratory order construing the rules regarding the protection of existing uses of waters. The Water Quality Control Board refused to issue a declaratory order and the property owners appealed to the Davidson County Chancery Court. Because we conclude that the trial court lacked jurisdiction to grant the relief requested,we vacate the judgment of the trial court and remand for dismissal of this cause. Vacated and remanded.
 

State of Tennessee v. Krystal Bowman
E2011-01906-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole

The defendant, Krystal Bowman, appeals the Hamilton County Criminal Court’s denial of judicial diversion for her conviction of theft of property valued at $10,000 or more but less than $60,000. Discerning no error, we affirm the judgment of the trial court.

Plants, Inc. v. Fireman's Fund Insurance Company et al.
M2011-02274-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

This is the second of two similar but separate civil actions and appeals among the same
parties. At issue is the scope of a binding arbitration clause in a federally-reinsured multiple
peril crop insurance policy and the scope of federal preemption of common law claims. The
insured, a nursery in Warren County, Tennessee, suffered a catastrophic loss of stock,
primarily trees and shrubs, due to a severe freeze in April of 2007. The insured submitted a
claim for indemnity. The adjuster determined, due to “under-reporting of inventory”, that the
insured was only entitled to recover $115,822. Instead of pursuing arbitration pursuant to the
policy of insurance, the insured filed this action asserting common law claims against the
insurer, its adjustment firm, and the independent insurance agency that solicited the policy,
for negligent misrepresentation, breach of duty of care, negligence, breach of contract, and
statutory bad faith. The trial court summarily dismissed the claims against the insurer and its
adjustment firm finding there were no issues of material fact and the insurers were entitled
to summary judgment as a matter of law because the policy mandated arbitration. On appeal,
the insured contends that its state law claims are not barred by the policy. The insurer and its
adjustment firm disagree contending that all claims related to the insurance policy must be
submitted to arbitration and additionally assert that the insured’s common law claims are
preempted by federal law. We have determined the claims for breach of contract, breach of
duty of care, and statutory bad faith are preempted by federal law; however, the claims for
negligence and negligent misrepresentation are not preempted by federal law and these two
claims do not fall within the scope of the arbitration provision. Therefore, we affirm in part,
reverse in part, and remand for further proceedings in accordance with this decision.

State of Tennessee v. Francisco Javier Ancona
M2010-02095-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Mark Fishburn

The Defendant, Francisco Javier Ancona, was convicted by a Davidson County Criminal Court jury of first degree felony murder, attempt to commit especially aggravated robbery, a Class B felony, aggravated burglary, a Class C felony, aggravated assault, a Class C felony, and employing a handgun during the commission of a dangerous felony, a Class C felony. See T.C.A.§§ 39-13-202,39-13-403,39-14-403, 39-13-102, 39-17-1324(b) (2010). He was sentenced to life imprisonment for the first degree felony murder conviction, fifteen years for the attempted especially aggravated robbery conviction to be served concurrently with the first degree murder conviction, nine years for the aggravated burglary conviction to be served consecutively to the first degree murder conviction but concurrently with the aggravated assault conviction, nine years for the aggravated assault conviction to be served consecutively to the first degree murder conviction but concurrently with the aggravated burglary conviction, and nine years for employing a handgun during the commission of a dangerous felony conviction to be served consecutively to the aggravated burglary conviction, resulting in an effective sentence of life imprisonment plus eighteen years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for attempted especially aggravated robbery; (2) the trial court erred by admitting hearsay statements of the Defendant’s co-defendants into evidence at the trial; (3) the trial court erred by failing to redact a statement made by a co-defendant to the police from a telephone recording played at the trial; (4) the trial court erred by allowing the State to amend the indictment to include a greater offense than originally charged; (5) the trial court erred by allowing separate convictions for attempted especially aggravated robbery and aggravated burglary; and (6) the trial court erred by imposing partial consecutive sentencing. We affirm the judgments of the trial court.

State of Tennessee v. Yoni Sales Barahona
M2011-01300-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Randall Wyatt

Aggrieved of his conviction of aggravated assault and accompanying 10-year sentence of incarceration, the defendant, Yoni Sales Barahona, appeals, alleging some 21 assignments of error. Some of the issues have been waived, and others are redundant. The defendant’s reviewable challenges are these: (1) the trial court erred by denying the motion to suppress, (2) the trial court erred by admitting into evidence the preliminary hearing testimony of the victim, (3) the trial court erred by admitting the identification of the defendant by both the victim and a witness, (4) the trial court erred by admitting into evidence a knife recovered from the scene, (5) the evidence was insufficient to support his conviction, and (6) the sentence is excessive. Discerning no error in either the conviction or the sentence, we affirm the judgment.

Plants, Inc. v. Fireman's Fund Insurance Company et al.
M2011-02063-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

At issue is the scope of a binding arbitration clause in a federally-reinsured multiple peril crop insurance policy and the scope of federal preemption of common law claims. The insured, a nursery in Warren County, Tennessee, suffered a catastrophic loss of stock, primarily trees and shrubs, due to a tornado on April 7, 2006. The insured submitted a claim in excess of a million dollars. The adjuster determined, due to “under-reporting of inventory”, that the insured was only entitled to recover $195,225. The insured demanded arbitration; the arbitrator ruled that the insured was due no additional payment. Thereafter, the insured filed this action asserting common law claims against the insurer, its adjustment firm, and the independent insurance agency that solicited the policy, for breach of contract, negligence, breach of the duty of care, negligent misrepresentation, and statutory bad faith. The trial court summarily dismissed the claims against the insurer and its adjustment firm finding the claims were barred by collateral estoppel and res judicata because the issues were decided at arbitration and that the insured’s only remedy was judicial review of the arbitration decision. On appeal, the insured contends that its state law claims were not barred by the doctrines of collateral estoppel and res judicata. Appellees disagree and additionally assert that the insured’s common law claims are preempted by federal law. We have determined the claims for breach of contract, breach of duty of care, and statutory bad faith are preempted by federal law; however, the claims for negligence and negligent misrepresentation are not preempted by federal law and are not barred by the doctrines of collateral estoppel or res judicata. Therefore, we affirm in part, reverse in part, and remand this action for further proceedings in accordance with this decision.

Andrew D. Harville v. State of Tennessee
W2011-00835-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Andrew D. Harville

Petitioner, Andrew D. Harville, was convicted by a jury of first degree premeditated murder and felony evading arrest. Petitioner was sentenced by the trial court to life imprisonment for his murder conviction and two years for evading arrest, and his sentences were ordered to be served consecutively. This Court affirmed Petitioner’s convictions on direct appeal. A summary of the facts underlying Petitioner’s convictions can be found in this Court’s opinion in State v. Andrew Deon Harville, No. W2008-02375-CCA-R3-CD, 2010 WL 571786 (Tenn. Crim. App. at Jackson, filed Feb. 19, 2010), perm. app. denied (Tenn. June 16, 2010). Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial. The post-conviction court denied Petitioner’s request for relief following an evidentiary hearing. Petitioner appeals. Finding no error, we affirm the judgment of the post-conviction court.

Craig O. Majors v. State of Tennessee
M2011-02353-CCA-R3-PC
Authoring Judge: Special Judge J.S. "Steve" Daniel
Trial Court Judge: Judge Michael R. Jones

Petitioner, Craig O. Majors, was convicted of especially aggravated kidnapping, attempted aggravated robbery, and aggravated burglary in Montgomery County. See Craig O. Majors v. State,No.M2009-00483-R3-CD,2010 WL 2483512 (Tenn.Crim.App., at Nashville, Jun. 21, 2010), perm. app. denied, (Tenn. Dec. 8, 2010). Petitioner’s convictions were affirmed on appeal. Id. at *1. Petitioner sought post-conviction relief on various grounds, including ineffective assistance of counsel. The post-conviction court denied relief. Petitioner now appeals. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s denial of post-conviction relief as Petitioner has failed to show clear and convincing evidence that he is entitled to post-conviction relief. Accordingly, the judgment of the post-conviction court is affirmed

Michael Scott Farner v. David Sexton, Warden, et al
E2011-01636-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lynn W. Brown

The petitioner, Michael Scott Farner, appeals the summary dismissal of his petition for writ of habeas corpus, claiming that his 1988 guilty-pleaded convictions of second degree murder, assault with intent to commit first degree murder, and seconddegree burglary are void because his guilty pleas were not knowingly and voluntarily entered and because his sentences are illegal. Because we perceive no error in the dismissal of the petition for writ of habeas corpus, we affirm the judgment of the habeas corpus court.

State of Tennessee v. Ericka Barfield
E2011--02686-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Rex Henry Ogle

The defendant, Ericka Barfield, appeals the Sevier County Circuit Court’s revocation of her probation and order that she serve the remainder of her sentence in confinement. Discerning no error, we affirm the judgment of the trial court.

State of Tennessee v. Gregory Darnell Valentine
M2010-02356-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Gregory D. Valentine, appeals from the trial court’s summary dismissal, without an evidentiary hearing, of  Defendant’s motion to withdraw his guilty pleas. After a thorough review of the record, we reverse the judgment of the trial court and remand for a hearing on Defendant’s motion.

State of Tennessee v. Walter Lavar Wright
M2011-01904-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert Crigler

The defendant, Walter Lavar Wright, pleaded guilty to two counts of sale of .5 grams or more of cocaine and one count of possession with the intent to sell .5 grams or more of cocaine and received a Range I sentence of nine years’ incarceration. Following the successful completion of “boot camp,” the defendant was placed on probation. On January 20, 2011, a probation violation warrant issued alleging that the defendant violated the terms of his release by garnering a new arrest, failing to report to his probation officer, failing to maintain employment, and failing to pay fines and costs. At the hearing, the defendant admitted to many of the allegations. The trial court revoked the defendant’s probation and ordered him to serve his sentence in confinement. In this timely appeal, the defendant claims that the trial court erred in ordering him into confinement. Because the record supports the trial court’s order, we affirm.

State of Tennessee v. John Wesley Shutt, II
M2011-01211-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robbie Beal

The defendant, John Wesley Shutt, pled guilty to first offense DUI, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days. As part of his plea agreement, the defendant reserved a certified question of law: “whether the officer had probable cause to make the arrest.” After careful review of the record, we agree with the trial court that the officer involved had probable cause to arrest the defendant. We affirm the judgment of the trial court.

Isiah Buckley v. State of Tennessee
M2011-01868-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

The petitioner, Isiah Buckley, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief. Pursuant to a negotiated plea agreement, the petitioner pled guilty, as a Range I offender, to facilitation of second-degree murder, a Class B felony, and received an out-of-range sentence of fifteen years, with the manner of service to be determined. After a hearing, the petitioner was ordered to serve the sentence. In the instant appeal, the petitioner contends that his plea was not entered knowingly and voluntarily because he was deprived of the effective assistance of counsel. Specifically,he contends trial counsel was ineffective by: (1) failing to inform the trial court of withheld exculpatory evidence; and (2) failing to investigate and to interview witnesses. Following review of the record, we affirm the denial of post-conviction relief.

In Re $1,683.05 Deposited in Attorney's Trust Account
M2011-02079-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

Attorney representing the husband in a divorce proceeding claimed a statutory lien on funds in his trust account to secure payment of his fee; the attorney filed a separate action seeking a determination of his rights to funds held in his trust account. The trial court dismissed the action for failure to state a claim. Finding that the court dismissed the case employing an erroneous legal standard, we reverse the judgment of the trial court.
 

Allison Jacob et al. v. Alexis Partee and Tom Bedell, Jr., v. Top Gun Body Shop
W2012-00205-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Robert L. Childers

Appellants attempted to appeal the decision of the General Sessions Court to the Circuit Court without filing an appeal bond, but the Circuit Court dismissed the attempted appeals for lack of subject matter jurisdiction. Appellants claim that an appeal bond need not be filed where an appeal filing fee is paid. We find that, to perfect an appeal from General Sessions Court to Circuit Court, an appeal bond must be filed; payment of the appeal filing fee does not satisfy this jurisdictional requirement. Accordingly, we affirm the trial court’s dismissal of the matter.

Tracy Rose Baker v. Jeffrey D. Baker
M2012-00223-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Senior Judge Donald P. Harris

In this contentious post-divorce dispute, the father has appealed from the trial court’s order
disposing of numerous issues including visitation and contempt. The order appealed does
not, however, address the mother’s request for modification of child support, and we
therefore dismiss the appeal for lack of a final judgment.

In the Matter of: S.J., C.J., and J.J.
W2011-01690-COA-R3-JV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert Weiss

This appeal arises out of dependency and neglect proceedings. The respondent mother has three children, one an infant. The infant suffered numerous unexplained injuries and was diagnosed with failure to thrive. The Tennessee Department of Children’s Services filed a petition to have all three children declared dependent and neglected, and alleged severe child abuse as to the infant. The trial court declared all three children dependent and neglected, but declined to find severe abuse. The respondent mother now appeals the trial court’s finding of dependency and neglect, and the Department of Children’s Services appeals the trial court’s failure to find severe child abuse as to the infant. We affirm the trial court’s finding that all three children were dependent and neglected, but find clear and convincing evidence that the infant suffered severe abuse; therefore, we reverse the trial court’s finding on severe abuse.