Opinions

Meagan Arnold vs. Charles Arnold
E2001-00596-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: John K. Wilson
This is a suit by a minor brought by her mother, and also by her mother individually against the minor's grandfather, Charles Arnold and her father Randy Arnold. The child was injured when she placed her hand into the fan belt of a tractor which was stationary with the engine running. The Trial Court granted the father's motion for summary judgment and denied the grandfather's. We affirm.

Barbara Cochran vs. Jackie Cochran
E2001-00848-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Rex Henry Ogle
This is a suit wherein the Plaintiff, Barbara K. Cochran, sues her former husband, Jackie D. Cochran, seeking specific performance of her claimed right of first refusal to purchase certain real estate. Thomas M. Crawford and his wife, who had purchased the property from Mr. Cochran, were also made parties Defendant. The Trial Court found that Mr. Cochran had met his obligation to give Ms. Cochran the right to purchase the property in accordance with her right of first refusal and that she had declined to accept the offer. We affirm.

State of Tennessee v. Daniel Ray Styles
E2001-00905-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Daniel Ray Styles, was convicted of felony escape, aggravated assault, aggravated robbery, theft over $1,000, and aggravated criminal trespassing. The trial court imposed an effective sentence of fourteen years. On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing to dismiss his case on the ground that his right to a speedy trial was violated; (2) whether the trial court erred in allowing the State to amend the indictments; (3) whether the indictment charging felony escape was facially void because it was unsigned; and (4) whether the trial court erred by failing to require the State to make an election between aggravated assault and aggravated robbery. After a review of the record, we affirm the judgment of the trial court regarding Defendant's convictions and sentences for aggravated robbery, felony escape, and aggravated criminal trespassing. However, we reverse and dismiss Defendant's convictions for aggravated assault and theft as violative of constitutional prohibitions against double jeopardy.

State of Tennessee v. Randall Ray Mills
M2000-01065-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Charles Lee

The defendant, Randall Ray Mills, was convicted in the Marshall County Circuit Court of one count of rape of a child, three counts of aggravated sexual battery, and one count of casual exchange. At the sentencing hearing, the trial court merged all of the defendant's convictions of aggravated sexual battery into the conviction of rape of a child and sentenced the defendant to a total effective sentence of twenty years incarceration in the Tennessee Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions. Additionally, the State challenges the trial court's merger of the aggravated sexual battery convictions into the rape of a child conviction and further contends that the trial court erred in sentencing the defendant. Upon review of the record and the parties' briefs, we affirm in part and reverse in part the judgment of the trial court and remand for resentencing.

State of Tennessee v. Ernest Edward Wilson
M2000-01997-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge J. Randall Wyatt, Jr.

A Davidson County Grand Jury indicted the defendant for premeditated first degree murder. The defendant was convicted of the lesser-included offense of second degree murder and sentenced to 24 years as a violent offender. In this appeal, the defendant contends: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erroneously neglected to charge the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide; and (3) the defendant's sentence is excessive. After a thorough review of the record, we conclude the failure to charge the lesser-included offenses of reckless homicide and criminally negligent homicide was, at most, harmless error. The defendant's remaining allegations of error are without merit; thus, the judgment of the trial court is affirmed.

State of Tennessee v. Ernest Edward Wilson - Concurring and Dissenting
M2000-01997-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.

Although I agree with Judge Welles that it is problematic to use voluntary
manslaughter as the intermediate offense for the purposes of applying the Williams harmless error rule, I concur with Judge Riley in affirming the conviction, based on the facts of the present case and the defendant’s use of those facts in formulating a theory of defense. Given the facts, the defendant’s theory of defense, and the jury’s verdict of second-degree murder, I conclude that the failure to charge the included offenses lesser than voluntary manslaughter was harmless error.

State of Tennessee v. Ernest Edward Wilson - Dissenting
M2000-01997-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge J. Randall Wyatt, Jr.

I respectfully dissent from the majority's holding that the trial court’s erroneous failure to instruct the jury on reckless homicide and criminally negligent homicide as lesser-included offenses of first degree murder is harmless beyond a reasonable doubt.

J.D. Hickman vs. TN Board of Paroles
M2000-02846-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Irvin H. Kilcrease, Jr.
This appeal involves a prisoner's efforts to obtain a mandatory parole date. After the general counsel for the Tennessee Board of Paroles informed him that he was ineligible for mandatory parole, the prisoner filed a common-law writ of certiorari in the Chancery Court for Davidson County seeking a declaration either that he is entitled to a mandatory parole date or that the Board had been employing the wrong legal standards with regard to his parole date and the parole dates of all other prisoners sentenced after 1989. In response to the Board's Tenn. R. Civ. P. 12.02(6) motion, the trial court dismissed the prisoner's petition because it was not timely filed and because the Tennessee Criminal Sentencing Reform Act of 1982 had prospectively repealed mandatory parole by implication. On this appeal, the prisoner asserts that his suit was timely filed and that the trial court erred by concluding that he was not entitled to a mandatory parole date. We have determined that the prisoner's complaint was timely; however, we have also determined that he is not entitled to a mandatory parole date.

State of Tennessee v. Marion Lee Chapman
W1999-00410-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge C. Creed McGinley

A Carroll County jury convicted the appellant, Marion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after serving ten (10) days in confinement. On appeal, the appellant argues that the trial court erred in denying his motion for a continuance on the day of trial. We hold that the appellant has waived this issue for failing to prepare an adequate record for this Court's review. In addition, we conclude that, based on the limited record before us, the trial court did not abuse its discretion in denying the motion for a continuance. Therefore, we affirm the judgment of the trial court.

Sarah Whitten vs. Dale Smith
W2001-01347-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Ron E. Harmon
This is a suit for the failure to pay a real estate commission. The Appellant filed a complaint against the Appellees in the Chancery Court of Hardin County. The Appellees filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. The trial court denied the motion to dismiss. The Appellees filed an answer and counter-complaint. A trial was held on the complaint and counter-complaint. The trial court entered an order finding that the Appellees did not owe the Appellant a real estate commission and dismissing the counter-complaint. The Appellant appeals the order of the Chancery Court of Hardin County finding that the Appellees did not owe the Appellant

Taylor Brown vs. Jerry Nowlin
W2001-01455-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Robert L. Childers
This dispute addresses the applicability of the "made whole" doctrine to the subrogation rights of TennCare, Tennessee's medicaid waiver program, where the insured and the tortfeasor reached a settlement agreement without the participation or consent of TennCare. We hold that the made whole doctrine did apply to TennCare at the time this case was settled and the order entered. Affirmed.

Jessie Anthony vs. Melbourne Holland
W2001-00745-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Donald H. Allen
This is an appeal from a judgment by the trial court, sitting without a jury, that the defendant's negligence was not the proximate cause of plaintiff's injuries. We hold that the evidence does not preponderate against the factual findings of the trial court. We therefore affirm.

Kevin Stumpenhorst vs. Jerry Blurton Jr.
W2000-02977-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Roy B. Morgan, Jr.
This case arises from an automobile accident in which the Appellee was injured while a passenger in a truck driven by the Appellant's son. The Appellee filed a complaint in the Circuit Court of Madison County against the Appellant and his son. The Appellant and his son filed an answer which specifically pled an affirmative defense of comparative negligence. The Appellee filed a motion for summary judgment against the Appellant and his son. The trial court denied the motion for summary judgment against the Appellant and granted the motion for summary judgment against the Appellant's son. The Appellee filed a motion to strike the affirmative defense of comparative negligence. The trial court granted the motion to strike. Following a jury trial, the jury found that the Appellee's injuries were caused by the negligence of the Appellant's son and that the Appellee was entitled to recover $1,300,000.00 in damages. The jury found that the Appellant was liable under the family purpose doctrine. The Appellant filed a motion for a judgment notwithstanding the verdict, for a new trial, or for a remittitur. The trial court denied the Appellant's motion. The Appellant appeals the decision of the Circuit Court of Madison County disallowing the Appellant to introduce evidence of the Appellee's comparative negligence. The Appellant also appeals the jury verdict finding the Appellant liable under the family purpose doctrine for $1,300,000.00 in damages. For the reasons stated herein, we reverse and remand this case for a new trial in accordance with this opinion.

State of Tennessee v. Arhonda Rice
W2000-03004-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James C. Beasley, Jr.

The Defendant pled guilty to theft over $1,000.00, a Class D felony, and the trial court sentenced her to two years incarceration as a Range I standard offender. The trial court suspended the Defendant’s sentence and placed her on seven years probation. The trial court also ordered the Defendant to serve one hundred weekends at the Shelby County Correctional Center, perform five hundred hours of community service, and pay $8,400.00 in restitution. The Defendant now appeals, arguing (1) the trial court erred in denying her judicial diversion, and (2) that the trial court erred in denying her full probation. Finding no error, we affirm the judgment of the trial court.

Richard Jolly vs. Lynette Jolly
W2001-00159-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Martha B. Brasfield
This is a divorce case regarding the distribution of marital property. The wife moved from Tennessee to Kansas with the parties' four minor children and later filed a petition for divorce. The Kansas court awarded the wife a divorce, custody of the children, and child support but found that it did not have jurisdiction to order a division of the parties' marital property located in Tennessee. Thereafter, the wife filed this action in Tennessee seeking a division of the parties' marital property in Tennessee. The trial court ordered that the Tennessee property be sold and that the husband's share of the sale proceeds be reduced by the amount of unpaid child support. On appeal, the husband argues, inter alia, that the trial court erred in recognizing the Kansas divorce decree. We affirm, finding that the Kansas decree was entitled to full faith and credit and that the trial court did not err in dividing the parties' marital property in Tennessee.

Jeffrey E. Dunlap v. State of Tennessee
E2001-00189-CCA-R3-PC
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Ray L. Jenkins

The petitioner, Jeffrey E. Dunlap, appeals the trial court's 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.

Gloria Neuenschwander vs. Roy Neuenschwander
E2001-00306-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: William M. Dender
Trial Judge refused to recuse, set amount of alimony, and established rental value of parties' property. On appeal we reverse the change in the amount of alimony by the Trial Court, but otherwise affirm.

Polk County vs. Glenda B. Rogers , d/b/a Ocoee River Rats
E2001-00004-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
In this appeal from the Polk County Chancery Court the Appellant , Glenda B. Rogers, d/b/a Ocoee River Rats, contends that evidence presented at trial showed that the classification of whitewater rafting businesses and their customers under a private act applicable to the Appellee, Polk County, assessing a privilege tax on guided rafting ticket sales by such businesses in Polk County is without reasonable basis and that the Trial Court's finding to the contrary was in error. We affirm the judgment of the Trial Court and we adjudge costs of the appeal against the Appellant.

Linda Musick vs. Calvin Musick
E2001-01140-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: John S. Mclellan, III
The Trial Court granted parties a divorce, divided marital property, and awarded alimony. The parties have appealed on issues of evidence, division of marital property, the granting of alimony, and wife's attorney's fees. We affirm.

State of Tennessee vs. Clifford Peele
E1999-00907-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Arden L. Hill
We granted appeal to determine (1) if Tenn. R. App. P. 3(b) permits the appeal of a denial of a motion to withdraw a guilty plea; and (2) whether a Tenn. R. Crim. P. 32(f) motion to set aside a guilty plea filed prior to the time the judgment becomes final tolls the time for filing an appeal to permit the trial court to rule on the motion. We hold (1) that a denial of a motion to set aside a guilty plea may be appealed pursuant to Tenn. R. App. P. 3(b); and (2) that a trial court retains jurisdiction to rule on a motion to set aside a guilty plea if the motion is filed prior to the date the judgment becomes final. Accordingly, the holding of the Court of Criminal Appeals is reversed, and the case is remanded to the intermediate appellate court for proceedings consistent with this opinion.

E2000-02268-COA-R3-CV
E2000-02268-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell E. Simmons, Jr.

Tip's PackageStore, Inc. vs. Commercial Ins. Mgrs., Inc.
E2000-02070-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
Plaintiffs H. Wayne Tipton ("Tipton") and Tip's Package Store, Inc., (Tip's) brought this lawsuit against George P. Taylor ("Taylor") and Commercial Insurance Managers, Inc., ("Commercial") seeking indemnification for an agreed judgment entered against Tip's in a lawsuit involving the tragic deaths of two young University of Tennessee students. Plaintiffs claim that Defendants improperly obtained for them an "occurrence" liability policy as opposed to a "claims made" liability policy, thereby resulting in a lack of insurance coverage for the wrongful death claims. After a jury trial, the Chancery Court entered judgment in favor of both Plaintiffs in the amount of $1,000,000 for indemnification based on the jury's answers to interrogatories. Defendants appeal, arguing, among other things, that: (1) the statute of limitations had run; (2) a covenant not to execute entered into between the families of the deceased young women and Plaintiffs extinguished any potential liability; and (3) the jury's responses to interrogatories were fatally inconsistent. We affirm in part, reverse in part, and remand.

Pamela K. Cantrell v. James Michael Cantrell, Jr.
2001-00259-COA-R3-CV
Trial Court Judge: Jerri S. Bryant

Beal Bank vs. RBM Co., Est. of H.A. Webster, Michael Webster, and Richard Webster
E2001-00520-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Frank Brown, III
The trial court admitted into evidence the loan records from NationsBank through a witness who was thoroughly familiar with the record-keeping process. On appeal, we affirm.

State of Tennessee v. Steve Barber, a.k.a. Vernon S. Barber
E2001-00909-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Phyllis H. Miller

The defendant was convicted by a Sullivan County Criminal Court jury of driving under the influence, third offense, a Class A misdemeanor, and driving while license suspended, revoked, or cancelled, third offense, a Class B misdemeanor. On appeal to this court, he argues, inter alia, that the trial court erred in denying his request for a mistrial and in admitting expert testimony on breath alcohol testing devices. After a careful review of the record, we affirm the judgment of the trial court. However, we remand for entry of corrected judgment forms to reflect that the defendant's convictions resulted from jury verdicts, rather than guilty pleas.