Betty Potter, et al. v. Ford Motor Company - Concurring
E2005-01578-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge John J. Maddux, Jr.

While I agree with Ford, that Restatement (Third) of Torts § 2, comment f, requires:  “To establish a prima facie case of defect, the plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm . . .”, unless and until Tennessee adopts Restatement (Third) of Torts on this issue, Judge Lee in my view, has correctly summarized the state of Tennessee law on this issue.  Accordingly, I concur in her Opinion in affirming the Trial Court.

State of Tennessee v. James B. Sanders
M2005-00088-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

The defendant, James B. Sanders, appeals from his conviction for third offense of driving under the influence of an intoxicant (D.U.I.) and from the resulting sentence. On appeal, the defendant claims that a prior facially valid judgment of conviction for a previous D.U.I. was insufficient to sustain enhanced punishment when the written waiver of counsel was not introduced and the defendant testified that he was not represented by counsel. We conclude the prior certified judgment of conviction is facially valid and is not subject to collateral attack in this proceeding. We affirm the judgment of the trial court.

Michele Safa v. Martha A. Loving
W2005-01011-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Karen R. Williams

This appeal stems from a negligence suit arising from an automobile accident. At trial, the circuit court entered two separate orders dismissing the case. One order dismissed the case based on the statute of limitations. The other order dismissed the case for a failure to prosecute based on the plaintiff’s failure to comply with a previous court order awarding discretionary costs to the defendant that was granted when the plaintiff voluntarily dismissed her first filing of the instant suit. On appeal, the plaintiff asserts that the circuit court erred when it dismissed her claims because the applicable statute of limitations was tolled pursuant to section 28-1-106 of the Tennessee Code as she was of “unsound mind.” The defendant has also asserted that the circuit court properly dismissed the case for a failure to prosecute based on the plaintiff’s failure to comply with a court order. We affirm.

State of Tennessee v. Rita Lynn Neff
E2005-01622-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Rita Lynn Neff, appeals from the order of the trial court revoking her probation and ordering that her effective eight-year sentence be served in the Department of Correction. On appeal, the Defendant argues that the trial court abused its discretion by revoking her probation and ordering that her sentences be served in confinement. We affirm the judgment of the trial court.

State of Tennessee v. M.L.
M2005-01733-COA-R3-JV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Buddy D. Perry

This is an appeal by a minor from a decision of the Circuit Court for Marion County declaring him a delinquent based upon a finding he was guilty of aggravated arson. The sole issue on appeal concerns the sufficiency of the evidence. Because the evidence is sufficient to support the finding of guilt of aggravated arson beyond a reasonable doubt, we affirm.

Riley Bolding, et al. v. Dentis Sisson, et al.
W2005-01507-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Roger A. Page

This is an appeal from a judgment entered on a Jury verdict. The appeal arises out of a commercial real estate sale and involves the alleged misrepresentation of a restrictive covenant attached to property at issue.  The Jury found that the Defendants/Appellants intentionally and negligently misrepresented the restrictive covenant that applied to the property. Finding that there is no material evidence to support the Jury’s finding that Plaintiffs/Appellants’ reliance upon Defendants/Appellees’ representation was justified, we vacate the Judgment entered on the Jury Verdict.

Richard Schneider, Tajuana Cheshier, Jamie Page, and The Gannett Satellite Information Network, d/b/a The Jackson Sun v. The City of Jackson
W2005-01234-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge James F. Butler

This case involves the Tennessee Public Records Act. The plaintiff newspaper sought access to investigative records generated by local law enforcement during the course of criminal investigations. The newspaper also sought financial documents relating to a license agreement between the municipal government and a private baseball franchise. The municipal government refused to disclose the criminal investigative records and failed to respond to the newspaper’s written requests for the baseball franchise documents. The newspaper filed suit against the municipal government in the Madison County Chancery Court. After a show-cause hearing, the trial court ruled that the Public Records Act required the disclosure of both types of documents, and awarded the newspaper attorney’s fees. The municipal government appeals. As to the criminal investigative records, we recognize the common-law law enforcement privilege, and on that basis we vacate the judgment of the trial court, reverse the award of attorney’s fees, and remand for further proceedings.
 

Johnny Collins v. Mid-South Uniform Service, Inc., et al.
M2005-00264-WC-R3-CV
Authoring Judge: Senior Judge William H. Inman
Trial Court Judge: Chancellor John W. Rollins

This workers’ compensation appeal has been referred to the Special Workers’ Compensation
Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated
section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and
conclusions of law. Plaintiff Johnny Collins (“Employee”) filed two complaints, one for a shoulder
injury and the second for bilateral carpal tunnel syndrome. The complaints were consolidated for
trial by agreement. The trial court awarded Employee 200 weeks of compensation for the shoulder
injury and 200 weeks of compensation for the bilateral carpal tunnel syndrome. Defendants Mid-
South Uniform Service, Inc., and Zenith Insurance Company (collectively “Employer”) appeal. We
modify Employee’s award for the shoulder injury to 60 weeks of compensation. We affirm
Employee’s award for the bilateral carpal tunnel syndrome.

Charles Manning v. Jack Morgan, Warden
E2005-00701-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen

Petitioner, Charles Manning, filed a Petition for Writ of Habeas Corpus, attacking his two convictions for second degree murder. Following a hearing, the trial court denied any relief to Petitioner. We affirm the judgment of the trial court.

Kimberly Greene v. State of Tennessee
E2005-01556-CCA-R3-HC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge D. Kelly Thomas, Jr.

Petitioner, Kimberly Greene, filed a pro se petition for writ of habeas corpus on March 1, 2005, and counsel was subsequently appointed to assist Petitioner. A hearing was held on June 1, 2005, and, after consulting with her counsel, Petitioner voluntarily withdrew her petition. Thereafter Petitioner filed a pro se notice of appeal. Upon a review of the record in this case, we conclude that the trial court was correct in summarily dismissing the habeas corpus petition. Accordingly, we affirm the judgment of the trial court.

Mary Ellen Hall McIntire v. Timothy Lapleau McIntire
W2004-02904-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Karen R. Williams

The trial court granted Mother’s petition in objection to Father’s proposed relocation of the parties’ minor children and amended parenting plan to award custody to Mother; ordered Father to repay prepaid child support to Mother; set Father’s child support obligation based on his current income; ordered Father to refund sums to the children’s accounts; awarded Mother the parties’ timeshare property; and ordered Father to pay $30,000 of Mother’s attorney’s fees. We affirm in part, modify in part, reverse in part, and remand.

Arthur Perry v. Nps Energy Services, Inc., et al.
W2005-00134-WC-R3-CV
Authoring Judge: Senior Judge Allen W. Wallace
Trial Court Judge: Judge D'Army Bailey

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Tennessee Supreme Court of findings of facts and conclusions of law. In this appeal the Appellant/Defendant ("Employer") asserts the trial judge erred in finding the statutory cap of two and one-half multiplier set forth in Tennessee Code Annotated section 50-6-241(a)(1) did not apply, and applying the six times multiplier set forth in Tennessee Code Annotated section 50-6-241(6). Further, Employer alleges that the trial judge erred in finding that Appellee/Plaintiff ("Employee") was unable to make a meaningful return to work as set forth in Tennessee Code Annotated 50-6-241. Employer further avers that the trial judge erred in allowing a co-employee to testify as a rebuttal witness when his testimony did not rebut any testimony given by Employer's proof. We conclude the evidence fails to preponderate against the findings of the trial court, and we affirm the judgment of the trial court.

Steven Scott Means, et al. v. David Vincent Ashby, et al.
M2005-01434-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Muriel Robinson

This is the second appeal of a protracted custody dispute among the parents and an aunt and uncle of a minor child. The aunt and uncle have had legal custody since 1997. This action commenced in 2000, when the aunt and uncle filed a petition to terminate the parental rights of the parents and the parents filed counter-petitions for custody. In 2002, the trial court dismissed the petition to terminate and custody remained with the aunt and uncle. On appeal this Court affirmed the dismissal of the petition to terminate but vacated the custody determination due to the application of an incorrect legal standard. The case was remanded for the trial court to determine the legal effect of the 1997 custody order on the pending custody claims. The record in this second appeal tells us the trial court failed to determine on remand the effect of the 1997 custody order. Having determined the record is inadequate for this Court to make the determination, we have no option but to vacate the judgment of the trial court and remand this matter once again.

In the Matter of Z.A.W.
W2005-01956-COA-R3-JV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Larry J. Logan

The trial court denied continuance, awarded custody of the parties’ child to Father, and refused to grant Mother visitation until she completed a psychological evaluation and petitioned the court.  Mother appeals, asserting the trial court erred by denying a continuance and by refusing to award her visitation rights. We affirm the denial of a continuance, but reverse the denial of visitation and remand to the trial court to set visitation.

Jonathon Christopher Hood v. State of Tennessee
M2005-01310-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Buddy D. Perry

This is an appeal from the denial of post-conviction relief. The Petitioner, Jonathon Christopher Hood, entered a best-interest guilty plea to felony reckless endangerment and, pursuant to a plea agreement, was sentenced to one year imprisonment with a release eligibility date of 30%. The Petitioner filed for and was denied post-conviction relief. The Petitioner now appeals the denial of post-conviction relief, claiming his trial counsel provided ineffective assistance of counsel which resulted in an involuntary guilty plea. We affirm the judgment of the trial court.

Mary Caroline Pierpoint v. Rodney Craig Pierpoint
W2005-01780-COA-R3-CV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge William B. Acree

In this domestic relations case, Husband complains, inter alia, that the trial court erred: in awarding primary custody of the parties’ children, ages two and four, to Wife, in the amount of support obligations, and in failing to award his attorney fees. Judgment of the trial court is affirmed in part, vacated in part and remanded.

In the Matter of I.A.B, D.O.B. 1/8/2003 Eric Burt v. Elizabeth Farley
W2005-02268-COA-R3-JV
Authoring Judge: Judge William H. Inman, Sr.
Trial Court Judge: Judge Robert W. Newell

This is a custody proceeding wherein Mother offered no proof except her own testimony. When the judgment was entered against her, she argues that the trial court should have conducted a comparative fitness analysis and that the case should be remanded for this purpose. Judgment of the
juvenile court affirmed.

State of Tennessee v. Danny Strode
M2005-00906-CCA-R9-DD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge J. Curtis Smith

The defendant, Danny Strode, was indicted by the Bledsoe County Grand Jury for one count of premeditated murder, one count of felony murder and one count of especially aggravated robbery. The State sought the death penalty. The defendant asserted he could not be put to death because he was mentally retarded within the meaning of Tennessee Code Annotated section 39-13-203(a). The trial court held a hearing and determined that the defendant was indeed mentally retarded under the definition provided in the statute and therefore could not be sentenced to death. The State requested permission to pursue an interlocutory appeal which was granted by the trial court. On appeal, we determine that the defendant is not mentally retarded under the definition of the statute and, therefore, reverse the judgment of the trial court.

Andrew Rochester v. State of Tennessee
M2005-01468-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert L. Jones

In this post-conviction action, the petitioner, Andrew Rochester, contends that trial counsel was ineffective by: (1) failing to file a motion to suppress evidence taken from his vehicle after his arrest; (2) failing to object to testimony elicited from two witnesses not qualified as experts; and (3) failing to comply with the requirements of Momon v. State on the record at trial. Following our review, we conclude that counsel was not ineffective in his representation; therefore, we affirm the denial of post-conviction relief.

Kevin Frank Mercer v. State of Tennessee
M2005-01293-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Robert G. Crigler

In this post-conviction action, the petitioner, Kevin Frank Mercer, contends that: (1) his plea was involuntary and unknowing; and (2) trial counsel was ineffective by providing little meaningful advice as to whether to enter a plea or proceed to trial. Following our review, we conclude that his plea was knowingly and voluntarily entered and that counsel was effective in his representation of the petitioner. Therefore, we affirm the denial of post-conviction relief.

Zula M. Dunn v. Norman E. Dunn
W2005-02344-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor George R. Ellis

Husband appeals the trial court’s distribution of marital property and award of alimony in futuro.  We affirm.

State of Tennessee v. Walfrido L. Rodriguez
M2005-01351-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

The defendant, Walfrido L. Rodriguez, appeals from his Davidson County Criminal Court jury convictions of second degree murder and aggravated assault, claiming that the trial court erred by instructing the jury to consider the charges sequentially, that the convicting evidence is insufficient, and that the trial court erred in rejecting a request for a special jury instruction. We discern no reversible error and affirm the convictions.

Martha Flowers (Hasenmueller) v. Steven Lee Hasenmueller
W2005-00038-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge D'Army Bailey

This is a contempt action arising out of a divorce. The parties’ final decree of divorce incorporated a marital dissolution agreement. The husband filed a petition for civil and criminal contempt against the wife for several alleged violations of the martial dissolution agreement. At the first hearing on the husband’s petition, the husband requested leave of court to amend his petition for contempt. Leave to amend was granted, and in light of the amendment, the trial court ordered a two-day continuance of the hearing. When the proceedings were reconvened, the trial court ruled that the wife had committed three violations of the marital dissolution agreement. The trial court awarded the husband $12,000 in attorney’s fees for prosecuting the contempt petition. The wife appeals, asserting that the trial court erred in granting the husband leave to amend his petition, finding that the wife violated the terms of the MDA, and in awarding the husband $12,000 in attorney’s fees. We affirm the grant of leave to amend the petition and the finding that the wife violated the terms of the MDA. However, the award of  attorney’s fees is vacated and the cause remanded for reconsideration of this issue.

State of Tennessee v. Daniel Potin
W2005-01100-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris B. Craft

The appellant, Daniel Potin, was found guilty by a jury in the Shelby County Criminal Court of possession of .5 grams or more of cocaine with the intent to sell. The trial court sentenced the appellant to nine years in the Tennessee Department of Correction and imposed a fine of $20,000.  On appeal, the appellant challenges the sufficiency of the evidence, the trial court’s designation of a witness as an expert, and the fine imposed. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

State of Tennessee, ex rel. Willie Beard v. Stacey Hannah
W2005-02350-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Robert W. Newell

This is a Title IV child support case. The State appeals from the trial court’s Order refusing to set support because the Petitioner did not have legal custody of the child at the time she received public assistance from the Department of Human Services, nor was the biological parent given notice that she would have to reimburse the Department of Human Services for moneys spent on behalf of her son when she placed him in the custody of the Petitioner. We reverse and remand.