State of Tennessee v. Kenneth M. Holliday
02-04164-02-04816
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge James C. Beasley, Jr.

The Appellant, Kenneth M. Holliday, appeals the sentencing decision of the Shelby County Criminal Court. On appeal, Holliday argues that the trial court erred by refusing to grant his request for alternative sentencing. After review of the record, we affirm the judgment of the trial court.

In the Matter of S.L.R., et al. Children Under 18 Years of Age
M2004-01565-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge John P. Hudson

This case involves a lengthy and protracted attempt by the Department of Children's Services and numerous other social services agencies to assist the biological parents of five children with creating an acceptable environment for the children. After five years and repeated efforts, the Department of Children's Services filed a petition to terminate the parental rights of mother and father alleging the grounds of abandonment by failure to provide support, abandonment by failure to provide a suitable home, failure to substantially comply with the permanency plans, and persistent conditions. The department also alleged that termination of the parental rights was in the best interest of the children. Following a hearing on the petition, the juvenile court entered an order terminating the parental rights of the natural parents. The mother of four of the children and the father of all five children filed an appeal to this Court. After reviewing the entire record, we affirm.

Jeffrey A. Utley v. Ricky J. Bell, Warden
M2004-00712-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Jeffrey A. Utley, appeals from the dismissal of his petition for writ of habeas corpus. The trial court found that the petition did not set forth grounds which would entitle the Defendant to habeas corpus relief. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Donna Mulhern v. Pulte Homes
W2004-01488-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge D'Army Bailey

Appellant/Homeowner appeals from the trial court’s grant of summary judgment in favor of Appellee/Homebuilder. Appellant/Homeowner sued Appellee/Homebuilder on theories of faulty installation and construction of Appellant/Homeowner’s roof and under the Tennessee Consumer Protection Act. The trial court found that Appellant/Homeowner’s claims were time barred under both T.C.A. §28-3-202 and T.C.A. §47-18-110. We affirm.

Roy L. Tidwell, et al., v. City of Memphis
CH-01-2221-1
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Walter L. Evans

The City of Memphis promulgated an On-the-Job Injury Program to handle claims filed by city employees seeking benefits for on-the-job injuries. Thirteen firefighters and one police officer filed applications for benefits with the city. When the city denied the applications, the employees filed appeals to the On-the-Job Injury Appeals Panel which affirmed the city’s denial of benefits. Each employee appealed the panel’s determination to the Chancery Court of Shelby County by filing a Petition for Writ of Certiorari seeking review under a statutory writ of certiorari or, in the alternative, a common law writ of certiorari. The chancellor reversed the panel’s decision and held that, pursuant to section 27-9-114 of the Tennessee Code, proceedings before the panel are subject to the contested case procedures set forth in the Tennessee Uniform Administrative Procedures Act. In addition, the chancellor held that, pursuant to section 27-9-114 of the Tennessee Code, judicial review of the panel’s decision is neither by common law or statutory writ, but review must be conducted in accordance with section 4-5-322 of the Tennessee Code. The city appealed the chancery court’s ruling to this Court arguing that the chancellor erred in applying section 27-9-114 of the Tennessee Code to the panel. We reverse the chancery court’s ruling.
 

Earl N. Mullins v. Quebecor World of Kingsport,
E2004-01241-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: John K. Wilson, Judge
The trial court awarded the employee 26 percent permanent partial disability to the body as a whole. The employee has appealed insisting the award is not adequate. The judgment is affirmed.

Velma Keller v. Snap-On, Incorporated
E2003-02379-WC-R3-CV
Authoring Judge: Roger E. Thayer, Sp. J.
Trial Court Judge: G. Richard Johnson, Chancellor
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the employee 5 percent permanent partial disability to her left arm and 6 percent permanent partial disability to her right arm as a result of carpal tunnel syndrome injuries. Employer contends the awards are excessive. The judgment is affirmed.

State of Tennessee v. Harry Jamieson
W2003-02666-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Otis Higgs, Jr.

The appellant, Harry Jamieson, was convicted by a Shelby County jury of one count of aggravated robbery and two counts of aggravated assault. Following a hearing, the trial court sentenced the appellant to an effective sentence of nine years in the Tennessee Department of Correction. The appellant now appeals, challenging the sufficiency of the evidence and the sentence imposed by the  ial court. In light of the United States Supreme Court’s decision in Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), we modify the appellant’s sentence for aggravated robbery to eight years and the sentences for aggravated assault to three years each, for an effective sentence of eight years incarceration. We otherwise affirm the judgments of the trial court.

State of Tennessee v. Romelus Caraway
W2004-00462-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris B. Craft

The Defendant, Romelus Caraway, was indicted for felony Escape. A Shelby County Jury convicted the Defendant of the indicted offense, and the trial court sentenced the Defendant to six years, after it determined the Defendant was a career offender. On appeal, the Defendant contends that the trial court erred when it denied him a new trial because: (1) the indictment against the Defendant was fatally defective and the trial court allowed the State to use this defective indictment to prove essential elements of the offense for which he was charged; and (2) the evidence is insufficient to sustain his conviction. Finding no reversible error, we affirm the trial court’s judgment.

IN THE MATTER OF N.P., W.N., AND C.N., Children Under the Age of 18 Years
W2004-00345-COA-R3-PT
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Rachel J. Anthony

This appeal involves the termination of the parental rights of Mother and Father to their children. After a hearing, the Lauderdale County Juvenile Court terminated Mother’s parental rights over W.N. and C.N. on the grounds of abandonment for failure to support and severe child abuse. Further, the trial court found that termination of Mother’s parental rights is in the best interest of the children. Mother now seeks review by this Court, and we affirm.
 

Miko T. Burl v. State of Tennessee
W2004-00327-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bernie Weinman

The Petitioner, Miko T. Burl, was convicted of aggravated assault, aggravated burglary, and especially aggravated robbery, and the trial court sentenced him to an effective sentence of twenty-five years. On direct appeal, this Court vacated the Petitioner’s aggravated assault conviction, but affirmed all of the Petitioner’s other convictions. The Petitioner subsequently filed a petition for post-conviction relief alleging, among other things, ineffective assistance of counsel. After a hearing, the post-conviction court dismissed the Petitioner’s petition. On appeal, the Petitioner contends that the post-conviction court erred because the Petitioner’s trial counsel was ineffective.  Finding no reversible error, we affirm the judgment of the post-conviction court.

In the matter of B.A.L. and A.E.L.
W2004-00826-COA-R3-JV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Special Judge Herbert J. Lane

This is a child custody case. Father/Appellant appeals from the trial court's Order, which denied Father/Appellant's Petition to change custody from the minor children’s Mother to Father. Finding that there is not a material change in circumstances to warrant a change of custody, we affirm.
 

Custom Land Development, Inc. v. Town of Coopertown and Coopertown Board of Zoning Appeals
M2003-02107-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Ross H. Hicks

This is a zoning case. The appellant landowner owns a tract of land that it sought to resume using as a sanitary landfill. The appellees are the newly-incorporated town in which the landfill is located and the town’s zoning board. In 1996, the landowner and the county in which the town and landfill are located resolved a dispute in which the landfill was deemed a legally permitted nonconforming use under the county zoning ordinance. In 2002, the landowner sought a building permit from the town planning commission. The town planning commission refused to grant the permit until the landowner obtained a determination from the town zoning board that the landfill was a legally permitted non-conforming use under the town’s newly-enacted zoning ordinances. The town zoning board determined that the landfill was not a legally permitted nonconforming use under the town zoning ordinances because the landowner had discontinued its nonconforming use of the landfill for longer than one year. Consequently, no permit was issued. The landowner unsuccessfully appealed the ruling to the town zoning appeals board. The landowner then appealed the decision of the zoning appeals board to the trial court. The trial court affirmed the ruling of the zoning appeals board. We affirm, finding that the use of the property as a landfill had been discontinued for more than one year and thus the landfill did not fall within the nonconforming use exception to the town’s zoning ordinance.

State of Tennessee v. Steven Frederick Brinkley
M2003-02419-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Frank G. Clement, Jr.

The Defendant, Steven Frederick Brinkley ¹, was convicted of driving under the influence of an intoxicant ("DUI"), second offense, and violation of the implied consent law. On appeal, the Defendant contends that the evidence presented at trial is insufficient to sustain his conviction for DUI because: (1) he was not in "physical control" of his vehicle; and (2) the parking lot where his vehicle was located was not a premises frequented by the public at large. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. John Whatley
M2003-01773-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

The appellant, John Whatley, was convicted by a jury in the Maury County Circuit Court of aggravated sexual battery. The trial court sentenced the appellant to twelve years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court's actions as thirteenth juror, the specificity of the indictment, the trial court's instructions regarding lesser-included offenses, the trial court's evidentiary rulings, sentencing, and the denial of his motion for new trial. Upon our review of the record and the parties' briefs, we affirm the judgment of the trial court; however, in light of Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), we modify the appellant's sentence to eleven years.

In Re: Estate of Murrey Louis Wakefield, Deceased; AMSouth Bank and Judith Wakefield Sandlin, Co-Executors, Linda Wakefield Melvin and Judith Sandlin Melvin and Judith Sandlin v. Estate of Nancy Wakefield Coleman, et al.
M2003-02537-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This case involves the construction of a will. The will established a trust for the benefit of the decedent's children that provided income for eleven years. At the end of the eleven year term, the trust was to be terminated and the trust assets distributed to the beneficiaries. During the eleven-year term, one of the decedent's children died, leaving no spouse, children or surviving parent. The beneficiary under the deceased child's will sued, seeking that child's share of the trust assets. At issue was whether the trust assets vested in the beneficiaries when the testator died or when the trust terminated. The probate court held that the decedent intended for the trust corpus not to vest in the beneficiaries until the trust terminated, and that the beneficiary under the child's will would not receive her share of the trust assets. We affirm, finding that the language of the will indicates that the testator intended for the corpus of the trust to vest when the trust terminated.

In Re: Conservatorship of Michael Thomas Jones and Timothy Alan Jones Beverly Anne Jones v. Kevin Thomas Jones
M2004-00173-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Frank G. Clement, Jr.

This appeal involves the court's authority to order a parent to pay support for an adult disabled child. The parties were married with two severely disabled adult sons. In 1995, while the parties were still married, the probate court established them as co-conservators for their sons. In June 2001, the mother filed a petition for divorce in circuit court. Neither party informed the divorce court of the conservatorships that had been established for their sons. The circuit court entered a final decree of divorce which incorporated a parenting plan, submitted by the father, which provided for joint custody of the sons. The divorce decree required the mother to pay child support to the father. The divorce decree was not appealed. The mother later filed a motion requesting that the decree requiring her to pay child support be vacated pursuant to Rule 60.02(3), asserting that the divorce court did not have subject matter jurisdiction to require her to pay support for the adult sons. Rather than rule on the mother's motion, the divorce court transferred the case to the probate court, which had before it the conservatorship actions. The father then filed a motion in the probate court asking it to confirm the divorce decree entered by the divorce court. The probate court, in the same order, denied the mother's motion to vacate and granted the father's motion to confirm the decree adopting the parenting plan, determining that the divorce decree entered by the divorce court was valid. The mother now appeals that order. We reverse, concluding that the divorce court did not have subject matter jurisdiction to order the parent to pay support for the adult disabled children, but finding that the probate court is permitted to consider requiring the parents to pay support in the context of the conservatorship proceedings.

Lisa Karen Stowers Smith vs. Mark Edward Smith
E2003-02642-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

Lisa Karen Stowers Hoffer, formerly Smith ("Mother"), filed a petition against her former husband, Mark Edward Smith ("Father"), seeking to modify the provisions of the parties' judgment of divorce, which judgment required Father to pay $1,200 per month in child support. The trial court, finding that, in the most recent three years, Father had had an average annual income of $117,238, held that there had been a substantial and material change in circumstances justifying an order requiring Father to pay child support of $2,803 per month. Father appeals, arguing that the trial court erred in its calculation of his income. We affirm in part and vacate in part.

State of Tennessee, et al. v. 1998 Deliquent Taxpayers
E2004-00008-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor W. Frank Brown, III

This appeal stems from an action filed by the State of Tennessee, in its own behalf and for the use and benefit of Hamilton County and certain municipalities ("the state"), against property owners (collectively "the defendants") who had not paid their 1998 real estate taxes. Following the entry of a default judgment as to certain property, a delinquent tax sale was conducted at which Carlton Ditto and Positive Impact, Inc. ("the purchasers") bought a parcel of land. The purchase, however, was subsequently voided because the Hamilton County Property Assessor ("the Property Assessor") inadvertently reflected someone other than the true owner on its property rolls. As a consequence of this mistake, the true owner of the property was never made a party to the delinquent tax suit. The purchasers sought compensation for interest on the bid amount and the cost of recording the decree of sale. The purchasers also sought damages for the state's negligence. The trial court awarded interest on the bid amount and the cost of recording the decree, but refused to award damages for negligence. The state appeals. We affirm.

Julia V. Lee and Robert Joe Lee v. State of Tennessee
E2004-00851-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Vance W. Cheek, Jr., Commissioner

This appeal stems from an action filed by the State of Tennessee, in its own behalf and for the use and benefit of Hamilton County and certain municipalities ("the state"), against property owners (collectively "the defendants") who had not paid their 1998 real estate taxes. Following the entry of a default judgment as to certain property, a delinquent tax sale was conducted at which Carlton Ditto and Positive Impact, Inc. ("the purchasers") bought a parcel of land. The purchase, however, was subsequently voided because the Hamilton County Property Assessor ("the Property Assessor") inadvertently reflected someone other than the true owner on its property rolls. As a consequence of this mistake, the true owner of the property was never made a party to the delinquent tax suit. The purchasers sought compensation for interest on the bid amount and the cost of recording the decree of sale. The purchasers also sought damages for the state's negligence. The trial court awarded interest on the bid amount and the cost of recording the decree, but refused to award damages for negligence. The state appeals. We affirm.

Jerry Biggs v. Reinsman Equestrian Products, Inc.
E2004-00172-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Jerri S. Bryant

Plaintiff sued for breach of employment contract. The Trial Court found a breach and awarded damages. On appeal we hold the employer had just cause to terminate, and reverse Judgment.

Judy S. Parnell v. APCOM, Inc., et al.
M2003-00178-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Timothy L. Easter

Forty-six year old female employee who had worked for company for seventeen years filed this action against her employer after her position and employment were terminated. She claims her termination constituted a breach of contract and violated the Tennessee Human Rights Act. The trial court dismissed the THRA claim on summary judgment as time barred, holding that the savings statute did not apply to THRA claims. The remaining contract claims were tried and resulted in judgment in favor of the defendants. Plaintiff appeals. We find that the trial court erred by holding the savings statute inapplicable to THRA claims against private employers. We also find that the plaintiff failed to establish a prima facie case of discrimination under the THRA. We affirm the trial court in all other respects.

Louis Hudson Roberts v. Mary Elizabeth Todd, et al.
M2003-02594-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Carol L. McCoy

This is an appeal from a trial court's denial of a motion to set aside a default judgment. We Affirm.

State of Tennessee v. Freddie William Lewis
M2004-00210-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Jane W. Wheatcraft

The appellee, Freddie William Lewis, was indicted for custodial interference after allegations arose that he moved his child to another state in violation of a juvenile court order. The appellee filed a motion to dismiss the indictment, arguing that a default judgment taken against him in juvenile court on the paternity petition, which later formed the basis for the indictment, was void. The trial court dismissed the indictment after a hearing. The State appeals, arguing that the trial court erred in dismissing the indictment. We determine that the trial court erred in dismissing the indictment because the default judgment was not void, but merely voidable. Accordingly, we reverse the judgment of the trial court, reinstate the indictment and remand the case for trial

Deborah B. Hall Byrd v. Danny K. Byrd
W2004-00796-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Martha B. Brasfield

This is an appeal from a decree of legal separation, involving issues of division of  marital property and debt, alimony, and attorney fees. Wife appeals. We affirm in part, reverse in part, and remand.