Opinions

Donald Tangwall vs. Patrick Stapleton
E2001-02121-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Plaintiff filed a Petition in bankruptcy and subsequently filed suit in Circuit Court, claiming damages against defendants. The Trial Court dismissed plaintiff's action. On appeal, we affirm.

Guy R. Jenkins, et al vs. Dan Gibbs
E2001-01802-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Sharon J. Bell
After a dispute arose over the ownership of 1000 shares of stock in City Bonding Company ("City Bonding"), Guy Jenkins and Aubrey Allen Jenkins ("Plaintiffs") sued Dan Gibbs ("Defendant") seeking a determination as to how many shares of stock were owned by the various parties. Guy Jenkins also claimed Gibbs unlawfully procured the breach of a contract Guy Jenkins had with City Bonding. The trial court granted Gibbs summary judgment on the unlawful procurement of breach of contract claim. After a trial on the remaining issues, the trial court determined Gibbs owned 490 shares of stock, Guy Jenkins owned 255 shares, and the remaining 255 shares were unissued. All parties appealed the trial court's determination with respect to ownership of the stock. Guy Jenkins also appealed the granting of summary judgment on his claim against Gibbs for unlawful procurement of breach of contract. We vacate the summary judgment granted to Gibbs and affirm the judgment in all other respects.

Kelly Dean and Lara Lynn Brisco vs. National Union Fire Insurance Company of Pittsburgh, Pennsylvania
E2001-02311-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Richard E. Ladd
In this declaratory judgment action, the trial court held operation of the company's vehicle by the wife of the employee was covered under company's insurance policy. On appeal, we affirm

Mary Trew, d/b/a Trew's Wrecker vs. David Haggard
E2001-02183-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Russell E. Simmons, Jr.
Trew's Wrecker Service and the Roane County Sheriff's Department entered into an oral contract regarding towing and storage services for vehicles seized by the Sheriff's Department in drug interdiction and DUI enforcement matters. The parties dispute many of the terms of the oral contract, including how much Trew's Wrecker Service was to be paid for towing and storage and when the Sheriff's Department was required to hold a sale of the seized vehicles in order to clear the wrecker service lot. Mary Trew, d/b/a Trew's Wrecker Service ("Plaintiff"), sued the Roane County Sheriff's Department and Sheriff David B. Haggard ("Defendants") for "breach of contract, and benefits conferred." The Trial Court awarded damages based upon a $45 per vehicle towing and storage charge for 83 vehicles. Plaintiff appeals. We affirm.

John Doe v. Commissioner George W. Hattaway of The
2001-02732-COA-R3-CV
Trial Court Judge: Billy Joe White

Darin Montgomery v. Wal-Mart Stores, Inc.
M2001-01718-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr., Sp. J.
Trial Court Judge: Thomas Gray, Chancellor
In this appeal, the employer-appellant insists (1) the trial court erred in finding the employee suffered a work related injury, (2) the award of permanent partial disability benefits is excessive, (3) the trial court erred in awarding payment of unauthorized medical expenses, and (4) the trial court erred in commuting the award to a lump sum. As discussed below, the panel has concluded the judgment should be affirmed.

Charles Thomas Huff v. Savage Zinc, Inc (Now Known As
M2001-01890-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: John H. Gasaway, Judge
The trial court found that the plaintiff had sustained a compensable injury and awarded him eighty percent (8%) permanent partial disability to the body as a whole. We reverse the judgment of the trial court and remand this case for further proceedings.

Glenn Edwin Bilyeu v. Sherwin Williams Company
M2001-01338-WC-R3-CV
Authoring Judge: Byers, Sr. J.
Trial Court Judge: John Gasaway, III, Judge
The defendant appeals the trial judge's decision that the plaintiff suffered the injury of occupational asthma in the course and scope of his employment which resulted in a 75 percent permanent partial disability to the body as a whole. We affirm the judgment of the trial court.

State of Tennessee v. Antonio Rico Walls
M1998-00358-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John H. Gasaway, III

The defendant, Antonio Rico Walls, was convicted of the sale of over .5 grams of cocaine within 1000 feet of a school, in violation of the Drug-Free School Zone Act, and appealed the conviction. Subsequently, he pled guilty to three additional counts of the indictment alleging the same offense, and was sentenced to concurrent fifteen-year sentences for each offense. The pleas of guilty purported to reserve, as a certified question, the claim that the Drug-Free School Zone Act is unconstitutional. We conclude that it is not, and, further, that the evidence at the defendant's trial was sufficient to support his conviction. Accordingly, we affirm the judgments of the trial court.

Carolyn Jones v. TennCare
M2001-01065-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Irvin H. Kilcrease, Jr.
Beginning in 1994, the Bureau of TennCare ("TennCare") provided insurance coverage for home health services for one its enrollees, Carolyn Jones ("Jones"), who is bed-ridden due to rheumatoid arthritis. In 1997, TennCare denied Jones coverage for home health services, and Jones appealed this determination. The Administrative Law Judge held TennCare was not required to provide coverage for home health services to Jones because the services are not medically necessary for her. Under the Uniform Administrative Procedures Act, Jones appealed the administrative agency's determination to the Chancery Court of Davidson County ("Trial Court") which affirmed the determination. Jones now appeals to this Court. We affirm.

Jerry Walker v. Ricky White
M2001-02438-COA-R9-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: John D. Wootten, Jr.
This is an interlocutory appeal by permission which raises issues of first impression concerning the federal Right to Financial Privacy Act and the Tennessee Financial Records Privacy Act. We first must determine whether state courts retain concurrent jurisdiction to resolve claims brought against a bank by its customer arising under the federal Act. We hold that federal court jurisdiction under the Act is permissive. State courts therefore retain concurrent jurisdiction over such claims. We further hold that the Tennessee Financial Records Privacy Act is not applicable to federal agencies which issue subpoenas for bank records. The furnishing of information pursuant to a subpoena issued by a federal agency is governed in Tennessee by the federal Right to Financial Privacy Act. Accordingly, we affirm the trial court's order denying summary judgment on these issues to the Defendant.

State of Tennessee v. Michael Williams
W2001-01925-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. C. Mclin

The defendant, Michael Williams, was convicted of rape, a Class B felony, and sentenced to thirty years in the Tennessee Department of Correction as a violent offender. In his appeal, he argues that the evidence at trial was insufficient to support his conviction for rape. However, we disagree and affirm the judgment of the trial court.

State of Tennessee v. Allen Jean Stephens
W2001-01351-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge William B. Acree

Allen Jean Stephens appeals from his Weakley County Circuit Court conviction of Class D felony theft of property. Stephens claims in this appeal that the lower court erred in admitting the telephone records of the business that the defendant defrauded in the course of committing his crime. Because we hold that these records were erroneously but harmlessly admitted, we affirm.

State of Tennessee v. LaQuenton Monger
W2002-00321-CCA-RM-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John P. Colton, Jr.
The appellant, LaQuenton Monger, was convicted by a jury in the Shelby County Criminal Court of one count of first degree felony murder by aggravated child abuse and one count of aggravated child abuse, for which convictions the trial court imposed concurrent sentences of life imprisonment and twenty years imprisonment in the Tennessee Department of Correction. The appellant filed an appeal, and this court reversed the trial court's judgments on August 27, 2001. Specifically, we reversed the judgment in the aggravated child abuse case on the basis that constitutional prohibitions against double jeopardy preclude dual convictions of first degree felony murder by aggravated child abuse and aggravated child abuse. We reversed the judgment in the first degree felony murder case due to the trial court's failure to instruct the jury on lesser-included offenses. In light of these dispositions, the State filed an application for permission to appeal to our supreme court pursuant to Tenn. R. App. P. 11. The supreme court granted the State's application for the sole purpose of remanding the cases to this court for reconsideration in light of its November 29, 2001 opinion in State v. Godsey, 60 S.W.3d 759 (Tenn. 2001). Upon reconsideration, we reinstate the judgment of the trial court in the aggravated child abuse case and leave undisturbed our original disposition of the felony murder case.

State of Tennessee v. Brian Keith Gilmer
E2001-01474-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge O. Duane Slone

Defendant, Brian Keith Gilmer, pursuant to a negotiated plea agreement, pled guilty to four counts of rape, Class B felonies, and five counts of rape of a child, Class A felonies, in Case No. 6975 in the Circuit Court of Jefferson County. On the same date, he pled guilty to five counts of rape, Class B felonies, in Case No. 8161 in the Circuit Court of Sevier County. The victim in all counts, in both counties, was Defendant's stepdaughter. Sentencing was to be determined by the trial court (which was the same for both counties), but the negotiated plea agreement was structured such that the total effective sentence would not be less than 15 years or more than 50 years. Defendant also pled guilty to other criminal offenses as part of the plea agreement, but these are not relevant to this appeal. Although Defendant filed a notice of appeal indicating that he was appealing the sentences imposed in both the Jefferson and Sevier County cases, in effect, this appeal challenges only the length of sentences of the Class A felonies in the Jefferson County case, and the fact that one Class A felony was ordered to be served consecutively to the other sentences. We affirm the judgments of the trial court.

State of Tennessee v. Sean A. Turner, alias; Sean Andre Turner
E2001-01773-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ray L. Jenkins

Defendant, Shaun A. Turner, alias Shaun Andre Turner, appeals from the trial court's order revoking his probation and ordering him to serve two consecutive sentences in the Department of Correction. After reviewing the record, we affirm the judgment of the trial court.

The Evidence Is Otherwise. Tenn. Code Ann._ 50-6-225(E)(2). Stone v. City of Mcminnville, 896
E2001-01260-WC-R3-CV
Authoring Judge: Byers, Sr. J.
Trial Court Judge: Billy Joe White, Chancellor
The plaintiffs appeal the trial judge's decision that they failed to carry their burden of proof with respect to the decedent's heart attack being an injury by accident arising out of and in the course of his employment for the company insured by the defendant. We affirm the judgment of the trial court.

State of Tennessee v. William C. Bentley
M2001-01521-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Seth W. Norman

Defendant, William C. Bentley, was convicted by a Davidson County jury of attempted aggravated robbery. In this appeal, he challenges the sufficiency of the evidence to sustain the conviction, and argues that the trial court committed reversible error by admitting hearsay testimony. After a thorough review of the record, we affirm the judgment of the trial court.

State of Tennessee v. Floyd Earl Rayner, III
M2001-00971-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Floyd Earl Rayner, III appeals from his five convictions of rape of a child and five convictions of aggravated sexual battery, claiming that the trial court (1) failed to fulfill its duty as the "thirteenth juror" and (2) erred in its sentencing determinations by not applying mitigating factors in establishing the length of his sentences and in ordering partial consecutive service of the sentences. Because we hold that the trial court discharged its "thirteenth juror" responsibility and that the sentencing issues have been waived, we affirm.

State of Tennessee v. Erick Darnell Bailey
M2001-01974-CCA-MR3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Seth W. Norman

The defendant, Erick Darnell Bailey, appeals his first-degree murder convictions imposed following a jury trial in the Davidson County Criminal Court. The defendant was tried and convicted on both felony-murder and premeditated-murder counts in the indictment, and the  trial court merged the convictions into a single conviction of first-degree murder. The single issue raised on appeal is whether the convicting evidence is sufficient to support the verdicts. We modify the conviction for premeditated murder to second-degree murder and affirm the conviction for first-degree, felony murder. The second-degree  murder conviction merges into the felony murder conviction.

State of Tennessee v. Kenneth A. Phillips a/k/a Kenneth Arnold Phillips a/k/a Kenny Dent
W2001-01831-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph H. Walker, III
The defendant was convicted by a Tipton County jury of theft of property valued over $1000, a Class D felony. After a sentencing hearing, he was sentenced as a Range II multiple offender to five years in the Department of Correction. On appeal, the defendant contends that (1) the evidence is insufficient to support the jury's verdict, (2) the trial court erred in admitting evidence of a prior bad act, (3) the defendant was identified from an impermissibly suggestive lineup, and (4) the defendant was never informed of the existence of a possibly exculpatory videotape. We affirm the judgment of the trial court.

State of Tennessee v. Matric Becton & Antonio Sykes
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Joseph B. Dailey
The Defendants, Matrin Becton and Antonio Sykes, were convicted by a jury of first degree premeditated murder, especially aggravated robbery, and two counts of especially aggravated kidnapping. Both defendants were sentenced by the same jury to life without the possibility of parole for the first degree murder. After a sentencing hearing, the trial court sentenced both defendants to twenty-five (25) years for each of the remaining counts and ordered all the sentences to run consecutively, for effective sentences of life without parole plus seventy-five (75) years. On appeal, Defendant Sykes contends that the evidence is insufficient to support the jury’s verdict and that the trial court erred in allowing testimony concerning a statement made by the victim prior to his death. Defendant Becton argues that the trial court improperly denied his motion to sever, erred in allowing certain photographs into evidence, erred in charging the jury both in the guilt and sentencing phases, and erred in imposing consecutive sentences. We affirm the judgments of the trial court.

State of Tennessee v. Matric Becton & Antonio Sykes - Concurring
W1999-00581-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Joseph B. Dailey

I join with the majority on all issues with the exception of their holding that the hearsay statement of the victim was admissible. The majority finds that the deceased victim's statement "that he was tired of the lifestyle, being in that environment, and he didn't want to be a part of it anymore" was admissible to establish the victim's existing state of mind.

James Kelley v. John Cage
M2001-00702-COA-R3-CV
Authoring Judge: Judge Jane W. Wheatcraft
Trial Court Judge: Barbara N. Haynes
This appeal involves the granting of a summary judgment motion in a medical malpractice case. The issue is whether the trial court properly granted summary judgment on the basis that there was never a physician/patient relationship between the decedent, Lillie Donnette Kelley, and Dr. John Cage, a cardiologist, and an employee of Mid-State Cardiology Associates, P.C..

Patrick McGee v. Timothy Best
M2001-01365-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
This case involves the termination of membership and employment of a member of an LLC. The terminated member and employee filed suit against the LLC and the other members thereof alleging breach of contract, breach of covenant of good faith and fair dealing, breach of fiduciary duty, civil conspiracy, unfair competition, fraud, and misrepresentation. The trial court granted defendants' motion for judgment on the pleadings as to all claims except the claim for breach of contract and breach of the covenant of good faith and fair dealing. Thereafter, the trial court granted defendants' motion for summary judgment on the remaining two claims. Plaintiff appeals. We affirm, modify, reverse in part, and remand.