John Pitt d/b/a Pitt Excavating vs. Tyree Org. Ltd. & Doug Suess Concrete M2001-00115-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Irvin H. Kilcrease, Jr.
This is a declaratory judgment action involving the interpretation and application of an indemnification provision contained in a construction contract. Defendant, Doug Suess d/b/a Doug Suess Concrete (hereinafter "Suess"), appeals from the final order of the trial court granting summary judgment to both plaintiff, John Pitt, II d/b/a Pitt Excavating (hereinafter "Pitt") and defendant, Tyree Organization Limited (hereinafter "Tyree"). We reverse.
Davidson
Court of Appeals
Travelers Indemnity Co. vs. Kenton Freeman, et al M2001-00657-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Ellen Hobbs Lyle
Travelers Indemnity Company [Travelers] filed a complaint for a declaratory judgment respecting its liability to pay UM coverage for the minor child of its policyholder who was divorced from the child's mother, with joint custody having been awarded. Mother was killed in a traffic accident in Alabama; her passenger child was injured. Mother owned and was driving her automobile, and she also had UM coverage. The adverse driver had split liability coverage all of which was paid, in equal parts, to the Administrator of the mother's estate, and to the minor child. Mother's UM carrier paid its entire policy proceeds to her administrator. Travelers objected, inter alia, to the lack of allocation of the proceeds of mother's UM coverage. Travelers' insured, on behalf of his minor child, filed a counter-claim against Travelers for the entire UM coverage, notwithstanding an amount certain had never been determined. The court found that Travelers had never disputed that the value of the minor child's claim exceeded the UM coverage and rendered a summary judgment against Travelers for an amount certain. We vacate and remand.
Davidson
Court of Appeals
Rutherford County vs. Martha Wilson M2000-01382-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Don R. Ash
This appeal involves a dispute over the interpretation of a grant of real property giving a life estate to the grantor's daughter with the remainder to go to the "heirs of her body" and, if at her death there were none, to the grantor's heirs at law. Rutherford County condemned a portion of the property, and the parties dispute apportionment of the condemnation proceeds. The life tenant is still living; therefore, her life estate has not terminated. However, the widow of the life tenant's deceased son claims that she has a one sixth (1/6) interest in the property because her husband owned a vested transmissible interest in the remainder, which passed in part to his widow on his death by intestate succession. The trial court found that Tennessee's statute governing class gifts requires that the son's issue, living at the termination of the life estate, would take his share of the remainder. Therefore, the widow would not be entitled to a portion of the remainder. The widow now appeals to this court. For reasons discussed herein, we affirm the trial court's determination that the widow had no interest in the remainder.
Rutherford
Court of Appeals
State of Tennessee v. Chivous Sirrel Robinson E2001-00865-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner
The defendant, Chivous Sirrel Robinson, was convicted of one count of solicitation to commit first degree murder and one count of second degree murder. He was sentenced to twenty-three years incarceration for the second degree murder conviction and nine years incarceration for the solicitation conviction. The sentences were ordered to run consecutively. In this appeal the defendant argues that (1) the trial court erred in declining to admit at the defendant's request the redacted statement of Toni Hill, the alleged co-perpetrator of the murder, (2) the trial court erred in denying the defense's motion to sever the solicitation count from the substantiative murder count for purposes of trial, (3) the trial court erred in admitting certain photographs of the victim's body, and (4) the trial court erred in ordering consecutive sentencing.
Knox
Court of Criminal Appeals
Kay E. Duncan v. Modine Manufacturing Co., Inc. and Jim E2000-02995-WC-R3-CV
Authoring Judge: John K. Byers, Sr. J.
Trial Court Judge: James B. Scott, Judge
The trial court found that in the current work-related injury the plaintiff sustained an 8 percent permanent partial disability to the body as a whole and a 15 percent permanent partial disability to the body as a whole as a result of an aggravation of her pre-existing depression. The plaintiff had previously sustained a work-related carpal tunnel injury and received an award of 35 percent for the injury, which was stipulated to convert to 17.5 percent. The trial court found the plaintiff's current 95 percent disability coupled with her pre-existing right arm condition rendered her permanently and totally disabled in accordance with Tennessee Code Annotated _ 5-6-27(4)(A)(i). The trial court assessed 82.5 percent of the award to the defendant employer and the balance to the Second Injury Fund. We affirm the judgment of the trial court and remand the case to the trial court for entry of such orders as are necessary to carry out the judgment.
Mario Ricky Orlando Printis appeals from his convictions of driving under the influence and evading arrest. He questions the sufficiency of the evidence that he committed Class D felony evading arrest, as opposed to the Class E form of that crime, and he complains that the trial court sentenced him too harshly. Because we are unpersuaded, we affirm the convictions and sentences imposed. Due to an omission from the DUI judgment form, however, we modify that judgment to correspond with the lower court's pronouncements at the sentencing hearing.
Obion
Court of Criminal Appeals
Tony Makoka v. Wendy Makoka-Mhlanga M2001-00363-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
A prisoner filed a petition to enforce an agreed order that granted him visitation rights with his minor daughter. The child's mother asked the trial court to dissolve the agreed order. The court found that it was not in the best interests of the child to compel her to visit her father in prison, dissolved the agreed order, and enjoined the father from engaging in activities that amounted to harassment of the mother. We affirm the trial court.
Davidson
Court of Appeals
State of Tennessee v. Danny Davidson W2001-00118-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge William B. Acree
Defendant was convicted of attempted manufacture of methamphetamine. On appeal, defendant submits that the evidence was insufficient to support the conviction, and the trial court erred in not charging the jury on facilitation. We conclude the evidence was sufficient to uphold the conviction, and defendant was not entitled to an instruction on facilitation. We affirm.
The petitioner was convicted of possession of a controlled substance with intent to sell, and his conviction was affirmed on direct appeal. In his petition for post-conviction relief, he asserted that trial counsel was ineffective. The post-conviction court dismissed the petition, following a hearing. We affirm the order of the post-conviction court.
Carroll
Court of Criminal Appeals
Travis Poole v. State of Tennessee W2001-01196-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Roy B. Morgan, Jr.
In his petition for post-conviction relief, petitioner alleges that he received ineffective assistance of counsel, he illegally pled guilty to second degree murder, and his guilty plea was not made knowingly and voluntarily. The trial court dismissed the petition. We affirm.
Madison
Court of Criminal Appeals
State of Tennessee v. Winfred Lee Faulcon W2001-01153-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Lee Moore
The Appellant, Winfred Lee Faulcon, was convicted after a trial by jury of two offenses of possession of a Schedule VI controlled substance, marijuana, with intent to sell, which stemmed from events that occurred on October 21st and November 16th of 2000. Faulcon received two consecutive eighteen-month community corrections sentences with nine months of continuous confinement in the county jail. On appeal, Faulcon raises the following issues for our review: (1) whether the State's action of releasing a witness which the State had subpoenaed for trial constituted misconduct when the witness thereafter became unavailable to the defense; (2) whether the evidence was sufficient to support his convictions; (3) whether the two charges against Faulcon should have been considered as one continuing criminal enterprise and thus, would have resulted in the imposition of only one sentence; (4) whether the trial court erred in imposing a sentence in excess of the minimum necessary for class E felonies; and (5) whether the trial court erred in not imposing an alternative non-incarcerative sentence for the entire period. After a review of the record, we find that Faulcon's issues are without merit. Accordingly, the judgment of the Dyer County Circuit Court is affirmed.
The Defendant was indicted for two counts of promoting prostitution and for two counts of patronizing prostitution. Following a bench trial, the Defendant was convicted of two counts of attempting to patronize prostitution, a Class C misdemeanor; sentenced to thirty days suspended; and fined $50.00 for each count. The Defendant now appeals, arguing the following: (1) that the evidence is insufficient to support the convictions; (2) that the conduct by law enforcement in this case was so outrageous as to constitute a defense; (3) that a fatal variance exists between the indicted charges and the evidence presented at trial; (4) that the trial court erred in failing to suppress the audio and video tape evidence that was introduced at trial; and (5) that the trial court erred in denying the Defendant's motion to seal the audio and video tape evidence in this case. Concluding that the evidence is insufficient to support the convictions, we reverse the judgment of the trial court and dismiss the charges against the Defendant.
Roane
Court of Criminal Appeals
Erica Slaughter vs. Rosetta Rowe E2001-00840-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Samuel H. Payne
Erica R. Slaughter ("Slaughter") sued Rosetta Rowe ("Rowe") for slander and harassment after an alleged physical altercation precipitated by Slaughter's affair with Rowe's husband. After the physical altercation, Slaughter filed assault charges against Rowe leading to her arrest. The assault charge was eventually dismissed. Rowe filed a counter-claim for malicious prosecution. Each party testified at trial to her version of the events. The Trial Court concluded neither party carried her burden of proof on her claim and dismissed the entire lawsuit. Rowe appeals, and we affirm.
Hamilton
Court of Appeals
State of Tennessee v. Christopher Charles Hall M2001-00599-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.
The defendant pled nolo contendere to reckless homicide, a Class D felony. The defendant contends the trial court erred in refusing to grant him full probation and sentencing him to two years of split confinement, with six (6) months to be served in the county jail and the remainder served on probation. Due to the reckless nature of the killing, involving alcohol use simultaneous with the handling of weapons, we conclude the trial court did not erroneously sentence the defendant to a two-year sentence involving some form of confinement. We affirm the defendant's sentence imposed by the trial court.
Rutherford
Court of Criminal Appeals
Steven Bohanon, et al vs. Jones Bros., Inc. M1998-00954-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Ernest B. Pellegrin
This appeal involves a property damage claim arising from blasting activities incident to the construction of improvements to State Highway 52 in Macon County. Two neighboring property owners filed suit against the contractor responsible for the blasting in the Circuit Court for Macon County seeking actual and punitive damages. A jury returned a verdict for the contractor, and the trial court denied the property owners' post-trial motions. The property owners assert on this appeal that the trial court erred by permitting the introduction of incompetent evidence regarding compliance with the Tennessee Blasting Standards Act of 1975 and by failing to give a promised curative instruction. They also challenge the evidentiary support for the verdict. We have determined that the trial court did not commit reversible error either by admitting the evidence regarding the contractor's seismic monitoring or by overlooking the requested curative instruction. We also decline to second-guess the verdict to the extent that it rested on an assessment of the property owners' credibility regarding the nature and extent of the damages caused by the blasting. Accordingly, we affirm the judgment.
Macon
Court of Appeals
Christy Bauer vs. William Bauer M2001-00266-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Russell Heldman
In this divorce case, the Trial Court awarded custody of the child of the parties to the mother, and awarded attorney fees to the mother. Father has appealed these awards. We affirm.
Williamson
Court of Appeals
Thomas Dyer v. TDOC M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Irvin H. Kilcrease, Jr.
Davidson
Court of Appeals
Thomas Dyer v. TDOC M2001-01446-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: William C. Koch
Davidson
Court of Appeals
Sylvester Young v. Leah Barrow M2001-00876-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Marietta M. Shipley
This appeal arises out of a minor intersection accident. The complaints of the driver and passenger of one of the motor vehicles against the driver of the second motor vehicle were consolidated in the Circuit Court for Davidson County. The trial court granted a directed verdict against the plaintiff driver at the close of the plaintiffs' proof. Thereafter, the plaintiff driver filed a second lawsuit against the defendant driver and her insurer. The trial court dismissed the second suit on the ground of res judicata and granted the insurer's motion for a judgment on the pleadings. The plaintiff driver has perfected this appeal. We affirm the dismissal of his second complaint.
Davidson
Court of Appeals
Jeffrey Haithcote v. Donal Campbell M2001-01828-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol L. Mccoy
A prisoner convicted of numerous crimes filed a Petition for Declaratory Judgment, arguing that the Department of Correction had erred in its calculation of his sentence expiration date, and that he was entitled to be released. The Department stood by the correctness of its calculations. The petitioner's sentence expired during the course of the proceedings, and he was released. The trial court then dismissed the petition as moot. We affirm.
Davidson
Court of Appeals
Nicole Keeler v. Michael Keeler M2001-00684-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Carol A. Catalano
In this divorce case, the trial court awarded the parties joint custody of their minor children, with primary physical custody awarded to the father. The mother contends on appeal that she is the more fit parent and should have been given primary custody. We affirm the trial court.
Montgomery
Court of Appeals
Tony Makoka v. Howard Cook M2001-01013-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Davidson
Court of Appeals
Tony Makoka v. Howard Cook M2001-01013-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Ellen Hobbs Lyle
Davidson
Court of Appeals
Jack Charles Blankenship v. Donal Campbell, et al M2001-01014-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Carol L. Mccoy
This appeal involves a dispute between a prisoner and the Tennessee Department of Correction regarding the prisoner's sentence credits and eligibility for parole. The prisoner filed a petition for declaratory judgment in the Chancery Court for Davidson County requesting the correction of his sentence and an immediate parole hearing. The Department filed a motion for summary judgment based on laches. When the prisoner failed to respond to the motion, the trial court granted the summary judgment in accordance with Davidson County Local R. 26.04(c), (f). Thereafter, the trial court denied the prisoner's motion to set aside the summary judgment, and the prisoner has appealed. We have determined that the summary judgment must be vacated because the Department's motion and supporting affidavit do not demonstrate that it is entitled to a judgment on its laches defense as a matter of law.
Davidson
Court of Appeals
Lisa Davis v. Charles Jensen M2001-00973-COA-R3-CV
Trial Court Judge: Alfred L. Nations
Appellant, an incarcerated prisoner in the Department of Corrections of California, appeals the action of the Juvenile Court of Williamson County in terminating his parental rights to his biological child. He refused to participate in the termination hearing by means of telephonic communication as authorized by the trial court demanding, instead, that the trial court either continue the case until after his release from confinement, or have him transported from California to Williamson County for personal participation. The trial court held that he waived his right to participation in the termination proceedings and terminated his parental rights. We affirm the trial court.
