State vs. Kevin Washington
W2000-02736-CCA-R3-PC
Authoring Judge: Judge David G. Hayes
The Appellant, Kevin Washington, appeals from the dismissal of his petition for post-conviction relief by the Madison County Circuit Court. On appeal, the Appellant contends that trial counsel never informed him that his "packaged" plea agreement included a plea of guilty to Class C theft of property and, therefore, his plea was involuntarily entered. We find this contention without merit. The judgment of the post-conviction court is affirmed pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

LeCroy-Schemel vs. John Cupp, Sheriff
E2000-00024-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Douglas A. Meyer
An attorney was found in contempt by the Chattanooga City Court Judge during proceedings relating to the attorney's client's conviction for violation of a municipal ordinance. The Judge ordered a ten-day jail sentence for the attorney, who was taken into custody and locked in a holding cell. The attorney was able to secure a writ of habeas corpus from the Hamilton County Criminal Court. After the attorney was released, the City Court Judge filed an Order to Appear and Show Cause why the attorney should not be jailed for contempt. The Criminal Court held a hearing at which it heard testimony of the attorney and another witness, and found that the City Court had exceeded its statutory authority by confining the attorney for contempt, that the City Court had not followed procedural requirements for punishing contempt, declared a section of the Chattanooga City Charter null and void, and dismissed the City Court's Order to Appear and Show Cause. The City of Chattanooga appealed the orders of the Criminal Court. We affirm the actions of the Criminal Court relating to the writ of habeas corpus, affirm the finding that the City Court was without authority to punish criminal contempt by confinement or fine in excess of ten dollars, and modify the judgment to reflect the holding of this Court in Poole v. City of Chattanooga.

Judd's Inc. vs. Dors L. Muir, et al
E1999-01836-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Telford E. Forgerty, Jr.
In this appeal Doris and Allan Muir insist that the Chancellor was in error in not allowing their homestead exemption as to certain funds realized from the sale of real estate to satisfy a judgment previously entered against them. Their attorney, W. Richard Baker, Jr., insists that the Chancellor was in error in not enforcing a lien for his attorney fees that he claimed was properly perfected as to the same funds. We affirm.

Dickson County, Tennessee, v. H. Clyde Jennette, et al.
M1999-00054-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Judge Allen W. Wallace

This case involves the use of certain property in Dickson County in light of a 1988 zoning ordinance which provides that mining and quarrying on this property are permitted as a special exception only. When the county attempted to enjoin the property owners from mining or quarrying their property, the property owners argued that their property was being used as a quarrying operation prior to October 1988 when the city passed the zoning ordinance. Thus, it is the property owners' position that their quarrying operation constitutes a pre-existing nonconforming use and may continue pursuant to both the Dickson County zoning ordinance and Tennessee Code Annotated section 13-7-208(b). In addition, the county enjoined the property owners from hauling rock in violation of a fifteen-ton weight limit on local roads. The property owners argued below that the enforcement of this local rule against them constitutes selective enforcement. The trial court found that the property owners had failed to show a nonconforming use, and it dismissed their claim for selective enforcement. On appeal, we find that the trial court was correct in its conclusion that the property owners' operation was not a nonconforming use at the time of the adoption of the zoning ordinance. In light of that finding, the temporary injunction regarding the fifteen-ton weight limit is dissolved, and the selective enforcement issue does not need to be addressed.

JoeTrammell and Karen Trammell v. George W. Pope, Jr., Individually and d/b/a Achieva Homes
M1999-00886-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancelor Russ Heldman

This appeal arises out of a default judgment rendered against the Appellant. The underlying cause of action was for the breach of a  construction contract. After the Appellant did not answer the complaint or otherwise defend the action, the Chancery Court of Williamson County  granted the plaintiffs’ motion for default and entered judgment accordingly.  A subsequent damage hearing was held at which the Appellant did not  appear. The Appellees obtained a judgment for $918,073.15. The  Appellant filed an application to set aside the default judgment which was  denied by the trial court.

William Andrew Dixon v. Donal Campbell, Commissioner Tennessee Department of Correction
M1999-02122-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Chancellor Carol L. McCoy

A prisoner serving a life sentence petitioned the court to order the Department of Correction to restore sentence reduction credits it had deleted from his record after determining that his sentence was to be served without the possibility of parole. The trial court dismissed the petition. We affirm the trial court.

Willie Perry v. Cold Creek Correctional Facility Disciplinary Board, et al.
M1999-01898-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case arises from the decision of the Cold Creek Correctional Facility Disciplinary Board finding the Appellant guilty of attempting to intimidate an employee and being under the influence of alcohol. The Appellant filed a Petition for Common Law and Statutory Writ of Certiorari with the Chancery Court of Davidson County challenging the Disciplinary Board's decision. The trial court affirmed the decision of the Board and dismissed the Appellant's claim.

South Central Tennessee Railroad Authority, et al., v. Andre Harakas, et al.
M1999-00567-COA -R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Donald P. Harris

Plaintiffs, the owner and lessee of property on which a railroad track was located, obtained a temporary injunction prohibiting Defendants, owners of adjacent property, from building a house on what Plaintiffs alleged was their right-of-way. After Defendants presented evidence that Plaintiffs possessed only an easement as needed for railroad operations, rather than a right of-way, the court dissolved the temporary injunction and denied a permanent injunction. Defendants then filed a motion to assess damages and enforce liability of surety on injunction bond pursuant to Tenn.R. Civ. P. 65.05, seeking recovery for the losses resulting from the issuance of the temporary injunction. Defendants appeal the trial court's denial of their motion. We reverse. Tenn. R. App. P. 13 Appeal as of Right; Judgment of the Chancery Court Reversed and Remanded.
 

Nancy D. Bracken, v. Richard Earl, D/B/A Financial Services Company
E2000-00202-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Harold Wimberly

Plaintiff sued to recover monies paid to defendant. Defendant defended on the grounds that the monies were paid to a trust fund for which he was not liable. The Trial Court held the trust had no validity and entered judgment against the defendant. We affirm.

State of Tennessee v. Ricky Raymond Bryan
M1999-00854-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James K. Clayton, Jr.

The defendant, facing a third trial for first degree murder, has filed this interlocutory appeal. The defendant alleges that the trial court erred in disqualifying his counsel because of an appearance of impropriety. We affirm.

State of Tennessee v. Sherman Dunlap
M1999-00325-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John W. Rollins

Sherman Dunlap appeals his sentence after pleading guilty in the Coffee County Circuit Court to facilitation of theft over $10,000, a class D felony. The trial court sentenced the appellant, as a Range II multiple offender, to four years incarceration in the Tennessee Department of Correction, requiring the appellant to serve one year of his sentence in continuous confinement. On appeal, the appellant presents the following issue for review: whether the trial court erred in denying him full probation or, in the alternative, in denying him an opportunity to serve his sentence in periodic confinement. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee v. Sherman Dunlap - Concurring
M1999-00325-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: John W. Rollins

While I concur fully in the judgment of the Court denying the appellant full probation, I do so because the record reflects the appellant has received probation for a number of previous offenses, but has yet to be rehabilitated. Thus, “measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the [appellant].” See Tenn. Code Ann. §§ 40-35-103(c).  This reason alone amply justifies the denial of probation in this case.

State of Tennessee vs. David Lee and Treva Lee
M1999-02471-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Leonard W. Martin

In this appeal, defendants challenge the sufficiency of the convicting evidence. The defendants were convicted by a Dickson County jury of criminal trespass and fined $50. Upon a review of the record, we find the evidence is sufficient to sustain the convictions. Thus, the judgment of the trial court is affirmed.

State of Tennessee v. Kenneth D. Melton
M1999-01248-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jane W. Wheatcraft

The appellant, Kenneth D. Melton, was convicted by a jury in the Sumner County Criminal Court of disorderly conduct, a class C misdemeanor. The trial court imposed a sentence of thirty days incarceration in the Sumner County Jail. The court then suspended all but five days of the appellant's sentence, placing the appellant on unsupervised probation for the remainder. On appeal, the appellant presents the following issues: (1) whether the indictment provided adequate notice to the appellant of the charged offense; and (2) whether the evidence adduced at trial supports his conviction of disorderly conduct. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State of Tennessee vs. James A. Shively
M1999-01072-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Henry Denmark Bell

Having pled guilty to various counts of aggravated burglary, robbery, auto theft, and theft, the defendant appeals from his sentences. He argues that the trial court improperly imposed consecutive sentences and that his effective twelve-year sentence is therefore excessive. After a de novo review, we affirm the sentences as imposed.

State of Tennessee v. Aaron McFarland - Concurring
W1999-01410-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Arthur T. Bennett

The majority finds the defendant's suppression issue non meritorious under Fifth Amendment analysis. While I do not disagree with the analysis, I believe the factual scenario presented requires review under Sixth Amendment analysis. At both the suppression hearing and at trial, the interviewing officer testified that the defendant "had been arrested the night before by uniformed officers and was in juvenile court." The defendant was interviewed the following morning around 11:00 a.m., after the officer "checked him out of juvenile court" and transported him to the police department's homicide division. I can only assume from these facts that, at the time of the police questioning, the defendant had been charged with the homicide of Terrell Deon Bullard. If this assumption is correct, then adversarial proceedings had been initiated and the defendant's Sixth Amendment, rather than his Fifth Amendment right to counsel, had attached.

State of Tennessee v. Aaron McFarland
W1999-01410-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Arthur T. Bennett

The defendant was convicted of first degree murder and sentenced to life with the possibility of parole. On appeal, he has presented as issues that the trial court should have suppressed his confession and that the evidence was insufficient to sustain his conviction. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Kelly Anne Newmon
W1999-01497-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee Moore

This appeal arises from a guilty verdict returned by a Carroll County jury against the defendant for two counts of delivering less than 0.5 grams of cocaine. On appeal, the defendant challenges her convictions on the basis that the introduction of evidence bolstering the informant's testimony was plain error, and the evidence was not sufficient to support the verdict. After a careful review of the record, we affirm the judgment of the trial court.

Steve Barker v. State of Tennessee
W1999-00544-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Steven Stafford

Petitioner appeals the denial of his petition for post-conviction relief. Prior to entering a guilty plea in the instant case, the petitioner had been sentenced to twelve years for other state convictions and a consecutive 105 months on federal charges. Petitioner entered a plea of guilty to the current charges, which included six counts of theft over $1,000 and one count of burglary, Class D felonies, and nineteen counts of aggravated burglary, Class C felonies. Pursuant to a negotiated agreement, the petitioner received an effective sentence of eighteen years as a Range I, standard offender. The agreement provided that this sentence would be served concurrently with both his prior state and federal sentences. The petitioner now claims that, but for counsel's ineffective assistance, he would not have pled guilty. Following a review of the record, we find trial counsel was not ineffective and affirm the judgment of the trial court.

State of Tennessee v. Patricia Merriweather
W1999-01711-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant pled guilty in 1990 to thirty-two Class A misdemeanors, consisting of violations of the bad check law, and was placed on probation. During the probationary period, which was scheduled to end in 1994, the defendant was to pay restitution and costs. Shortly before the probationary period ended, the defendant signed an agreement, presented by her probation officer, extending indefinitely the probation so that restitution and costs could be paid. The trial court approved this extension. Probation violation reports were filed in 1997 and 1999, the court revoking the probation in 1999. The defendant timely appealed, arguing that the trial court was without authority to extend the probationary period without a hearing and to extend the period indefinitely. Based upon our review, we conclude that the defendant's probationary period ended in 1994, and we reverse the judgment of the trial court.

State of Tennessee v. David Alan Hurst
W1999-01860-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John Franklin Murchison

The defendant appeals his convictions for two counts of aggravated assault and two counts of simple assault and the consecutive five-year sentences imposed for the aggravated assaults. The defendant raises the following issues in this appeal: 1) whether evidence presented at trial was sufficient to sustain the guilty verdicts, and 2) whether the trial court erred by imposing consecutive sentences for the two aggravated assault convictions. We affirm the judgment of the trial court.

State of Tennessee v. Henry Lee Berry
E1999-00704-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge Richard R. Baumgartner

Henry Lee Berry appeals his Knox County conviction for second degree murder. Berry contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erroneously admitted into evidence two recorded 911 telephone calls and an order of protection entered against the appellant by the victim; and (3) the trial court erred by failing to grant a mistrial when evidence of a pending rape charge in Nashville was introduced before the jury. Additionally, the appellant urges adoption of DNA testing on decomposed bodies to positively establish the identity of the victim. Although we conclude that admission of the 911 telephone calls and the order of protection was error, the error was harmless. Moreover, finding no other reversible error of law, we affirm the judgment of conviction entered by the trial court.

State of Tennessee vs. James T. Cooper
M1999-01132-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stella L. Hargrove

The defendant appeals the trial court's revocation of his probation, based on his failing a drug screen and his delinquency in paying court costs. We hold that the record is insufficient to support the trial court's finding of delinquent payments. However, the failing of the drug screen served as a sufficient basis for the revocation. We affirm the trial court's order. .

Tennessee-American Water Company, v. City of Chattanooga, Tennseess, et al.
E2000-00415-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Chancellor Howell N. Peoples

The City of Chattanooga asserted, by counter-claim, that the franchise rights of a state-franchised water company had terminated when the original stated corporate existence of ninety-nine years expired. The Hamilton County Chancery Court found that the water company's franchise was separate from the incorporation, that perpetuity of the franchise is the appropriate interpretation when there exists no limiting language in the franchise grant itself, and that the water company had not trespassed by continuing to operate in Chattanooga past the expiration of the original ninety-nine year grant of corporate existence. The judgment of the Chancellor is affirmed.

Dorothy Taylor v. Senior Citizens Services, Inc.,
W1999-02152-WC-R3
Authoring Judge: Weatherford, Sr. J.
Trial Court Judge: Robert L. Childers, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated _ 5-6- 225 (e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff, Dorothy Taylor, appeals the judgment of the Circuit Court of Tennessee for the 3th Judicial District at Memphis, where the trial court found: (1) that Ms. Taylor failed to give proper notice to her employer regarding her carpal tunnel injury, (2) that if the trial court had found the carpal tunnel injury to be compensable, it would have awarded Ms. Taylor a 1% permanent impairment to each extremity and temporary total disability benefits up to May 7, 1997, (3) that Ms. Taylor had a 1% permanent impairment to the body as a whole as a result of a back injury and awarded a judgment in the amount of $6,43.2, (4) that Ms. Taylor was entitled to open medical benefits for life as they related to the specific back injury she suffered on January 31, 1994, (5) that the defendants were not required to pay for unauthorized medical bills for treatment of Ms. Taylor's back or (6) for the evidentiary deposition of John Howser, M.D. For the reasons stated in this opinion, we affirm the judgment of the trial court. Tenn. Code Ann. _ 5-6-225 (e) (1999) Appeal as of Right; Judgment of the Circuit Court Affirmed. WEATHERFORD, SR. J., in which HOLDER, J., and MALOAN, SP. J., joined. Albert G. McLean, Memphis, Tennessee, for the appellant, Dorothy Taylor . Wm. B. Walk, Jr., Memphis, Tennessee, for the appellees, Senior Citizens Services, Inc. d/b/a Senior Services, and Hartford Insurance Co. MEMORANDUM OPINION The employee, Dorothy Taylor, was forty years old at the time of trial. She has an 11th grade education and later took a course and became a certified nursing assistant. Ms. Taylor worked for Senior Citizens Services, Inc. as a personal care aid from October 17, 1988 until April 27, 1994. Her daily job activities included lifting patients in and out of wheel chairs and putting them in the tub, giving bed baths, making beds, doing some house cleaning, cooking, running errands, and taking vital signs. Prior to her job at Senior Citizens Services, Inc., Ms. Taylor worked for Court Manor Nursing Home for two years where she performed the same job activities. Before working at Court Manor Nursing Home, she worked for a cleaners as a flat iron worker for about seven (7) months. Prior to that time, she and her husband had operated a restaurant lounge from 1983 to 1985 where she handled the paper work, the purchasing and inventory. She also worked behind the bar. Ms. Taylor stated that she had injured her back in 1991, but had recovered after being off work for about three months. She also testified that she hurt her right hip and shoulder in June of 1993, but was only off a few days from that injury. She never received any permanent disability benefits from either prior injury. Ms. Taylor testified that she injured her back on January 31, 1994, when she was putting a patient back to bed. Ms. Taylor had the upper part of the patient's body while another person was holding the patient's legs. When the other person dropped the patient's legs, Ms. Taylor twisted her back and she heard a "pop" in her lower back and it started to hurt "real bad." Pursuant to the company's procedures, Ms. Taylor advised the work schedulers of her injury and they in turn were to inform her supervisor. About two weeks later, Ms. Taylor personally told her supervisor, Mattie Hewlett, about the accident. Ms. Taylor testified that she stayed off work for three days and then attempted to go back to work, but was unable to do so because of back pain. She saw her family doctor, Dr. A. E. Horne, one (1) week exactly from the date of the accident. Prior to this time, she had not been given the names of any workers' compensation approved doctors. Ms. Taylor stayed off work approximately one (1) month after the accident. Senior Citizens Services authorized Ms. Taylor to see Dr. Mark Harriman, who began his treatment of Ms. Taylor in March of 1994. Dr. Harriman testified that: My exam at that time was fairly non-physiologic. I did not think that there was anything going on. She was very histrionic in her presentation. She had pain to light touch, had pain when I checked her deep tendon reflexes. Otherwise, she was neurologically intact. I felt like at that time we should just give her a few days to get ready and go back to work and sent her back to work as of the 22nd of March. Dr. Harriman also stated, "She was very jumpy on exam, exhibited signs of symptom magnification without any real physical exam findings to go along with it." -2-