Ed Hawkins, et al. v. Corliss Singletary
W2006-00911-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna M. Fields

Plaintiffs sought property damages in the amount of $2000 for diminution of value.  A jury awarded Plaintiffs damages in the amount of $500; the trial court denied Plaintiffs’ motion to alter/motion for a new trial. Plaintiffs appeal.  We affirm.

State of Tennessee v. Frank Ramsey
E2005-02595-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge R. Jerry Beck

The Appellant, Frank Ramsey, appeals the sentencing decision of the Sullivan County Criminal Court following his guilty plea to the crime of initiating a false report in violation of Tennessee Code Annotated section 39-16-502(a)(1)(c). Pursuant to the plea agreement, he was sentenced as a Range II multiple offender to a sentence of four years with the manner of service of the sentence to be determined by the trial court. On appeal, the Appellant argues that the trial court erred by denying his request for alternative sentencing. After review of the record, we affirm the judgment of the trial court.

Terry R. Clayton, et al. v. Camille M. Hernandez
M2005-01714-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Barbara N. Haynes

Trial court granted dismissal for failure of service of process although defendant failed to raise the defense timely by motion or in her answer. We reverse.

CNA (Continental Casualty) v. William King, et al.
M2004-02911-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Judge Robert E. Burch

A roofing contractor applied for workers compensation insurance, declaring in his application that he had no employees. He paid a $750 minimum premium, and the insurance company issued a policy. The company subsequently audited his records and assessed an additional premium of over $14,700 for roofers who worked under contract with him or his subcontractors, but who were not covered by their own workers compensation policies. The contractor refused to pay, and the insurance company brought suit. The contractor claimed at trial that all the workers were independent contractors and, thus, that he was not obligated to insure them. The trial court ruled against him. We affirm the trial court.

Mary Taylor-Shelby v. Shelby County Election Commission, et al.
W2006-00921-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor Walter L. Evans

We dismiss this appeal for lack of subject matter jurisdiction under Rule 3 of the Tennessee Rules of Appellate Procedure where the record contains no final order(s) disposing of Plaintiff’s claims.

Jack T. McKinney, et al. v. Jeanetta K. Kimery, et al.
E2005-02510-COA-R3-CV
Authoring Judge: Judge Sharon G. Lee
Trial Court Judge: Chancellor G. Richard Johnson

Jack T. McKinney and his wife Brenda McKinney, obtained a judgment against Charles T. Kimery. After the judgment was recorded in the Register of Deeds’ office, Mr. Kimery and his wife conveyed property they owned as tenants by the entirety to Mr. Kimery’s mother. The McKinneys filed this action to execute upon the property and have it sold to satisfy the judgment lien. The issue presented is whether the McKinneys may levy against the entire interest in the property and have the property sold to satisfy their judgment lien, or whether the McKinneys’ lien attached only to Mr. Kimery’s separate, alienable interest in the property at the time of recording of the judgment lien, which consisted of Mr. Kimery’s right of survivorship. The trial court held that the McKinneys’ judgment lien attached to Mr. Kimery’s survivorship interest in the property at the time the judgment was recorded, and that the subsequent transfer of the property by both tenants by the entirety (the Kimerys) did not augment the interest to which the judgment lien attached, so that the McKinneys continued to hold a lien against the survivorship interest only after the transfer. We affirm the judgment of the trial court.

Alexander C. Wells v. Tennessee Board of Regents, et al. - Dissenting
M2005-00938-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. McCoy

It is elementary that a statute waiving sovereign immunity must clearly do so, and any statute purporting to waive that immunity must be strictly construed. Courts are to determine to what extent and in what ways the Legislature has allowed suits against the State. The statute allowing the suit herein, Tenn. Code Ann. § 49-8-304, authorizes de novo judicial review of the termination or suspension of tenured state university professors. The statute does not mention or refer to backpay or the award of damages. This court cannot imply such a remedy or interpret the statute so as to enlarge the waiver of sovereign immunity beyond that intended by the legislature. 

Alexander Wells v. Tennessee Board of Regents, et al.
M2005-00938-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

Following termination of his employment, a professor at Tennessee State University prevailed in this protracted tenure termination proceeding. On remand to Chancery Court following a successful appeal, the professor filed a Tenn. R. Civ. P. 60.02 motion for relief from the pre-appeal judgment to assert a claim for back pay. The Chancellor granted relief and awarded back pay, which the defendants challenge on two grounds. They contend the court abused its discretion by awarding Rule 60 relief, and because back pay is not  specifically authorized by statute, an award of back pay violates the sovereign immunity doctrine. Finding no error, we affirm.

Kevin Kham Fongnaly v. Vienqrhone Vickie Fongnaly - Dissenting
M2005-01757-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Charles D. Susano, Jr.

I cannot concur in the conclusion of the majority opinion, i.e., that the evidence does not preponderate against the trial court’s judgment designating the husband as the primary residential parent of the parties’ minor children. My review of the record persuades me that the trial court went against the overwhelming weight of the evidence favoring an award of primary custody to the wife for one reason and one reason only, i.e., because of the wife’s admitted adulterous relationship during the marriage. I believe the trial court premised its decision on an incorrect interpretation of the law and/or made a factually-erroneous decision. 

Kevin Fongnaly v. Vienqrhone Vickie Fongnaly
M2005-01757-COA-R3-CV
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor Royce Taylor

In this divorce case, the Trial Court awarded primary custody of the parties’ minor children to the father. The mother appealed and we affirm the Trial Court’s Judgment.

Thomas Studdard v. State of Tennessee
W2004-00500-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Lee Moore

The petitioner, Thomas Studdard, was indicted by the Dyer County Grand Jury on three counts of rape of a child in 2002. The petitioner subsequently pled guilty to one count of incest and was sentenced to eight years as a Range II multiple offender. The petitioner sought a reduction of his sentence in the trial court. The trial court denied the relief sought and the petitioner appealed. On direct appeal, this Court, without reaching the merits of the petitioner’s sentencing issues, vacated the judgment of conviction on the grounds that incest was not a lesser-included offense of rape.  Thomas Poston Studdard v. State, No. W2003-01210-CCA-R3-PC, 2004 WL 370259 (Tenn. Crim. App., at Jackson, Feb. 27, 2004), perm. app. granted, (Tenn. Sept. 7, 2004). Having granted the petitioner’s application for permission to appeal, our supreme court concluded that the trial court had jurisdiction to accept the petitioner’s guilty plea and remanded the case to this Court for consideration of the sentencing issues. Studdard v. State, 182 S.W.3d 283 (Tenn. 2005). On remand, this Court determined that the trial court did not err in denying the petitioner’s motion to reduce his sentence and that the certification requirement of Tennessee Code Annotated section 40-35-503(c) did not violate the petitioner’s equal protection rights.¹ Thomas Poston Studdard v. State, No. W2005-02707-CCA-RM-PC, 2006 WL 287427 (Tenn. Crim. App., at Jackson, Feb. 6, 2006), perm. app. denied, (Tenn. May 30, 2006). While the petitioner’s direct appeal was still pending, the petitioner sought post-conviction relief on the basis of ineffective assistance of counsel². The postconviction court denied the petition and the petitioner sought relief in this Court. After a review of the record, we affirm the judgment of the post-conviction court.

Xavier Todd v. State of Tennessee
W2005-02483-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge W. Fred Axley

The appellant appeals from the trial court’s denial of a motion for nunc pro tunc order. Because such an order is not subject to an appeal as of right under Rule 3 of the Tennessee Rules of Appellate Procedure, we dismiss the appellant’s appeal.

Shannon Walker, et al. v. Rande Lazar, M.D., et al.
W2006-00225-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge D'Army Bailey

The trial court granted Defendants’ motions to dismiss based on the statute of repose applicable to medical malpractice actions. Plaintiffs appeal, asserting the statute of repose was tolled where the action was brought on behalf of their minor children and commenced before December 9, 2005.  We affirm in part, reverse in part, and remand.

Barry Bass v. Larry D. Billeaudeaux, Jr., et al.
W2006-01219-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge John R. McCarroll, Jr.

This is a personal injury action. The trial court awarded summary judgment to Defendants based on the statute of limitations. We reverse and remand for further proceedings.

Gary Nelson v. Norandal USA, Inc., et al.
W2005-02312-SC-WCM-CV
Authoring Judge: Special Judge Joe C. Loser, Jr.
Trial Court Judge: Judge C. Creed Mcginley

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the 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. In this appeal, the employee insists the evidence preponderates against the trial court’s finding that he knew or should have known he had a compensable injury more than a year before the action was commenced. As discussed below, the Panel concludes that the evidence preponderates against the finding of the trial court. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

State of Tennessee v. Billie Joe Welch
E2005-02293-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Billie Joe Welch, was convicted of second degree murder, and the trial court sentenced him to eighteen years in the Tennessee Department of Correction. The Defendant now appeals, contending that: (1) the evidence was insufficient to support his conviction; (2) he received ineffective assistance of counsel; (3) the trial court improperly charged the jury on second degree murder; (4) the trial court erred when it answered a jury question off the record; and (5) the trial court improperly sentenced him. Finding no reversible error, we affirm the judgment of the trial court.

State of Tennessee v. David Earl Nixon
M2005-01887-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Jane W. Wheatcraft

The defendant, David Earl Nixon, pled guilty to two counts of especially aggravated sexual exploitation of a minor (Class B felony) and one count each of marijuana possession and possession of drug paraphernalia (Class A misdemeanors). He was sentenced to consecutive ten-year sentences for the two felony convictions, with the first ten years to be served in confinement and the second ten years on supervised probation. He received concurrent sentences of eleven months and twenty-nine days in confinement for the misdemeanor convictions. The defendant contends on appeal that the trial court erred in requiring him to serve his sentence in confinement rather than on probation and argues that the sentence of confinement constitutes an excessive sentence. We note that the laws concerning sentencing changed on June 7, 2005, and that this defendant did not execute any written waiver to be allowed to be sentenced under the new law. A ten-year sentence on probation under the old law is unauthorized, making the second ten-year sentence on supervised probation illegal. Because the trial judge is required to consider the aggregate sentence imposed, we reverse the sentences imposed and remand for new sentencing. We found no other reversible error.

State of Tennessee v. Michael Lewis
M2005-02279-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Seth W. Norman

Following a jury trial, the Defendant, Michael Anthony Lewis, was convicted of attempted first degree murder. He was sentenced as a career offender to sixty years in the Department of Correction (DOC). On appeal, the Defendant argues that (1) the trial court improperly denied his motion to dismiss for lack of a speedy trial, (2) the evidence was insufficient to support his conviction, (3) the trial court improperly sentenced the Defendant as a career offender, and (4) the trial court committed plain error by admitting a photograph that the State did not produce in response to a defense discovery request. We affirm the judgment of the trial court.

Janalee Wilson v. State of Tennessee
W2005-01801-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Roger A. Page

The Petitioner, Janalee Wilson, appeals as of right from the judgment of theMadison County Circuit Court denying her petition for post-conviction relief. On appeal, the Defendant argues that she received the ineffective assistance of counsel and that her constitutional rights were violated by the involvement of the federal prosecutor in the state proceedings. After review of the record, as to the ineffective assistance of counsel claim, the Petitioner’s brief fails to set forth any specific contentions in support of the issue and, therefore, the issue is waived. As to her challenge to the federal prosecutor’s involvement, this issue is waived due to the Petitioner’s failure to raise it in her direct appeal and, additionally, the argument is without merit. Accordingly, we affirm the judgment of the trial court denying post-conviction relief.

Jennifer Kelly v. Dollar General Corporation
W2005-01891-SC-WCM-CV
Authoring Judge: Senior Judge J. S. (Steve) Daniel
Trial Court Judge: Chancellor Walter L. Evans

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. On appeal, the employee contends that the trial court erred in granting the
employer’s motion for summary judgment with regard to the employee’s back injury claim based
upon the expiration of the statute of limitations. The employee further contends that the trial court
erred in dismissing her carpal tunnel claim at the conclusion of trial after finding that the claim was untimely and that the employee failed to provide the employer with proper notice. We conclude that the trial court erred in granting summary judgment regarding the employee’s claim for her back injury because there are material issues of fact as to when the employee leaned of the nature and extent of her back injury and the relationship of the injury to her work activity. We further conclude that the employee met the statute of limitations and notice requirements with regard to her carpal tunnel injuries. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

State of Tennessee v. Clinton Burns, III
E2004-01632-SC-R11-JV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Ray L. Jenkins

We accepted this appeal to determine whether a juvenile charged with being delinquent by virtue of having committed an offense which would be a felony if committed by an adult is entitled to a jury trial on appeal de novo to circuit court. We answer that question in the negative. Accordingly, we reverse the judgment of the Court of Appeals.

State of Tennessee v. David Michael Anderson, Jr.
M2006-00138-CCA-R3-CD
Authoring Judge: Senior Judge J. S. Steve Daniel
Trial Court Judge: Judge Lillie Ann Sells

The appellant, David Michael Anderson, Jr., pleaded guilty to driving under the influence, first offense, and reserved, under Tennessee Rule of Criminal Procedure 37(b)(2)(i), a certified question of law dispositive of the case. The certified question of law is whether the officer in this case lacked reasonable suspicion to effect a seizure in stopping appellant and as a result the evidence seized should have been suppressed. Following our review, we agree with appellant, reverse the judgment of the trial court and dismiss the charge.

State of Tennessee v. Harold D. Noel
W2005-00160-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Harold D. Noel, was convicted of voluntary manslaughter. See Tenn Code Ann. § 39-13-211 (2003). The trial court imposed a sentence of six years to be served in the Department of Correction. In this appeal, the defendant asserts that the trial court erred by denying his motion to suppress. The judgment of the trial court is affirmed.

Sara Jane Davidson v. Tom Davidson, et al.
W2005-02343-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor J. Steven Stafford

Husband, a farmer, and wife, a teacher, married in 1992. In 1993 or 1994, they purchased an eighteen acre parcel of real property located in Newbern, Dyer County, Tennessee. In 1995, the couple secured an insurance policy from Tennessee Farmers Mutual Insurance Company through their local Farm Bureau agent. The policy covered husband’s farming operation and the house under one policy. In 2001, husband andwife separated. The couple renewed the insurance policy annually,
and the most recent renewal was set to expire on February 22, 2003. Prior to the ending date of the policy, and during the couple’s separation, the insurance company sent insurance premium notices
to a post office box established by Husband. Husband decided not to renew the policy. Accordingly, the insurance company maintained that the policy expired on February 22, 2003 due to the nonpayment of the premium. On May 4, 2003, a tornado severely damaged the home, which the wife occupied at the time. The insurance company refused to cover the damage. The wife subsequently filed a lawsuit against her husband, the insurance company, the local agent, and others.  The agent and the insurance company moved for summary judgment, which the trial court granted.  We affirm the trial court’s grant of summary judgment to the agent. We reverse the trial court’s grant of summary judgment to the insurance company, and we hold that a genuine issue of material fact exists as to whether an insurance policy covered the home on the date of the injury complained of.

State of Tennessee v. Thomas Carter
E2005-00731-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen

Defendant, Thomas Carter, was convicted of coercion of a witness, a Class D felony, and sentenced to serve four (4) years in the Department of Correction. On appeal, Defendant argues that (1) the State did not introduce sufficient evidence to convict him of the charge of coercion of a witness; and (2) the trial court violated his constitutional rights by requiring him to wear shackles and his prison uniform during his trial. Finding the second issue to have merit, we reverse the judgment and remand for a new trial.