Bernard Falcicchio v. Gibson Mechanical Contractors,
W2003-02078-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp.J.
Trial Court Judge: George H. Brown, Jr., Judge
In this appeal, Employee argues that the trial court erred in granting the motion to dismiss filed by Gibson Mechanical Contractors, Inc. and Amerisure Insurance Company. We conclude that the trial court erred granting the motion to dismiss and reverse the judgment of the trial court.

Shirley Moore v. Best Metal Cabinets
W2003-00687-WC-R3-CV
Authoring Judge: Robert L. Childers, Sp.J.
Trial Court Judge: George R. Ellis, Chancellor
In this appeal, the Employer argues that the trial court erred in awarding permanent disability benefits to the Employee, in failing to apply the 2.5 cap pursuant to Tennessee Code Annotated section 5-6-241(a), and in failing to make specific findings of fact pursuant to Tennessee Code Annotated section 5-6-241(c). We conclude that the evidence preponderates in favor of the trial court's award of permanent disability benefit; that the evidence fails to preponderate against the trial court's award of benefits that exceed the 2.5 cap; and that the evidence preponderates against the trial court's award of six times the anatomic impairment rating. We, therefore, affirm the trial court's judgment, as modified.

Johnny Proffitt v. State of Tennessee
M2003-02953-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jane W. Wheatcraft

The Petitioner, Johnny Proffitt, appeals the trial court's dismissal of his petition for post conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner cannot collaterally attack his probation revocation order. Moreover, the petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

James Marvin Martin v. State of Tennessee
E2004-00740-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Richard R. Baumgartner

The petitioner, James Marvin Martin, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that his claim was beyond the statute of limitations. After careful review, we affirm the denial of the petition.

Joseph Matthew Maka v. State of Tennessee
W2003-01209-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roger A. Page

The petitioner appeals theMadison County Circuit Court’s denial of post-conviction relief. Because the post-conviction court had no jurisdiction to rescind its earlier grant of post-conviction relief, we reverse.

State of Tennessee v. Christopher David Hodge
W2003-01513-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joseph H. Walker, III

The defendant, Christopher David Hodge, appeals his conviction of second degree murder. The defendant alleges that the evidence was insufficient to support the conviction and that the trial court erred in disallowing discovery of certain information relevant to preparation of a defense. From our review, we conclude there is no reversible error and affirm the conviction.

David E. Garrison v. State of Tennessee
M2003-02137-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, David E. Garrison, appeals the trial court's dismissal of his petition for post conviction relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner filed his petition outside the statute of limitations. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

State of Tennessee v. Lalon R. Davenport
M2003-02303-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James K. Clayton, Jr.

The Defendant, Lalon R. Davenport, pled guilty to one count of violating the Motor Vehicle Habitual Offender Act. Pursuant to Tennessee Rule of Criminal Procedure 37, the Defendant reserved as a certified question of law the issue of whether the three-year time period articulated in the Habitual Offender Act bars prosecution for violating the Act after the time period has expired. We conclude that such prosecution is not barred by the Act, and the judgment of the trial court is therefore affirmed.

State of Tennessee v. Jonathan B. Cutshaw
E2003-02502-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Ben W. Hooper, II

The defendant, Jonathan B. Cutshaw, pleaded guilty in the Cocke County Criminal Court to one count of burglary, in violation of Tennessee Code Annotated section 39-14-402, and to one count of vandalism, in violation of Tennessee Code Annotated section 39-14-408. Pursuant to his plea agreement with the state, he accepted joint and several liability for restitution, along with others involved in the vandalism, and he received an effective sentence of three years, with the manner of service of the sentences to be determined by the trial court. After a sentencing hearing, the trial court ordered the defendant to serve his sentences in confinement and to pay restitution. It is from this order that the defendant appeals. We modify the judgment of the trial court as to manner of service of the sentences and remand for further findings regarding the appropriate amount of restitution.

State of Tennessee v. Carlos Eddings - Concurring and Dissenting
W2003-02255-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge W. Otis Higgs, Jr.

The majority concludes that modification of the defendant’s ten-year sentence is required in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

J. Howard Johnson, et al., v. Michael R. Allison, et al.
M2003-00428-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Carol L. Mccoy

The parties entered into an option contract for the sale and purchase of a piece of land. The bargained-for option had a limited duration, with the buyer entitled to extend the option for additional consideration if it exercised that right within an agreed-upon time frame. The buyer paid for several extensions, but did not exercise the option before the final option deadline had passed. The sellers subsequently refused to sell, and the buyer sued for breach of contract and specific performance. The sellers filed a motion for summary judgment, which the trial court granted. We affirm the trial court.

State of Tennessee v. Bobby Northcutt
M2003-02805-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Bobby Northcutt, pled guilty to two counts of rape of a child, and the trial court sentenced him to twenty-five years in prison on each count, ordering the sentences to run consecutively. The Defendant appeals his sentence, contending that the trial court: (1) improperly failed to apply one mitigating factor; (2) improperly applied two enhancement factors; and (3) erred when it ordered that his sentences run consecutively. Finding that reversible error exists, we reverse the judgments of the trial court and remand the case for resentencing.

State of Tennessee v. Bryant Dunn
E2003-02526-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The defendant, Bryant Dunn, pled guilty to theft over one thousand dollars, a Class D felony, and the Sullivan County Criminal Court sentenced him to two years incarceration in the Department of Correction. The defendant appeals, claiming that the trial court erred by denying him probation or alternative sentencing. We affirm the trial court.

Susan Begley v.State of Tennessee and Tennessee Department of Transportation
E2004-00202-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

In May of 2000, a car being driven eastbound on Interstate 40 (“I-40”) in Knox County by Jeremy Roark left the travel lane and crossed the rumble strips onto the inside shoulder of the road where it collided with a Tennessee Department of Transportation (“TDOT”) truck parked during routine litter pick-up. Mr. Roark was killed in the accident and the TDOT employee operating the truck that day, Kenneth Siler, was injured. Susan Begley, Mr. Roark’s mother (“Plaintiff”), brought suit against the State of Tennessee. The case was transferred to the Claims Commission (“the Commission”) and was tried. The Commission held, inter alia, that a reasonable person standard applied and that it was not reasonable for the TDOT truck to be parked on the shoulder. The Commission assessed 45% of the fault for the accident to Mr. Roark and 55% to the State and awarded Plaintiff a judgment for $300,000. The State appeals claiming the Commission lacked jurisdiction, there was insufficient evidence that each element of the negligence cause of action had been met, and there was insufficient evidence to support a finding that Mr. Roark was less than 50% at fault. We affirm.
 

Susan Begley v.State of Tennessee, and Tennessee Department of Transportation - Dissenting
E2004-00202-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Commissioner Vance W. Cheek, Jr.

Assuming arguendo that the State’s parked vehicle was a contributing proximate cause of the accident, the Commissioner’s and the majority’s approach by focusing almost exclusively on the defendant’s parked vehicle and its location, led them in my view to the wrong conclusion. The majority is unable to point to any specific regulatory or statutory violations by the defendant. In contrast, the deceased violated numerous statutes, as well as common law violations. See Tenn. Code Ann. § 55-8-101 et seq., Operation of Vehicles - Rules of the Road.

State of Tennessee v. Robbie Chet Walley
W2003-02987-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree, Jr.

The defendant, Robbie Chet Walley, was convicted of possession of drug paraphernalia and was sentenced to eleven months, twenty-nine days, all suspended except for sixty days. On appeal, he argues that the trial court erred in denying alternative sentencing. Based upon our review, we affirm the judgment of the trial court.

State of Tennessee v. Jonathan Campbell
E2003-01315-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The defendant was convicted of driving under the influence ("DUI"), first offense, and sentenced to eleven months, twenty-nine days in the county jail, with all but forty-eight hours suspended and the balance to be served on probation. In addition, his driver's license was suspended for one year and he was ordered to pay a fine of $350. In his appeal, the defendant argues that the trial court should not have allowed the jury to compare his signature from the morning of the arrest with his signature from another day for the purpose of inferring impairment. Following our review, we affirm the judgment of the trial court.

C. Dwight Graham, et al., v. The General Sessions Court of Franklin County, et al.
M2003-02231-COA-R3-CO
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Judge Thomas W. Graham

Professional bondsmen sued the general sessions court, the general sessions judge, and the sheriff, seeking a declaratory judgment that an order of the general sessions court concerning bonds for some offenses is invalid as contrary to the statutes of the State of Tennessee and the Tennessee Constitution. The trial court entered judgment for the defendants, and plaintiff appeals. We reverse.

State of Tennessee v. Larry F. Litton
E2003-00782-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge R. Jerry Beck

The appellant, Larry F. Litton, was indicted on charges of rape in violation of Tennessee Code Annotated section 39-13-503. A jury found the appellant guilty of the lesser-included offense of sexual battery and recommended a $3,000 fine. The appellant was sentenced to a one-year sentence as a Range I Standard Offender, but the trial court ordered the appellant to serve two years on probation in lieu of incarceration. The trial court also imposed the $3,000 fine recommended by the jury. After the denial of a motion for new trial, this appeal ensued. The appellant challenges: (1) the trial court's decision to allow the testimony of Dr. Scott Levine in which he recounted a conversation with the victim that occurred several weeks after the incident; (2) the trial court's instruction to the jury that a tape-recorded conversation between the victim and the appellant was an "alleged admission;" and (3) the sufficiency of the evidence. For the following reasons, we affirm the decision of the trial court.

Gary Montgomery v. Sonja K. Schedin
E2003-02600-COA-R3-CV
Authoring Judge: Judge David Michael Swiney
Trial Court Judge: Judge James B. Scott, Jr.

Gary Robert Montgomery ("Plaintiff") and Sonja K. Schedin ("Defendant") were engaged to be married. After the engagement ended, Plaintiff filed a Writ of Possession in the General Sessions Court claiming Defendant refused to allow him to retrieve his personal property. At issue in the General Sessions Court was who was entitled to a boat and trailer, an ATV, an engagement ring, a trailer, and a 1998 Chevy pick-up truck. Plaintiff claimed Defendant bought the ATV for him as a gift, and that she also gave him $13,500 as a gift to buy the truck. After the General Sessions Court entered its judgment concluding, among other things, that the money was loaned to Plaintiff and was not a gift, Plaintiff appealed to the Circuit Court. The Circuit Court likewise concluded the money was loaned to Plaintiff and was not a gift. Plaintiff appeals. We modify the judgment of the Circuit Court and affirm the judgment as modified.

Vickery Transportation, Inc. and Grammer Industries, Inc. v. Hepaco, Inc.
W2003-01512-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Chancellor George R. Ellis

This case arises out of an action seeking declaratory relief concerning the validity of an arbitration clause in a contract between the parties. Appellee filed a complaint in the Chancery Court at Haywood County for a determination of whether a contract, and, therefore, the arbitration clause in the contract, were invalid because the contract was one of adhesion or executed under duress. The trial court, upon Appellees’ motion to stay arbitration, ordered that the arbitration proceedings should be stayed because there was no agreement to arbitrate. Appellant filed its appeal to this Court, and, for the following reasons, we reverse and remand this case for further proceedings consistent with this opinion.
 

William Anthony Bacigalupo v. Mary Darlene Raines Blacknall Bacigalupo
W2003-01578-COA-R3-CV
Authoring Judge: Judge Alan E. Highers
Trial Court Judge: Judge Lee Moore

This case arises from the divorce proceedings of Husband and Wife. Husband filed for a divorce from Wife, citing inappropriate marital conduct and irreconcilable differences as grounds for a divorce. Wife filed her answer and counterclaim, stating she was entitled to a divorce on the basis of inappropriate marital conduct and adultery. The trial court granted Wife a divorce, established Wife as the primary residential parent of Child, divided the parties’ marital property, set alimony payments Husband must pay to Wife, imposed a lien on Husband’s property to secure the property division and support payments, and awarded Wife a portion of her attorney’s fees incurred as a result of the proceedings. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
 

Steven R. Ouzts v. Michael L. Womack, Victoria A. Raub, Frank Donato, Remax-Elite, Steven Boysen, Crye-Leike, Inc., and McAnally Inspection Svc., Inc.
W2003-01502-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Walter L. Evans

This case involves alleged fraud in the sale of real estate. The sellers completed a residential disclosure statement indicating that the subject property had no flooding problems. The sellers then bargained to include language in the deed disavowing any previous representations concerning the property’s condition. The buyer accepted these terms. After the buyer took possession, the property flooded. The buyer filed suit against the sellers, alleging fraudulent concealment and misrepresentation. The sellers filed a motion for summary judgment, which was granted. We affirm, holding that the buyers are bound by the unambiguous terms of the contract for sale and the deed.

Monte Panitz, et al., v. F. Perman & Company, Inc., et al.
W2003-01958-COA-R3-CV
Authoring Judge: Presiding Judge W. Frank Crawford
Trial Court Judge: Chancellor Walter L. Evans

Shareholders seek to inspect certain records of corporation of which they are shareholders, as well as records of two other corporations (“the subsidiaries”): a second corporation which is the wholly-owned subsidiary of the corporation in which Plaintiffs hold shares, and another that is the wholly owned-subsidiary of the second corporation. Defendants maintain that plaintiffs do not have any right to inspect the records of corporations in which they are not shareholders, but agreed to allow inspection of limited records of two subsidiaries as a courtesy, contingent upon plaintiffs signing a confidentiality agreement. Plaintiffs maintain that they have an unqualified right to inspect records of all three corporations under T.C.A. 48-26-102. The trial court found that the confidentiality agreement was reasonable and entered an order requiring defendants to produce certain records, dating back to 1991, for inspection and copying. It further held that, in light of defendants’ agreement to allow limited inspection of records of subsidiaries, it need not rule on issue of whether plaintiffs were entitled to inspect records of subsidiaries. We affirm as modified herein.

James Arthur Ratledge v. Clifford Hampton
E2003-02323-WC-R3-CV
Authoring Judge: William H. Inman, Sr. J.
Trial Court Judge: Lawrence H. Puckett, Judge
The plaintiff suffered a tear of the rotator cuff in his right shoulder. The dispositive issue is when did the tear occur? The medical proof revealed that the tear occurred one or two years before the date of injury alleged in the complaint. The trial judge held that the plaintiff failed to prove his case by a preponderance of the proof. The plaintiff appeals, and presents for review the issue of whether he failed to prove that he sustained a compensable injury. Our review is de novo on the record. We presume the judgment is correct unless the evidence preponderates against it. Rule 13(d) Tenn. R. App. P.