Edward Pavwoski v. State of Tennessee
M2012-01004-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The petitioner, Edward Pavwoski, appeals the summary dismissal of his petition for writ of habeas corpus, wherein he challenged his 2009 Maury County Circuit Court guilty-pleaded convictions of two counts of rape and six counts of incest. Because the petitioner has failed to state a cognizable ground for habeas corpus relief, we affirm.

Tirrone Akilla Simpkins v. State of Tennessee
M2012-01558-CCA-R3-PC
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Steve Dozier

Tirrone Akillia Simpkins ("the Petitioner") pleaded guilty to one count of aggravated robbery and four counts of especially aggravated kidnapping. Pursuant to his plea agreement, the trial court sentenced the Petitioner as a Range II offender to an effective sentence of fifteen years to be served at 100%. The Petitioner subsequently filed for post-conviction relief, which the post-conviction court denied following an evidentiary hearing. The Petitioner now appeals, arguing that his plea was constitutionally invalid and that he received ineffective assistance of counsel in conjunction with the plea submission hearing. Upon our thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Mary Kruger, et al. v. The State of Tennessee, et al. - Concurring/Dissenting
W2012-00229-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge William B. Acree

I must respectfully dissent in part from the majority opinion in this case. In the majority opinion, the majority states the issue raised by the Board of Zoning Appeals (“BZA”) as: “Whether the trial court erred in holding that the Dyer County Zoning Resolution does not require an applicant seeking a variance to have a written lease.” In a footnote, the majority observes that the appellate record contained “no such finding by the circuit court.” Instead of leaving it at that, the majority goes on to “construe the BZA’s argument as ‘Whether the Resolution requires an applicant seeking a variance to possess a valid lease.’ ”

Marisa R. Rowland et al. v. Metropolitan Government of Nashville & Davidson County et al.
M2012-00776-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden

In this case involving serious injuries sustained in a collision between a school bus and a pickup truck, the evidence preponderates against the trial court’s findings. We must, therefore, reverse the trial court’s judgment in favor of the plaintiffs.
 

Jimmy Andrews, Jr. v. Deborah L. Clemmer
W2012-00986-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge John R. McCarroll, Jr.

This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. § 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The plaintiff’s uninsured motorist insurance carrier filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse the Circuit Court’s dismissal of the appeal from General Sessions Court in light of our recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.

Jimmy Andrews, Jr., v. Deborah L. Clemmer - Dissenting
W2012-00986-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge John R. McCarroll, Jr.

In reaching its conclusion that the plaintiff’s payment of $211.50 satisfied the requirements of Tennessee Code Annotated section 27-5-103 for appealing a case from general sessions court to circuit court, the majority relies upon the recent case of Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013). Because I believe Bernatsky is based upon a flawed premise, I respectfully dissent.

Mary Kruger, et al. v. The State of Tennessee, et al.
W2012-00229-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge William B. Acree

Diane Benson and the Northwest Tennessee Shooting Sports Association filed requests for variances to devote property to a Use Permitted on Appeal within a Forestry-Agricultural-
Residential-District in Dyersburg. Mrs. Benson’s request was tabled, but the NTSSA’s request was ultimately granted. Mrs. Benson, along with two others, filed a petition for writ of certiorari and for declaratory judgment. Appellees filed motions to dismiss, which the trial court granted. We affirm the trial court’s dismissal of the declaratory judgment action and we affirm the trial court’s dismissal of Mary Kruger and Kurt Kruger’s petition for writ of certiorari. However, we reverse the trial court’s grant of summary judgment as to Mrs. Benson’s claim that the BZA acted illegally, arbitrarily or capriciously, and the case is remanded for further proceedings consistent with this opinion.

In Re Thomas L. H. H.
M2012-01746-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Philip E. Smith

The trial court terminated Father’s parental rights to his child, who was born addicted to drugs and with extensive medical needs, on the ground of persistence of conditions; Father, who was incarcerated when the child was born, appeals, contending that the termination of his rights is not supported by clear and convincing evidence. We have determined that the evidence shows that the Father’s lack of participation in the care of the child and the treatment of the child’s medical needs constitutes neglect; that the neglect persists and is reasonably probable to continue; that it will not be remedied; and that continuation of the relationship would put the child at further risk, thereby diminishing the child’s complete integration into a safe and stable home. Consequently, we affirm the termination of Father’s parental rights.
 

Alex Friedmann, Individually and as an Associate Editor of Prison Legal News v. Corrections Corporation of America
M2012-00212-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

This is the second appeal in an action seeking settlement agreements and settlement reports from Corrections Corporation of America pursuant to the Public Records Act, Tennessee Code Annotated § 10-7-301 et seq. In the first appeal, this court determined that CCA is the functional equivalent of a governmental entity in operating correctional facilities and remanded the action to the trial court to determine whether the documents requested by the petitioner fell within the statutory definition of public records set forth at Tennessee Code Annotated § 10-7-301. On remand, CCA refused to turn over two categories of documents, settlement agreements and settlement reports, arising out of inmate litigation, arguing that they did not fall within the statutory definition of public records and are confidential. CCA additionally argued that the settlement reports are protected as attorney work product. The trial court held that both the settlement agreements and reports are public records, that the settlement reports do not constitute attorney work product, that CCA is required to produce the settlement agreements and reports, and that the petitioner is entitled to reasonable attorney’s fees pursuant to Tennessee Code Annotated § 10-7-505(g). We affirm the finding that the settlement agreements are public records and that CCA is required to produce the settlement agreements. We also affirm the trial court’s findings that the settlement reports are public records and that CCA has failed to demonstrate that the settlement reports were produced “in anticipation of litigation;” therefore, the reports are not attorney work product and CCA must produce the reports. Further, we affirm the award of attorney’s fees incurred at trial that pertained to requiring CCA to produce the settlement agreements. Finally, we find the petitioner is entitled to recover attorney’s fees and expenses incurred on appeal to the extent they pertain to the settlement agreements, but not the settlement reports. On remand, the trial court shall make the appropriate award.

In Re Jaycee W.
M2012-00524-COA-R3-JV
Authoring Judge: Presiding Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robbie Beal

This is a dependency and neglect case focusing on Jaycee W. (“the Child”), the minor daughter of Ellie H. (“Mother”) and Jerry W. (“Father”). At age five weeks, the Child suffered a suspicious broken leg. Further examination revealed multiple other broken bones. The Department of Children’s Services (“DCS”) immediately took the Child into protective custody and filed a dependency and neglect petition alleging that the Child was severely abused in the custody of her parents. Following an adjudicatory hearing, the juvenile court found that the Child was dependent and neglected and that both parents had committed severe child abuse. Both appealed to the trial court. Following a trial de novo, the trial court made the same findings. Mother appeals the trial court’s finding that she is guilty of severe child abuse. We affirm.

In Re Natasha A.
M2012-01351-COA-R3-PT
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Betty K. Adams Green

The mother of the minor child at issue appeals the termination of her parental rights. The juvenile court found several grounds for terminating the mother’s parental rights and that termination was in the best interest of the child. We affirm the termination of the mother’s parental rights.

Sullivan Electric, Inc. v. Robins & Morton Corporation
M2012-00821-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Russell T. Perkins

A subcontractor on a large project in Texas sued the general contractor claiming the general contractor breached an agreement the parties made regarding claims both had against the owner of the Texas project. The parties agreed the subcontractor would be entitled to a pro rata share of the settlement or judgment amount if the subcontractor’s claims were not itemized. The settlement agreement between the general contractor and the owner did not include an itemization of the subcontractor’s claims. The subcontractor had been given a prepayment of its claim against the owner in the amount of $300,000, and applying this to the subcontractor’s pro rata share, the general contractor determined the subcontractor was not entitled to anything more. The trial court deducted the $300,000 from the subcontractor’s claim and awarded the subcontractor its pro rata share of the difference. Both the subcontractor and general contractor appealed, the subcontractor claiming it was not awarded enough and the general contractor claiming the subcontractor was awarded too much. We reverse the trial court’s award and hold the $300,000 the subcontractor received as a prepayment was more than it was entitled to pursuant to the terms of the parties’ agreement. Accordingly, the contractor did not breach its agreement, and the subcontractor was not entitled to any damages.
 

Donna M. Williams v. Metropolitan Government of Nashville Davidson County
M2012-01066-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Amanda Jane McClendon

Plaintiff appeals the dismissal of her complaint to recover for personal injuries sustained in a fall at the Davidson County Correctional Development Center. Finding no error, we affirm.

State of Tennessee v. Ronald Earl Cook
M2012-00921-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stella Hargrove

Defendant pled guilty to eleven counts of observation without consent, Class A misdemeanors, two counts of stalking, Class A misdemeanors, one count of phone harassment, a Class A misdemeanor, one count of theft of property worth less than $500, a Class A misdemeanor, and ten counts of criminal trespass, Class C misdemeanors. The defendant was sentenced to the maximum sentence on all counts—eleven months and twenty-nine days on each of the Class A misdemeanors and thirty days on each of the Class C misdemeanors. The trial court ordered the defendant to serve all sentences consecutively, for a total effective sentence of almost sixteen years. In addition, the trial court placed a special condition on each judgment that "further ordered that the defendant shall not receive good time credit or work release" on any of his sentences. On appeal, the defendant claims the trial court erred by ordering consecutive sentences and ordering that he not receive "good time" credit. After careful review of the record, we hold that the trial court did not abuse its discretion by ordering the defendant to serve all of his sentences consecutively. However, the trial court was without authority to order the denial of the defendant’s statutory "good time" credit. Accordingly, we reverse the trial court’s judgments with respect to the special condition directing that the defendant be denied "good time" credit and remand the case for entry of judgments deleting this special condition. We otherwise affirm the judgments.

Christopher Turner v. State of Tennessee
M2012-00655-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Christopher Turner, appeals the Davidson County Criminal Court’s denial of post-conviction relief from his 2008 conviction for attempted aggravated robbery and his effective nine-year sentence. On appeal, he contends that counsel provided the ineffective assistance of counsel by failing to investigate and interview witnesses adequately and by failing to request that his case be severed from his codefendant’s case. We affirm the judgment of the trial court.

State of Tennessee v. Carl Bond
W2011-02518-CCA-R3-CD
Authoring Judge: Judge Jeffrey S. Bivins
Trial Court Judge: Judge Chris Craft

Carl Bond (“the Defendant”) was convicted after a jury trial of aggravated robbery. Following a sentencing hearing, the trial court sentenced the Defendant as a Range II offender to seventeen years, to be served in confinement at 100%. On appeal, the Defendant contends that the evidence is not sufficient to support his conviction, that the trial court erred in its ruling on the admissibility of a prior conviction for impeachment purposes, and that the trial court imposed an excessive sentence. Upon our thorough review of the record, we affirm the judgment of the trial court.

Cheryl O. Charles v. Gisselle Carter Neely
W2012-01252-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Arnold B. Goldin

This case involves an alleged agreement about funds distributed from a reopened estate. The decedent father died years ago, leaving three daughters and an estranged wife. The father’s estate was probated and closed. Long afterward, the petitioner daughter discovered unclaimed funds in the father’s name held by the State. Another daughter, the executrix of the father’s estate, reopened the father’s estate. Finding no claims against the estate, the probate court distributed the funds to the executrix, in accordance with the father’s will, and closed the estate. The daughter who discovered the unclaimed funds filed the instant petition in chancery court, asserting that the sisters had agreed that the funds would be split among them in accordance with their mother’s will. Based on the probate court’s adjudication of the father’s reopened estate, the chancery court granted summary judgment in favor of the executrix daughter, holding that res judicata barred the chancery court action. We affirm the grant of summary judgment as to allegations in the chancery court petition that the probate court should have distributed the funds differently. We reverse the grant of summary judgment as to the remainder of the chancery court petition, finding that the petition also asserts claims based on an alleged separate oral agreement among the sisters, and hold that the respondent executrix sister has not conclusively established the defense of res judicata as to these remaining claims.

Shundell Lynn Dickerson v. State of Tennessee
M2011-00644-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Cheryl Blackburn

Petitioner, Shundell Lynn Dickerson, appealed the trial court’s denial of post-conviction relief, and this court affirmed the judgment of the post-conviction court. Shundell Lynn Dickerson v. State of Tennessee, No. M2011-00644-CCA-R3-PC, 2012 WL 2564376 (Tenn. Crim. App. at Nashville, filed July 3, 2012). In that opinion, Petitioner raised the issue of whether his appellate counsel was ineffective for failing to challenge the sufficiency of the convicting evidence on direct appeal. We acknowledged that pursuant to our supreme court’s decision in State v. Parker, 350 S.W.3d 883 (Tenn. 2011), appellate review of the sufficiency of the evidence must be undertaken with respect to the offense for which a defendant was convicted rather than the greater offense with which he or she was charged. We were precluded, however, from fully considering the issue because the summary of the facts contained in our opinion in the direct appeal was not adequate to allow for review of the issue, and, through no fault of Petitioner, the appellate record in the direct appeal was destroyed in the historic Nashville flood in May, 2010. Therefore, this court could not determine from the record whether Petitioner suffered prejudice by appellate counsel’s deficient performance in failing to challenge the sufficiency of the convicting evidence on appeal. Since the filing of that opinion, this court has granted Petitioner’s petition to rehear the issue of the ineffectiveness of appellate counsel, and Petitioner has supplemented the record with copies of the trial transcript. Both parties have filed supplemental briefs. After a review of the record before us, we affirm the judgment of the post-conviction court.

Stephen Meacham, Personal Representative of the Estate of Robert E. Meacham v. William Earl Starnes, Sr.
W2012-00192-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This case involves the bond requirements for an appeal from General Sessions Court to Circuit Court. The plaintiff sued the defendant for damages in General Sessions Court, and a judgment was entered in favor of the defendant. The plaintiff sought a de novo appeal to Circuit Court. Within ten days of the General Sessions Court judgment, the plaintiff filed a notice of appeal and paid $211.50 to the General Sessions Court clerk, pursuant to T.C.A. 8-21-401(b)(1)(C)(i). The plaintiff did not file any further bond at that time. The defendant filed a motion to dismiss, asserting that the Circuit Court lacked subject-matter jurisdiction over the case because the plaintiff had not complied with the appeal-bond requirement in T.C.A. § 27-5-103. The trial court granted the motion to dismiss on that basis. The plaintiff now appeals. We reverse in light of our recent decision in Bernatsky v. Designer Baths & Kitchens, LLC, No. W2012-00803-COA-R3-CV, 2013 WL 593911 (Tenn. Ct. App. Feb. 15, 2013), and remand for further proceedings.

Richard Liput v. Bobby Grinder
W2012-01431-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Charles C. McGinley

Appellant appeals the trial court’s grant of summary judgment to the Appellee uninsured motorist carrier for failure to properly and timely serve the alleged tortfeasor. After a careful review of the record, we affirm.

Demario Johnson v. State of Tennessee
W2011-02123-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge J. Robert Carter Jr.

Post-conviction petitioner, Demario Johnson, challenges his 2008 conviction of first degree murder and resulting sentence of life imprisonment. On appeal, he alleges the following claims of ineffective assistance of counsel: (1) failure to investigate and present evidence of his mental health history; and (2) failure to challenge the medical examiner’s opinion regarding the victim’s cause of death. Discerning no error, we affirm the judgment of the post-conviction court.

State of Tennessee v. Wesley Jones
W2012-00301-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley Jr.

The Defendant-Appellant, Wesley Jones, appeals his conviction for first degree premeditated murder. On appeal, he argues that (1) the trial court abused its discretion in allowing a witness to be recalled to testify, and (2) the evidence is insufficient to support his conviction. Upon review, we affirm the trial court’s judgment.

State of Tennessee v. Howard B. Lewis, III
M2012-02040-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robert E. Burch

A Dickson County grand jury indicted appellant, Howard B. Lewis, III, for especially aggravated burglary, aggravated assault, and domestic assault. He entered a guilty plea to aggravated assault, and the State dismissed the remaining charges. The parties agreed to submit the length of the sentence and any alternative sentencing decision to the trial court. Following a sentencing hearing, the trial court sentenced appellant to six years in the Tennessee Department of Correction. Appellant now challenges the trial court’s findings, alleging that the trial court impermissibly enhanced his sentence. Discerning no error, we affirm the judgment of the trial court.

Ann C. King (Walden) v. David M. King
E2011-02456-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William E. Lantrip

Ann C. King (“Wife”) filed a motion seeking to renew a 2001 judgment against David M. King (“Husband”). After a hearing, the Chancery Court for Anderson County (“Anderson Chancery Court”) entered an order renewing the judgment. Husband appeals to this Court raising issues regarding whether the Anderson Chancery Court lacked jurisdiction and whether the renewal of judgment complied with Tenn. R. Civ. P. 69.04. We hold that the Anderson Chancery Court had jurisdiction and did not err in renewing the judgment.

Mary Sue Cook v. East Tennessee Human Resource Agency, Inc., et al
E2012-01136-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge David Reed Duggan

This is a negligence case in which Passenger sued ETHRA and Driver for injuries she sustained when exiting an ETHRA public transit vehicle. The trial court dismissed the claim against Driver but denied ETHRA’s motion for summary judgment. Following a bench trial, the court dismissed the claim against ETHRA, holding that Passenger failed to prove that Driver was negligent. Passenger appeals. We affirm the decision of the trial court.