APPELLATE COURT OPINIONS

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Billy Lee Simmons v. David A. Sexton, Warden

E2011-00699-CCA-R3-HC

The Petitioner, Billy Lee Simmons, appeals the summary dismissal of his pro se petition for writ of habeas corpus, wherein he seeks relief for his eight-year sentence for possession of .5 grams or more of cocaine with the intent to sell and within 1,000 feet of a school. The crux of the Petitioner’s argument is that his Class A felony sentence is illegal because it was enhanced pursuant to the Drug-Free School Zone Act. We agree that the Petitioner’s sentence is illegal, albeit for a different reason—his sentence for a Class A felony not being authorized by law—and that the habeas corpus court erred in summarily dismissing the petition. We remand to the Johnson County Circuit Court for the appointment of counsel and a hearing to determine the proper remedy.

Authoring Judge: Judge. D. Kelly Thomas, Jr.
Originating Judge:Judge Robert Cupp
Johnson County Court of Criminal Appeals 12/13/11
Ray Bell Construction Company, Inc. v. State of Tennessee, Tennessee Department of Transportation

E2009-01803-SC-R11-CV

A construction company entered into a contract with the State of Tennessee to restructure an interstate interchange. The contract provides that the contract completion date “may be extended in accordance with the Standard Specifications, however, no incentive payment will be made if work is not completed in its entirety by December 15, 2006.” The Claims Commission found that the contract contained a latent ambiguity requiring extrinsic evidence to interpret the contract. The Claims Commission considered extrinsic evidence and concluded that the construction company was entitled to the maximum incentive payment and an extension of the contract completion date. A divided Court of Appeals affirmed the judgment of the Claims Commission. We hold that the contract is unambiguous and does not permit an extension of the incentive date. Accordingly, we reverse the Court of Appeals and remand to the Claims Commission for modification of the final judgment.
 

Authoring Judge: Justice Janice M. Holder
Originating Judge:Commissioner William O. Shults
Supreme Court 12/12/11
Dewey Gibson, Jr. v. Hidden Mountain Resort, Inc.

E2010-02561-WC-R3-WC

The employee sought workers’ compensation for a back injury which arose out of and in the scope of his employment with the employer. The trial court found that because the employee had a meaningful return to work and was subsequently dismissed for job misconduct, he was limited to benefits of 1.5 times the 20% anatomical impairment rating. The evidence does not preponderate against the trial court’s factual findings; the judgment is, therefore, affirmed.

Authoring Judge: Justice Gary R. Wade
Originating Judge:Judge O. Duane Slone
Sevier County Workers Compensation Panel 12/12/11
State of Tennessee v. Donald Smith

W2010-01850-CCA-R3-CD

The appellant, Donald Smith, pled guilty in the Shelby County Criminal Court to driving under the influence of an intoxicant (DUI), reserving the following certified question of law: “Whether the [appellant’s] detention at [the] scene of a traffic stop was unreasonably prolonged such that it violated . . . Article I, Section 7 of the Tennessee Constitution and/or the Fourth Amendment to the United States Constitution.” Upon review, we affirm the judgment of the trial court.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge W. Mark Ward
Shelby County Court of Criminal Appeals 12/12/11
James Q. Holder et al. v. Westgate Resorts Ltd.

E2009-01312-SC-R11-CV

During a trial of the plaintiffs’ premises liability claim, the trial court excluded as hearsay a portion of the testimony of the defendant’s expert. The expert would have testified that he consulted an authoritative source whose interpretation of the applicable building code was consistent with that of the testifying expert. The jury returned a verdict for the plaintiff, and the defendant appealed. The Court of Appeals held that the trial court erred because the expert’s testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals concluded that the trial court’s error was harmless, however, and affirmed the judgment. We hold that the Court of Appeals improperly applied an amended version of Rule 703 that was not in effect at the time of trial. We hold that the trial court properly excluded as hearsay portions of the proffered testimony of the testifying expert. We vacate the judgment of the Court of Appeals and affirm the judgment of the trial court.
 

Authoring Judge: Justice Janice M. Holder
Originating Judge:Judge Richard R. Vance
Sevier County Supreme Court 12/12/11
Daniel Boyd Davidson v. Business Personnel Solutions

E2010-02366-WC-R3-WC

The employee, who sustained injuries while removing tree limbs at a job site, filed a claim for workers’ compensation. The employer denied benefits, contending that the injury was the result of the employee’s intoxication and misconduct. While concluding that the employee was not guilty of willful misconduct, the trial court ruled that his intoxication was a proximate cause of the injuries and, therefore, denied the claim. The employee appealed, alleging that the trial court erred by finding that he was intoxicated at the time of his injuries and that the intoxication was the proximate cause. This appeal was referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6- 225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the trial court’s finding that the employee was intoxicated and his intoxication proximately caused his injuries, the judgment is affirmed.

Authoring Judge: Justice Gary R. Wade
Originating Judge:Judge Thomas J. Seeley, Jr.
Washington County Workers Compensation Panel 12/12/11
Mark Patrick Jones v. Jennifer Jones Smith, et al.

W2010-01160-COA-R3-CV

Paternal Grandparents filed a motion to intervene in a divorce action between Mother and Father, seeking custody of the parties’ two minor children. The trial court ultimately awarded custody to Mother and ordered Grandparents to pay a portion of Mother’s attorney’s fees and costs. Grandparents appeal, arguing that Tennessee Code Annotated section 36-5-103(c) only provides for awards of attorney’s fees against spouses in a custody matter, and therefore, the trial court was not authorized to order them to pay Mother’s attorney’s fees. We affirm.

Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Judge James F. Butler
Henderson County Court of Appeals 12/12/11
In Re: Maria A., Rickey A., Jr. and Angel A.

E2011-00642-COA-R3-PT

DCS filed a Petition to terminate the parental rights of the father. Following an evidentiary hearing, the Trial Court determined there were statutory grounds to terminate the father's parental rights, and that it was in the best interest of the children that his rights be terminated. The father appealed and did not question that statutory grounds existed for termination, but argued that the Department failed to make reasonable efforts to reunify the father with his children. We conclude the father failed to demonstrate that the Department did not make reasonable efforts for reunification. The evidence is clear and convincing that the Department made reasonable efforts for reunification. We affirm the Judgment of the Trial Court.

Authoring Judge: Presiding Judge Herschel Pickens Franks
Originating Judge:Judge Daniel Swafford
Bradley County Court of Appeals 12/12/11
In Re: Estate of Raymond L. Smallman, Deceased, Mark Smallman, et al. v. Linda Caraway, et al

E2010-02344-COA-R3-CV

The two sons of decedent asked the Court to declare that their father died intestate and that his marriage to appellant a few days before he died was void because he was neither competent to make a will or enter into a marriage contract. Upon trial, the jury determined that the deceased was not of sound mind when he executed a will, a copy of which was filed in evidence, and the will was obtained through undue influence of appellant. The jury also found that the marriage between the decedent and appellant was invalid as well. The Trial Judge approved the jury verdict and appellant has appealed. We hold that material evidence supports the jury verdict as approved by the Trial Judge and remand.

Authoring Judge: Presiding Judge Herschel Pickens Franks
Originating Judge:Chancellor Thomas R. Frierson, II
Hamblen County Court of Appeals 12/12/11
Jerry W. Dickerson v. State of Tennessee

E2011-00685-CCA-R3-HC

The petitioner, Jerry W. Dickerson, filed in the Johnson County Circuit Court a petition for a writ of habeas corpus. The habeas corpus court summarily dismissed the petition, and the petitioner appeals. Upon review of the record and the parties’ briefs, we conclude that the habeas corpus court properly dismissed the petition.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge Robert Cupp
Johnson County Court of Criminal Appeals 12/12/11
In Re: Estate of Raymond L. Smallman, Deceased, Mark Smallman, et al. v. Linda Caraway, et al - Dissenting

E2010-02344-COA-R3-CV

CHARLES D. SUSANO, JR., J., dissenting.
This case pits the biological children of the deceased, being two sons, against Linda Caraway, who claims to be the widow of the deceased by virtue of a marriage ceremony that occurred thirteen days before his death on July 7, 2009. What is “on the line” is apparently the entire estate of the deceased. One of his sons testified that his father’s will of April 16, 2009 – the original of which was never found – left the deceased’s entire estate to Ms. Caraway.

Authoring Judge: Judge Charles D. Susano
Originating Judge:Chancellor Thomas R. Frierson, II
Hamblen County Court of Appeals 12/12/11
84 Lumber Company v. R. Bryan Smith, et al.

E2010-00292-SC-R11-CV

The president of a company signed a commercial credit application. The application contained language immediately above the signature line stating that the individual signing the contract personally guaranteed amounts owed to the vendor. The company defaulted on the balance of the account, and the vendor filed suit against both the company and the president. The trial court granted summary judgment to the vendor, holding that the president had signed the contract both personally and in a representative capacity. The Court of Appeals reversed, holding that the president had signed the contract only in a representative capacity and granted summary judgment to the president. We hold that the application contained explicit language sufficient to bind the president as an individual guarantor of the contract. We reverse the Court of Appeals.
 

Authoring Judge: Justice Janice M. Holder
Originating Judge:Judge Jean A. Stanley
Washington County Supreme Court 12/12/11
Bryan Keith Good v. Jim Morrow, Warden

E2011-01166-CCA-R3-HC

The Petitioner, Bryan Keith Good, appeals as of right from the Bledsoe County Circuit Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner contends (1) that the judgment against him is void because the State failed to include the name of the victim in the indictment and (2) that subsequent amendment of the indictment did not cure the alleged defect. Following our review, we affirm the judgment of the habeas corpus court.

Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge J. Curtis Smith
Bledsoe County Court of Criminal Appeals 12/12/11
Erskine Leroy Johnson v. State of Tennessee

W2010-01800-CCA-R3-CO

The Petitioner, Erskine Leroy Johnson, appeals the Shelby County Criminal Court’s dismissal of his petition for a writ of error coram nobis from his 1985 conviction for felony murder. He contends that newly discovered evidence entitles him to a new trial. He also contends that the trial court improperly weighed the newly discovered evidence and failed to assess that evidence in the context of the evidentiary record as a whole in determining whether the result of the trial may have been different. We reverse the judgment of the trial court, vacate the Petitioner’s felony murder conviction, and remand the case for a new trial.

Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge John P. Colton Jr.
Shelby County Court of Criminal Appeals 12/09/11
Charlotte Scott Forbess v. Michael E. Forbess

W2011-01105-COA-R3-CV

This case involves the valuation of assets for division of marital property and alimony. Wife filed for divorce, seeking an equitable division of the marital assets, including Husband’s one-half interest in a real estate partnership. At trial, each party introduced experts to testify as to the value of Husband’s interest in the partnership. The trial court valued the partnership at a fair market value that was between the values testified to by the experts. The court awarded Wife one-half of the value, awarded Wife one-half of a note that was based on property Husband owned prior to the marriage, and awarded Wife alimony. After a motion to alter or amend, the trial court reduced Wife’s interest in the partnership and the note to take into account Husband’s tax liability. Wife appeals, arguing that the trial court erred in valuing the partnership and in its alimony award. Affirmed.

Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge James F. Butler
Tipton County Court of Appeals 12/09/11
Orlando Residence, LTD. v. Nashville Lodging Company, Nashville Residence Corp., and Kenneth E. Nelson

M2011-00911-COA-R3-CV

This appeal centers on the effective date of a judgment against Appellant–2000 or 2004. Appellant argues that both the equitable estoppel and law of the case doctrines bar Plaintiff from arguing that the judgment was entered in 2004, and therefore, that it has not expired. The trial court found that the judgment had not expired, and we affirm.
 

Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Chancellor Ellen Hobbs Lyle
Davidson County Court of Appeals 12/09/11
Kimberlie Lois Edmonson v. Terry Lynn Wilson

E2010-02215-COA-R3-CV

In this case, Kimberlie Lois Edmonson (“Ms. Edmonson”) filed suit against Terry Lynn Wilson (“Mr. Wilson”) for breach of an alleged partnership agreement. Prior to trial, the parties reached an agreement. Following the announcement of the agreement in court by counsel, Ms. Edmonson refused to honor the agreement. Mr. Wilson filed a motion to enforce the agreement, and the trial court denied the motion. The case proceeded to a bench trial, and the court held in favor of Ms. Edmonson. Mr. Wilson appeals. We hold that the court should have enforced the settlement agreement and reverse the decision of the court.

Authoring Judge: Judge John W. McClarty
Originating Judge:Chancellor Jerri S. Bryant
McMinn County Court of Appeals 12/09/11
Roy E. Keough v. State of Tennessee

W2008-01916-SC-R11-PD

We granted permission to appeal in this post-conviction capital case to consider whether the courts below erred in holding that the state and federal constitutional right against self incrimination does not afford a post-conviction petitioner who chooses to testify the right to limit the scope of the State’s cross-examination. However, we need not decide whether and in what manner the constitutional right against self-incrimination applies in the post conviction context because this appeal can be resolved on non-constitutional grounds. We have concluded that the scope of cross-examination of a post-conviction petitioner is governed by Tennessee Supreme Court Rule 28, section 8(C)(1)(d). The judgments of the trial court and the Court of Criminal Appeals are vacated, and this matter is remanded for a new post-conviction hearing at which Petitioner shall be afforded the right to testify subject to the limited scope cross-examination provided by Rule 28, section 8(C)(1)(d).

Authoring Judge: Chief Justice Cornelia A. Clark
Originating Judge:Judge Carolyn Blackett
Shelby County Supreme Court 12/09/11
Maria Welchez Catulan v. Juan Manuel Welchez

M2010-01368-COA-R3-CV

Husband argues on appeal that the trial court erred in holding a hearing on his wife’s petition for an order of protection when his attorney was not present. Finding no error, we affirm the decision of the trial court.
 

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Carol Soloman
Davidson County Court of Appeals 12/08/11
Tony Mize, et al. v. Victor Mark Consulo, et al.

M2011-00455-COA-R3-CV

Purchasers of house sued sellers for breach of contract because, contrary to the sale agreement, the house was not connected to the sewer. After a trial, the court entered judgment in favor of the purchasers for the cost of connecting the house to the sewer. In this appeal, the sellers argue that the trial court erred in applying the wrong statute of limitations, in finding in favor of the purchasers, in using the wrong measure of damages, and in the award of attorney fees. We find no error in the trial court’s decision.
 

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Claudia Bonnyman
Davidson County Court of Appeals 12/08/11
Markese Brooks v. State of Tennessee

W2010-01673-CCA-R3-PC

The petitioner, Markese Brooks, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge James M. Lammey Jr.
Shelby County Court of Criminal Appeals 12/08/11
In Re: The Estate of Franklin Steadman Murdaugh, Barbara Murdaugh Warner v. Rudy W. Young

W2011-00041-COA-R3-CV

This case arises from a will contest. Appellant, the executor and sole beneficiary of the contested will, appeals the trial court’s finding that Appellant did not met his burden to rebut, by clear and convincing evidence, the presumption of undue influence based upon the existence of a confidential relationship between Appellant and Decedent. Finding no error, we affirm.

Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge Tony Childress
Madison County Court of Appeals 12/08/11
State of Tennessee v. Diane Forrest

W2011-00050-CCA-R3-CD

This case arises from charges that Diane Forrest (“the Defendant”) concealed from police certain items used to make methamphetamine that her son had been using when his mobile methamphetamine lab exploded. A jury convicted the Defendant of one count of tampering with evidence and one count of accessory after the fact. The trial court merged the accessory after the fact conviction into the tampering with evidence conviction. The Defendant was sentenced to three years, with forty-five days incarceration to be served prior to her release on probation. On appeal, the Defendant argues that the trial court erred by: (1) excluding extrinsic evidence of a prior inconsistent statement made by an eyewitness; (2) admitting testimony about a second two-liter bottle found at the scene of the methamphetamine lab; (3) failing to dismiss the tampering with evidence charge at the close of the State’s proof; (4) rendering a sentence that was disproportionately harsh; and (5) increasing the Defendant’s appeal bond to $18,000. After a careful review of the record, we affirm the judgment of the trial court.

Authoring Judge: Judge Jeffrey S. Bivins
Originating Judge:Judge Donald Parish
Carroll County Court of Criminal Appeals 12/08/11
State of Tennessee v. Christine Caudle

M2010-01172-CCA-R3-CD

The Defendant,Christine Caudle,pled guiltyto recklessendangerment with a deadly weapon and theft of merchandise over $500, Class E felonies. See T.C.A. §§ 39-13-103, 39-14-146 (2010). She was sentenced as a Range II, multiple offender to three years for each conviction, to be served concurrently. On appeal, she contends that the trial court erred by failing to apply applicable mitigating factors and by failing to grant probation or an alternative sentence. We affirm the judgments of the trial court

Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge Timothy L. Easter
Williamson County Court of Criminal Appeals 12/08/11
Prime Locations, Inc. v. Shelby County and the City of Memphis

W2010-01941-COA-R3-CV

The trial court entered judgment in favor of Defendants Shelby County and the City of Memphis upon determining that, under Tennessee Code Annotated 37-7-210, Defendants have authority to regulate billboards pursuant to private acts applicable to Memphis and Shelby County. Plaintiff appeals. We affirm entry of a judgment in favor of Defendants on the grounds of standing and ripeness.

Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Jerry Stokes
Shelby County Court of Appeals 12/08/11