Opinions

Susan/Donald Smytka vs. Dayton-Hudson
W1999-01751-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Robert A. Lanier
This appeal arises out of a complaint for personal injuries sustained when the Plaintiff was struck by a shopping cart in the parking lot of the Defendant's store. The Defendant filed a motion for summary judgment arguing that it did not violate the duty of care owed to the Plaintiff. The trial court granted the motion and entered judgment accordingly.

Arzolia Charles Goines vs. State
E1999-02459-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Ray L. Jenkins
The appellant, Arzolia Charles Goines, appeals the dismissal of his writ of error coram nobis by the Knox County Criminal Court on September 1, 1999. Following a review of the record and the parties' briefs, we affirm the judgment of the trial court.

State vs. Orlando Ward
W1999-00609-CCA-R3-CD
Authoring Judge: Judge Cornelia A. Clark
Trial Court Judge: W. Fred Axley
Undercover police officers arrested defendant and recovered 2.7 grams of cocaine from his vehicle. Defendant was indicted for possession of cocaine with intent to sell or deliver, a Class C felony. He entered a plea of guilty to the lesser offense of attempt to commit possession of cocaine with intent to sell or deliver, a Class D felony. As a part of the negotiated plea agreement defendant agreed to a sentence of two (2) years as a standard offender. The manner of service was left for determination by the trial court. Defendant now appeals the trial court's finding that he should serve his sentence without the opportunity for alternative sentencing. We affirm the judgment of the trial court.

State vs. Arthur Clark
W1999-01747-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Chris B. Craft
The defendant was found guilty by a Shelby County jury on two counts of rape. The second count of the indictment, charging rape of a "physically helpless" victim, was merged by the trial court with the first count, charging forcible rape; and the defendant was sentenced to eight years and three months. In this appeal as of right, he argues the trial court should have forced the State to elect one count of the indictment upon which to proceed. He further challenges the sufficiency of the evidence as to both counts of the indictment. We conclude the State was not required to make an election. We further conclude that the evidence is sufficient to support the defendant's conviction for forcible rape, but not rape of a "physically helpless" victim. Thus, we remand to the trial court for entry of a new judgment in accordance with this opinion.

John B. Tigrett v. Union Planters Bank
W1999-01771-COA-R3-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: Robert L. Childers

Sarah Anita James vs. Susan Kay Swindell
E1999-02407-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: L. Marie Williams
This appeal arises out of an automobile accident. The Defendant lost control of her vehicle, crossed three lanes of traffic, and hit Plaintiff's vehicle. Plaintiff suffered injuries and sued Defendant for damages. A jury trial ensued. The jury found Defendant to be 100% at fault and awarded $15,000 in damages to Plaintiff. The Plaintiff filed a motion for a new trial alleging juror misconduct and presented a juror's affidavit in support of her position. The Defendant untimely presented counter affidavits by jurors. The trial court judge granted a new trial based on juror misconduct. At the second trial the jury found the Defendant 100% at fault and awarded Plaintiff $27,608.60 in damages. On appeal, the Defendant claims that the trial court erred in failing to grant Defendant's motion for a directed verdict and in granting a new trial. We affirm the trial court's denial of a directed verdict for the Defendant and reverse the trial court's granting of a new trial based on juror misconduct. We remand the case to the trial court for the reinstatement of the jury verdict at the first trial.

Gretchen Bish vs. Sofamor
W1998-00373-COA-R9-CV
Authoring Judge: Judge W. Frank Crawford
Trial Court Judge: John R. Mccarroll, Jr.
These are consolidated interlocutory appeals of products liability suits against the manufacturers of spinal fixation devices. The trial court dismissed plaintiffs' negligence per se claims based on the alleged violation of the Food, Drug and Cosmetics Act (FDCA) and the Medical Device Amendments (MDA). In one of the cases, the trial court also granted defendants' motion in limine to exclude all Federal Drug Administration (FDA) regulatory evidence information and documents concerning the fixation devices. Plaintiffs appeal the rulings of the trial court.

State vs. Eric William Sanders
E1999-00345-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: R. Jerry Beck
The Defendant pleaded guilty in Sullivan County Criminal Court to violation of a habitual traffic offender order, a Class E felony, and driving under the influence, second offense, a Class A misdemeanor. The Defendant was sentenced to serve one year in the Tennessee Department of Correction as a Range I standard offender for violation of the HTO order and eleven months and twenty-nine days, suspended except for forty-five days, for the DUI. The sentences were to run consecutively. After serving thirty percent of his one-year sentence for violation of the HTO order, the Defendant was released by determinate release to the local jail to serve the remainder of his mandatory forty-five day jail term for the DUI conviction, and he was then released on probation pursuant to determinate release. Within one year of the convictions, two warrants were filed alleging that the Defendant violated the terms of his determinate release for the HTO conviction, but neither warrant made reference to the DUI conviction. Following a hearing, at which the Defendant stipulated that he had absconded as alleged in the second warrant, the trial court revoked the Defendant's probation for the HTO conviction and ordered the Defendant to serve his sentence. The trial court continued disposition of the first warrant to allow the State to file a written motion to amend the first warrant to include the DUI conviction. The trial court then issued a third warrant to amend the first warrant to include the DUI conviction. Following a hearing on the first warrant, as amended, the trial court revoked the Defendant's probation for the DUI conviction and ordered him to serve that sentence as well. The Defendant now appeals, arguing (1) that the trial court did not have jurisdiction to revoke his probation for the DUI conviction, and (2) that the trial court abused its discretion in revoking his probation for the DUI conviction. Finding no error, we affirm the judgment of the trial court.

Danny S. Cosby vs State
M1999-01861-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Steve R. Dozier
The Appellant, Danny S. Cosby, pleaded guilty to two counts of attempted first degree murder and to two counts of aggravated assault. Pursuant to a plea agreement, the Davidson County Criminal Court sentenced the Appellant to an effective sentence of thirty years in the Tennessee Department of Correction. The Appellant subsequently filed for post-conviction relief, claiming that his plea was constitutionally defective because he was inadequately represented. The trial court denied relief. After review, we affirm the judgment of the trial court.

State vs. Jeremy Jones
E1999-02207-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: James Edward Beckner
The defendant appeals his conviction and sentence for theft of property, asserting that insufficient evidence supported the verdict and that the trial court erroneously sentenced him to three years of incarceration. We affirm the conviction and modify the sentence to two years of incarceration.

State vs. Willie Smith
W2001-02973-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Joseph H. Walker, III
The defendant, Willie Nathaniel Smith, appeals as of right his conviction by a jury in the Tipton County Circuit Court of delivery of .5 grams or more of cocaine, a Class B felony, and his resulting fifteen-year sentence. He also appeals the concurrent fifteen-year sentences received following his guilty pleas to two additional counts of delivery of .5 grams or more of cocaine. He contends (1) the evidence is insufficient to support his conviction in case number 4149; (2) the trial court erroneously allowed a police investigator to testify about what he heard on a recording device; and (3) his sentences in both cases are excessive. We affirm the judgments of conviction.

State ex rel Cihlar vs. Crawford
M1999-00517-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Betty Adams Green
This appeal involves Thomas Matthew Cihlar's second attempt to obtain a judicial declaration that he is the father of a child whose mother was married to another man when the child was born. On this appeal, the estranged husband of the child's biological mother asserts that Mr. Cihlar's petition to establish parentage was foreclosed by Evans vs. Steelman. We have determined that the current parentage statutes are constitutional and that they authorize not only Mr. Cihlar, but also the State and Mr. Cihlar's child, to file an action to establish Mr. Cihlar's paternity. Accordingly, we affirm the juvenile court.

Israel vs. Williams
M1999-02400-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Russell Heldman
This appeal presents the issue of whether the trial court was correct to grant summary judgment against Plaintiffs regarding their suit for damages resulting from alleged negligent misrepresentation by Defendants. Plaintiffs claim that Defendants made negligent misrepresentations regarding the condition of their house prior to the sale of the house to Plaintiffs. Summary judgment was granted by the trial court. Upon review of this record, we affirm the judgment of the trial court.

Shelbourne vs. Shelbourne
M1999-02557-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Muriel Robinson
The trial court granted the wife a divorce, awarded her custody of the parties' minor child, divided the marital property, and ordered the husband to pay rehabilitative alimony for two years. We affirm

Johnson vs. Traughber
M1999-02472-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Carol L. Mccoy
Appellant, Edward Johnson, is an inmate in the Tennessee Department of Corrections, and in this case, he has filed a Petition for Common Law Certiorari to review a denial of parole by the Board of Paroles. The Chancery Court of Davidson County sustained a motion to dismiss his petition, and we affirm the judgment of the Chancellor.

Lawson vs. Lawson
M2000-00729-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Samuel E. Benningfield
The General Sessions Court of Van Buren County awarded the wife a divorce, divided the marital property, and awarded the wife rehabilitative alimony. On appeal the husband attacks the property division and the amount of the alimony. Because the record does not provide a basis for properly assessing the issues raised by the appellant, we affirm with a memorandum opinion.

Goggin Truck Line Co. vs. Brake Pro
M1999-01277-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Russell
This appeal arises from a breach of contract case initiated by Goggin Truck Line Company, Inc. ("Goggin") against Brake Pro, Inc. ("Brake Pro"). Goggin sought payment for unpaid freight shipping services provided to Brake Pro. In addition, as provided for under a company tariff, Goggin sought recovery of an additional amount because of the necessity to initiate legal action. The court below found in favor of Goggin. Brake Pro appeals.

Charles High vs. P.D.Q. Disposal, Inc., et al
M1999-02310-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Irvin H. Kilcrease, Jr.
Plaintiff/Appellant, Charles I. High, appeals dismissal of his pro se complaint filed in the Chancery Court of Davidson County, Tennessee, seeking judicial review of the denial of his application for unemployment benefits. The trial court dismissed the complaint for failure to join indispensable parties. We affirm the Chancellor.

25840-COA-R3-CV
25840-COA-R3-CV
Trial Court Judge: Samuel H. Payne

Church vs. Perales
M1997-00227-COA-R3-CV
Authoring Judge: Judge William C. Koch, Jr.
Trial Court Judge: Barbara N. Haynes
This appeal involves a dispute between an elderly patient and her physicians regarding their treatment of a severe post-operative infection caused by a bowel perforation that occurred during gynecological surgery. The patient filed suit in the Circuit Court for Davidson County against five physicians and a hospital alleging medical battery and malpractice. The trial court granted a summary judgment to the physicians and the hospital and dismissed the patient's case. On this appeal, the patient takes issue with the summary judgment granted to her gynecologist, a consulting general surgeon, and the gynecologist attending her following surgery in her gynecologist's absence. We have determined that the trial court properly dismissed the patient's medical battery and informed consent claims against her gynecologist. However, we have also determined that the three physicians have not demonstrated that they are entitled to a judgment as matter of law on the patient's medical malpractice claim based on the delay in diagnosing and treating the bowel perforation.

Christopher Woods vs. Ellis Woods
W1999-00733-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: D'Army Bailey
This appeal arises from a dispute between Plaintiff Christopher Lamar Woods and Defendant Ellie Joan Woods regarding Mr. Woods' financial obligations under the parties' final decree of divorce. The trial court approved the ruling of the arbitrator, which was that Mr. Woods is responsible for the expense of Ms. Woods' "tummy tuck" and breast reduction surgery but is not responsible for the expense of Ms. Woods' Obagi cream treatments, collagen injections, lip implants, and other topical procedures. For the reasons set forth below, we affirm the ruling of the trial court.

Jimmy Greene vs. State
E2000-00426-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: D. Kelly Thomas, Jr.
A Blount County jury convicted the Petitioner of the aggravated rape of a person less than thirteen years of age, and the trial court sentenced him to twenty-two years incarceration. His conviction was affirmed on direct appeal. The Petitioner petitioned for post-conviction relief, and the trial court denied his request. He now appeals the trial court's denial of post-conviction relief, arguing that he received ineffective assistance of counsel at trial and on appeal. We conclude that the Petitioner was not denied the effective assistance of counsel and accordingly affirm the judgment of the court below.

State vs. Cornelius Michael Hyde
E2000-00042-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: D. Kelly Thomas, Jr.

State vs. Cornelius Michael Hyde
E2000-00042-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: D. Kelly Thomas, Jr.

State vs. Donald Ree Jones
M2000-00381-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: J. O. Bond
The defendant, Donald Ree Jones, challenges the trial court's dismissal of his motion to correct an illegal sentence. He argues that his sentence is illegal because his agreed sentence pursuant to a guilty plea following the remand of his case was higher than his initial sentence, which was overturned on appeal. We hold that a defendant may not bring an appeal as of right from the dismissal of a motion to correct an illegal sentence and that an illegal sentence is properly challenged in a petition for habeas corpus relief. Treating this appeal as a petition for a writ of certiorari, we hold that the defendant's sentence is legal and decline to grant the petition.