Ronald F. Fleming v. Jim Murphy, et al
W2006-00701-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge D'Army Bailey

The plaintiff buyer, a Texas resident, became aware of a used car for sale in Memphis through an internet advertisement. The plaintiff contacted the defendant who had prepared the internet advertisement for the seller, and who provided him with the phone number of the defendant seller.
The plaintiff and the defendant seller agreed that the plaintiff would travel to the seller’s house in
Memphis to see the car and decide whether to purchase it for $38,000. The plaintiff and his stepson drove to the seller’s home in Memphis, inspected the car, and took it on a short test-drive. The plaintiff noted several problems with the car during the test-drive, but declined the defendant seller’s offer to have the car inspected by a Memphis area mechanic prior to purchase. The plaintiff tendered full payment for the car, and he and the seller signed a bill of sale that contained “as is” disclaimers of warranty. After the plaintiff arrived back home in Texas, he took the car to a mechanic for routine maintenance. The mechanic informed the plaintiff that the car’s frame was severely rusted, rendering it dangerous to drive. The plaintiff received the same opinion from a restoration specialist, and the plaintiff claims ultimately to have spent nearly $35,000 restoring the vehicle. The plaintiff filed a complaint in Shelby County Circuit Court, asserting claims under the Tennessee Consumer Protection Act and claims for negligent misrepresentation and breach of contract. The plaintiff claimed actual damages which included over $25,500 in restoring the car to the condition represented by the defendants, and he sought treble damages under the Tennessee Consumer Protection Act. After discovery, the trial court granted the defendants’ joint motion for summary judgment. We affirm.

State of Tennessee v. Kellom Timbs
M2006-01908-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Curtis Smith

The defendant, Kellom Timbs, appeals as of right his conviction for reckless aggravated assault causing serious bodily injury, a Class D felony, imposed as a result of his jury trial in Franklin County Circuit Court. He received a sentence of two years as a Range I, standard offender to be served on probation upon the completion of eleven months and twenty-nine days in jail. He argues that there is insufficient proof to support his conviction, that the trial court erred in denying judicial diversion and that the trial court erred in not granting him full probation. Upon a full consideration of the record, we affirm the judgment of the trial court as modified.

Aaron Walker v. Tennessee Department of Correction
M2005-00209-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Claudia C. Bonnyman

An inmate of the Department of Correction appeals dismissal by the trial court of his Petition for Writ of Certiorari of a Department of Correction Disciplinary Proceeding. The trial court upheld the action of the Department of Correction. The judgment of the trial court is affirmed.

Demetrica Bell v. Cathy Ann Bell
M2004-01975-COA-R3-CV
Authoring Judge: Judge Patricia Cottrell
Trial Court Judge: Chancellor Carol A. Catalano

Wife appeals from the trial court’s final decree of divorce, alleging various deficiencies in the proceedings. Based on the limited record before us, which includes Wife’s specific waiver of most of the issues she now raises, we affirm the trial court.

James William Taylor v. George Little
M2005-01615-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Appellant and inmate in the Department of Correction filed a declaratory judgment action asserting various deficiencies in the judgment of the trial court convicting him of first degree murder and sentencing him to life in prison. He asserts that the murder conviction should not have been used in the calculation of his prison sentence. The trial court granted summary judgment to Defendant, George Little, the Commissioner of Correction. We affirm the judgment of the trial court.

Robert Earl Johnson v. State of Tennessee
M2006-01651-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In January 1998, a Davidson County grand jury indicted the petitioner, Robert Earl Johnson, on one count of first degree premeditated murder. In November 1998, following a jury trial in Davidson County Criminal Court, the petitioner was convicted on the sole count of the indictment and sentenced to life imprisonment without the possibility of parole. This court affirmed the conviction on appeal. See State v. Robert Earl Johnson, No. M2000-01647-CCA-R3-CD, 2001 WL 1180524 (Tenn. Crim. App. Oct. 8, 2001). In December 2002, the petitioner filed a pro se petition for post-conviction relief. Counsel was appointed in January 2003, and following another change in counsel, an amended petition was filed in December 2005. In July 2006, following an evidentiary hearing, the trial court denied the petition. The petitioner appeals, alleging that he received ineffective assistance of counsel and that his due process right to a fair trial was violated. After reviewing the record, we conclude that the trial court properly denied the petition and therefore affirm the judgment of the trial court.

Memphis Light, Gas & Water Division v. Tommy Carl Starkey
W2006-01089-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Robert L. Childers

This case involves wrongful interference with an easement. The plaintiff utility operates an underground gas transmission line. The utility had an easement for the gas line, running along thenorth edge of a large tract of real property. For the gas line to operate safely, it needed sufficient soil both on top of the pipeline and on each side of the pipeline. The defendant developer acquired the real property, subject to the easement for the pipeline. The developer then sought to develop the real property. In May 2002, the defendant developer began excavating large amounts of dirt from within the easement site without proper authorization from the utility. Despite the utility’s repeated demands to stop, the developer continued the excavation. Only when the utility threatened to have the developer arrested did he finally stop excavating dirt from around the pipeline. By this time, there was so little dirt surrounding the pipeline that there was serious danger to the public, and the utility was required to engage in immediate corrective work. The utility hauled in and spread 21,467 yards of dirt, restoring the easement site to a safe condition. The utility then filed suit against the developer, seeking compensatory and punitive damages. After a bench trial, the trial court awarded the utility compensatory damages and punitive damages. The defendant developer now appeals. We affirm, finding ample evidence to support the award of damages.

Doris Jones and Billy J. Jones v. Susannah P. Johnson
W2006-01859-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Roger A. Page

This is a personal injury case involving the Tennessee suspension statute. On August 27, 2003, the defendant rear-ended the plaintiff’s vehicle. On August 23, 2004, the plaintiffs filed a lawsuit
against the defendant for damages arising out of the accident. On the same date, a summons was issued to the defendant at her last known address in Tennessee. A few days later, the summons was returned with a notation indicating that the defendant had moved to Georgia. The plaintiffs failed to renew process within one year of the original date of service. Finally, in March 2006, an alias summons was issued and served on the defendant in Georgia. The defendant filed a motion for summary judgment based on the one-year statute of limitations. The trial court granted the defendant’s motion. The plaintiffs now appeal, arguing that the statute of limitations was tolled pursuant to the suspension statute, T.C.A. § 28-1-111, because the defendant lived in another state when suit was filed. We affirm, concluding that the suspension statute is inapplicable in this case.

Bi-Lo, LLC. v. Larry Van Fossen
E2006-00709-WC-R3-WC
Authoring Judge: Senior Judge Jon Kerry Blackwood
Trial Court Judge: Judge Neil Thomas

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. The employer asserts that the trial court erred in (1) finding that the employee’s work injury of October 15, 2003, rather than his non-work injury of March 2004 caused his permanent disability; (2) assessing 60 percent vocational disability for the employee’s injury; and (3) assessing the employer for the medical treatment received by the employee by Doctors Smith and Hodges. We agree with the findings of the trial court and in accordance with Tennessee Code Annotated section 50-6-225(2), affirm the judgment of the trial court.

State of Tennessee v. Tommy Ray Kitts
E2006-01964-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Richard R. Baumgartner

Defendant, Tommy Ray Kitts, was convicted of two counts of theft of property between $1,000 and $10,000, a Class D felony. The trial court merged count two into count one and sentenced Defendant as a Range III, career offender, to twelve years. In his appeal, Defendant challenges the sufficiency of the convicting evidence. After a review of the record, we affirm the judgment of the trial court.

Brian Roberson v. Howard Carlton, Warden - Dissenting
E2006-01551-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lynn W. Brown

I write in dissent to express my opinion as to what the “record in the underlying proceeding” means.

Brian Roberson v. Howard Carlton, Warden
E2006-01551-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lynn W. Brown

The petitioner, Brian Roberson, appeals the Johnson County Criminal Court’s denial of his petition for habeas corpus relief from his guilty pleas to two counts of selling cocaine and one count of possession of cocaine. He contends that his judgments of conviction are void because his sentences are illegal. Upon review of the record and the parties’ briefs, we reverse the judgment of the habeas corpus court and remand this case to the Johnson County Criminal Court for the appointment of counsel and an evidentiary hearing.

Eric Todd Jackson v. Carrie Gasaway
M2004-02285-COA-R3-CV
Authoring Judge: Judge Frank Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

Inmate appeals the dismissal of his "Personal Injury Suit" against the attorney who represented him in a previous criminal matter. The trial court dismissed the action finding the complaint does not state a cause of action due to the lack of any allegation of severe mental injury and that any action arising out of alleged misconduct occurring on March 9, 2001, would be barred by the one-year statute of limitations. Finding the inmate's suit wholly without merit, we affirm.

State of Tennessee v. Tony Samuel
W2006-00090-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Joseph H. Walker, III

The defendant was indicted for one count of aggravated rape and one count of aggravated kidnapping of his live-in girlfriend’s fourteen-year-old, mentally-challenged daughter. A jury convicted the defendant of both indicted offenses. The trial court sentenced the defendant to thirty-five years for the aggravated rape and eighteen years for the aggravated kidnapping to be served concurrently to each other, but consecutively to a previous sentence. On appeal, the defendant argues: (1) that the evidence was insufficient to sustain his convictions of aggravated rape and aggravated robbery; (2) that the trial court erred in allowing questions to jurors in voir dire regarding mental retardation; (3) that the trial court erred in allowing testimony regarding the victim’s I.Q. test scores and capabilities; (4) that the trial court erred in allowing testimony by a State witness regarding statements of the victim; (5) that the trial court erred in allowing testimony from a lay witness regarding recency and appearance of the injury to the victim; (6) that the trial court erred in determining that the victim was competent to testify; and (7) that the trial court erred in sentencing the defendant to an enhanced and consecutive sentence. After a thorough review of the record, we affirm the judgments of the trial court.

William L. Thompson v. Memphis Light, Gas And Water
W2006-01972-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

The trial court awarded summary judgment to Plaintiff, former employee of Defendant Memphis Light Gas and Water Division (“MLGW”), upon determining that Plaintiff was entitled to severance benefits under “personnel policy 22-25" because revocation of the policy by MLGW’s Board was negated due to violations of the Open Meetings Act. We reverse the award of summary judgment to Mr. Thompson and award summary judgment to MLGW on other grounds.

Billy Ray Riley v. State of Tennessee
W2006-01520-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roger A. Page

The petitioner, Billy Ray Riley, was convicted by a jury in the Madison County Circuit Court of theft of property valued more than $1000 but less than $10,000, and he was sentenced as a Range III, persistent offender to twelve years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective by not thoroughly reviewing his file with him, by not convincing him to testify at trial, and by having a conflict of interest regarding the case. The post-conviction court found that counsel was not ineffective and denied the petition. On appeal, the petitioner contests the postconviction court’s ruling. Upon our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Gladys Tuturea, Individually and as representative of George Tuturea v. Tennessee Farmers Mutual Insurance
W2006-02100-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Julian P. Guinn

This lawsuit concerns coverage for real and personal property under three insurance policies issued by Defendant. The trial court awarded partial summary judgment to both parties and entered final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Both parties appeal. We vacate the trial court’s order entering final judgment pursuant to Rule 54.02 and remand.

County of Shelby, A Political Subdivision of the State of Tennessee v. John R. Tompkins, et al.
W2006-01433-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Chancellor D. J. Alissandratos

In this administrative appeal, a Shelby County firefighter challenges the judgment of the lower court reinstating the Fire Department’s decision to terminate his employment for a conceded violation of the county residency requirement set forth in the Shelby County Charter. The Shelby County Civil Service Merit Board (Merit Board) had modified the Fire Department’s sanction from termination to suspension without pay for the time of suspension already served. The trial court, however, ruled that the Merit Board exceeded its authority by failing to heed the Shelby County Charter’s provision mandating termination. The Appellant argues that the Charter does not mandate termination; that, even if it does, he had moved back to Shelby County at the time of his termination and should not have been discharged; and that, alternatively, he is entitled to a remand to advance an equal protection argument because he was unfairly prevented from doing so in the lower court. We affirm.

State of Tennessee v. Michael Rodiquez Payne
E2006-01718-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Phyllis H. Miller

The defendant, Michael Rodiquez Payne, was convicted of aggravated robbery, sentenced to twelve years as a Range I, standard offender, and ordered to pay a fine of $10,000. He filed a timely appeal, arguing that: (1) the evidence was insufficient; (2) he should have received a lesser sentence; and (3) the indictment should have been dismissed because the State lost the audiotaped recording of the first preliminary hearing. Following our review, we affirm the judgment and sentence.

State of Tennessee v. Pamela A. Inghram
M2006-00818-CCA-R3-CD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. S. Daniel

The Appellant, Pamela A. Inghram, presents for review a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). Inghram pled guilty to Class E felony possession of marijuana with intent to sell or deliver and received an eighteen-month sentence, which was suspended. As a condition of her guilty plea, she explicitly reserved a certified question of law challenging the denial of her motion to suppress evidence, specifically drugs and drug paraphernalia, found in her home. Inghram argues that the warrantless entry into her home by police in response to a burglar alarm call was without legal authority. After review, we conclude that exigent circumstances justified police entry and the subsequent seizure of the contraband, which was observed in plain view. Accordingly, we affirm the judgment of the Rutherford County Circuit Court denying the motion to suppress.

Chris Grunder v. State of Tennessee
M2006-01503-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert G. Crigler

The Petitioner, Chris Grunder, was convicted of especially aggravated kidnapping, aggravated rape, aggravated assault, and theft of property over $500.00. He filed a petition for post-conviction relief alleging that he was not afforded the effective assistance of counsel at trial. This petition was denied by the post-conviction court. Upon a thorough review of the record and applicable law, we find no error and affirm the decision of the post-conviction court.

Danny Ray Meeks v. Claudia Bonnyman
M2006-02657-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Judge Barbara N. Haynes

Petitioner brought an action for mandamus in Circuit Court. The Trial Court dismissed the Petition on the grounds that petitioner did not meet the statutory requirements for maintaining an action. On appeal, we affirm.

State of Tennessee v. Tommy Roscoe
W2006-01605-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris B. Craft

The defendant, Tommy Roscoe, was convicted of robbery, a Class C felony, and sentenced as a Range III, persistent offender to twelve years in the Department of Correction. He raises two issues on appeal: (1) whether a pretrial photographic identification procedure was impermissibly suggestive; and (2) the sufficiency of the evidence. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Lavon Lyn Nunnery
M2006-01198-CCA-R3-CD
Authoring Judge: Judge J. C. McLin
Trial Court Judge: Judge Don R. Ash

The defendant, Lavon Lyn Nunnery, appeals from the judgment of the Rutherford County Circuit Court, revoking his probation and imposing service of eight months in confinement followed by two years of probation. In this appeal, the defendant argues that the state’s inclusion of waiver language in his probation order violates Tennessee statute and that the trial court erred in revoking his probation and ordering split confinement. Following our review of the record, parties’ briefs and the applicable law, we determine no error exists in the court’s revocation of probation, and thus affirm the court’s judgment.

Michael Braxton v. State of Tennessee
M2006-01894-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury convicted the Petitioner, Michael Braxton, of aggravated rape and aggravated assault, and he received an effective sentence of twenty-three years. The Petitioner filed a petition for post-conviction relief claiming that he had received the ineffective assistance of counsel at trial. The post-conviction court dismissed the petition after a hearing. The Petitioner appeals that dismissal. Finding no error, we affirm the judgment of the post-conviction court.