State of Tennessee vs. Clifford Peele
E1999-00907-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Arden L. Hill
We granted appeal to determine (1) if Tenn. R. App. P. 3(b) permits the appeal of a denial of a motion to withdraw a guilty plea; and (2) whether a Tenn. R. Crim. P. 32(f) motion to set aside a guilty plea filed prior to the time the judgment becomes final tolls the time for filing an appeal to permit the trial court to rule on the motion. We hold (1) that a denial of a motion to set aside a guilty plea may be appealed pursuant to Tenn. R. App. P. 3(b); and (2) that a trial court retains jurisdiction to rule on a motion to set aside a guilty plea if the motion is filed prior to the date the judgment becomes final. Accordingly, the holding of the Court of Criminal Appeals is reversed, and the case is remanded to the intermediate appellate court for proceedings consistent with this opinion.

Polk County vs. Glenda B. Rogers , d/b/a Ocoee River Rats
E2001-00004-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: Jerri S. Bryant
In this appeal from the Polk County Chancery Court the Appellant , Glenda B. Rogers, d/b/a Ocoee River Rats, contends that evidence presented at trial showed that the classification of whitewater rafting businesses and their customers under a private act applicable to the Appellee, Polk County, assessing a privilege tax on guided rafting ticket sales by such businesses in Polk County is without reasonable basis and that the Trial Court's finding to the contrary was in error. We affirm the judgment of the Trial Court and we adjudge costs of the appeal against the Appellant.

State of Tennessee v. Daniel Thomason
M2000-01164-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Steve R. Dozier

Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery “by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm.

Vicky Lockhart vs. Robert Lockhart
W2000-02922-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Martha B. Brasfield
The Appellant and the Appellee were divorced by final decree of divorce incorporating a marital dissolution agreement entered into by the parties. The marital dissolution agreement provided that the Appellee was to have custody of the parties' two minor children. The Appellant filed a petition to modify custody of the parties' children in the Chancery Court of Tipton County. At the hearing on the petition, the Appellant first raised the issue that the Appellee was not the biological father of one of the children. The trial court held that the Appellant was judicially estopped to raise the issue of the paternity of one of the children and denied the petition to modify custody. The Appellant appeals the decision of the Chancery Court of Tipton County holding that the Appellant was judicially estopped to raise the issue of paternity and denying the petition to modify custody. For the reasons stated herein, we affirm the trial court's decision.

Constance/Marcus Cherry vs. State
W2001-00038-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
This is a wrongful death case. The decedent was a patient at a state mental health institution. He died at the institution because he was not properly treated for urinary problems. The mother of the decedent filed this wrongful death action against the State, seeking damages for the decedent's loss of earning capacity, pain and suffering, as well as her loss of consortium. The complaint was later amended to add the decedent's son as a plaintiff. The son sought damages only for his loss of consortium. After a hearing, the Tennessee Claims Commission denied the mother any damages for wrongful death, holding that persons of unequal kinship cannot both maintain a wrongful death action relating to the same death. However, the Claims Commission awarded the mother her out-of-pocket funeral expenses, and awarded $25,000 to the son for his loss of consortium. The mother and son now appeal. We affirm, finding that, as between the mother and son of the decedent, the son has the greater degree of kinship with the decedent, and therefore the mother cannot be awarded damages for the decedent's wrongful death.

Myrtle Brown vs. Norma Daly
W2001-00953-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Floyd Peete, Jr.
This appeal involves the disputed ownership of real property. Appellee claims title to the land by prescription, or in the alternative, under the doctrine of laches. After a jury trial, the trial court entered a judgment in favor of Appellee. Appellants assert that the trial court erred by admitting a check into evidence as proof that Appellee's predecessor in interest lived on the property without the permission of Appellants. We agree that the trial court erred by admitting the check, but we affirm the judgment of the trial court because the record contains material evidence to support the jury's findings and corresponding verdict.

Sandra Harris v. John W. Harris, Jr.
W2000-03058-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Karen R. Williams

Eva Woods vs. County of Dyer
W2001-00224-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Lee Moore
This appeal arises from the Appellees' denial of an application for a beer permit filed by the Appellant. The Appellant filed a petition for writ of certiorari against the Appellees in the Circuit Court of Dyer County. Following a hearing on the petition for writ of certiorari, the trial court affirmed the decision of the Appellees and dismissed the petition for writ of certiorari. The Appellant appeals the dismissal of the petition for writ of certiorari by the Circuit Court of Dyer County. For the reasons stated herein, we affirm the trial court's decision.

State, ex rel Steven Wrzesniewski, vs. Lori Miller
E2001-00317-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: W. Dale Young
Appellant was not ordered to pay child support when divorce was granted. Subsequently, retroactive child support was ordered. On appeal, we affirm.

Anthony McNabb, et ux vs. Highways, Inc., et al
E2001-00867-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Lawrence H. Puckett
Plaintiffs' action for damages for personal injury allegedly due to defendant's negligence, was dismissed by the Trial Judge for failure of plaintiffs to join all alleged tort feasors in one action. On appeal, we vacate and remand.

State ex rel. Benjamin Bowman, et al vs. City of Elizabethton
E2001-00597-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: G. Richard Johnson
In this condemnation suit the landowners, whose property was originally proposed to be annexed but later excluded, appeal the Trial Judge's determination that they have no standing to prosecute the suit contesting the annexation. Other landowners who were in the original annexation ordinance and remained therein after the amended ordinances excluding realtors, sought to intervene and contest the City's right to annex. Their suit was likewise dismissed upon a finding by the Trial Court that they had not filed an exception within the 30-day period allowed by Statute. We affirm the Trial Court's resolution both as to the Realtors and the parties attempting to intervene.

Sam Mirabella, et al vs. State
E2001-00960-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
This is a suit by Sam Mirabella and his son Charles Mirabella and their wives, seeking damages against the State of Tennessee and the University of Tennessee for damages incurred as a result of the unlawful arrest of both Mr. Mirabellas and negligence resulting in injury to Sam Mirabella. The Trial Court found it did not have jurisdiction to hear the unlawful arrest claim and awarded damages for the injury to Sam Mirabella in the amount of $4528 and to his wife in the amount of $800. As to Sam Mirabella we modify the judgment to increase the award to the sum of $11,528 and as to his wife $1800.

Mark Wishon, et ux vs. Ear, Nose, & Throat Associates, PC., et al
E2001-01031-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Thomas J. Seeley, Jr.
Plaintiffs appeal from summary judgments in medical malpractice case granted to defendants, and from the Trial Court's refusal to grant them a voluntary dismissal during the pendency of the summary judgment motions. We affirm.

State of Tennessee v. Ricky Eugene Cofer - Concurring and Dissenting
E2000-01499-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Richard R. Baumgartner

I concur fully in the lead opinion with respect to the attempted murder convictions of both defendants. I also concur fully with Judge Woodall’s opinion in all other respects save for the issue concerning the failure of the trial court to instruct the jury on the lesser-included offenses of robbery and attempted robbery to the aggravated robbery indictment and the attempted aggravated robbery indictment. For the reasons stated below I would find this failure to instruct with respect to these lesser-included offenses constituted reversible error. A reading of the recent cases of State v. Bowles, ___ S.W.3d ___(Tenn. 2001); and State v. Ely & Bowers, 48 S.W.3d 710 (Tenn. 2001); leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses.  This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. See Bowles ___ S.W.3d at ____. As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense.1 Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.  It should be noted at the outset of this discussion that although defendant Richmond raised
on appeal the lesser-included offense issue, defendant Johnson did not. Nevertheless, pursuant to Tenn. R. Crim. P. 52(b) and the case of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); I would find as to Johnson that the failure to instruct the jury on the lesser-included offenses of robbery and attempted robbery constitutes plain error. As such I would therefore grant relief on this issue to both defendants.

State of Tennessee v. Linnell Richmond and Shervon Johnson - Concurring
E2000-01499-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Richard R. Baumgartner

I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal.  Five factors determine whether the failure to charge lesser included offenses qualifies as reversible, plain error:

1. The record must clearly establish what happened in the trial court;
2. a clear and unequivocal rule of law must have been breached;
3. a substantial right of the accused must have been adversely affected;
4. the accused did not waive the issue for tactical reasons; and
5. consideration of the error is necessary to do substantial justice.

State of Tennessee v. Linnell Richmond and Shervon Johnson
E2000-01545-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Richard R. Baumgartner

Following a jury trial, a Knox County jury found the Defendants, Linnell Richmond and Shervon Johnson, guilty of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. Defendant Johnson was also convicted of the additional attempted aggravated robbery of Leonard Hill. The trial court sentenced Defendant Richmond to an effective sentence of twenty-two years for his convictions. Defendant Johnson was order to serve an effective sentence of seventy years for his convictions. The trial court further ordered that both Defendants serve their state sentences consecutively to a federal sentence arising out of the same situation and conduct as the state sentences. In this appeal as of right, the Defendants raise the following issues:

1) whether the evidence was sufficient to convict each Defendant of attempted first degree premeditated murder, attempted aggravated robbery and aggravated robbery; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the trial court erred in allowing the state to proceed under a theory of criminal responsibility against Defendant Richmond, when the indictment failed to charge him with criminal responsibility; 4) whether the trial court erred in failing to charge lesser-included offenses; 5) whether the trial court erred in failing to allow the victim, Mose Cuxart, to be impeached with false statements concerning his income tax returns; 6) whether the trial court erred in admitting photographs of Shannon Brown and Kevin Brown; 7) whether the trial court erred in amending the indictment for aggravated robbery; and 8) whether the trial court erred in ordering the Defendants’ state sentence to run consecutively to their federal sentence. After a thorough review of the evidence and the applicable law, a majority of the panel affirms each of Defendant Johnson’s convictions and sentences. A majority of the panel reverses and remands for a new trial Defendant Richmond’s convictions for aggravated robbery, attempted aggravated robbery, and attempted murder.

Joy Mcvey Porter v. Money Tree Finance Corporation Ii,
2001-01142-COA-R3-CV
Trial Court Judge: Jean A. Stanley

Ellen Hopson Bell v. William Hall Bell
2001-01348-COA-R3-CV
Trial Court Judge: Jean A. Stanley

Grace Fellowhip Church vs. Lenoir City Beer Bd. & KVAT Food Stores, Inc.
E2000-02777-COA-R3-CV
Authoring Judge: Presiding Judge Herschel P. Franks
Trial Court Judge: Frank V. Williams, III
The Trial Court voided Beer permit issued by the Beer Board. We vacate the Trial Court's Judgment and remand to the Board to reconsider the application on grounds the Board's actions were in violation of the Open Meetings Act.

Patricia Parks vs. Julie Nelson
E2000-02943-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Dale Young
In this appeal from the Blount County Circuit Court the Plaintiff/Appellant, Patricia D. Parks, contends that the Trial Court erred in granting the Motion for Summary Judgment filed by the Defendants/Appellees, Julie Nelson and Nelson Realtors/ Better Homes and Gardens, Inc. Ms. Parks also contends that the Trial Court erred in failing to grant her motion for continuance and in failing to grant her motion to accept a late filed deposition. We affirm the judgment of the Trial Court and remand the case for collection of costs below.

Anthony Jerome Stokes v. State of Tennessee
E2000-03232-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Douglas A. Meyer

In 1995, the petitioner entered pleas of guilty to two counts of murder. Subsequently, he filed a petition for post-conviction relief attacking his sentence. Relief was denied by both the post-conviction court and this court. His post-conviction counsel neither withdrew nor filed an application for permission to appeal. Subsequently, he filed a number of other pleadings of various types, including a second petition for post-conviction relief, the dismissal of which is the basis for this appeal. Through that petition, he sought to file an application for permission to appeal to the supreme court the judgment of this court affirming dismissal of his first petition for post-conviction relief. Based upon our review, we remand the matter to the post-conviction court for an evidentiary hearing.

State of Tennessee v. Michael Dean Baugh
M2001-00354-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Lee Russell

The defendant entered a best interest guilty plea to aggravated burglary for an agreed sentence of three years as a Range I standard offender, with the potential for alternative sentencing left to the discretion of the trial court, and a misdemeanor theft count was dismissed. Prior to the sentencing hearing, the defendant filed a motion to set aside his plea pursuant to Tenn. R. Crim. P. 32(f), claiming he unknowingly entered it. Following a hearing, the trial court concluded the plea was knowingly entered and denied the defendant's request for alternative sentencing. In this appeal, the defendant claims the trial court erred (1) by denying his motion to withdraw his guilty plea, and (2) by denying alternative sentencing. We affirm the judgment of the trial court.

State of Tennessee v. Dennis Harry Johnson
M2000-03047-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Lee Russell

The defendant, Dennis Harry Johnson, pled guilty to two counts of sexual exploitation of a minor. The trial court imposed a sentence of one year and six months on each count, to be served consecutively, for an effective sentence of three years. In this appeal of right, the defendant argues that the trial court erred by denying his request for alternative sentencing and by ordering the sentences to be served consecutively. The judgments are affirmed.

Sheila Byrd vs. David Buhl
M2001-00070-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Carol A. Catalano
This appeal involves a custody and visitation dispute brought by divorced parents having joint custody of their child. After the mother of the child moved out of state, the child's father petitioned the court for change of custody. The mother then counter-petitioned the court for an increase in child support. After a hearing on the matter, the court altered the previous visitation agreement, increased child support, granted the father the right to claim the child as a dependent for income tax purposes, and refused to grant the mother attorney's fees. This appeal followed and for the following reasons, we affirm.

State of Tennessee v. Angela H. Black
M2000-02368-CCA-R3-CD
Authoring Judge: Judge Joe G. Riley
Trial Court Judge: Judge Steve R. Dozier

A Davidson County jury convicted the defendant of theft over $60,000, a Class B felony. The defendant contends in this appeal that (1) the trial court erred in allowing the testimony of a state's witness who heard the victim's testimony despite the trial court's order to sequester witnesses; and (2) the trial court erred in not giving an enhanced unanimity instruction. We affirm the judgment of the trial court.