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.

State of Tennessee v. Cayle Wayne Harris
M2000-02143-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Robert L. Jones

The defendant, Cayle Wayne Harris, was convicted of three counts of rape of a child. The jury assessed a fine of $50,000 for each count and the trial court imposed sentences of twenty-one years for each offense, two terms to be served concurrently and one to be served consecutively. The effective sentence is, therefore, forty-two years. In this appeal of right, the defendant contends that the evidence was insufficient. The judgments are affirmed.

State of Tennessee v. Patricia Adkisson
M2000-01079-CCA-R3-CD,
Authoring Judge: Presiding Judge Gary R. Wade
Trial Court Judge: Judge Donald P. Harris

The defendant, Patricia Adkisson, who was charged with 253 counts of animal cruelty and one count of tampering with evidence, was convicted on three counts of animal cruelty. See Tenn. Code Ann. §§ 39-14-202, 39-16-503. The trial court imposed three consecutive terms of 11 months, 29 days, and granted supervised probation. As a condition of probation, the defendant was prohibited from owning any caged animals for a period of five years. The defendant appealed. Later, the trial court revoked probation and a second appeal followed. In this consolidated proceeding, the defendant claims that (1) the trial court erred by denying her motion to suppress evidence gathered during the initial search of her property; (2) the evidence was insufficient; (3) the sentence was improper; and (4) the trial court lacked authority to revoke her probation. Because the search of the defendant's premises violated constitutional principles, the trial court erred by failing to suppress the evidence which led to the convictions. Accordingly, the convictions are reversed and the causes are remanded.

Joanne Barrett vs. Christopher Barrett
M2000-00380-COA-R3-CV
Authoring Judge: Judge Ben H. Cantrell
Trial Court Judge: Royce Taylor
In this divorce appeal the wife asserts that the trial judge erred in awarding custody of the children to the father, in refusing to award her rehabilitative alimony, and in the division of the marital estate. We affirm the trial court.

In re: The Estate of Luther Garrett
M1999-01282-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Billy Joe White
The testator, a father of six, left a will which devised to one of his children a specific tract of land which, according to the will, was described in an attached survey map. No survey map was attached to the will. Appellant, the recipient of that bequest, disagreed with his siblings about the size of the tract to which he was entitled. After hearing both parties' evidence, the trial court found that the testator's intent was to devise separate seven acre tracts to both Appellant and one of his brothers with the remainder of the estate's property to be divided equally among the six children. Appellant then commenced this appeal. We affirm in part and reverse in part.

State of Tennessee v. Martin Stuart Hammock
M2000-00334-CCA-R3-CD
Authoring Judge: Judge L. Terry Lafferty
Trial Court Judge: Judge Carol L. Soloman

After a trial, Defendant, Martin Stuart Hammock, was found guilty by a Davidson County jury of murder first degree. In accordance with the jury's verdict, the trial court imposed a sentence of life imprisonment with parole. Also accused of murder first degree was a co-Defendant, Brent Rollins, with Angela Watson being indicted for Accessory After the Fact to murder first degree. The co-Defendants were severed prior to trial. In this direct appeal, Defendant contends that: (1) the trial court erred in denying introduction of testimony from the victim's neighbor, David Thompson, regarding the victim's past violent behavior; and (2) the verdict was contrary to the evidence and law in that the proof was insufficient to support a verdict of guilty. After reviewing the record, we reverse, modify and remand the trial court's judgment.

State of Tennessee v. Michael Fields
M2000-01657-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge John H. Gasaway, III

In 1992, the defendant, Michael Fields, was convicted of two counts of sale of cocaine; the trial court imposed concurrent sentences of eight years in community corrections. In 1993, the defendant pled guilty to possession of cocaine with intent to sell; the trial court imposed an additional sentence of eight years in community corrections and ordered it to be served concurrently with the 1992 sentences. In February of 1997, the trial court revoked the community corrections sentences and ordered the defendant to serve the remainder of his sentences in the Department of Correction. In May of 1997, the defendant entered a plea of nolo contendere to possession with intent to sell less than one-half gram of cocaine; the trial court imposed a sentence of three years, consecutive to his prior sentences, for an effective sentence on all offenses of 11 years, and granted probation. On July 1, 1998, a probation violation warrant was filed in all three cases. The defendant was ordered to serve 30 days of periodic confinement for the violations. On August 1, 1999, another probation violation warrant, which was later amended, was served on the defendant. Ultimately, probation in all three cases was revoked. In this appeal of right, the defendant complains that he had completed his sentence and the trial court had no authority to revoke probation. In the alternative, the defendant argues that if the sentence had not been completed, he should have been returned to intensive probation. The judgments are affirmed.

State of Tennessee v. Johnie Jefferson and Larry Johnson
W1999-00747-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph B. Dailey

The Defendants, Johnie Jefferson and Larry Johnson, were found guilty by a Shelby County jury of first degree murder in No. W1999-00747-CCA-R3-CD. Both Defendants received life sentences with the possibility of parole. The Defendants now appeal, arguing (1) that there was insufficient evidence to convict them of first degree premeditated murder, (2) that the trial court erred in admitting into evidence a demonstrative exhibit showing the organizational structure of the Gangster's Disciples, (3) that the trial court erred in allowing the jury to take an exhibit showing the organizational structure of the Gangster's Disciples into the jury room during deliberations, (4) that the trial court erred in admitting for impeachment purposes Jefferson's prior convictions, (5) that the trial court erred in denying Jefferson's motion to sever, and (6) that the trial court erred in allowing into evidence the contents of Johnson's car. In addition, Defendant Jefferson sought relief in a petition for a writ of error coram nobis, which was denied by the trial court. Jefferson's appeal from the denial of this petition came before this court in a separate appeal, No. W2000-01970-CCA-R3-CO; however, both cases were consolidated for appellate purposes. We find no reversible error with regard to any of the issues raised; thus, we affirm the judgment of the trial court.

Terry Brough vs. Muriel Adcroft
W2001-00786-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: George H. Brown
This appeal involves a trial court's grant of prejudgment interest on arbitration awards. Subsequent to an automobile accident, the plaintiffs filed suit against their uninsured motorist policy carrier and another individual involved in the accident. The case proceeded to arbitration and the plaintiffs were awarded $140,000.00, which was paid by the insurance company. Upon obtaining new counsel, the plaintiffs learned of a relationship between the arbitrator and the insurance company and motioned the court to vacate the arbitration award. The trial court granted plaintiff's motion and resubmitted the case for a second arbitration. The plaintiffs were awarded $245,000.00 at the second arbitration and, soon after, motioned the court for prejudgment interest on the award. The trial court awarded the plaintiffs $71,042.72 of prejudgment interest. The insurance company appealed the decision to grant prejudgment interest and both parties have contested the method of calculation employed by the trial court. For the following reasons, we affirm in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

Robert Smith vs. Warden Larry Craven
W2001-00955-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Jon Kerry Blackwood
Petitioner appeals from the trial court's order denying Petitioner's petition for writ of certiorari. We affirm.