State of Tennessee v. Kenneth Lee England
E2002-00693-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge E. Shayne Sexton

The defendant, Kenneth Lee England, was convicted by a Campbell County Criminal Court jury of retaliation for past action, a Class E felony, and the trial court sentenced him as a career offender to six years in the Department of Correction. The defendant appeals, claiming that the evidence is insufficient and that the trial court erred by allowing the state to impeach him with his prior retaliation for past action convictions under Tenn. R. Evid. 609. We affirm the judgment of the trial court.

State of Tennessee v. Kristina Dawn Catron
E2002-01390-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Kristina Dawn Catron, pleaded guilty to one count of fabricating evidence, one count of making a false report, and one count of misdemeanor theft under $500. The negotiated plea agreement produced an effective sentence of three years. The manner of service of the sentence was to be determined by the trial court. Following a presentence investigation and a sentence hearing, the trial court ordered the defendant to serve the sentence in confinement. It is from this sentencing determination that the defendant appeals. We affirm the judgment of the trial court based on the need to avoid depreciating the seriousness of the offense.

Billy Culp v. Billie Grinder
M2002-01512-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Jim T. Hamilton
The Culps brought suit against their neighbors, the Grinders, for removal of a septic tank solid line located on their property. The Culps argued that the ten foot easement reserved by the subdivision for "utilities" did not include personal septic tanks. The trial court dismissed the suit and found that the septic tank solid line placement was a type of "utility" and was within the ten foot easement; further, the court found no damages had been suffered by the Culps. We affirm the decision of the trial court.

Shin Yi Lien v. Ruth Couch
M2002-01625-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: John D. Wootten, Jr.
This is the second time the parties have been before this court in a dispute over the purchase of emu chicks. In this appeal, the Plaintiffs take issue with the trial court's limitation of damages recoverable under the Tennessee Consumer Protection Act. We reverse the judgment of the trial court.

State v. R.S. and K.S.
M2002-00919-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Buddy D. Perry
This appeal involves a petition filed by the Department of Children's Services to terminate the parental rights of Mother and Father to their three minor children. The trial court denied the petition and ordered the children returned to Mother and Father. The Department appeals the decision of the trial court, arguing first that there was clear and convincing evidence to support termination, and secondly, even if the denial is upheld, the trial court lacked jurisdiction to order the children's return to their parents. Because we find the petition was properly denied, but further find the trial court lacked jurisdiction to order the children's return home, we affirm in part, vacate in part, and remand.

Reta Tompkins v. Kevin Helton
M2002-01244-COA-R3-CV
Authoring Judge: Chancellor Carol L. McCoy
Trial Court Judge: John A. Turnbull
The Plaintiffs, Reta J. Tompkins and her husband, Michael J. Tompkins, brought this negligence action against the Defendant, Kevin W. Helton, as the agent for the Defendant, B.K. Luna, individually and d/b/a Big Foot Speedway, Inc., a/k/a Tennessee Motor Speedway. The Defendants filed a motion for summary judgment with a copy of the Release and Waiver of Liability Agreement signed by the Plaintiffs. The trial court granted partial summary judgment, found that the release was valid as to the Defendants and released the Defendants as to all causes of action based on ordinary negligence. We affirm.

Elizabeth Snodgrass v. Allen Freemon
M2002-01247-COA-R3-CV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Stella L. Hargrove
Defendant/Cross-Claimant appeals the action of the trial court in holding that Cross-Claimant had not carried his burden of proof to establish adverse possession of the property in issue. We affirm the judgment of the trial court.

M2002-02603-COA-R3-JV
M2002-02603-COA-R3-JV
Authoring Judge: Judge William B. Cain
Trial Court Judge: Lee A. England

State v. Robert Tait
W2001-02157-SC-R11-CD
Authoring Judge: Justice Adolpho A. Birch, Jr.
Trial Court Judge: Joseph B. Dailey
We granted this interlocutory appeal pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure to determine whether, in a prosecution commenced by an arrest warrant for driving under the influence of an intoxicant, the resulting indictment may charge the defendant for offenses that can be inferred from the arrest warrant. The arrest warrant charged the appellant, Robert Tait, with driving under the influence of an intoxicant, and the grand jury indicted him for that offense (count one) and for driving with a blood-alcohol concentration of .10 percent or more (count two). The trial court dismissed the second count, finding that it described a new and additional charge and was, therefore, barred by the applicable one-year statute of limitations because its prosecution had been commenced more than one year after the conduct occurred. The Court of Criminal Appeals reversed, concluding that the second count merely constituted an alternative theory for conviction and did not charge an offense distinct from that for which the appellant was initially charged. After reviewing the record and controlling legal authority, we hold that the language of the warrant sufficiently tolled the limitations period for count two. Therefore, we affirm the holding of the Court of Criminal Appeals and remand this case to the trial court for further proceedings.

State v. Christopher M. Flake
W2001-00568-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Bernie Weinman

State v. Christopher M. Flake
W2001-00568-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Bernie Weinman

State v. Christopher M. Flake
W2001-00568-SC-R11-CD
Authoring Judge: Justice Frank F. Drowota, III
Trial Court Judge: Bernie Weinman

Judy Burroughs v. Robert W. Magee
W2001-00238-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III

Judy Burroughs v. Robert W. Magee
W2001-00238-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III

Judy Burroughs v. Robert W. Magee
W2001-00238-SC-R11-CV
Authoring Judge: Justice William M. Barker
Trial Court Judge: Joseph H. Walker, III

State of Tennessee v. Gabor Palasti
E2001-01642-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Douglas A. Meyer

The defendant, Gabor Palasti, was convicted upon his pleas of guilty to the charges of vehicular assault and three counts of reckless endangerment. He originally received a four year effective sentence with 11 months, 29 days of incarceration followed by probation. This was ultimately altered by the trial judge to require that the defendant serve six (6) months in confinement with thirty days of continuous confinement followed by five months of work release and then supervised probation. In this appeal the defendant contends he should have received full probation for these offenses and he cites numerous alleged deficiencies in the trial court's sentencing procedures. We find that in sentencing the defendant the trial court failed to make appropriate findings on the record and that therefore our review of the defendant's sentence is de novo without a presumption of correctness. Nevertheless, we find that the record contains sufficient evidence from which this Court concludes that six (6) months confinement of the defendant is appropriate. However, we believe the entire confinement should be served on work release. We therefore AFFIRM the decision of the trial court with the modification that the entire period of incarceration be served on work release.

Tony Allen Leonard v. State of Tennessee
E2002-00953-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

Following an evidentiary hearing, the Sullivan County Criminal Court denied the petitioner, Tony Allen Leonard, post-conviction relief. On appeal, the petitioner claims that the post-conviction court erred in failing to find that his trial counsel rendered ineffective assistance. Because the record supports the lower court's findings and holding, we affirm.

Evan Roberts vs. Miller Industries
E2002-01726-COA-R3-CV
Authoring Judge: Judge Houston M. Goddard
Trial Court Judge: W. Frank Brown, III
In this appeal from the Chancery Court for Hamilton County the Appellants/Defendants, Miller Industries, Inc. and Road One, Inc., contend that the Trial Court erred in awarding the Appellee/ Plaintiff, Evan J. Roberts, damages for breach of contract. The judgment of the Trial Court is affirmed in part and reversed and vacated in part, and the cause is remanded for collection of costs below.

State of Tennessee v. Gdongalay P. Berry
M2001-02023-CCA-R3-DD
Authoring Judge: Judge David G. Hayes
Trial Court Judge: Judge J. Randall Wyatt, Jr

[Deleted: Introductory Paragraph]

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L.  SMITH and JOHN EVERETT WILLIAMS, JJ., joined.
 

State of Tennessee v. Toby P. Leonard
M2002-01328-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Stella L. Hargrove

The defendant, Toby P. Leonard, entered pleas of guilt to aggravated assault and civil rights intimidation. As a part of the plea agreement, the defendant received Range I, consecutive sentences of six and two years, respectively, for an effective sentence of eight years. The trial court denied probation. In this appeal of right, the defendant argues that he should have been granted an alternative sentence. The judgment is affirmed.

State of Tennessee v. Eric Alonzo Smith
M2002-01077-CCA-R3-CD
Authoring Judge: Presiding Judge Gary R Wade
Trial Court Judge: Judge Michael R. Jones

The defendant, Eric Alonzo Smith, was convicted of driving on a revoked license, aggravated robbery, and evading arrest. The trial court imposed concurrent sentences of 6 months, 8.5 years, and 11 months, 29 days, respectively. In this appeal of right, the defendant asserts that the evidence is insufficient to support the conviction for aggravated robbery. The judgments of the trial court are affirmed.

Austin Eugene Lineback v. State of Tennessee
W2002-01938-CCA-R3-PC
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Joseph H. Walker, III

Through a 2001 Tipton County Circuit Court post-conviction petition, Austin Eugene Lineback challenges his 2001 convictions in that court of statutory rape and especially aggravated sexual exploitation of a minor. The convictions resulted from his guilty pleas, which the petitioner now
alleges are involuntary and unknowing due to ineffective assistance of counsel. Following an evidentiary hearing, the lower court denied post-conviction relief, and the petitioner now appeals.  Upon our review of the record, the parties’ briefs, and the applicable law, we affirm.

State of Tennessee v. Paul Anthony Wright
W2001-02574-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William B. Acree

The defendant, Paul Anthony Wright, pled guilty in the Obion County Circuit Court to manufacturing methamphetamine, a Class C felony, and was sentenced as a Range I, standard offender to three years, with ninety days to be served in the county jail and the remainder in a community corrections program. As a condition of his guilty plea, the defendant sought to reserve as a certified question of law whether the trial court erred in finding there was probable cause to issue a search warrant for his property. On appeal, the defendant argues that he properly certified the question for appeal whether the trial court erred in concluding that the search warrant sufficiently established probable cause for the search of his premises. We agree with the defendant that the certified question is properly before this court and agree with the State that the trial court properly determined that the search warrant was adequate. Accordingly, we affirm the order of the trial court.

State of Tennessee v. Abron A. Coleman
W2002-01785-CCA-R3-CD
Authoring Judge: Judge J. Curwood Witt, Jr.
Trial Court Judge: Judge Bernie Weinman

Aggrieved that his Shelby County jury conviction of aggravated robbery is not supported by sufficient evidence, Abron A. Coleman, the defendant, appeals. Because we conclude that the evidence is sufficient, we affirm the conviction.

Lucille Cotham, et al. v. Perry County, Etc.
M2002-01723-WC-R3-CV
Authoring Judge: Joe C. Loser, Jr. Sp. J.
Trial Court Judge: Timothy L. Easter, Judge
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. In this appeal, the appellants insist the trial court erred in summarily dismissing the claim. As discussed below, the panel has concluded there is no genuine issue as to a material fact and that the employer is entitled to judgment of dismissal as a matter of law. Tenn. Code Ann. _ 5-6-225(e) (22 Supp.) Appeal as of Right; Judgment of the Circuit Court Affirmed JOE C. LOSER, JR. SP. J., in which ADOLPHO A. BIRCH, JR., J., and JOHN K. BYERS, SR. J., joined. Gene Hallworth, Columbia, Tennessee, for the appellant, Pamela J. Honey Robert E. Kolarich and L. R. DeMarco, Nashville, Tennessee, for the appellant, Lucille Cotham Bradford D. Box and Geoffrey A. Lindley, Jackson, Tennessee, for the appellees, Perry County and Perry County Sheriff's Department MEMORANDUM OPINION This civil action to recover workers' compensation benefits was initiated by the former wife, Pamela Jean Honey, of the deceased employee, Ricky Dale Cotham, to recover workers' compensation benefits for two of his dependent children. His widow, Lucille Cotham, intervened. The trial court granted summary judgment of dismissal. The plaintiff and intervening plaintiff have appealed. The standard of review on appeal of a grant of summary judgment is de novo upon the record without a presumption of correctness to determine whether the absence of genuine and material factual issues entitle the movant to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 21). The movant must either affirmatively negate an essential element of the non- movant's claim or conclusively establish an affirmative defense. Mere conclusory assertions that the non-movant has no evidence are insufficient; and if the movant does not negate a claimed basis for the suit, the non-movant's burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If, however, the movant successfully negates a claimed basis for the suit, the non-movant may no longer simply rely upon the pleadings, but must then establish the existence of the essential elements of the claim or the non-existence of the defense. Finister v. Humboldt General Hosp., Inc., 97 S.W.2d 435, 438 (Tenn. 1998). The complaint avers that the deceased employee, Mr. Cotham was killed in an automobile accident which arose out of and in the course of his employment as a deputy sheriff. The employer answered that the injury did not occur in the course of employment because the employee was off duty and on his way home from work at the time of the accident. The undisputed evidence presented before the trial court was that on the day of the accident, the employee was scheduled to work from 7: a.m. to 5: p.m.. Near the end of the shift, he returned his patrol car, went off duty, picked up his personal vehicle and headed home. On his way home, still armed and in uniform, Deputy Cotham was involved in a fatal accident. The appellants contend that it could be inferred from the facts that the employee was in the course of employment at the time of the accident, because a police officer is on call at all hours. However, our examination of the record reveals no evidence that Deputy Cotham was responding to a call when the accident occurred. He was simply on his way home after work The appellee relies on the general rule that employees are not covered by the Workers' Compensation Act while traveling to and from work. However, in Mayor and Alderman of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 84 (1937), cited by the appellants, the Court held that a police officer, who was killed by a drunk driver while walking home from work, was entitled to workers' compensation benefits. In that case, the Supreme Court, finding material evidence to support the trial court's finding that Ward was on duty at the time of his fatal accident, affirmed an award of benefits. The case is clearly distinguishable from the one before this tribunal, as the trial court duly noted, on the facts. Summary judgment is almost never an option in workers' compensation cases. Berry v. Consolidated Systems, Inc., 84 S.W.2d 445, 446 (Tenn. 1991). However, when there is no dispute over the evidence establishing the facts that control the application of a rule of law, summary judgment is an appropriate means of deciding such issues as whether an action is barred by the applicable statute of limitations or by res judicata; whether a party has standing; or whether the court has jurisdiction. Id at 446. -2-