Court Opinions

Format: 11/11/2019
Format: 11/11/2019
State of Tennessee v. Blake O. Swann
E2018-00354-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stacy L. Street

The Defendant, Blake O. Swann, appeals the Washington County Criminal Court’s order revoking his probation for his aggravated assault conviction and ordering him to begin anew his four-year sentence on community corrections. The Defendant contends that the trial court abused its discretion by revoking his probation. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 11/08/19
Carlos D'Juan Campbell, Jr. vs. State of Tennessee
E2018-01877-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Carlos D’Juan Campbell, Jr., appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his two convictions for attempted first degree murder and one conviction for employing a firearm during the commission of a dangerous felony, arguing (1) he received ineffective assistance of counsel and (2) the post-conviction court erred in allowing the State to present proof and argument at the post-conviction hearing after the State failed to file a written response to his petition.  We affirm the judgment of the post-conviction court. 

Knox County Court of Criminal Appeals 11/08/19
State of Tennessee v. Shaun Michael Vincent
M2018-01654-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Don R. Ash

A jury convicted the Defendant, Shaun Michael Vincent, of aggravated robbery after he brandished a baseball bat and took property from the victim, who was attempting to pay the Defendant’s girlfriend for sexual contact. The Defendant was sentenced to serve eleven years in confinement. On appeal, he challenges the sufficiency of the evidence and asserts that the trial court erred in limiting cross-examination of the victim, excluding evidence implicating the victim in prior sexual misconduct, and excluding a video of the victim’s interactions with police. The Defendant further argues that the court erred in denying him jury instructions regarding defense of a third person and special instructions on aggravated robbery and that he is entitled to relief pursuant to cumulative error. After a thorough review of the record, we affirm the judgment of the trial court.

Putnam County Court of Criminal Appeals 11/08/19
State of Tennessee v. Derek Wyche
M2018-01586-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Monte Watkins

The Defendant-Appellant, Derek Wyche, was convicted by a Davidson County jury of felony murder and especially aggravated robbery, for which he received a mandatory life sentence plus twenty years’ imprisonment. In this appeal as of right, the Defendant challenges the sufficiency of the evidence in support of his convictions and the trial court’s imposition of consecutive sentencing. Upon our review, the convictions of the trial court are affirmed. However, we remand this matter for a new sentencing hearing.

Davidson County Court of Criminal Appeals 11/07/19
Johnny Nesmith v. Samuel C. Clemmons, Et Al.
M2017-02521-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael W. Binkley

Defendants appeal the judgment entered in favor of Plaintiff in this breach of contract action arising out of a failure to pay a promissory note.  Defendants argue that the trial court erred in several pretrial rulings, in concluding that the contract was ambiguous and considering parol evidence, in holding that the attorney that drafted the agreement represented Defendants and construing the ambiguous term against them, and in denying their motion to supplement the appellate record.  Upon our review, we discern no reversible error and affirm the judgment of the trial court.

Williamson County Court of Appeals 11/07/19
Carl Wayne Hixson Et Al. v. American Towers, LLC
E2019-00335-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

Wayne Hixson and Eric Hixson (the Hixsons) granted a perpetual, exclusive easement to American Towers, LLC (ATC)1 to operate a telecommunications system at the top of a hill on their property. For many years, the hill experienced progressive slope failures. A recent mudslide caused thousands of dollars in property damage to the Hixsons and All Things Fast Motorsports, LLC (All Things Fast), a metal fabrication business owned by Wayne Hixson’s grandson. ATC spent thousands of dollars to move a generator away from the slope failure. The parties fear that the cell tower could collapse. In the trial court, the Hixsons and All Things Fast filed a complaint seeking a declaratory judgment regarding the parties’ respective maintenance responsibilities under the easement agreement. They also sought damages arising from ATC’s alleged breach of the easement agreement and other tortious conduct. ATC filed a counterclaim alleging similar causes of action. After a bench trial, the court ruled that ATC has a duty to maintain the easement and that the Hixsons have a duty to maintain the surrounding hillside for the benefit of ATC. Because the court found that the Hixsons and ATC were equally at fault for failing to prevent the recent mudslide, the court rejected their claims of negligence and breach of the easement agreement. However, the court awarded $1,245.20 to All Things Fast on its negligence claim. The court also awarded $179.99 to the Hixsons on their trespass claim. Finally, the court ordered the Hixsons and ATC to pay half of the costs necessary to stabilize the hill in accordance with the remediation plan proposed by the Hixsons. ATC appeals. We modify the trial court’s declaratory judgment, vacate the award of damages to All Things Fast, and remand for further proceedings. The judgment is affirmed in all other respects.

Hamilton County Court of Appeals 11/07/19
State of Tennessee v. Jamie Todd Birdwell
M2017-01620-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Jill Bartee Ayers

On November 15, 2016, Defendant, Jamie Todd Birdwell, pled guilty to Class D felony theft of property valued at $1,000 or more but less than $10,000 in case number 74CC4-2015-CR-708 and to three counts of Class A misdemeanor theft of property in case number 74CC2-2016-CR-266. The plea agreement provided that Defendant would be sentenced to twelve years as a career offender with the manner of service to be determined following a sentencing hearing. Defendant failed to appear for his January 13, 2017 sentencing hearing, a capias was issued for his arrest, and he was subsequently indicted for felony failure to appear. Defendant’s initial counsel then withdrew. After three other attorneys were appointed and two were allowed to withdraw, trial counsel entered a notice of appearance and filed a motion to withdraw Defendant’s guilty pleas. Following a hearing on June 12, 2017, the trial court denied Defendant’s motion to withdraw his guilty pleas and set a sentencing hearing. On appeal, Defendant asserts that the trial court erred in denying his motion to withdraw his guilty pleas because the trial court, defense counsel, and prosecutor were all under the mistaken impression at the guilty plea submission hearing that Defendant was facing a sentence of twelve years as a career offender for Class D Felony theft, rather than six years for a Class E felony theft, because the value of theft statute, Tennessee Code Annotated section 39-14-105, became effective January 1, 2017, before the date of his original sentencing hearing. After a thorough review of the facts and applicable case law, we affirm the trial court’s denial of the motion to withdraw Defendant’s guilty pleas.

Robertson County Court of Criminal Appeals 11/07/19
Kay Armstrong v. Kevin C. Morrison
E2018-01985-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

This appeal concerns a clerk and master’s petition for additional staff. Kay Solomon Armstrong, Clerk and Master of Greene County (“Petitioner”), filed a petition against the County Mayor (“Defendant”) in the Chancery Court for Greene County (“the Trial Court”) seeking additional staff for her office. After a trial, the Trial Court entered an order replacing one half-time position in the office with one full-time position. The Trial Court also awarded Petitioner attorney’s fees and expenses to be paid from the fees of the Clerk and Master’s Office. Defendant appeals to this Court, arguing that the evidence preponderates against the Trial Court’s decision to award additional funding for a new full-time assistant to replace a half-time assistant and that Petitioner was not entitled to recover any attorney’s fees. We hold that reasonable attorney’s fees were recoverable by Petitioner pursuant to statute. We hold further that the evidence does not preponderate against the Trial Court’s factual findings, including the Trial Court’s core finding that Petitioner’s workspace is so structurally inefficient that her office requires more staff. We modify the Trial Court’s order on fees and expenses to the extent it failed to award Petitioner expenses she paid out of pocket. On remand, the Trial Court is to determine and enter an award including reimbursing Petitioner for her reasonable out-of-pocket fees and expenses. We affirm, as modified, the judgment of the Trial Court, and remand for further proceedings consistent with this Opinion.

Greene County Court of Appeals 11/07/19
Lytoniona Lee, et al.v. Quince Nursing and Rehabilitation, LLC
W2019-00093-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Rhynette N. Hurd

Nearly three years after the court dismissed the plaintiff’s healthcare liability action against the defendant, Plaintiff filed this breach of contract action based on the same underlying facts and circumstances. The trial court dismissed the plaintiff’s breach of contract claim as barred by the doctrine of res judicata. We affirm.

Shelby County Court of Appeals 11/07/19
Trevor Millmeyer v. Bridget Whitten
W2019-00586-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Van McMahan

Appellant/Father appeals the trial court’s denial of his petition to change the surnames of his minor children. The trial court held that Appellant failed to meet his burden to show that changing the children’s names is in their best interests. Discerning no error, we affirm.

McNairy County Court of Appeals 11/07/19
State of Tennessee v. Joseph L. Ware
M2018-01326-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Angelita Blackshear Dalton

The Defendant-Appellant, Joseph L. Ware, was convicted by a Davidson County jury of first degree felony murder (count 4), second degree murder (count 5), attempted especially aggravated robbery (count 6), attempted aggravated robbery (counts 3, 7), reckless endangerment (counts 8, 9), aggravated assault (count 10), and theft under $500 (counts 2, 11, 12), for which he received an effective sentence of life plus 10 years imprisonment. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether the trial court “committed reversible error by the failure to charge the jury in the law regarding accomplice testimony;” (2) whether the trial court erred in admitting into evidence posts from the Defendant’s Facebook page; (3) whether the prosecutors engaged in prosecutorial misconduct during closing argument by “emotional displays . . . calculated to inflame and/or play to the sympathies of the jury” thereby denying the Defendant a fair trial; (4) whether the evidence is sufficient to support the conviction of first degree felony murder; and (5) whether the trial court erred in imposing consecutive sentencing. Upon our review, we reverse and remand count eight for a new trial because felony reckless endangerment is not a lesser included offense of attempted first degree murder. In all other respects, the judgments of the trial court are affirmed.

Davidson County Court of Criminal Appeals 11/07/19
Belgravia Square, LLC v. Melvin White, et al.
W2018-02196-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Russell

Appellant appeals the trial court’s dismissal of his appeal from general sessions court in this unlawful detainer action. The general sessions court granted immediate possession of the disputed property to Appellee, and Appellant appealed to the circuit court. Although Appellant remained in possession of the property, he did not post the required possessory bond. Tenn. Code Ann.
§ 29-18-130(b)(2). The trial court dismissed the appeal finding that, in the absence of the required bond, it had no subject matter jurisdiction to hear the case. Because the statutory possessory bond is not jurisdictional, we conclude that the trial court erred in dismissing Appellant’s appeal.

Shelby County Court of Appeals 11/07/19
David Campbell v. City of Chattanooga
E2018-02010-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Jeffrey M. Atherton

David Campbell (“Appellant”) was a police officer with the Chattanooga Police Department (“CPD”). On May 29, 2016, Mr. Campbell was dispatched to an apartment complex on report of a fight there. When Mr. Campbell arrived on scene, there were approximately 20-30 people in the parking lot. Mr. Campbell and other officers directed the crowd to clear the parking lot. While Mr. Campbell was giving these instructions, Hanson Melvin, a resident of the complex, walked by Mr. Campbell, and Mr. Campbell initiated an encounter with him. Mr. Melvin was known to Mr. Campbell because, on several previous occasions, Mr. Campbell had stopped Mr. Melvin for various alleged offenses, including driving without a valid driver’s license. Mr. Melvin was walking toward a silver vehicle with his friend, Coheleach Holmes. During this interaction, Mr. Campbell handcuffed Mr. Melvin and arrested him for disorderly conduct. Mr. Campbell placed Mr. Melvin in the back of his police car and took him to jail.

Hamilton County Court of Appeals 11/06/19
Walter Joshlin, et al. v. Hollis H. Halford, III, M.D., et al.
W2018-02290-COA-R9-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

In this interlocutory appeal, the defendants appeal the trial court’s denial of their motion to dismiss a medical malpractice lawsuit on the ground that the plaintiffs failed to comply with Tennessee Rule of Civil Procedure 25.01. We reverse the decision of the trial court and remand the case for further proceedings.

Shelby County Court of Appeals 11/06/19
Ronald Brantley v. Mike Brantley, et al.
E2018-01793-SC-R3-WC
Authoring Judge: Judge William B. Acree
Trial Court Judge: Judge Elizabeth C. Asbury

In 2009, Ronald Brantley (“Employee”) settled a workers’ compensation claim with Brantley Excavating (“Employer”) regarding a hand injury he sustained during the course and scope of his employment. Employee returned to his authorized treating physician in 2017, seeking medication for pain he was experiencing in his injured hand. The diagnostic test results were normal. The treating physician declined to prescribe pain medication and offered no further treatment. Employee subsequently moved to compel Employer to provide a panel of pain management physicians, claiming the treating physician had made a referral. The trial court concluded the treating physician did not make a referral and denied Employee’s motion, citing Tenn. Code Ann. § 50-6-204(j)(2)(A). Employee has appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Campbell County Workers Compensation Panel 11/06/19
State of Tennessee v. Donald Lee Harris
M2018-01680-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Cheryl Blackburn

Aggrieved of his Davidson County Criminal Court jury convictions of one count of felony murder in the perpetration of aggravated child neglect, one count of the facilitation of felony murder in the perpetration of aggravated child abuse, three counts of aggravated child abuse, one count of aggravated child neglect, and one count of the facilitation of aggravated child abuse, the defendant, Donald Lee Harris, appeals. The defendant alleges that the trial court erred by permitting the State to introduce the victim’s medical records on rebuttal, that the State’s election of offenses was insufficient to ensure jury unanimity, that the trial court erred in its jury instructions regarding criminal responsibility for the conduct of another, that the evidence was insufficient to support his convictions, and that the total effective sentence of life plus 75 years is excessive. The defendant’s convictions of felony murder (Count 9), facilitation of felony murder (Count 8), aggravated child abuse (Counts 2 and 3), aggravated child neglect (Count 7), and facilitation of aggravated child abuse (Count 1) are affirmed. We find no error in the sentencing decisions of the trial court. Because the State’s election of offenses was insufficient to safeguard the defendant’s right to a unanimous verdict in Count 6, the defendant’s conviction in Count 6 is reversed. Because dual convictions of aggravated child abuse in Counts 2 and 3 violate double jeopardy principles, those convictions must be merged. The case is remanded for a new trial on the offense of aggravated child abuse in Count 6 and for the entry of corrected judgment forms reflecting the merger of Counts 2 and 3.

Davidson County Court of Criminal Appeals 11/05/19
Sara Kelley Poole v. Ronald Ellis Kinslow
M2018-00324-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clara W. Byrd

In this divorce action, the trial court equitably divided the marital estate, adopted a permanent parenting plan for the parties’ minor child, and set child support. On appeal, the husband challenges the allocation of marital debt, the denial of his request for equal parenting time, and the calculation of child support. We affirm.

Wilson County Court of Appeals 11/05/19
Talat Parveen Et Al. v. ACG South Insurance Agency, LLC Et Al.
E2018-01759-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge J. Eddie Lauderback

This appeal arises from an action commenced by two insured parties against their insurance agent and the insurance agency where he was employed after the insureds’ insurance carrier refused to provide excess uninsured motorist coverage because it was not included in the insureds’ policy. The insureds alleged that their insurance agent failed to procure the requested insurance on their behalf and that they consequently had suffered monetary losses. The Trial Court applied a statutory rebuttable presumption that the insureds had accepted the provided coverage by paying their insurance premiums, pursuant to Tennessee Code Annotated § 56-7-135(b). Upon its finding that the insureds had not rebutted that presumption, the Trial Court dismissed the insureds’ action. The insureds have appealed. Upon our determination that Tennessee Code Annotated § 56-7- 135(b) does not apply to actions against an insurance agent for failure to procure insurance coverage as directed, we reverse the Trial Court’s grant of summary judgment and remand for the action to proceed.

Washington County Court of Appeals 11/05/19
State of Tennessee v. Larry Sexton
M2018-00874-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

A Lawrence County Circuit Court Jury convicted the Appellant, Larry Sexton, of aggravated statutory rape, a Class D felony, and the trial court sentenced him as a Range III, career offender to twelve years in confinement. On appeal, the Appellant contends that the trial court erred by allowing the State to reopen its proof after he moved for a judgment of acquittal and by sentencing him as a career offender. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 11/05/19
Carla Jo Capps Jones v. Joseph R. Jones
E2019-00037-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Amanda Sammons

In this post-divorce action, the husband sought to modify his alimony obligation to the wife. The trial court denied the husband’s petition to modify, determining that the husband had failed to prove that a substantial and material change in circumstance had occurred since entry of the divorce decree. The husband has appealed. Discerning no reversible error, we affirm.

Campbell County Court of Appeals 11/04/19
Kalyn Marie Polochak v. State of Tennessee
M2018-01524-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge David Patterson

The petitioner, Kalyn Polochak, appeals the denial of her petition for post-conviction relief, which petition challenged her 2012 Overton County Criminal Court jury convictions of first degree premeditated murder, first degree felony murder, conspiracy to commit first degree murder, especially aggravated robbery, and theft of property valued at $1,000 or more but less than $10,000. Discerning no error, we affirm the denial of post-conviction relief.

Overton County Court of Criminal Appeals 11/04/19
State of Tennessee v. David Mitchell Bentley
M2018-01636-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Seth W. Norman

The Appellant, David Mitchell Bentley, pled guilty in the Davidson County Criminal Court to reckless aggravated assault, a Class D felony, and leaving the scene of an accident resulting in injury, a Class A misdemeanor. After a sentencing hearing, the trial court ordered that he serve consecutive sentences of three years and eleven months, twenty-nine days, respectively, in confinement. On appeal, the Appellant contends that we should remand this case to the trial court for a new sentencing hearing. In the alternative, he contends that the trial court improperly enhanced his felony sentence and failed to apply mitigating factors, that the trial court erred by ordering consecutive sentencing, and that the trial court erred by ordering that he serve his sentences in continuous confinement. Based upon the record and the parties’ briefs, we conclude that a new sentencing hearing is necessary because the trial court failed to place any findings on the record with regard to applicable enhancement factors, the order of consecutive sentencing, and the denial of alternative sentencing. Accordingly, the judgment of the trial court is reversed, and the case is remanded to the trial court.

Davidson County Court of Criminal Appeals 11/04/19
State of Tennessee v. Kyle Alex Batiz
M2017-02065-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Kyle Alex Batiz, was convicted of aggravated child abuse and reckless homicide and was sentenced, respectively, to concurrent sentences of 21 years at 100% and 3 years at 30 percent. On appeal, he argues that the evidence was insufficient to sustain the conviction for aggravated child abuse; the trial court erred by not suppressing his text messages and statement to police; the trial court erred by allowing a forensic pathologist to testify regarding matters not within her expertise; he should have been sentenced as an especially mitigated offender; and the conviction for aggravated child abuse should be reversed because of cumulative errors that occurred during the trial. We have reviewed the record in this matter and conclude that the issues raised by the Defendant are without merit. Accordingly, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 11/01/19
In Re Estate of JD Bush
E2018-02192-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor John F. Weaver

Due to the deficiencies in Appellant’s brief, we conclude that he waived consideration of all issues on appeal and hereby dismiss the appeal.

Knox County Court of Appeals 11/01/19
Christina Jones Thomas v. State of Tennessee
E2018-01374-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lisa Rice

The Petitioner, Christina Jones Thomas, was convicted by a jury of especially aggravated robbery and especially aggravated kidnapping, for which she received an effective sentence of eighteen years’ imprisonment. State v. Christina Jones Thomas, No. E2013- 01531-CCA-R3-CD, 2014 WL 3440687, at *1 (Tenn. Crim. App July 14, 2014), perm. app. denied (Tenn. Nov. 20, 2014). The Petitioner subsequently filed a petition seeking post-conviction relief, arguing that trial counsel was ineffective on multiple grounds, including (1) failure to secure an expert witness for trial; (2) failure to seek scientific testing of evidence presented by the State and failure to challenge such evidence; (3) failure to present a plea offer to the Petitioner; (4) failure to challenge and remove a juror whom the Petitioner knew and felt would be biased against her; (5) failure to impeach the victim about inconsistencies in his statements; (6) failure to address merger of the underlying offenses; and (7) failure to question the victim or present evidence of other injuries sustained by the victim that could have alleviated the seriousness of the Petitioner’s crimes. The trial court denied relief by written order, which the Petitioner now appeals. In addition, the Petitioner also argues that she is entitled to a second postconviction hearing because post-conviction counsel was suspended from the practice of law by the Tennessee Supreme Court shortly after the post-conviction hearing. Following our review, we affirm.

Washington County Court of Criminal Appeals 11/01/19