Court Opinions

Format: 07/25/2017
Format: 07/25/2017
In Re Catherine J.
W2017-00491-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge Harold W. Horne

This is a termination of parental rights case involving the parental rights of the father, Clyde J. (“Father”) to his minor child, Catherine J. (“the Child”). On August 4, 2016, the Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate Father’s parental rights.The matter was heard on January 26, 2017, and the trial court entered a final judgment on February 13, 2017, terminating Father’s parental rights to the Child. Father timely filed a notice of appeal. However, Father failed to comply with Tennessee Code Annotated § 36-1-124(d) (Supp. 2016) in that he failed to sign the notice of appeal. At the direction of this Court, Father filed an amended notice of appeal that contained his signature on April 7, 2017, more than thirty days from entry of the trial court’s final judgment. Because this Court lacks subject matter jurisdiction, we dismiss Father’s appeal.

Shelby County Court of Appeals 07/24/17
Seth Elliott v. City of Manchester, Tennessee
M2015-01798-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Vanessa A. Jackson

An inmate of the Coffee County jail was injured when he fell off a truck being driven by another inmate while working on a detail for the City of Manchester.  The inmate filed suit against the city and the county pursuant to the Tennessee Governmental Tort Liability Act to recover for alleged negligence on the part of the city and county.  The inmate settled his claim against the county.  The city moved to dismiss the suit on the ground that it was immune from suit because the inmate’s recovery was limited to medical treatment for the injury he received; the court agreed and dismissed the suit.  Discerning no error, we affirm the judgment.    

Coffee County Court of Appeals 07/24/17
State of Tennessee v. Claude David Powers
M2016-02019-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Claude David Powers, pleaded guilty in the Montgomery County Circuit Court to aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant as a Range I, standard offender to four years, with one year to serve in confinement and the remainder to serve on probation. On appeal, the Defendant contends that (1) his four-year sentence is excessive and (2) the trial court erred in denying his request for full probation. Because the trial court failed to place the appropriate findings of fact and determinations on the record as required by our sentencing laws, we remand the case to the trial court for a new sentencing hearing.

Montgomery County Court of Criminal Appeals 07/24/17
Kimberly Giles Rollick v. Citizens Bank of Blount County, et al.
E2016-01444-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge David Reed Duggan

A plaintiff filed a complaint against three entities asserting claims for breach of contract, among others. The trial court granted each defendant’s motion to dismiss the complaint. The plaintiff filed a timely notice of appeal as to two of the three orders dismissing her complaint, and the Court of Appeals granted the third defendant’s motion to be dismissed from the appeal. On appeal, the plaintiff argues the trial court improperly granted the third defendant’s motion to dismiss for procedural reasons, and she complains the trial court refused to provide her with a transcript of the hearings. Finding no merit to the plaintiff’s arguments, we affirm the trial court’s judgments.

Blount County Court of Appeals 07/21/17
Bobby Joe Pack v. Rebecca Suzanna Rothchild
E2016-00873-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gregory S. McMillan

This is an appeal from a final decree of divorce. The Appellant Rebecca Rothchild (“Mother”) challenges the trial court’s division of marital property, its designation of Bobby Pack (“Father”) as the primary custodian of the parties’ children, and its refusal to award her alimony. For the reasons stated herein, we affirm the judgment of the trial court.

Knox County Court of Appeals 07/21/17
Mardoche Olivier v. City of Clarksville, et al.
M2016-02474-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Ross H. Hicks

This appeal arises out of the alleged wrongful seizure of Plaintiff’s personal property, mainly cars and trailers, which were removed from Plaintiff’s residence by order of the City of Clarksville Building and Codes Director. Instead of appealing the decision of the Building and Codes Director pursuant to Tenn. Code Ann. §§ 27-9-101 and -102, Plaintiff filed suit against the City of Clarksville (“the City”) and three city officials alleging that the removal and retention of his personal property constituted conversion and inverse condemnation. He also asserted claims for intentional infliction of emotional distress and civil rights violations under 42 U.S.C. § 1983. The City responded by filing a motion to dismiss the complaint on several grounds. The trial court granted the motion and dismissed all claims. The court ruled that the City had immunity under the Tennessee Governmental Tort Liability Act (“GTLA”) because Plaintiff failed to allege a policy, practice, or custom which caused his harm. Additionally and alternatively, the court dismissed the claims of inverse condemnation, conversion, intentional infliction of emotional distress, and the § 1983 civil rights violations because the complaint failed to allege essential elements of each claim. The court also found the claims were time-barred. As for the defendants who were sued in their individual capacities, the court dismissed the claims because the complaint failed to state a claim for which relief could be granted, and because Plaintiff failed to provide a summons for service of process on each of the defendants. This appeal followed. Plaintiff raises twelve issues for us to consider on appeal. Since Plaintiff did not raise several of these issues in the trial court, they are deemed waived. As for the remaining issues, we find them unavailing for the reasons explained below. Therefore, we affirm the trial court in all respects. 

Montgomery County Court of Appeals 07/21/17
State of Tennessee v. Mario Cogshell
M2016-01658-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

The Defendant, Mario Cogshell, entered guilty pleas in the Robertson County Circuit Court to three counts of possessing less than 0.5 grams of cocaine with intent to sell. The trial court imposed an effective sentence of ten years to be served in confinement. On appeal, the Defendant argues that his sentence is excessive. Upon review, we affirm the judgments of the trial court. However, we remand the case for entry of proper judgment forms for the charges that were dismissed as a result of the guilty plea.

Robertson County Court of Criminal Appeals 07/21/17
James Hoover v. State of Tennessee
W2016-01695-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joseph H. Walker

The Petitioner, James Hoover, pleaded no contest to vehicular homicide and vehicular assault. The trial court entered the sentence agreed to by the parties: twelve years. The Petitioner then filed a petition for post-conviction relief in which he alleged that his counsel had been ineffective, rendering his plea unknowingly and involuntarily entered. After a hearing, the post-conviction court denied the Petitioner relief, and after review, we affirm the post-conviction court’s judgment.

Tipton County Court of Criminal Appeals 07/21/17
Kenneth Hayes v. State of Tennessee
W2016-01522-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Kenneth Hayes, appeals the denial of his petition for post-conviction relief in which he challenged his convictions for reckless aggravated assault, two counts of aggravated assault, criminal attempt to commit the intentional killing of an animal worth over $1000, theft of property over $1000, and evading arrest and his effective sentence of forty years, eleven months and twenty-nine days in confinement. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel because trial counsel failed to raise sufficiency of the evidence in the motion for a new trial, trial counsel failed to object to the application of enhancement factors during the sentencing hearing, and trial counsel failed to object to the trial court’s determination that the Petitioner was a Range II offender. After review of the record and applicable law, we affirm the post-conviction court’s denial of relief.

Shelby County Court of Criminal Appeals 07/21/17
James Mellon v. State of Tennessee
E2016-02040-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Robert R. McGee

The Petitioner, James Mellon, appeals as of right from the denial of his petition for post-conviction relief. On appeal, the Petitioner contends that he received ineffective assistance of counsel because trial counsel failed to present a viable defense. Following our review, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 07/20/17
State of Tennessee Christopher Lynn Taylor
E2016-01720-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald R. Elledge

The Defendant, Christopher Lynn Taylor, appeals as of right from the trial court’s order of total incarceration after his second violation of his six-year probationary sentence. The Defendant contends that the trial court erred in determining that he was a danger to society and by denying his request for drug treatment in the Community Corrections Program. Following our review, we discern no error. Thus, we affirm the judgments of the trial court.

Anderson County Court of Criminal Appeals 07/20/17
State of Tennessee v. Lester Arnold Clouse
M2016-00707-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Larry B. Stanley, Jr.

A White County jury convicted Defendant, Lester Arnold Clouse, of aggravated assault, assault, and resisting arrest. The trial court merged the resisting arrest conviction into the aggravated assault conviction and sentenced Defendant to an effective fifteen-year sentence as a Range III, persistent offender, to be served consecutively to other outstanding sentences. On direct appeal, this court affirmed Defendant’s convictions but reversed his sentence and remanded the case for a new sentencing hearing. See State v. Lester Arnold Clouse, No. M2013-02633-CCA-R3-CD, 2014 WL 7332181, at *1 (Tenn. Crim. App. Dec. 23, 2014). Following a sentencing hearing on remand, the trial court imposed an effective fourteen-year sentence as a Range III, persistent offender to be served consecutively to his sentences for other convictions. On appeal, Defendant challenges the trial court’s finding that he qualified as a persistent offender, the length of his sentence, and the imposition of partial consecutive sentences. After a thorough review of the record and the applicable law, we affirm Defendant’s sentences for aggravated assault and assault, and we reduce Defendant’s sentence for resisting arrest, a Class B misdemeanor, to six months. We remand the case to the trial court for entry of a corrected judgment on the resisting arrest conviction to reflect that the conviction is merged into Defendant’s aggravated assault conviction in accordance with the trial court’s prior findings.

White County Court of Criminal Appeals 07/20/17
State of Tennessee v. Demarcus Lashawn Blackman
M2016-01098-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge F. Lee Russell
The Defendant, Demarcus Lashawn Blackman, was indicted by a Marshall County grand jury for the sale and delivery of .5 grams or more of cocaine in violation of Tennessee Code Annotated sections 39-17-417(a)(2) and (3) (2010). He was later convicted by a jury as charged. Following a sentencing hearing, the trial court merged the convictions and imposed twelve years’ incarceration. In this appeal as of right, the Defendant argues that the evidence is insufficient to support his convictions and that the trial court abused its discretion in imposing its sentence. We affirm the judgments of the trial court.
 
Marshall County Court of Criminal Appeals 07/20/17
State of Tennessee v. Jennifer Hodges
M2016-01057-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Jill Bartee Ayers

Defendant, Jennifer Hodges, pleaded nolo contendere to six counts of statutory rape, a Class D felony, and one count of solicitation of a minor, a Class E felony. Defendant was sentenced to four years for each count of aggravated statutory rape and two years for solicitation. All sentences were ordered to run concurrently for an effective four-year sentence. The effective sentence was suspended, and she was placed on probation for four years. On appeal, Defendant contends that the trial court erred by not granting her request for judicial diversion and that the trial court erred by sentencing her to the maximum sentences for her convictions.

Montgomery County Court of Criminal Appeals 07/20/17
State of Tennessee v. John Lowery
E2016-00587-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Petitioner, John Lowery, appeals from the trial court’s denial of his petition for writ of error coram nobis. Eleven years after Petitioner’s convictions and sentences were affirmed on direct appeal, Petitioner filed a petition for writ of error coram nobis, which was summarily dismissed by the trial court. In his petition, Petitioner asserted that two witnesses recanted their identification of Petitioner as the shooter, and a previously unknown witness said that Petitioner was not at the scene of the crime. On appeal, this court reversed the court’s summary dismissal of the petition and remanded for an evidentiary hearing. On remand, the State filed a response, asserting that the statute of limitations had run. Following an evidentiary hearing, the trial court denied relief, finding the two witnesses who recanted not credible and that the testimony of the newly discovered witness did not meet the test that it “might have” changed the outcome of the trial. Having reviewed the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/19/17
State of Tennessee v. Jason William Kirk
W2016-01940-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Kyle Atkins

The Appellant, Jason William Kirk, appeals the Madison County Circuit Court’s denial of his motion to withdraw his guilty pleas to theft of property valued $10,000 or more and evading arrest and resulting effective fifteen-year sentence. Based upon the record and the parties’ briefs, we affirm the trial court’s denial of the motion.

Madison County Court of Criminal Appeals 07/19/17
Jeffrey S. Petty v. State of Tennessee
M2016-01488-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Larry J. Wallace

The Petitioner, Jeffrey S. Petty, appeals the Dickson County Circuit Court’s denial of his petition for post-conviction relief.  On appeal, he argues that trial counsel was ineffective by (1) failing to move for a mistrial based on juror misconduct; (2) failing to file a motion to suppress evidence found in the Petitioner’s car; and (3) failing to include certain issues in his motion for new trial.  Upon our review, we affirm the judgment of the post-conviction court.

Dickson County Court of Criminal Appeals 07/19/17
Christopher Lea Williams v. John Buraczynski
E2016-01605-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal arises from a motor vehicle accident. Christopher Lea Williams (“Williams”) and John Buraczynski (“Buraczynski”) both worked for Progression Electric, LLC (“Progression”). In January 2015, Buraczynski was driving his vehicle with passenger Williams as part of a carpool arrangement when they were involved in an accident. Williams subsequently claimed he was entitled to and received workers’ compensation benefits. Williams then sued Buraczynski, personally, in the Circuit Court for Knox County (“the Trial Court”). Buraczynski filed a motion for summary judgment, arguing that Williams’ exclusive remedy was in workers’ compensation. The Trial Court granted Buraczynski’s motion. Williams appealed. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 07/19/17
Anthony Dodson v. Blair Leibach, Warden
M2016-000578-CCA-R3-HC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John D. Wootten, Jr.

Petitioner, Anthony Dodson, appeals from the trial court’s summary dismissal of his pro se petition for writ of habeas corpus in which he alleged that his conviction for attempted first degree murder is illegal. After a thorough review, we affirm the judgment of the trial court.

Trousdale County Court of Criminal Appeals 07/19/17
State of Tennessee v. Timothy Reynolds
M2016-02181-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Timothy Reynolds, pled guilty to the sale of less than .5 grams of cocaine. As a result of the guilty plea he was sentenced to six years with one year to serve and the remainder to be served on supervised probation. After Defendant’s probation was partially revoked on two separate occasions, a third probation violation resulted in the complete revocation of probation. Defendant appeals the revocation of probation. We affirm the trial court’s decision to revoke Defendant’s probation.

Giles County Court of Criminal Appeals 07/19/17
State of Tennessee v. Ricky Lee Palmer
M2016-02153-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steve R. Dozier

Defendant, Ricky Lee Palmer, appeals from his conviction of aggravated assault for which he was sentenced to six years. On appeal, he challenges the sufficiency of the evidence. We determine that the evidence was monumentally sufficient to sustain the conviction for aggravated assault. Therefore, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 07/19/17
David C. Duncan v. State of Tennessee
M2017-00277-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Nearly thirty-five years from the date Petitioner, David C. Duncan, burglarized the home of, raped, and then killed a victim in Sumner County, he appeals the summary denial of his petition for writ of error coram nobis. Upon our review of the record, not only is the petition untimely filed, it also fails to allege any newly discovered evidence that may have affected the outcome of Petitioner's trial. Therefore, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 07/19/17
Christopher Charles Milner v. Suzanne Cary Milner
E2017-00274-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

The January 12, 2017 order to which the Notice of Appeal is directed in this post-dissolution case did not adjudicate a pending motion to modify child support or the pending issue concerning whether the appellant “wrongfully” received benefits from the Social Security Administration for the benefit of the parties’ minor child based upon the step-father’s disability. As such, it is clear that the order appealed from does not resolve all issues raised in the proceedings below and is not a final judgment from which an appeal as of right would lie. We therefore lack jurisdiction to consider this appeal.

Carter County Court of Appeals 07/19/17
Jeffrey Scott Beck v. City of Brownsville, et al.
W2016-01402-SC-R3-WC
Authoring Judge: Judge William B. Acree, Jr.
Trial Court Judge: Judge George R. Ellis

Jeffrey Scott Beck (“Employee”) filed a workers’ compensation complaint claiming he suffered a back injury six months earlier during the course and scope of his employment with the City of Brownsville (“Employer”). Employer denied that the alleged injury arose out of his employment and maintained that Employee failed to give timely notice of the alleged injury. The trial court determined that Employee’s notice was untimely and that Employee’s excuse for not providing timely notice was unreasonable. The trial court also concluded that Employee failed to establish causation. Employee 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. Following our review, we affirm the trial court’s judgment.

Haywood County Workers Compensation Panel 07/18/17
Barbara Joan Rains v. Wal-Mart Associates Inc.
W2016-00636-SC-R3-WC
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Charles C. McGinley

Barbara Rains (“Employee”) filed this action in the Circuit Court for Hardin County, alleging that she sustained a back injury in the course of her work as a cashier for Wal-Mart (“Employer”). The issues were bifurcated, with compensability to be tried first and any remaining issues to be heard later. After the hearing about compensability, the trial court found that Employee had failed to sustain her burden of proof and dismissed the complaint. Employee has appealed, alleging various errors by the trial court. 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. Because Employee failed to present any expert medical evidence to support her claim, we conclude that the trial court’s finding regarding compensability was correct. All other issues raised by Employee are pretermitted. Therefore, we affirm the judgment.

Hardin County Workers Compensation Panel 07/18/17