Court Opinions

Format: 05/24/2018
Format: 05/24/2018
Sharon K. Yuhasz v. Joseph D. Yuhasz
M2017-00880-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

Husband appeals the trial court’s decision regarding wife’s monthly need for spousal support and its division of the parties’ marital assets.  Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets.  We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal.

Williamson County Court of Appeals 05/24/18
In Re: Emersyn W.
M2017-02074-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kenneth R. Goble

This is an appeal from an order changing the Child’s surname from that of Mother alone to the double last name of Mother and Father, respectively. The juvenile court determined that the Child’s last name should be changed based on a standardized policy of the court because the parents could not reach an agreement. Mother appeals. We reverse.

Montgomery County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
M2017-00635-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael Binkley

I concur in the result reached by the majority and with its analysis, except in one respect. In my view, Tennessee Code Annotated § 36-5-121 does not authorize an award of attorney fees in these circumstances.

Williamson County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer
M2017-00635-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Binkley

In this post-divorce action, the husband filed a petition to terminate or modify $2,000.00 in monthly transitional alimony that had been previously awarded to the wife as part of the marital dissolution agreement incorporated into the divorce decree.  Following a bench trial, the trial court found that the wife was cohabiting with her fiancé and had failed to rebut the statutory presumption, pursuant to Tennessee Code Annotated § 36-5-121(g)(2)(C), that she was either providing support to or receiving support from a third person and no longer needed the amount of alimony previously awarded.  The trial court suspended the husband’s transitional alimony obligation retroactive to October 2015, the month when he had begun to deposit payments into an escrow account at the court’s direction.  The court also awarded to the husband attorney’s fees and expenses in the amount of $19,331.50.  The wife has appealed.  Having determined that the wife failed to rebut the statutory presumption, we affirm the suspension of the husband’s transitional alimony obligation.  However, having also determined that the evidence does not support a finding that the wife had the ability to pay the husband’s attorney’s fees, we reverse the trial court’s award of attorney’s fees to the husband.  We decline to award attorney’s fees incurred on appeal to either party.

Williamson County Court of Appeals 05/24/18
Carolyn Annette Young v. Sugar Hollow Properties, LLC, Et Al.
E2017-00981-SC-R3-WC
Authoring Judge: Justice Sharon Lee
Trial Court Judge: Judge Elizabeth C. Asbury

In June 2004, an employee sustained a work-related injury. After the employee sued her employer and its insurer for workers' compensation benefits, the parties settled the case. The trial court approved the settlement and, in part, ordered the defendants to pay the employee's reasonable and necessary authorized future medical expenses. In 2016, the employee moved to compel the defendants to provide medical treatment recommended by the employee's authorized treating physician; she also sought a finding of civil contempt and an award of attorney fees. The trial court ordered the defendants to provide the requested medical services and denied the motion for contempt. The defendants then authorized the employee's requested medical treatment. At a later hearing, the trial court awarded the employee her attorney fees under Tennessee Code Annotated section 50-6- 204(b)(2) (2005). The defendants appeal the trial court's award of medical benefits and attorney fees. After careful review, we hold that the issue of medical benefits is moot and the trial court erred in awarding the employee her attorney fees.

Campbell County Workers Compensation Panel 05/24/18
Camilo Sanchez Et Al. v. Robert L. Banton
E2016-01916-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Frank V. Williams, III

This case involves a dispute between owners of adjacent property. Plaintiffs sued Defendant for erecting a gate and steel posts, which they alleged impeded access to a deeded joint roadway. The court ordered Defendant to remove the gate and steel posts and awarded plaintiffs punitive damages. We reverse the award of punitive damages because the court did not find by clear and convincing evidence that Defendant acted with the requisite intent to justify such an award. We affirm the judgment in all other respects.

Loudon County Court of Appeals 05/24/18
Charles Elsea v. State of Tennessee
E2017-01676-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: E2017-01676-CCA-R3-PC

Petitioner, Charles Elsea, appeals the denial of his petition for post-conviction DNA analysis on unprocessed specimens relating to his October 10, 1997 conviction for first degree murder. Because we hold that even favorable DNA results from the unprocessed specimens do not create a reasonable probability that Petitioner would not have been prosecuted or convicted or would have received a more favorable verdict or sentencing, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 05/24/18
Robert Edward Fritts v. State of Tennessee
E2017-00996-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald Ray Elledge

Petitioner, Robert Edward Fritts, was convicted of first degree murder and received a sentence of life without the possibility of parole. See State v. Robert Edward Fritts, No. E2012-02233-CCA-R3-CD, 2014 WL 545474, at *1 (Tenn. Crim. App. Feb. 10, 2014), perm. app. denied (Tenn. Sept. 19, 2014). Petitioner’s conviction was affirmed on direct appeal. Id. Petitioner subsequently sought post-conviction relief on the basis of a multitude of allegations of ineffective assistance of counsel. The post-conviction court denied relief after a hearing. After a complete review, we affirm the judgment of the post-conviction court.

Anderson County Court of Criminal Appeals 05/24/18
In Re: D.T. ET AL.
E2017-00051-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

In this termination of parental rights case, P.T. and K.T., great aunt and uncle of the child at issue in this case, filed a petition to terminate the rights of N.D. (mother) with respect to her child, D.T. Mother did not appear for trial. She had previously filed a second request for a continuance, which the trial court had denied. At trial, P.T. and K.T. alleged the following grounds for termination: (1) four independent conditions or occurrences constituting severe child abuse; (2) mental incompetence; (3) two separate instances of abandonment by failure to support; (4) two separate instances of abandonment by failure to visit; and (5) failure to assume by act or omission, legal/physical custody or financial responsibility of the child. The court found clear and convincing evidence of all ten grounds. By the same quantum of proof, the court also found that termination is in the child’s best interest. Mother appeals. We affirm.

Loudon County Court of Appeals 05/24/18
State of Tennessee v. John Wesley Cantrell, Jr.
M2017-00842-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, John Wesley Cantrell, Jr., pled guilty in the Davidson County Criminal Court to possessing one-half gram or more of cocaine with intent to sell and selling less than one-half gram of cocaine and received ten- and three-year sentences, respectively, to be served on supervised probation. Subsequently, the trial court revoked his probation. On appeal, the Appellant contends that the trial court erred by ordering that he serve his ten-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 05/24/18
State of Tennessee v. Larry E. Orozco - Concurring in Part, Dissenting in Part
M2017-00327-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Senior Judge Paul G. Summers

I join the majority in affirming the Defendant’s convictions for two counts of attempted second degree murder, two counts of unlawful employment of a firearm during the attempt to commit a dangerous felony, and seven counts of reckless endangerment committed with a deadly weapon. I write separately to dissent from the majority’s conclusion that the trial court did not err by admitting exhibit 13, the photograph showing the Defendant pointing two handguns at the camera, into evidence.

Rutherford County Court of Criminal Appeals 05/24/18
State of Tennessee v. Larry E. Orozco
M2017-00327-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Senior Judge Paul G. Summers

The Defendant, Larry E. Orozco, was convicted of two counts of attempted second degree murder, two counts of unlawful employment of a firearm during an attempt to commit a dangerous felony, and seven counts of reckless endangerment committed with a deadly weapon. The trial court sentenced him as a Range I, standard offender to an effective term of thirty-one years’ imprisonment. On appeal, the Defendant argues that (1) the trial court erred in admitting certain evidence in violation of Tennessee Rules of Evidence 403 and 404(b); (2) the evidence was insufficient to sustain his convictions; and (3) his sentence was erroneous and excessive. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 05/24/18
Delvin Allison v. State of Tennessee
W2017-00707-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Petitioner, Delvin Allison, pled guilty to aggravated robbery with an agreed sentence of seven years and two months as a mitigated offender, which was ordered to be served in the Department of Correction. Petitioner now appeals the post-conviction court’s denial of his petition for post-conviction relief in which he contends: the post-conviction court improperly determined that he was not entitled to discovery of the audio recording of the juvenile court transfer hearing; trial counsel rendered ineffective assistance both prior to and during the guilty plea proceedings; and his guilty plea was not knowing and voluntary. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 05/23/18
State of Tennessee v. Jamie Crowell
W2017-00799-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Jamie Crowell, was convicted by a Chester County Circuit Court jury of aggravated kidnapping, a Class B felony; facilitation of aggravated assault, a Class D felony; possession of methamphetamine with intent to sell, a Class B felony; possession of methamphetamine with intent to deliver, a Class B felony; possession of a Schedule II controlled substance, oxymorphone, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. The trial court merged the methamphetamine convictions into one conviction and sentenced the Defendant to a total effective term of seventeen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions; (2) the State’s questioning about the prior methamphetamine use of defense witnesses denied him a fair trial; and (3) the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

Chester County Court of Criminal Appeals 05/23/18
Hershel Sanders Et Al. v. First Tennessee Bank National Association Et Al.
E2017-01814-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Amy V. Hollars

The plaintiffs, Hershel Sanders and his wife, Alma Sanders, secured a construction loan from the defendant, First Tennessee Bank, N. A., for the purpose of building a home in Cumberland County. The first contractor hired by the plaintiffs did not complete the construction in a timely fashion. At the urging of First Tennessee Bank, the plaintiffs dismissed the original contractor and hired a new one, who finished the job. The bank refused to make the plaintiffs a permanent loan. Ultimately, the property went into foreclosure. The plaintiffs sued the bank and others, alleging various theories of recovery. The case proceeded, but only as to one defendant – First Tennessee Bank – and only as to one theory, i.e., breach of contract to make the plaintiffs a permanent loan. First Tennessee Bank filed a motion to dismiss and for judgment on the pleadings. The trial court held that, since there is no written agreement signed by First Tennessee Bank reflecting a promise by it to make the plaintiffs a permanent loan, the plaintiffs’ suit is barred by the Statute of Frauds, Tenn. Code Ann. § 29-2-101 (2012). The trial court also granted the bank’s motion on another ground. The plaintiffs appeal. We affirm

Cumberland County Court of Appeals 05/23/18
Ronald Miller v. Mark Gywn, Director Of The Tennessee Bureau Of Investigation
E2017-00784-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge E.G. Moody

In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-year-old niece. When he moved to Tennessee in 2007, he registered with the sex offender registry (SOR). The Tennessee Bureau of Investigation subsequently reclassified him several times. In 2013, the TBI granted Miller’s request to be removed from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. § 40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant to this amendment. Miller appealed to the trial court under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court reversed the TBI’s decision, holding that “TBI is bound by the face of the [Maryland] conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime registry requirements.” The Maryland statute at the time of the offense provided that “a person may not engage in . . . sexual contact with another without the consent of the other.” We hold that the TBI demonstrated that Miller was convicted of this offense, and that his victim was eleven years old at the time of the offense. Based on our review of the record, we hold that the TBI’s decision was neither arbitrary nor capricious or unsupported by substantial and material evidence. We reverse the trial court’s judgment and hold that Miller must be registered on the SOR for life.

Sullivan County Court of Appeals 05/23/18
In Re: Neamiah R. Et Al.
E2017-02000-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

In this action, the trial court terminated the respondent father’s parental rights to his children, following its finding that clear and convincing evidence existed to establish the statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the reasonable requirements of a permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The father has appealed solely the best interest determination. Discerning no error regarding the statutory grounds for termination found by the trial court or the court’s best interest analysis, we affirm.

Knox County Court of Appeals 05/23/18
State of Tennessee v. Bobby Ray Graves, Jr.
M2017-00088-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry B. Stanley, Jr.

A Warren County Circuit Court Jury convicted the Appellant, Bobby Ray Graves, Jr., of failure to appear, a Class E felony, and the trial court sentenced him to six years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction because the State failed to prove that he “went into hiding to avoid prosecution” and that the State committed prosecutorial misconduct during closing arguments. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 05/23/18
State of Tennessee v. Peterpal T. Tutlam
M2016-01659-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury convicted the Appellant, Peterpal T. Tutlam, of two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, and two counts of aggravated rape, Class A felonies. After a sentencing hearing, the trial court sentenced the Appellant to twenty-five years for each conviction and ordered that the sentences be served consecutively for a total effective sentence of one hundred fifty years. On appeal, the Appellant contends that his effective sentence is excessive. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/23/18
George Grant Et Al. v. Elaine Anderson, Clerk Of Williamson County, Et Al.
M2016-01867-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Joseph A. Woodruff

Plaintiffs filed suit seeking declaratory relief to determine the continuing validity of laws relating to the issuance of marriage licenses and to determine whether the issuance of marriage licenses violates the state constitution. Plaintiffs also asked the trial court to enjoin the issuance of all marriage licenses in Williamson County, Tennessee. Upon the county clerk’s motion to dismiss, the trial court concluded, among other things, that the plaintiffs lacked standing. We affirm the dismissal of the complaint.

Williamson County Court of Appeals 05/22/18
John Kinder Et Al. v. Wendell Bryant Et Al.
E2017-01688-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Jerri Bryant

The plaintiffs commenced this declaratory judgment action to establish that their claim to a forty-acre tract of real property is superior to that of the defendants. The plaintiffs claim to have purchased the disputed property in 1980; however, their deed was not recorded until 1995. The defendants’ predecessors in interest purchased the property at a tax sale in 1994, and their deed was duly recorded prior to the plaintiffs’ deed. The plaintiffs’ claims are based, inter alia, on adverse possession and the contention that the 1994 tax deed is void or voidable due to lack of notice of the sale. After hearing cross-motions for summary judgment, the trial court summarily dismissed the complaint finding that the plaintiffs were not entitled to notice of the tax sale because, at the time of the sale, the plaintiffs’ deed had not been recorded and the plaintiffs lacked standing to challenge the lack of notice to their predecessors in title who were the owners of record at the time of the tax sale. The trial court further found that the plaintiffs had not paid any taxes on the property and that the defendants paid the property taxes for more than twenty years, which raised the rebuttable presumption of ownership under Tenn. Code. Ann. § 28-2- 109. Based on these findings, the trial court held that Tenn. Code Ann. § 28-2-110 barred any affirmative action by the plaintiffs to claim an interest in the property and summarily dismissed the complaint. We affirm.

Bradley County Court of Appeals 05/22/18
Jana Lea Purvis v. Dennis Patrick Purvis, II
E2016-02167-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Lawrence Howard Puckett

In this divorce case, Dennis Patrick Purvis, II (Father) appeals the trial court’s judgment allowing Jana Lea Purvis (Mother), the primary custodial parent, to relocate to California with the parties’ two children. The trial court found that Father had physically abused Mother and emotionally abused her and the children. Mother appeals, challenging, among other things, the trial court’s order expanding Father’s parenting time. She argues that he should be limited to the co-parenting time set forth in her proposed parenting plan. She states that his time should be so limited as mandated by Tenn. Code Ann. § 36-6- 406(a)(2) (2017). We find that the evidence does not preponderate against the trial court’s findings of abuse. Accordingly, we affirm the trial court’s decision allowing Mother to move to California. We modify the parenting plan to vacate the trial court’s decision allowing Father visitation in California for one weekend a month in seven months. We affirm the trial court’s judgment in all other respects.

Bradley County Court of Appeals 05/22/18
William Boatwright v. State of Tennessee
E2017-00211-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Petitioner, William Boatwright, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief from his especially aggravated robbery, aggravated robbery, aggravated burglary, and two aggravated assault convictions, for which he is serving a forty-seven-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We reverse the judgment of the post-conviction court and remand the case for additional findings of fact and conclusions of law.

Knox County Court of Criminal Appeals 05/22/18
Paul Gray v. Wingfoot Commercial Tire Systems et al.
W2017-00380-SC-WCM-WC
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Judge Jerry Stokes

Paul Gray (“Employee”) was injured in the course of his employment with Wingfoot Commercial Tire Systems (“Employer”). Several physicians—authorized and unauthorized—examined and treated Employee. After a Benefit Review Conference was completed and suit filed, an unauthorized physician performed surgery. The trial court considered numerous issues including subject matter jurisdiction, payment of unauthorized medical expenses, impairment, and disability. It ruled in favor of Employee and awarded 50% permanent partial disability benefits. Employer appeals. 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 in part, reverse in part, and remand to the trial court.

Shelby County Workers Compensation Panel 05/21/18
Dustin Lucio v. State of Tennessee
E2017-00089-CCA-R3-PC
Authoring Judge: JudgeThomas T. Woodall
Trial Court Judge: Judge Duane Slone

Petitioner, Dustin Lucio, appeals from the denial of his petition for post-conviction relief. Petitioner was convicted by a jury of aggravated rape and sentenced by the trial court to 23 years in confinement to be served at 100 percent release eligibility. Petitioner’s conviction and sentence were affirmed on direct appeal. State v. Dustin Matthew Lucio, No. E2014-00642-CCA-R3-CD, 2015 WL 1510830 (Tenn. Crim. App. Mar. 31, 2015), perm. app. denied (Tenn. Aug. 13, 2015). Petitioner contends that his appellate counsel was ineffective for failing to include in the record on appeal a transcript of the hearing on the State’s motion in limine. In that motion, the State sought to exclude from evidence the victim’s medical records showing that she received treatment for drug abuse after the offense occurred. Following a hearing, the post-conviction court denied relief. Finding no error, we affirm the judgment of the post-conviction court.

Sevier County Court of Criminal Appeals 05/21/18