Court Opinions

Format: 02/16/2018
Format: 02/16/2018
Deborah Evans Wilhoit v. Gary Dennis Wilhoit
M2017-00740-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joe Thompson

This is a post-divorce modification of alimony case. Appellant/Husband contends that the trial court erred by not terminating his alimony in futuro and life insurance obligations. We conclude that Husband’s alimony obligation should be modified to $500 per month so that the parties can retain enough assets to continue to support themselves for a longer duration. Affirmed as modified.

Sumner County Court of Appeals 02/16/18
George Metz, Et Al. v. Metropolitan Government of Nashville And Davidson County, TN, Et Al.
M2017-00719-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises from the dismissal of a petition for writ of certiorari to challenge two administrative decisions by the Planning Commission of the Metropolitan Government of Nashville, Davidson County, Tennessee. The petition was dismissed pursuant to a Tenn. R. Civ. P. 12.02(1) motion for lack of subject matter jurisdiction. The challenge to the first decision was dismissed because the statutory sixty-day period had run from the date the minutes approving the challenged decision had been entered. The challenge to the second decision, the Planning Commission’s decision to approve the final site plan, was deemed untimely because the challenge to a site plan must be filed within sixty days of the entry of the minutes approving the master development plan, not the final site plan, and the statutory period had run. Finding no error, we affirm.

Davidson County Court of Appeals 02/16/18
Travis Daniel Woolbright v. Lee Anna Woolbright
M2016-02420-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

In this appeal, a father challenges the trial court’s award of equal parenting time to the child’s mother. The father contends that he should be awarded more parenting time because the majority of the statutory best interest factors weigh in his favor and he provides the child more stability. We have reviewed the record and find that the trial court did not abuse its discretion in awarding equal parenting time to the parties. 

Putnam County Court of Appeals 02/16/18
Board of Professional Responsibility of The Supreme Court of Tennessee v. Robin K. Barry
M2016-02003-SC-R3-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Senior Judge Ben H. Cantrell

This is an appeal from attorney disciplinary proceedings based on the attorney’s knowing conversion of client funds. In this case, disputed insurance funds were placed in the attorney’s trust account pending resolution of the dispute. Shortly after the disputed insurance funds were deposited, the attorney began to comingle funds in her trust account and use the insurance proceeds for her own purposes. At about the time the dispute over the insurance funds was resolved, the attorney moved out of state. In response to her client’s repeated inquiries about disbursement of the client’s share of the funds, the attorney stalled, made misrepresentations, and finally stopped communicating with the client altogether. After the client filed a complaint with the Tennessee Board of Professional Responsibility against the attorney, the hearing panel found violations of RPC 1.4, RPC 1.15(a) and (d) and RPC 8.4, which included the knowing conversion of client funds and the failure to communicate. The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction. The attorney now appeals to this Court, arguing that disbarment is not warranted. In the alternative, the attorney argues that the disbarment should be made retroactive to the date of her original temporary suspension. Under the circumstances of this case, we affirm the chancery court and disbar the attorney from the practice of law in Tennessee, and we decline to make the disbarment retroactive.

Davidson County Supreme Court 02/16/18
Sean K. Hornbeck v. Board of Professional Responsibility Of The Supreme Court of Tennessee
M2016-01793-SC-R3-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Special Judge Ben H. Cantell

In this attorney disciplinary appeal, upon petition by the Tennessee Board of Professional Responsibility, this Court ordered the temporary suspension of the attorney from the practice of law based on the threat of substantial harm he posed to the public. For a time, the attorney was placed on disability status; later he was reinstated to suspended status. Subsequently, after an evidentiary hearing, a hearing panel found multiple acts of professional misconduct, including knowing conversion of client funds with substantial injury to clients, submitting false testimony and falsified documents in court proceedings, engaging in the unauthorized practice of law, violating Supreme Court orders, and defrauding clients. The hearing panel determined that the attorney should be disbarred. On appeal to the chancery court, the attorney argued inter alia that the disbarment should be made retroactive to the date of his temporary suspension. The chancery court affirmed the decision of the hearing panel. On appeal to this Court, the attorney does not question the disbarment but argues that it would be arbitrary and capricious not to make his disbarment retroactive to the date of his temporary suspension, in order to advance the date on which he may apply for reinstatement of his law license. We disagree. In contrast to suspension, which contemplates that the lawyer will return to law practice, disbarment is not a temporary status. Disbarment is a termination of the individual’s license to practice law in Tennessee. Therefore, we decline to make the effective date of the attorney’s disbarment retroactive to the date of his temporary suspension. Accordingly, we affirm.

Davidson County Supreme Court 02/16/18
State of Tennessee v. Roger Terry Johnson
M2017-01249-CCA-R3-CD
Authoring Judge: Judge Steve R. Dozier
Trial Court Judge: Judge Timothy L. Easter

Defendant, Roger Terry Johnson, is appealing the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1 The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Davidson County Court of Criminal Appeals 02/16/18
State of Tennessee v. Howard Melton
E2017-00613-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bob R, McGee

The defendant, Howard Melton, appeals his Knox County Criminal Court jury conviction of sexual exploitation of a minor, claiming that the trial court erred by improperly admitting certain evidence and that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 02/16/18
State of Tennessee v. Mena Mekhaen Boutrous
M2017-00835-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Monte Watkins

Defendant, Mena Mekhaen Boutrous, was convicted of two counts of aggravated arson and one count of attempted first degree murder after a bench trial. The trial court merged the two counts of aggravated arson and sentenced Defendant to twenty years for the conviction for aggravated arson and twenty years for the conviction for attempted first degree murder, to be served concurrently. On appeal, Defendant argues that: (1) the trial court erred by excluding evidence of Defendant’s mental health; (2) the evidence was insufficient to support the convictions; and (3) the sentences were excessive. After a review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/16/18
State of Tennessee v. Duran Maszae Lee
E2017-00368-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald R. Elledge

The Defendant, Duran Maszae Lee, was convicted by an Anderson County Criminal Court jury of possession with the intent to sell or to deliver more than 0.5 gram of cocaine, a Class B felony. See T.C.A. § 39-17-417(a)(4) (2010) (amended 2012, 2014). The trial court sentenced the Defendant as a Range II, multiple offender to sixteen years’ confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) that the indictment is duplicitous, and (3) the trial court erred by failing to exclude his pretrial statements to the police. We affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 02/16/18
State of Tennessee v. Matthew George Vogel
E2017-00894-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Tom Greenholtz

The Defendant, Matthew George Vogel, appeals from the Hamilton County Criminal Court’s revocation of probation for his Range I, eight-year sentence for possession with the intent to sell methamphetamine, a Class B felony. See T.C.A. § 39-17-417 (2014). The Defendant contends that the trial court erred in revoking his probation and ordering him to serve the remainder of his sentence in confinement. We affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 02/16/18
Darrell M. Anderson v. State of Tennessee
W2017-00922-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Darrell M. Anderson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 02/15/18
Rodney Smith v. State of Tennessee
W2017-00406-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey

The petitioner, Rodney Smith, appeals the denial of post-conviction relief from his Shelby County Criminal Court convictions for attempted especially aggravated robbery, aggravated burglary, employment of a firearm during the commission of a dangerous felony, convicted felon in possession of a handgun, and convicted felon in possession of a firearm. On appeal, the petitioner alleges he received ineffective assistance of counsel due to trial counsel’s failure to call a material witness at trial. Discerning no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/15/18
State of Tennessee v. Brandon Cole-Pugh
W2017-00469-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

Following a jury trial, the defendant, Brandon Cole-Pugh, was convicted of being a felon in possession of a handgun and sentenced to eight years. On appeal, the defendant challenges the trial court’s denial of his request for an instruction on the defense of necessity. Having thoroughly reviewed the record, we conclude the trial court did not err in denying the defendant’s request on the defense of necessity.

Madison County Court of Criminal Appeals 02/15/18
Tristar Centennial Medical Center v. Dana C. Pugh
M2016-02470-SC-R3-WC
Authoring Judge: Judge Hamilton V. Gayden, Jr.
Trial Court Judge: Chief Justice Jeffrey S. Bivins

Dana Pugh (“Employee”) and Tristar Centennial Medical Center (“Employer’) settled a claim for a compensable back injury to Employee after participating in and failing to resolve their dispute at a Benefit Review Conference (“BRC”). Employee later filed a motion to compel Employer to approve a surgical procedure recommended by her authorized physician and for attorney’s fees. Employer approved the surgery after another physician conducted a review of Employee’s medical records. Employee subsequently reset her motion, and the trial court awarded her attorney’s fees. Employer 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 conclude that the trial court did not have subject matter jurisdiction, vacate the judgment, and dismiss the case.

Davidson County Workers Compensation Panel 02/15/18
State of Tennessee v. Ernest Butler aka Antonio Butler
W2017-00136-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Ernest Butler, aka Antonio Butler, was convicted of first degree felony murder and being a convicted felon in possession of a firearm. He was sentenced to life imprisonment and fifteen years, respectively, to be served consecutively. On appeal, he argues that the evidence is insufficient to sustain the murder conviction. We disagree and affirm the judgments.

Shelby County Court of Criminal Appeals 02/15/18
State of Tennessee v. Deredious Otis, Brashard Gibbs and Carlos Key
W2016-01261-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

Defendants Deredious Otis and Carlos Key each were convicted of one count of first degree premeditated murder and two counts of attempted first degree murder, and Defendant Brashard Gibbs was convicted of one count of first degree premeditated murder, five counts of attempted first degree murder, and three counts of employing a firearm during the commission of a dangerous felony. Defendants Otis and Key each were sentenced to life for their first degree murder conviction and twenty-five years for each of their attempted first degree murder convictions, with all sentences to be served consecutively. Defendant Gibbs was sentenced to life for the first degree murder conviction, twenty-five years for each of the five counts of attempted first degree murder, and six years for each of the three counts of employing a firearm during the commission of a dangerous felony, with all sentences to be served consecutively. On appeal, all three Defendants argue that the evidence is insufficient to support the verdicts and that the trial court erred in consolidating the indictments; and Defendants Otis and Gibbs argue that the court erred in sentencing. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/15/18
Bank of New York Mellon v. Chandra Berry
W2017-01213-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Mary L. Wagner

A bank filed a wrongful detainer warrant in general sessions court against a homeowner who defaulted on her loan, and the homeowner raised counterclaims that the foreclosure was wrongful and fraudulent. The general sessions court awarded the bank possession of the property and dismissed the homeowner’s counterclaims as barred by res judicata based on an earlier action in which the homeowner sought to prevent the foreclosure. The homeowner appealed the general sessions court’s decision, and the circuit court also dismissed the homeowner’s counterclaims based on res judicata. The homeowner appealed the circuit court’s judgment to this court, and the bank sought an award of its attorney’s fees as damages for having to defend against a frivolous appeal. We affirm the circuit court’s judgment and deny the bank’s request for an award of its fees.

Shelby County Court of Appeals 02/15/18
De'Quon Letray Boyd v. State of Tennessee
E2017-00891-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry A. Steelman

The petitioner, De’quon Letray Boyd, appeals the denial of his petition for post-conviction relief, which petition challenged the petitioner’s 2011 convictions of attempted first degree premeditated murder, premeditated murder, felony murder, two counts of aggravated assault, reckless endangerment, and aggravated criminal trespass. In this appeal, the petitioner argues that he was deprived of the effective assistance of counsel at trial. We affirm the denial of post-conviction relief.

Hamilton County Court of Criminal Appeals 02/15/18
Robert Harvey Santee v. Stacy Lynn Santee - concurring in part and dissenting in part
E2016-02535-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgerty, Jr.

I concur completely in the majority’s decisions pertaining to (1) the allocation of the parties’ debt; (2) the imputation of income to wife for the purpose of calculating child support; and (3) wife’s request for her attorney’s fees as alimony in solido. In my judgment, there is no error regarding any of these matters. I dissent, however, from the majority’s decision to award wife “rehabilitative” alimony rather than alimony in futuro. I do so because, I believe, the evidence clearly and overwhelmingly preponderates against the trial court’s “rehabilitative” decision.

Sevier County Court of Appeals 02/15/18
Robert Harvey Santee v. Stacy Lynn Santee
E2016-02535-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Telford E. Forgerty, Jr.

This appeal concerns divorce and child support matters. Robert Harvey Santee (“Husband”) sued wife Stacy Lynn Santee (“Wife”) for divorce in the Chancery Court for Sevier County (“the Trial Court”). After a trial, the Trial Court awarded Husband a divorce based upon Wife’s inappropriate marital conduct. The Trial Court divided the marital estate, awarded Wife rehabilitative alimony, and imputed income to her for child support purposes. Wife appealed to this Court, arguing that, among other things, as a stay-at-home mother in a long-term marriage, rehabilitative alimony is insufficient. Husband argues in response that he has longstanding plans to retire. We find that the Trial Court erred in imputing income to Wife for two years of child support purposes when the Trial Court also found that Wife was capable of going to school for those two years to improve her financial situation and awarded rehabilitative alimony for Wife to do exactly that. Otherwise, we affirm the judgment of the Trial Court.

Sevier County Court of Appeals 02/15/18
State of Tennessee v. Terance P. Bradley, aka Terrance P. Bradley
M2017-00376-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Terance P. Bradley, aka Terrance P. Bradley, was convicted by a Davidson County Criminal Court jury of aggravated burglary, a Class C felony; reckless aggravated assault, a Class D felony; and assault, a Class A misdemeanor. The trial court sentenced him as a Range III, persistent offender to twelve years at 45% for the aggravated burglary conviction; as a Range IV, career offender to twelve years at 60% for the reckless aggravated assault conviction; and to eleven months, twenty-nine days for the misdemeanor assault conviction, with all sentences to be served concurrently with each other but consecutively to his convictions in another case. On appeal, the Defendant challenges the sufficiency of the evidence of his aggravated burglary and reckless aggravated assault convictions. Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/15/18
State of Tennessee v. Gregory Lee Gordon
M2017-00649-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert L. Jones

The Defendant, Gregory Lee Gordon, pled guilty to aggravated assault by strangulation, a Class C felony, and after a sentencing hearing, was ordered to serve nine years in the Tennessee Department of Correction. On appeal, he argues that the trial court erred in denying his request for an alternative sentence. After review, we affirm the sentencing decision of the trial court.

Lawrence County Court of Criminal Appeals 02/15/18
Jerry Finis Layne v. State of Tennessee
M2017-00421-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Justin C. Angel

The Petitioner, Jerry Finis Layne, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his guilty plea was unknowingly and involuntarily entered. Following our review, we affirm the denial of the petition.

Grundy County Court of Criminal Appeals 02/15/18
Estate of Mark Bentley v. Wood Byrd, et al.
W2017-00446-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kyle Atkins

In this case, a judgment creditor pursued enforcement of a foreign judgment. Although the judgment creditor obtained a charging order against the judgment debtor’s interest in a partnership and later moved to foreclose this interest, the judgment debtor subsequently moved to dismiss the case and vacate all prior orders by alleging that he had never been properly served. The trial court denied the motion to dismiss and entered an order allowing foreclosure against the partnership interest. Despite filings by the judgment debtor highlighting the absence of personal service, the trial court ultimately left its enforcement orders undisturbed. Because we agree that the judgment debtor never received proper service incident to the judgment creditor’s attempt to enroll the foreign judgment, we vacate the trial court’s orders relating to execution.

Madison County Court of Appeals 02/15/18
In Re Nevaeh B.
W2016-01769-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Van McMahan

This is a termination of parental rights case. The trial court terminated Mother/Appellant’s parental rights on the grounds of: (1) abandonment by an incarcerated parent for willful failure to visit, willful failure to support, and wanton disregard; (2) failure to substantially comply with the requirements of the permanency plan; and (3) persistence of the conditions that led to the Child’s removal. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the child’s best interest. Because the proof is not sufficient to establish that the child was removed from Appellant’s home, we reverse the ground of persistence of conditions. The trial court’s order is otherwise affirmed.

Chester County Court of Appeals 02/14/18