Court Opinions

Format: 10/19/2019
Format: 10/19/2019
Don Gatlin, Et Al. v. Linda L. Scott
M2018-02293-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Joe Thompson

This appeal concerns the alleged formation of a contract for the sale of real property. The court ruled that text messages concerning the sale of the property did not constitute a present offer and acceptance sufficient to form a contract for the purchase of the property at issue. We affirm. 

Sumner County Court of Appeals 09/20/19
Jennifer Elizabeth Meehan v. Board of Professional Responsibility Of The Supreme Court of Tennessee
M2018-01561-SC-R3-BP
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Senior Judge Robert E. Lee Davies

A Board of Professional Responsibility hearing panel found that an attorney should be disbarred after she was convicted of bank fraud. On appeal, the circuit court held that the hearing panel’s decision was arbitrary and imposed a five-year suspension. We reverse. The hearing panel’s decision was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion.

Davidson County Supreme Court 09/20/19
State of Tennessee v. Tevin Mantez Harris
M2018-00638-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jill Bartee Ayers

A Robertson County Circuit Court Jury convicted the Appellant, Tevin Mantez Harris, of second degree murder and possession of a firearm with the intent to go armed, and the trial court sentenced him to concurrent sentences of twenty-two years to be served at one hundred percent and eleven months, twenty-nine days, respectively. On appeal, the Appellant contends that the trial court erred by allowing witnesses to testify about his being Muslim and his “viewpoint” toward Christianity and that his twenty-two-year sentence is excessive because the trial court misapplied an enhancement factor. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of the trial court.

Robertson County Court of Criminal Appeals 09/20/19
Cheryl Lynn Williams v. SWS LLC d/b/a Securewatch
E2018-00922-SC-R3-WC
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William T. Ailor

Cheryl Lynn Williams (“Employee”) alleged that she sustained a compensable injury and/or an occupational disease as a result of exposure to mold during the course and scope of her employment with SWS LLC d/b/a SecureWatch (“Employer”). Employer filed a motion for summary judgment, asserting that the one-year statute of limitations barred Employee’s claim. The trial court granted the motion and dismissed the case. 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. Having determined that genuine issues of material fact exist concerning the commencement of the statute of limitations, we reverse the judgment and remand for proceedings on the merits.

Knox County Workers Compensation Panel 09/20/19
State of Tennessee v. Jonathan Michael Atha
E2018-00663-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, Jonathan Michael Atha, was convicted by a jury of two counts of aggravated rape, four counts of aggravated robbery, and three counts of aggravated kidnapping, for which he received an effective sentence of fifty years’ incarceration. On appeal, the Defendant argues (1) that the trial court erred by denying his motion to suppress the victims’ in-court identifications of the Defendant; (2) that the trial court erred by declining to issue a limiting jury instruction regarding the State’s failure to preserve evidence; (3) that the trial court erred in ordering the Defendant to serve consecutive sentences for aggravated rape; and (4) that the cumulative effect of these errors deprived the Defendant of a fair trial. Following our review, we affirm the judgments of the trial court.

Sevier County Court of Criminal Appeals 09/20/19
State of Tennessee v. Missy Daniella Lane
E2017-01907-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Ben W. Hooper, II

A Cocke County Jury found Defendant, Missy Daniella Lane, guilty of reckless homicide. The trial court imposed a sentence of two years to be served in confinement. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support her conviction for reckless homicide; (2) whether the trial court erred by denying Defendant’s motion for an extension of time to file an amended motion for new trial; (3) whether the Cocke County Grand Jury had jurisdiction to render a superseding presentment; (4) whether the trial court denied Defendant the right to peremptory challenges during voir dire; (5) whether Defendant was prejudiced by a violation of the rule of sequestration by the State’s witnesses; (6) whether the State committed prosecutorial misconduct by calling Derrick Raines as a witness; (7) whether the trial court violated Defendant’s right to a public trial; (8) whether the State’s expert witnesses testified improperly; (9) whether the trial court improperly denied Defendant’s request for jury instructions; (10) whether the jury was exposed to extraneous information; (11) whether the State committed prosecutorial misconduct during closing arguments; (12) whether the trial court properly denied alternative sentencing; and (13) cumulative error. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Cocke County Court of Criminal Appeals 09/20/19
In Re Estate of Henry C. Ellis, III and In Re Conservatorship of Henry C. Ellis, III
W2019-01431-COA-T10B-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gina C. Higgins

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by Nancy Neely (“Petitioner”), seeking to recuse the trial judge in these companion cases involving a conservatorship and an estate. Having reviewed the petition for recusal appeal filed by Petitioner, and the answer ordered by this Court, and finding no error in the orders of the Circuit Court for Shelby County (“the Trial Court”) denying recusal, we affirm.

Shelby County Court of Appeals 09/20/19
James Moses, Et Al. v. Rebecca Elrod, Et Al.
E2019-00117-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Frank V. Williams, III

The plaintiffs appeal the trial court’s decision concerning the ownership of real property. We affirm.

Meigs County Court of Appeals 09/19/19
State of Tennessee v. Arnold Asbury
E2018-01095-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Sandra Donaghy

Arnold Asbury, Defendant, claims that the trial court erred by denying his “Motion to Withdraw Guilty Plea Prior to Sentencing” and, as a result, that he was denied a right to trial by jury. Although we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty plea, we determine that the trial court committed reversible error at the subsequent sentencing hearing because it neither properly accepted Defendant’s Tennessee Rule of Criminal Procedure 11(c)(1)(C) plea agreement pursuant to Rule 11(c)(4) nor properly rejected the plea agreement pursuant Rule 11(c)(5). We reverse the judgments of the trial court and remand for a hearing in which the court may, in its discretion, either reject or accept the Rule 11(c)(1)(C) plea agreement. If the trial court rejects the plea agreement and Defendant opts to withdraw his guilty pleas, Defendant will have the right to a trial by jury. If the trial court accepts the agreement, it must sentence Defendant pursuant to the terms of the plea agreement.

Monroe County Court of Criminal Appeals 09/19/19
State of Tennessee v. Christopher Caldwell
M2018-02068-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Dee David Gay

The Defendant, Christopher Caldwell, appeals the Sumner County Criminal Court’s order revoking his community corrections sentence for his convictions for burglary of a motor vehicle and felony theft and ordering him to serve the remainder of his effective twelve-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his community corrections sentence. We affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 09/19/19
State of Tennessee v. Wayford Demonbreun, Jr.
M2018-02159-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Wayford Demonbreun, Jr., appeals the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On appeal, the Petitioner argues that his convictions are illegal because the trial court failed to award pretrial jail credits, the date his sentences were imposed is in question, the trial judge’s name was not printed on the judgment forms, and the judgment forms were not stamped filed. We affirm the trial court’s denial of relief.

Davidson County Court of Criminal Appeals 09/19/19
State of Tennessee v. Frazier Lee Savage
E2018-01307-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Bob R. McGee

The Defendant, Frazier Lee Savage, was convicted by a Knox County Criminal Court jury of possession with intent to sell less than fifteen grams of heroin within 1,000 feet of a child care agency, a Class B felony; possession with intent to deliver less than fifteen grams of heroin within 1,000 feet of a child care agency, a Class B felony; possession with intent to sell alprazolam within 1,000 feet of a child care agency, a Class D felony; possession with intent to deliver alprazolam within 1,000 feet of a child care agency, a Class D felony, and possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-417(a)(2) (2018) (possession with intent to deliver), 39-17-417(a)(3) (possession with intent to sell), 39-17-425 (2018) (possession of drug paraphernalia), 39- 17-432 (2018) (providing enhanced penalties for drug offenses committed in Drug-Free School Zones). After a sentencing hearing, the trial court merged the two heroin counts and the two alprazolam counts and imposed an effective twelve-year sentence at 100% service. On appeal, the Defendant contends that the trial court erred in denying his motion to suppress the evidence obtained from a warrantless search of a motel room. We affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 09/19/19
Rachel Kay Bond v. State of Tennessee
M2018-01324-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner, Rachel Kay Bond, appeals the Lawrence County Circuit Court’s denial of post-conviction relief from her conviction of first degree murder. On appeal, the Petitioner contends that she was denied the effective assistance of counsel based on trial counsel’s failure to: 1) request a change of venue; 2) strike three potential jurors; 3) investigate the existence of text messages stored in the Petitioner’s cell phone; 4) adequately cross-examine a witness; and 5) challenge the Petitioner’s competency. The Petitioner also alleges that trial counsel was ineffective because he allowed her to testify. Following a review of the record and applicable law, we affirm the judgment of the post-conviction court.

Lawrence County Court of Criminal Appeals 09/19/19
Cordricus Arnold v. State of Tennessee
W2018-01187-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

The petitioner, Cordricus Arnold, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 09/18/19
State of Tennessee v. Victor Wise
W2018-01343-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James Lammey, Jr.

The defendant, Victor Wise, appeals his Shelby County Circuit Court jury convictions of two counts of aggravated robbery, one count of attempted aggravated robbery, and two counts of aggravated assault, challenging the exclusion of certain evidence, the sufficiency of the convicting evidence, and the propriety of the 44-year effective sentence. We affirm the defendant’s convictions but conclude that the trial court erred by imposing consecutive sentences. Accordingly, the defendant’s total effective sentence is modified to 12 years.

Shelby County Court of Criminal Appeals 09/18/19
Rachel Maddox v. Olshan Foundation Repair And Waterproofing Co. Of Nashville, L.P., Et Al.
M2018-00892-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal involves a homeowner’s fraud claim against a foundation repair company. The trial court rejected the foundation repair company’s argument that the fraud claim was barred by the statute of limitations and the statute of repose. After a three-day bench trial, the trial court found that the foundation repair company had engaged in fraud. Specifically, the trial court found that the foundation repair company sold its systems to the homeowner representing that they would stabilize her house from further movement when in reality it did not have the knowledge or understanding to design an effective solution for the house and “simply did not really care” whether the systems would be effective in any way. The trial court further found that the company fraudulently misrepresented whether an engineer would be involved in the process and whether it would obtain a permit for the work. The home had been condemned by the time of trial, and the trial court awarded the homeowner $187,000 for the loss of the value of the structure. Based on the reckless and fraudulent conduct of the foundation repair company, the trial court also awarded $15,000 in punitive damages to the homeowner. The foundation repair company appeals. We affirm as modified.

Davidson County Court of Appeals 09/18/19
Polly Spann Kershaw v. Jeffrey L. Levy
M2017-01129-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Senior Judge William B. Acree

We granted permission to appeal in this case to clarify application of the doctrine of judicial estoppel. The plaintiff filed this legal malpractice action against an attorney who represented her in her divorce. She asserts that the attorney’s actions so compromised her position in the divorce proceedings that she was forced to settle on unfavorable terms. After the attorney filed a motion for summary judgment, the trial court applied the doctrine of judicial estoppel. Citing the plaintiff’s sworn acknowledgment in her marital dissolution agreement that the divorce settlement was “fair and equitable,” the trial court held that the plaintiff was estopped from asserting in the legal malpractice action that the divorce settlement terms were unfavorable. On this basis, the trial court granted summary judgment to the defendant attorney. The Court of Appeals affirmed. We hold that the trial court should not have applied the doctrine of judicial estoppel to the statements at issue because they are not directly contradictory statements of fact. The plaintiff’s sworn acknowledgment in her marital dissolution agreement is instead a context-related legal conclusion, and the plaintiff offers a reasonable explanation for any apparent discrepancy between her sworn acknowledgment in the divorce and her assertions in this legal malpractice action. As a result, we hold that the trial court erred in granting summary judgment on the basis of judicial estoppel. We reverse the grant of summary judgment and remand the case for further proceedings.

Davidson County Supreme Court 09/18/19
State of Tennessee v. David William Gary
E2018-00194-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steven Wayne Sword

A Knox County Criminal Court Jury convicted the Appellant, David William Gary, of rape, and the trial court sentenced him to ten years in the Tennessee Department of Correction. On appeal, the Appellant contends that the evidence is insufficient to sustain his conviction, that the trial court erred by allowing testimony regarding his expressed interest in a specific type of sexual activity, and that the trial court erred by refusing to allow him to present evidence that a police investigator improperly influenced the victim’s preliminary hearing testimony. Upon review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 09/18/19
Harold Francis Butler, III v. State of Tennessee
E2018-00914-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Don W. Poole

The Petitioner, Harold Francis Butler, III, appeals the Hamilton County Criminal Court’s denial of his petition for post-conviction relief from his convictions of first degree felony murder, attempted first degree premeditated murder, attempted especially aggravated robbery, and employing a firearm during the commission of a dangerous felony and resulting sentence of life plus thirty-one years. On appeal, the Petitioner contends that the State violated his constitutional rights by conducting an unduly suggestive identification procedure that rendered the identification unreliable and by eliciting false testimony from a key witness at trial. He also raises numerous allegations of ineffective assistance of trial counsel and contends that he is entitled to a new trial under the cumulative error doctrine. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 09/18/19
Douglas A. Messerli, E. AL. v. Vickie Sue Williams, Et Al.
E2018-1807-COA-E3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Michael W. Moyers

This action was filed by two brothers, after the death of their father, contesting the validity of an amendment to their father’s trust agreement. The brothers alleged that their siblings coerced their infirmed father to amend his trust in such a manner that was favorable to the siblings’ pecuniary interests and that two sisters had a confidential relationship with their father. The trial court directed a verdict in favor of the defendants. The plaintiffs appealed. We affirm the decision.

Knox County Court of Appeals 09/18/19
Clarissa Bidwell, Deceased, By Next Friend and Husband, James Bidwell, Et Al v. Timothy A. Strait, M.D., Et Al
E2018-02211-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kyle E. Hedrick

Plaintiff, James Bidwell, took his wife, Clarissa Bidwell, to Starr Regional Medical Center for treatment. She was transferred to Chattanooga-Hamilton County Hospital Authority dba Erlanger Health System, a governmental hospital authority, where she was treated, but later died. Plaintiff provided statutorily compliant pre-suit notice of his intent to file a health care liability action against each health care provider that was named as a defendant in the complaint. See Tenn. Code Ann. § 29-26-121(a). Plaintiff did not provide pre-suit notice to Erlanger. Tenn. Code Ann. § 29-26-121(a)(5) requires a recipient of pre-suit notice to give written notice to a claimant of any other person, entity, or health care provider who may be properly named a defendant within thirty days of receiving pre-suit notice. However, Dr. Jeffery Colburn and Dr. Timothy A. Strait failed to identify Erlanger as their employer, i.e. a known and necessary party to the suit. Plaintiff timely filed his complaint within the 120-day extension of the statute of limitations provided by Tenn. Code Ann. § 29-26-121. Defendants answered plaintiff’s complaint, each raising the affirmative defense of comparative fault. Dr. Colburn and Dr. Strait then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, without Erlanger as a party defendant no judgment could be rendered against them. See Tenn. Code Ann. § 29-20-310(b). In response, plaintiff filed two motions to amend his complaint to add Erlanger as a defendant, in reliance upon the extension to the statute of limitations provided in Tenn. Code Ann. § 20-1-119(a). After a hearing, the trial court held that plaintiff’s failure to provide pre-suit notice to Erlanger prevents him from adding them to his complaint. It granted Dr. Colburn and Dr. Strait’s motions for summary judgment. Plaintiff appeals. We hold that Tenn. Code Ann. § 2926-121(a)(5) required Dr. Colburn and Dr. Strait to identify Erlanger as a known and necessary party within thirty days after receiving pre-suit notice; they failed to comply with § 29-26-121(a)(5). We hold that, pursuant to Tenn. Code Ann.
§ 20-1-119, their subsequent declaration of the necessity of the nonparty to the suit, after the complaint was filed, granted plaintiff an additional ninety days following the filing of the first answer to amend his complaint in order to add the nonparty as a defendant. See Tenn.Code Ann. § 20-1-119; see also Tenn. Code Ann. § 20-1-119(g) (stating that this section applies to suits involving governmental entities). In addition, we hold that, pursuant to Tenn. Code Ann. § 29-26-121(c), plaintiff’s addition of the nonparty is not barred for failure to provide pre-suit notice. See Tenn. Code Ann. § 29-26-121(c). Therefore, we vacate the trial court’s award of summary judgment to defendants Dr. Colburn and Dr. Strait. We remand this matter for further proceedings, pursuant to applicable law, and consistent with this opinion.

Hamilton County Court of Appeals 09/18/19
State of Tennessee v. Johnthony K. Walker
E2018-00936-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Don W. Poole

Defendant, Johnthony K. Walker, was convicted of six counts of criminally negligent homicide, eleven counts of reckless aggravated assault, seven counts of assault, one count of reckless endangerment, one count of reckless driving, and one count of the use of a portable electronic device by a school bus driver after a school bus he was driving crashed leaving six children dead and numerous other children injured. The trial court sentenced Defendant to an effective sentence of four years for the convictions and denied judicial diversion after a sentencing hearing. On appeal, Defendant argues that the trial court improperly denied judicial diversion and/or an alternative sentence. After a thorough review, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 09/17/19
State of Tennessee v. Helen Ruth Kirby
E2019-00122-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jeffery Hill Wicks

Petitioner, Helen Ruth Kirby, appeals from the summary denial of her petition for writ of habeas corpus challenging her guilty-pleaded conviction for second degree murder. Because Petitioner failed to state a cognizable claim for habeas corpus relief, we affirm the judgment of the trial court.

Roane County Court of Criminal Appeals 09/17/19
In Re John B.
M2018-01589-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ken Witcher

This is an appeal in a proceeding to modify a residential parenting plan, established in January 2013. The initial petition to modify the plan was filed by the Father, accompanied by his proposed plan, in October 2016; Mother answered the petition in January 2017 and a hearing was set for two non-consecutive days in July 2018. During the hiatus in the hearing, the Mother filed a counter-petition and a proposed parenting time plan. The hearing resumed solely on Father’s plan and the court entered an order finding a material change of circumstance and reducing Father’s parenting time; Father appeals. Because the court has not yet resolved the claims between the parties, we dismiss the appeal for lack of a final judgment.     

Macon County Court of Appeals 09/17/19
Ronnie Wilson v. State of Tennessee
E2018-01362-CCA-R3-PC
Authoring Judge: Judge.D. Kelly Thomas, Jr.
Trial Court Judge: Judge O. Duane Slone

The Petitioner, Ronnie Wilson, appeals from the Jefferson County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance from his trial counsel because trial counsel (1) made no effort to exclude a prior aggravated robbery conviction that the State sought to use as impeachment evidence; (2) failed to explain the concept of criminal responsibility to the Petitioner; and (3) was intoxicated when he met with the Petitioner prior to trial. Discerning no error, we affirm the judgment of the post-conviction court.

Jefferson County Court of Criminal Appeals 09/17/19