Court Opinions

Format: 07/01/2016
Format: 07/01/2016
The Estate of Blake B. Cunningham, by and through Barbara Cunningham v. Epstein Enterprises, LLC, et al. - CONCUR
W2015-00498-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

I concur in the result reached by the majority Opinion with regard to whether the Epstein Entities owed a duty to Mr. Cunningham, but I write separately to address a concern with how the majority reaches this conclusion. I also concur with the majority Opinion‘s holding that the Service Agreement cannot be relied upon by Ms. Cunningham in this case, albeit for a different reason. Thus, I respectfully file this concurrence and will address each of my concerns in turn.

Shelby County Court of Appeals 06/30/16
The Estate of Blake B. Cunningham, by and through Barbara Cunningham v. Epstein Enterprises, LLC, et al.
W2015-00498-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Rhynette N. Hurd

In this premises liability case, the plaintiff appeals from the trial court's grant of summary judgment in favor of the defendants, the manager and owner of an apartment complex. The trial court concluded that the defendants owed no duty to a security guard, who was fatally shot while working at the apartment complex. Although a premises owner generally owes a duty to provide independent contractors with a safe workplace, under the facts of this case, we conclude that the defendants owed no duty to protect the security guard from the criminal acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment in favor of the defendants. Additionally, we affirm the award of discretionary costs to the defendants.

Shelby County Court of Appeals 06/30/16
John E. Houston v. Conagra Foods Packaged Foods LLC
W2015-01257-SC-WCM-WC
Authoring Judge: Judge Rhynette N. Hurd
Trial Court Judge: Judge George R. Ellis

John E. Houston (“Employee”) alleged he sustained a compensable injury to his back in June 2013. He initially sought medical treatment through his health insurer and told his doctors his injury occurred in the course of his employment at Conagra (“Employer”). When Employee submitted a claim for short-term disability benefits and FMLA leave through Employer, however, he stated his condition was not related to his employment. He ultimately had back surgery on August 22, 2013. On September 13, 2013, Employee gave notice of what he alleged to be a work-related injury to Employer by means of a letter from counsel. Employer denied the claim, based in part on the lack of timely notice. The trial court found Employee’s application for short-term disability benefits provided notice that Employer had an injured employee, and, had Employer conducted an investigation at that time, it would have become aware the injury was work related. The court determined notice, therefore, was timely. It awarded permanent partial disability benefits and entered judgment accordingly. Employer has appealed from that judgment. 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 reverse the judgment.

Gibson County Workers Compensation Panel 06/30/16
John F. Manning, Sr. v. Crystal Joan Manning, et al.
E2015-02082-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal involves the interpretation of a marital dissolution agreement. Pursuant to the agreement, the husband and wife agreed to waive any interest in the other party's retirement account upon the dissolution of the marriage. The husband failed to effectuate the change to his retirement account. Upon his death, the wife refused to sign documentation waiving her right to the benefits. The administrator of the estate filed suit. The parties filed competing motions for summary judgment. The trial court granted summary judgment to the wife. The administrator appeals. We reverse the judgment of the trial court and direct entry of summary judgment in favor of the administrator.

Hamblen County Court of Appeals 06/30/16
State of Tennessee v. Steven William Miller
M2015-02013-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Steven William Miller, appeals the trial court’s revocation of his probation, arguing that the trial court abused its discretion by ordering him to serve his original sentence in confinement. Upon our review of the record, we hold that the trial court did not abuse its discretion by revoking Defendant’s probation and ordering Defendant’s sentence into execution. The judgment of the trial court is affirmed.

Lawrence County Court of Criminal Appeals 06/30/16
Michael Allen Gibbs v. State of Tennessee
W2015-01808-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn Peeples

The petitioner, Michael Allen Gibbs, appeals the denial of his petition for post-conviction relief from his first degree felony murder, aggravated burglary, and attempted especially aggravated robbery convictions. He asserts that the post-conviction court erred in denying his petition because he received ineffective assistance of counsel in that counsel did not thoroughly advise him regarding a plea offer and the proof needed to convict him. After review, we affirm the denial of the petition.

Haywood County Court of Criminal Appeals 06/30/16
In re Addison E., et al.
E2015-00721-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves the termination of a mother's parental rights to two minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of her rights on the statutory ground of severe child abuse. The court further found that termination was in the best interest of the children. The mother appeals. We affirm.

Knox County Court of Appeals 06/30/16
Chuck's Package Store et al. v. City of Morristown
E2015-01524-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Wright

This case originated when six retail wine and liquor stores filed suit against the City of Morristown seeking a refund of a portion of inspection fees that had been erroneously calculated by the City. The fees were assessed by the City on the purchases at wholesale of alcoholic beverages. The City failed to use the correct percentage mandated by Tenn. Code Ann. § 57-3-501 (2013). It is undisputed that the plaintiffs overpaid the City; since the plaintiffs were understandably unaware of the error, they failed to state that they were paying the fees under protest. The City moved to dismiss the case, citing the plaintiffs' failure to pay “under protest.”

Hamblen County Court of Appeals 06/30/16
Victoria Hope Mashburn v. Tyler David Mashburn
E2015-01173-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Casey Stokes

In this divorce action, Tyler David Mashburn (Father) argues that the trial court erred by including certain provisions in the permanent parenting plan, i.e., (1) a requirement that his residential parenting time with the parties’ son be supervised; (2) a provision prohibiting Father’s girlfriend from staying overnight during Father’s parenting time; (3) a provision that Father shall have no additional residential parenting time for holidays or vacations unless Victoria Hope Mashburn (Mother) agrees; and (4) a provision that all major decisions regarding the child shall be made exclusively by Mother. We modify the plan by deleting all of these provisions. Furthermore, we reverse the trial court’s decision to award Mother attorney’s fees of $5,000.

Meigs County Court of Appeals 06/30/16
Commerce Union Bank Brentwood, Tennessee D/B/A Reliant Bank v. Kelly D. Bush, et al.
M2015-00396-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James G. Martin, III

This is a post-foreclosure action in which the lender seeks to recover a deficiency judgment, interest, and the costs of collection. In their answer, the borrowers asserted that the loan was a nonrecourse debt; thus, they were not liable for the deficiency. Alternatively, they asserted that the property sold at foreclosure for an amount materially less than its fair market value. Following a bench trial, the trial court concluded that the loan was a full recourse debt as to both borrowers. This determination was based on the finding, inter alia, that all parties intended the borrowers to be personally liable. The trial court also concluded that the lender was entitled to a deficiency judgment, finding that the borrowers failed to overcome the rebuttable presumption that the foreclosure sale price was equal to the fair market value of the property at the time of the foreclosure sale. See Tenn. Code Ann. § 35-5-118. The trial court awarded the lender a judgment of $640,783.41, plus interest and attorney’s fees, against the borrowers jointly and severally. As the foregoing indicates, our review is benefited by the trial court’s Tenn. R. Civ. P. 52.01 findings of facts and conclusions of law, which disclose the reasoned steps by which the trial court reached its ultimate conclusion and enhance the authority of the trial court’s decision. Having reviewed the trial court’s findings of fact in accordance with Tenn. R. App. P. 13(d), we have concluded that the evidence does not preponderate against the trial court’s findings and that the trial court identified and properly applied the applicable legal principles. For these reasons, we affirm.

Williamson County Court of Appeals 06/29/16
Jennifer Rebecca Creswell Henegar v. Jason Adam Henegar
M2015-01780-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John Thomas Gwin

This appeal is from a final decree of divorce. The wife challenges several of the trial court’s rulings regarding the grounds for the divorce, the division of marital property, the parenting plan, the calculation of child support and educational expenses, and attorney’s fees. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.     

Wilson County Court of Appeals 06/29/16
Tonya Halleen Blackwell v. Christopher S. Blackwell
M2015-01624-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this post-divorce action, the mother sought modification of the father’s child support obligation due to a material change of circumstances. The trial court increased the father’s child support obligation but declined to order such modification effective as of the date the mother filed her petition to modify. The mother has appealed. Having determined that the trial court erred in failing to modify the father’s child support obligation effective as of the date of the petition’s filing, we reverse the trial court’s judgment in that regard and remand for entry of a modified judgment retroactive to the date the mother filed the petition. We affirm the trial court’s judgment in all other respects.

Montgomery County Court of Appeals 06/29/16
State of Tennessee v. Steven Shell
E2015-01103-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin

In this appeal as of right by the State, the State challenges the ruling of the trial court dismissing the case as barred by the misdemeanor statute of limitations. Because no document in the record qualifies as a valid arrest warrant and no other event occurred to timely commence the prosecution in this case, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 06/29/16
State of Tennessee v. Laquinton Brown
E2015-00899-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve W. Sword

A Knox County Criminal Court Jury convicted the appellant, LaQuinton Brown, of two counts of aggravated assault, a Class C felony; two counts of employing a firearm during the attempt to commit a dangerous felony, a Class C felony; and two counts of attempted voluntary manslaughter, a Class D felony. After a sentencing hearing, the appellant received an effective twenty-two-year sentence to be served in confinement. On appeal, he contends that the evidence is insufficient to support the convictions; that the trial court erred by allowing the State to play a video showing him with a handgun because the video violated Rules 404(b) and 608(b), Tennessee Rules of Evidence; and that the trial court erred by imposing the maximum sentences in the range, by ordering consecutive sentencing, and by denying his request for alternative sentencing. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/29/16
Craig Brueckheimer v. Insurance Company of the State of Pennsylvania et al.
M2015-01468-SC-R3-WC
Authoring Judge: Senior Judge Ben H. Cantrell
Trial Court Judge: Judge Stella L. Hargrove

Pursuant to Tennessee Supreme Court Rule 51, this 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. In this pain management case, the employee received pain management treatment for more than ten years for a work-related injury pursuant to a judgment entered in November 2003. In April 2015, the employee’s treating physician advised him that he was retiring and moving to Florida, prompting the employee to contact his employer’s insurance carrier, who provided him with a panel of pain specialists two days later. The treating physician then made a referral to a different clinic to continue the employee’s treatment, so the employee declined to select a doctor from the panel while the insurance carrier declined to authorize the referred clinic. The employee filed a motion in the Circuit Court for Giles County, seeking to compel the insurance carrier to authorize treatment by the clinic. The trial court granted the motion and awarded attorney’s fees and travel expenses for a trip to Florida by the employee to see his previous physician. The insurance carrier has appealed, asserting that the trial court erred by granting the employee’s motion. We reverse in part and affirm in part the judgment of the trial court.

Giles County Workers Compensation Panel 06/29/16
State of Tennessee v. Marlin C. Goff
E2015-02201-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Jerry Beck

The defendant, Marlin C. Goff, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2005 convictions of rape of a child and failure to appear. Discerning no error, we affirm.

Sullivan County Court of Criminal Appeals 06/29/16
Michael E. Stewart v. State of Tennessee
E2015-00418-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Andrew M. Freiberg

The Petitioner, Michael E. Stewart, appeals the Polk County Criminal Court’s denial of his petition for post-conviction relief from his 2005 convictions for first degree premeditated murder, first degree felony murder, kidnapping, and tampering with evidence and his effective sentence of life plus eight years. The Petitioner contends that (1) the post-conviction court failed to make proper findings of fact and conclusions of law relative to each ineffective assistance of counsel claim and (2) he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Polk County Court of Criminal Appeals 06/29/16
State of Tennessee v. Felicia Jones
E2015-01101-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin

The Defendant, Felicia Jones, was arrested without a warrant for driving under the influence (DUI) and possession of drug paraphernalia. The Defendant consented to a bench trial in Sullivan County General Sessions Court and was found guilty of both offenses. The Defendant then appealed to the Sullivan County Criminal Court. On appeal, the Defendant filed a motion to dismiss the charges against her, arguing that the affidavit of complaint filed after her arrest was void, that prosecution had never commenced in this matter, and that the applicable statute of limitations had expired. The trial court granted the Defendant's motion to dismiss, and the State now appeals. The State contends that the fact that the affidavit of complaint was sworn before a notary public rather than a qualified judicial officer was a mere technical defect that had “no impact on validity.” Following our review, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 06/29/16
State of Tennessee v. Lisa Hayes
E2015-01112-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James F. Goodwin
The Defendant, Lisa Hayes, was arrested without a warrant for driving under the influence and simple possession of marijuana. More than one year later, the Sullivan County General Sessions Court held a preliminary hearing, and the Defendant's case was bound over to the grand jury. Following her indictment for the offenses, the Defendant filed a motion to dismiss the indictment in the Criminal Court for Sullivan County, alleging that the prosecution was not commenced within the applicable one-year statute of limitations. The trial court agreed and granted the Defendant's motion to dismiss. In this appeal as of right, the State challenges the trial court's ruling dismissing the case. Because no document in the record qualifies as a valid arrest warrant and the State failed to establish that the Defendant's first appearance in general sessions court was within the applicable statute of limitations, we affirm the judgment of the trial court.
 
Sullivan County Court of Criminal Appeals 06/29/16
State of Tennessee v. Milta Blanchard
W2015-00286-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn Wade Blackett

Defendant, Milta Blanchard, filed a motion under Tennessee Rule of Criminal Procedure 36.1 alleging that the judgments against him were illegal because he was out on bond in one of his cases when he was arrested on the three other cases. The trial court granted Defendant’s motion and vacated three of the judgments against him. The trial court determined that the judgment for the offense for which Defendant was on bond was not illegal as it occurred first in time. On appeal, Defendant argues that the trial court erred in correcting his illegal sentences on the concession of the State without first appointing counsel, holding a hearing, or providing him the opportunity to withdraw his plea. After review of the record and the briefs, we conclude that the trial court lacked authority to grant Defendant’s motion and that the judgments against Defendant should be reinstated.

Shelby County Court of Criminal Appeals 06/29/16
Terry Jamar Norris v. State of Tennessee
W2015-00837-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Terry Jamar Norris, appeals the denial and dismissal of his petition for post-conviction relief, specifically asserting that the post-conviction court incorrectly dismissed his premature petition with prejudice and that his underlying McLaughlin/Huddleston issue is meritorious. After a thorough review of the record, we affirm the judgment of the post-conviction court denying and dismissing the petition for post-conviction relief.

Shelby County Court of Criminal Appeals 06/29/16
State of Tennessee v. Dariun Bailey
W2015-00542-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

Following a jury trial in Shelby County, Defendant, Dariun Bailey, was convicted of second degree murder, aggravated assault, and reckless endangerment. He received concurrent sentences of twenty-two years for second degree murder, three years for aggravated assault, and two years for reckless endangerment. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that the State violated Brady v. Maryland by failing to notify him of the gunpowder residue kit and having the kit tested. After a thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/29/16
Curtis Dwayne Staggs v. State of Tennessee - Dissenting
M2014-01416-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Stella L. Hargrove

I dissent from the majority’s conclusion affirming the trial court’s denial of relief on the petitioner’s aggravated robbery conviction, which extends his life sentence an additional twelve years. With regard to this conviction, I agree with the petitioner’s argument that he received ineffective assistance of counsel based on trial counsel’s failure to raise the statute of limitations as a defense. Here, the petitioner’s indictment for aggravated robbery stated that the offense occurred on June 19, 1992. However, the indictment itself was not issued until July 29, 2010, eighteen years after the commission of the offense and ten years after the eight-year statute of limitations had expired. T.C.A. §§ 39-13-402(b), 40-1-101(b)(2). The indictment was untimely on its face because the prosecution commenced well after the expiration of the limitations period. Even though counsel explained that he did not raise the statute of limitation as a defense because it is “on hold” when “the defendant either lives out of state or conceals the crime[,]” our law requires the State to plead specific facts in the indictment to toll the statute of limitations. State v. Davidson, 816 S.W.2d 316, 318 (Tenn. 1991) (stating that the burden is on the State to “plead[] and prove[] that certain specific facts toll the statute of limitations”) (emphasis in original); see also State v. Tidwell, 775 S.W.2d 379, 389 (Tenn. Crim. App. 1989) (“When an indictment or presentment is brought after the expiration of the statute of limitations, it must be pleaded and proved that certain specific facts tolled the statute of limitations.”); State v. Thorpe, 614 S.W.2d 60, 65 (Tenn. Crim. App. 1980) (stating that in situations where a statute of limitations may be tolled, “the specific facts which toll the limitation period must be pleaded and proved”); State v. Comstock, 326 S.W.2d 669, 671 (Tenn. 1959) (“[W]here the indictment is brought after the period of limitations has expired, it must be pleaded and proved that certain specific facts toll the statute of limitations[.]”). The record shows that this was not done in this case.

Lawrence County Court of Criminal Appeals 06/29/16
Curtis Dwayne Staggs v. State of Tennessee
M2014-01416-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

The Petitioner, Curtis Dwayne Staggs, appeals the Lawrence County Circuit Court’s denial of his petition for post-conviction relief from his convictions of first degree premeditated murder, first degree felony murder, and aggravated robbery and resulting effective sentence of life plus twelve years. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to raise the statute of limitations as a defense against his aggravated robbery charge and because counsel failed to request a jury instruction cautioning the jury to evaluate the weight and credibility of a witness’s testimony in light of the witness’s agreement with the State. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Lawrence County Court of Criminal Appeals 06/29/16
State of Tennessee v. Cedric Jones
M2015-00720-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Defendant, Cedric Jones, appeals his convictions for three counts of aggravated rape, one count of aggravated sexual battery, and one count of aggravated kidnapping and his total effective sentence of thirty-seven years. Defendant argues (1) that the evidence is insufficient to sustain his convictions; (2) that the trial court erred when it revoked his bond for failure to appear; (3) that the trial court erred when it denied his motions for recusal; (4) that the trial court erred when it did not allow Defendant to represent himself at trial; (5) that the State committed prosecutorial misconduct during closing argument; and (6) that the trial court erred during sentencing. Upon our thorough review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 06/29/16