Court Opinions

Format: 08/21/2014
Format: 08/21/2014
Bill D. Sizemore V. State of Tennessee
M2013-01378-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Robbie T. Beal

Petitioner, Billy D. Sizemore, was convicted of theft over $1,000 and sentenced to twelve years as a career offender.  Petitioner filed the instant petition for post-conviction relief, in which he alleged that he received ineffective assistance of counsel.  Following an evidentiary hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received ineffective assistance of counsel when trial counsel: (1) failed to challenge the value of the stolen goods and (2) failed to seek a continuance after the State filed a late notice of intent to seek enhanced punishment.  After our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Perry County Court of Criminal Appeals 08/21/14
William L. Vaughn v. State of Tennessee
M2010-02191-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Monte D. Watkins

Following a remand from this court, the petitioner, William L. Vaughn, acting pro se, was permitted a second evidentiary hearing on certain ineffective assistance of counsel claims which he had not presented in the first hearing on his petition for post-conviction relief.  As we will set out, he filed massive pleadings, complaining of a multitude of wrongs visited upon him, from the moment of his arrest through his direct appeal.  The evidentiary hearing was lengthy and free-swinging, with the post-conviction court’s concluding that the petitioner’s claims were “incredible” and, ultimately, without merit.  We agree.  Doggedness cannot substitute for substance.  The post-conviction court’s denial of relief is affirmed.

Davidson County Court of Criminal Appeals 08/21/14
State of Tennessee v. Terry Odell Lucas
M2013-02389-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge John H. Gasaway, III

A Robertson County Grand Jury indicted appellee for possession of over 0.5 grams of cocaine with the intent to sell.  The charges were dismissed after the trial court granted appellee’s motion to suppress evidence.  The State appeals the trial court’s granting of the motion to suppress and argues that appellee’s arrest and search were proper.  Following a thorough review of the record, we reverse the ruling of the trial court, reinstate the indictment, and remand for further proceedings consistent with this opinion.

Robertson County Court of Criminal Appeals 08/21/14
Madia Dia v. Imports Collision Center, Inc.
M2013-01496-WC-R3-WC
Authoring Judge: Special Judge J. B. Cox
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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.  Employee filed a request for reconsideration pursuant to Tenn. Code Ann. § 50-6-241(d)(1)(B), which Employer opposed on the ground that Employee’s loss of employment was due to Employee’s voluntary resignation and/or his employment-related misconduct.  The trial court ruled that Employer failed to carry its burden of proof as to either of the asserted grounds for denying reconsideration.  The trial court therefore granted Employee’s request for reconsideration and awarded increased benefits.  Based on our review of the entire record, we reverse the trial court’s judgment.
 

Davidson County Workers Compensation Panel 08/20/14
Jerry Simons v. A. O. Smith Corporation
M2013-01350-WC-R3-WC
Authoring Judge: Special Judge J. B. Cox
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

An employee alleged he injured his back on two occasions during late 2008.  His employer initially accepted the second claim as compensable, but then denied the claim after receiving records from the employee’s primary care physician. The Department of Labor and Workforce Development denied the employee’s Request for Assistance. This civil action was subsequently filed in the Chancery Court for Montgomery County. That court awarded workers’ compensation benefits to the employee. The employer has appealed, contending that the evidence preponderates against the trial court’s findings concerning causation and permanency. 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 in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.
 

Montgomery County Workers Compensation Panel 08/20/14
State of Tennessee v. Somer D. Wild
E2013-01777-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John F. Dugger, Jr.

The defendant, Somer D. Wild, was indicted for driving under the influence, a Class A misdemeanor. After the trial court denied her motion to suppress the legality of the traffic stop, the defendant pled guilty to the offense and was sentenced to eleven months and twenty-nine days, suspended following the service of forty-eight hours in jail. As part of her plea of guilty, the defendant reserved as a certified question of law the legality of the traffic stop of her vehicle. Following our review of the record and the video recording of the traffic stop, we conclude that the trial court erred in denying the motion to suppress. Accordingly, we reverse the judgment of conviction and dismiss the indictment.

Hamblen County Court of Criminal Appeals 08/20/14
Cumecus R. Cates v. State of Tennessee
E2014-00011-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge:

The pro se petitioner appeals the summary dismissal of his motion to correct an illegal sentence, per Tennessee Rule of Criminal Procedure 36.1. Following our review of the parties' briefs, the record, and the applicable law, we find the petitioner’s motion stated a colorable Rule 36.1 claim for review of illegal sentences. Therefore, we reverse the trial court's summary dismissal and remand for proceedings consistent with this opinion.

Knox County Court of Criminal Appeals 08/20/14
State of Tennessee v. Tycorrian M. Taylor
E2013-02875-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge: Judge Bob R. McGee

The defendant appeals the sentence imposed for conviction of attempted voluntary manslaughter and aggravated assault. Finding no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 08/20/14
First Community Bank, N.A. v. First Tennessee Bank, N.A., et al.
E2012-01422-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Wheeler A. Rosenbalm

Plaintiff brought this action against Defendants for fraud, constructive fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, and violation of the Tennessee Securities Act, codified at Tennessee Code Annotated section 48-1-101, et seq. The claims arose out of the purchase of asset-backed securities that were later deemed unmarketable, causing a significant financial loss to Plaintiff. Defendants filed motions to dismiss pursuant to Rule 12.02(6), arguing that the claims were untimely, that Plaintiff failed to plead its claims with particularity, and that the losses were caused by general market conditions. Nonresident Defendants also objected to the court’s personal jurisdiction. The trial court dismissed the complaint. Plaintiff appealed the dismissal to this court, and we affirmed the
dismissal against Nonresident Defendants for lack of personal jurisdiction but reversed the dismissal for failure to state a claim as to the remaining defendants. In so holding, this court found that consideration of matters outside the pleadings pertaining to the running of the statute of limitations converted the motions to dismiss into one for summary judgment, thereby requiring remand of the entire case for further discovery. The remaining defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for “consideration of the trial court’s alternative basis of dismissal of [the] complaint, i.e., the failure to state a cause of action or state a claim for which relief can be granted (other than on the basis of the running of the applicable statutes
of limitations or repose).” Upon remand, we reverse the decision of the trial court.

Knox County Court of Appeals 08/20/14
In Re Aireona H.W.
E2014-00241-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on several statutory grounds and that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the decision of the trial court.

Hamilton County Court of Appeals 08/20/14
State of Tennessee v. Iris A. Jones-Concurring in Part and Dissenting in Part
M2013-00938-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Larry J. Wallace

Joseph M. Tipton, P.J., concurring in part; dissenting in part.

I respectfully disagree with the majority opinion’s conclusion that this court may consider the State’s appeal of the trial court’s granting judicial diversion as an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(c)(4), but I believe the court can accept the appeal pursuant to Tennessee Rule of Appellate Procedure 10 as an extraordinary appeal.  In this regard, I agree with the majority opinion’s conclusion that the trial court erred in granting judicial diversion.

Cheatham County Court of Criminal Appeals 08/20/14
State of Tennessee v. Iris A. Jones
M2013-00938-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Larry J. Wallace

A Cheatham County jury convicted the Defendant, Iris A. Jones, of driving under the influence (“DUI”), first offense, and vehicular assault.  The Defendant filed an application seeking judicial diversion.  The trial court merged the DUI conviction into the vehicular assault conviction and granted the Defendant’s motion for judicial diversion.  On appeal, the State contends that the trial court abused its discretion when it found that the Defendant was eligible for judicial diversion.  After a thorough review of the record and applicable authorities, we conclude that the Defendant is not a “qualified defendant” for judicial diversion.  Accordingly, the case is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Cheatham County Court of Criminal Appeals 08/20/14
State of Tennessee v. Lona Parker
W2013-02446-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge W. Mark Ward

Appellant, Lona Parker, was indicted for and convicted of theft of property valued at more than $1,000 but less than $10,000, a Class D felony. The trial court sentenced him to twelve years in the Tennessee Department of Correction as a career offender. He now appeals, challenging the sufficiency of the convicting evidence. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/20/14
State of Tennessee v. Marcus Moore
W2013-02763-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Lee V. Coffee

Appellant, Marcus Moore, entered guilty pleas without recommended sentences to two counts of burglary of a building, a Class D felony. Following a sentencing hearing, the trial court imposed sentences of twelve years as a career offender for each count to be served consecutively to each other. Appellant now challenges the trial court’s alignment of his sentences. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/20/14
Joseph Kindred v. Jerry Lester, Warden
W2014-00066-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker III

In 2010, the Petitioner, Joseph Kindred, pleaded guilty to multiple counts involving conspiracy to sell drugs within a school zone, and the trial court sentenced the Petitioner to sixteen years in the Tennessee Department of Correction. In 2013, the Petitioner filed a petition for habeas corpus relief, which was summarily dismissed by the habeas corpus court. On appeal, the Petitioner alleges that the habeas corpus court erred when it dismissed his petition, contending that the trial court did not have the jurisdiction or authority to sentence him for the conspiracy convictions because he was not indicted for conspiracy. After a thorough review of the record and applicable authorities, we affirm the habeas court’s judgment.

Lauderdale County Court of Criminal Appeals 08/19/14
State of Tennessee v. Stevie Gibson
W2013-02015-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge James Lammey Jr.

Stevie Gibson (“the Defendant”) was convicted by a jury of two counts of second degree murder and one count of aggravated robbery. The trial court merged the two murder convictions and sentenced the Defendant to serve an effective term of thirty-seven years’ incarceration. In this direct appeal, the Defendant challenges the sufficiency of the evidence and his sentence. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 08/19/14
State of Tennessee v. Emmett Lamon Roseman
M2013-02150-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee Russell

The appellant, Emmett Lamon Roseman, pled guilty to possession of marijuana, the sale of crack cocaine, the delivery of crack cocaine, and three counts of failure to appear.  The trial court imposed a total effective sentence of twenty years in the Tennessee Department of Correction.  On appeal, the appellant challenges the length of the sentences and the imposition of consecutive sentencing.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 08/19/14
In Re: Joel B.
M2012-00590-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Alfred L. Nations

Juvenile court entered a default order against mother of minor child declaring the parentage of father and ordering a permanent parenting plan. We have determined that this order is void due to improper notice. We have further determined that the juvenile court erred in ordering the attachment of the minor child, who was living with mother in California.

Maury County Court of Appeals 08/18/14
State of Tennessee v. Phillip Smith
W2013-02280-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Donald Allen

The Defendant, Phillip Smith, was convicted by a Chester County jury for rape of a child, for which he received a sentence of 25 years to be served in the Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction and that he is entitled to a new trial due to prosecutorial misconduct. Upon our review, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 08/18/14
State of Tennessee v. Jimmy Dale Qualls
W2013-01440-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge J. Weber McCraw

The Defendant, Jimmy Dale Qualls, was convicted by a Hardeman County Circuit Court jury of thirty-seven counts of sexual battery by an authority figure, Class C felonies. See T.C.A. § 39-13-527 (2010). The trial court sentenced the Defendant as a Range I, standard offender to five years for each conviction and ordered partial consecutive sentences. The thirty-seven counts were separated into seven groups for sentencing purposes. Group A contained counts 1 through 6, Group B contained Counts 7 and 8, Group C contained Counts 9 through 14, Group D contained Counts 15 though 20, Group E contained Counts 21 through 26, Group F contained Counts 27 through 32, and Group G contained Counts 33 to 37. The court ordered each group to run consecutively to each other, for an effective thirty-five-year sentence. The court further ordered the effective thirty-five-year sentence. On appeal, he contends that the State failed to make a proper election of the offenses and that the evidence is insufficient to support his convictions. We conclude that the State failed to make an adequate election of the offenses, and we reverse the judgments of the trial court and remand the case for a new trial.

Hardeman County Court of Criminal Appeals 08/18/14
State of Tennessee v. Demarcus Ant-Juan Nelson
E2013-01414-CCA-R3-CD
Authoring Judge: Judger Jeffrey S. Bivins
Trial Court Judge: Judge Steven W. Sword

Demarcus Ant-Juan Nelson (“the Defendant”) pleaded guilty to possession with intent to sell .5 grams or more of a substance containing cocaine within 1000 feet of a school. Pursuant to the plea agreement, the trial court sentenced the Defendant to twenty years’ incarceration. The plea agreement provided for reservation of a certified question of law as to whether the Defendant’s seizure was lawful. After a thorough review of the record and the applicable law, we conclude that the Defendant is entitled to no relief. However, we remand this matter to the trial court for entry of corrected judgment orders indicating that count two was dismissed. In all other respects, we affirm the judgment of the trial court.
 

Knox County Court of Criminal Appeals 08/18/14
R. Sadler Bailey v. Board of Professional Responsibility
W2013-01979-SC-R3-BP
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Senior Judge Paul G. Summers

The Board of Professional Responsibility instituted a lawyer disciplinary proceeding against an attorney based on complaints it received from a judge and opposing counsel regarding the attorney’s disruptive behavior during trial proceedings. A hearing panel found that the attorney had violated several Rules of Professional Conduct and suspended him from the practice of law for sixty days. On appeal, the Chancery Court for Shelby County affirmed the hearing panel’s finding that the attorney had violated several ethical rules but reversed the suspension, instead recommending a public censure. The Board of Professional Responsibility appealed to this Court. We reverse the Chancery Court’s reduction of discipline and reinstate the hearing panel’s imposition of a sixty-day suspension.

Shelby County Supreme Court 08/18/14
Mack Phillips, Et Al. v. Montgomery County, Tennessee, Et Al.
M2012-00737-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Ross H. Hicks

We granted permission to appeal to determine whether article I, section 21 of the Tennessee Constitution requires a government to compensate a property owner for a regulatory taking of private property. We hold that article I, section 21 encompasses regulatory takings in the same manner as the Takings Clause of the Fifth Amendment to the United States Constitution. Accordingly, we reverse the judgment of the Court of Appeals dismissing the property owners’ complaint alleging a state constitutional regulatory takings claim and remand this matter to the trial court for further proceedings consistent with this decision.

Montgomery County Supreme Court 08/18/14
John Wesley Green v. Champs-Elysees, Inc., et al.
M2013-00951-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Philip E. Smith

This appeal arises from a post-judgment discovery dispute. While the plaintiff’s prior appeal from the trial court’s judgment was pending in this court, the plaintiff made a discovery request in the trial court seeking to obtain alleged ex parte communications pertaining to the plaintiff’s attorney, the plaintiff, or the case. The trial court conducted a hearing and entered an order denying the discovery request; this appeal followed.  We have determined that the trial court lacked subject matter jurisdiction to rule on the plaintiff’s discovery requests; therefore, the order at issue in this appeal is void. Further, this court’s ruling in the prior appeal, which resolved all issues in the underlying case, is now a final judgment. The underlying case is concluded and, thus, no further proceedings are available other than the assessment and collection of costs.

Davidson County Court of Appeals 08/15/14
William E. Kantz, Jr. v. Herman C. Bell et al.
M2013-00582-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Carol Soloman

This dispute concerns a contract for the sale of real property. Believing the seller was impairing the buyer’s ability to close on time in order to sell the property under contract to someone else, the buyer filed this action to enjoin the seller from transferring the property to another and to require the seller to provide documentation necessary to close. The buyer also asserted claims for specific performance of the contract, breach of contract, and conspiracy against the seller, as well as claims for tortious interference with the contract and conspiracy against another defendant. The trial court found that the seller’s discussions with another potential buyer were merely to have a “back-up plan” in the event the buyer did not close; nevertheless, the court granted injunctive relief by extending the deadline to close the sale by thirty days and enjoined the seller from selling the property to another in the interim. One week later, the sale closed. The plaintiff then amended its complaint to limit its claims to breach of contract against the seller, and tortious interference with a contract and conspiracy against the seller and the party alleged to have tortiously interfered with the contract. The defendants filed motions to dismiss for failure to state claims for which relief could be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court found that the seller did not breach the contract because the property was conveyed to the plaintiff pursuant to the terms of the contract and the delay in closing was not a breach of the contract. The court dismissed all other claims but for the conspiracy claims and declared the order a final appealable judgment pursuant to Tenn. R. App. P. 54.02. The plaintiff appealed. Finding no error, we affirm.

Davidson County Court of Appeals 08/15/14