Court Opinions

Format: 02/05/2016
Format: 02/05/2016
Nancy M. Houston v. Rocky J. Houston
E2015-00925-COA_R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Larry Michael Warner

This appeal arises out of a divorce case. Due to the deficiencies in Defendant’s brief on appeal, we conclude that he waived any consideration of any issues on appeal. The appeal is dismissed.

Roane County Court of Appeals 02/05/16
Alvin George Rye v. State of Tennessee
M2015-01294-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Ross H. Hicks

Petitioner, Alvin George Rye, sought post-conviction relief in Montgomery County following his no contest plea to one count of attempted rape of a child.  The petition for relief was dismissed after a hearing.  Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 02/05/16
Kenneth Thompson Anderson v. State of Tennessee
M2014-01812-CCA-R3-HC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Monte Watkins

Kenneth Thompson Anderson (“the Petitioner”) filed a petition for habeas corpus relief, alleging that he was denied pretrial and post-judgment jail credits.  After a hearing, the habeas corpus court denied relief.  Upon review, we conclude that habeas corpus relief is not available in this case.  The judgment of the habeas corpus court is affirmed.

Davidson County Court of Criminal Appeals 02/05/16
In re Robert Lee Vogel, BPR #023374
M2015-00350-SC-BAR-BP
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge:


The Board of Professional Responsibility (“Board”) initiated disciplinary proceedings against attorney Robert Lee Vogel based upon two unrelated complaints of professional misconduct. A hearing panel (“Panel”) determined that Mr. Vogel had violated the Rules of Professional Conduct (“RPC”) and entered a judgment suspending Mr. Vogel from the practice of law. The Panel subsequently clarified the sanction in an “Agreed Order Amending the Hearing Panel’s Findings of Fact and Conclusions of Law” (“Agreed Order”). The Agreed Order provided that Mr. Vogel would be suspended from the practice of law for one year, with all but thirty days of the suspension to be served on probation. Mr. Vogel’s probation would be conditioned upon his compliance with the terms of his Tennessee Lawyer’s Assistance Program (“TLAP”) agreement, completion of his treatment and counseling program, and weekly attendance at two twelve-step meetings. The Board petitioned this Court for an order enforcing the Panel’s judgment and the Agreed Order. Pursuant to Tennessee Supreme Court Rule 9, section 8.4, we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Vogel subsequently requested oral argument, which we granted. The issue before the Court is whether the punishment imposed by the Panel is in uniformity with prior disciplinary decisions in this state and appropriate under the circumstances of this case. Upon a thorough review of the record and the applicable law, we hold that it is not. Accordingly, we modify the Panel’s judgment to impose a one-year suspension from the practice of law, with the entire suspension to be served on active suspension.

Supreme Court 02/04/16
Tennessee Farmers Mutual Insurance Company v. Shaun Dunlap et al.
E2015-00413-COA_R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

This case presents a question regarding insurance coverage under liability and umbrella policies issued by plaintiff Tennessee Farmers Mutual Insurance Company to Jerry Dale Robertson and Sherry Ann Robertson. In July 2012, the Robertsons‘ house sitter and close family friend, Shaun Dunlap, used Dale Robertson‘s 2011 Ford Ranger pickup truck (the insured vehicle), on a personal errand to pick up a friend. On the return trip, the insured vehicle crossed the center line of the road, causing a head-on collision that killed three members of the Dembla family. Tennessee Farmers brought this declaratory judgment action seeking a judicial finding of no coverage under the policies because Dunlap was operating the insured vehicle without the permission of the insured. Defendant Kanika Dembla, the lone survivor in the Demblas‘ car, who had brought an underlying tort action against Dunlap, answered and argued that although Dunlap had no express permission to drive the insured vehicle, he had implied permission under the circumstances. On cross motions for summary judgment, the trial court granted summary judgment to Tennessee Farmers, finding that Dunlap did not have implied permission to drive the insured vehicle while housesitting. We affirm.

Sevier County Court of Appeals 02/04/16
Brett Patterson v. State of Tennessee
M2014-02477-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Commissioner Robert N. Hibbett

The State of Tennessee (“the State”) appeals the decision of the Tennessee Claims Commission (“the Claims Commission”) awarding Brett Patterson (“Patterson”) $439.10 for arts-and-crafts supplies that Patterson was required either to mail out of the prison or donate pursuant to a policy of the Turney Center Industrial Complex (“Turney Center”) where Patterson is an inmate. We find and hold that the Claims Commission does not have jurisdiction over intentional torts, and as no negligence was alleged or shown, the Claims Commission lacked jurisdiction over this case. We, therefore, vacate the decision of the Claims Commission and dismiss this case.

Court of Appeals 02/03/16
Mamie D. Fuller v. Joan C. Banks, et al.
W2015-01001-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Clayburn Peeples

This is a premises liability case. Appellant had rented property from Appellees for approximately one year when Appellant was injured as a result of a fall when the railing along the stairs of the premises allegedly collapsed. The trial court granted summary judgment in favor of Appellees based upon its conclusion that Appellees had negated the essential element of Appellant's claim that, in order for Appellees to have been negligent in the accident, any defect in the stairs or supporting structure must have existed at the time of the execution of the lease. Discerning no error, we affirm and remand.

Haywood County Court of Appeals 02/03/16
Dwayne Williams v. State of Tennessee
W2014-02415-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Dwayne Williams, pleaded guilty to aggravated sexual battery and was sentenced to eight years in confinement. Petitioner filed the instant petition for post-conviction relief, and following an evidentiary hearing, the post-conviction court denied relief. On appeal, petitioner argues that: (1) his guilty plea was not knowingly and voluntarily entered; (2) he received ineffective assistance of counsel when counsel failed to file a motion to suppress and failed to investigate a potential plea offer; and (3) he was denied a full and fair hearing on his ineffective assistance of counsel claims against his first counsel. After our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 02/03/16
Andra Taylor v. State of Tennessee
W2015-00744-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Andra Taylor, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief from his 2012 convictions for aggravated burglary, employing a firearm during the commission of a dangerous felony, and two counts of reckless endangerment involving a deadly weapon, for which he is serving an effective fourteen-year sentence. The Petitioner contends that the post-conviction court erred by denying him relief due to the ineffective assistance of counsel in the conviction proceedings. We affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 02/03/16
State of Tennessee v. Mario Thomas
W2015-00533-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Mario Thomas, appeals the sentences imposed for his guilty pleas to the offenses of aggravated robbery, attempted aggravated robbery, aggravated assault, aggravated burglary, employing a firearm in the commission of a dangerous felony, and possessing a firearm after having been convicted of a felony involving the use or attempted use of violence. The defendant's sole allegation of error is that the trial court should not have ordered his convictions for aggravated burglary and aggravated robbery to run consecutively. After a thorough review of the record, we discern no error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/03/16
Danny Blankenship Bonding Company v. State of Tennessee
W2015-00614-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

Appellant, Danny Blankenship Bonding Company, appeals the judgment of the Henderson County Circuit Court forfeiting a $3,000 bail bond in the case of criminal defendant Edward Hunt. On appeal, appellant argues that he was entitled to relief pursuant to Tennessee Code sections 40-11-139(c) and 40-11-203(a). Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the circuit court.

Henderson County Court of Criminal Appeals 02/03/16
Janet Wynn Snyder v. First Tennessee Bank, N.A.
E2015-00530-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor John F. Weaver

This case involves the trial court's award of litigation costs, inclusive of attorney's fees, pursuant to Tennessee Code Annotated § 20-12-119(c) (Supp. 2015), upon granting the defendant's Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss the plaintiff's action. The trial court entered a judgment in favor of the defendant in the amount of $10,000, the statutory maximum, against the plaintiff and her surety. The plaintiff appeals the portion of the ruling holding the surety liable for the $10,000 judgment of litigation costs in the event the principal fails to satisfy the judgment. Having determined that the surety's cost bond explicitly referred to “costs” as defined in Tennessee Code Annotated § 20-12-120 (2009), rather than as defined in subsection -119(c), we reverse the trial court's judgment as to the surety. We affirm the trial court's judgment against the principal and remand for enforcement of that judgment.

Knox County Court of Appeals 02/03/16
State of Tennessee v. Louis Orlando Harmon
M2015-00691-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Walter C. Kurtz

Appellant, Louis Orlando Harmon, stands convicted of theft of property valued at $1,000 or more but less than $10,000; possession of tools used to interfere with anti-theft security devices; and driving while his license was suspended.  He was sentenced to six years for the theft of property offense, to a consecutive term of eleven months, twenty-nine days for the possession of tools offense, and to a concurrent term of six months for the driving offense.  On appeal, he argues that the trial court committed plain error by allowing an Academy Sports and Outdoors loss prevention officer to testify about the identification of appellant and his vehicle by other employees of the store.  Following our review, we affirm the judgments of the trial court.

Williamson County Court of Criminal Appeals 02/03/16
Christopher Eric Tidwell v. Alicia Ann Tidwell
M2015-00376-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Michael Binkley

This appeal results from a divorce proceeding between Christopher Eric Tidwell (“Father”) and Alicia Ann Tidwell (“Mother”). On appeal, Father challenges the trial court’s determination of Mother’s income for child support purposes, the trial court’s award of rehabilitative alimony to Mother, and the trial court’s award of attorney’s fees to Mother. Having reviewed the record transmitted to us, we affirm the trial court’s determination of Mother’s income, vacate a portion of the awarded rehabilitative alimony, and modify the award of attorney’s fees.

Hickman County Court of Appeals 02/02/16
Kevin Lee Carnett v. PNC Bank, NA
W2015-01677-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Donald H. Allen

Plaintiff filed a complaint against the defendant-bank to halt foreclosure proceedings. When the bank did not answer the complaint, the plaintiff filed a motion for default judgment. The trial court denied the motion for default judgment and, sua sponte, dismissed the complaint. We affirm the denial of plaintiff‟s motion for default judgment but vacate the dismissal of his complaint.

Chester County Court of Appeals 02/02/16
State of Tennessee v. Katarina R. Long
M2015-01057-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Larry J. Wallace

The appellant, Katarina R. Long, pled guilty in the Dickson County Circuit Court to theft of property valued $10,000 or more but less than $60,000 and was granted judicial diversion with the requirement that she complete three years of probation and pay $20,000 restitution.  On appeal, the appellant contends that the trial court abused its discretion by ordering the amount of restitution when it was clear that she did not have the ability to pay it.  Because we lack jurisdiction to consider her appeal, we must dismiss it.

Dickson County Court of Criminal Appeals 02/02/16
City of Jackson v. Barry Walker
W2015-00621-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Roy B. Morgan, Jr.

This appeal involves an allegedly unsafe building in the City of Jackson. After a hearing, the City of Jackson’s environmental court ordered the property owner to demolish the building. The property owner appealed to circuit court. After another hearing, the circuit court declared the property a public nuisance and also ordered it demolished. The property owner appeals. He argues that the City of Jackson failed to follow the correct procedures under the city code, and therefore, he should not be required to demolish the structure. Discerning no merit in this assertion, we affirm.

Madison County Court of Appeals 02/02/16
Randy L. Fielder v. Southern Health Partners et al.
M2014-01819-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

The plaintiff filed the instant action regarding injuries he allegedly received while in the custody of the Robertson County Detention Center. The trial court dismissed the action sua sponte based on multiple grounds, including untimeliness pursuant to the applicable statute of limitations. The plaintiff filed a motion seeking alteration of the order of dismissal. The trial court denied the request by a handwritten notation supplied on the face of the motion. The plaintiff appealed. Having determined that there is no valid, final order in this matter, we conclude that the appeal must be dismissed due to this Court’s lack of subject matter jurisdiction.

Robertson County Court of Appeals 02/01/16
Kyle Kernan v. Beverly J. Kernan Nabors et al.
E2014-01679-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Bill Swann

Post-divorce, a guardian was appointed for two minor children while their mother received treatment for substance abuse. The guardian, the half-brother of the minors, sought child support from both parents. The guardian alleges, inter alia, the trial court abused its discretion by adjusting for tax deductions before calculating the mother's gross income for child support due and by allowing her credit for support in kind and purchases of necessities. We affirm the trial court's findings.

Knox County Court of Appeals 02/01/16
State of Tennesee v. Stacy Green
M2015-00323-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Stacey Green, appeals from his convictions for aggravated robbery, burglary, aggravated assault, and three counts of facilitation of aggravated robbery.  The Defendant contends that the trial court erred in denying his motion to suppress evidence relating to a victim’s pretrial identification of the Defendant in a photographic lineup and that the evidence presented at trial was insufficient to support his convictions.  Following a thorough review of the record and applicable law, we affirm the judgments of the trial court.  However, we remand the matter to the trial court for the entry of a corrected judgment in Count 2.

Marion County Court of Criminal Appeals 02/01/16
Daniel Richmond v. Vanguard Healthcare Services, LLC et al - Dissenting
M2014-02461-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Franklin L. Russell

The majority Opinion concludes that a reasonable juror (1) could not find that Mr. Richmond had reasonable cause to believe the presence of the soiled bandage was connected to “illegal activity,” as required by the Tennessee Public Protection Act (“TPPA”), and (2) could not find that Mr. Richmond could demonstrate that his termination for reporting the incident violated any clear public policy under his common law claim. Because I conclude that a reasonable juror could conclude that Mr. Richmond had reasonable cause to believe that the presence of the soiled bandage stemmed from neglect of the patient, I must respectfully dissent. 

Bedford County Court of Appeals 01/29/16
Daniel Richmond v. Vanguard Healthcare Services, LLC et al.
M2014-02461-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Franklin L. Russell

The former administrator of an assisted living facility appeals the summary dismissal of his claim for retaliatory discharge under the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304, and common law. Plaintiff contends he was fired in retaliation for initiating an internal investigation and submitting an internal report to his supervisors concerning an incident that arose when the son of an elderly resident observed an old bandage stuck to the bottom of his mother’s foot, which was revealed when her sock was removed in order to check the dressing for a wound on her ankle. Defendants contend Plaintiff’s claims are legally deficient because there was no neglect or illegal activity to report, and that Plaintiff grossly overreacted after being informed that an old bandage was found on the ball of a resident’s foot in a sock when the resident’s wound, which was on her ankle, was properly dressed and bandaged. Defendants also rely on the fact that Plaintiff did not file a qualifying internal or external report of neglect until after he was fired. The trial court summarily dismissed the TPPA claim stating “leaving a bandage in a sock, where a patient’s wound is in fact otherwise sufficiently bandaged, is not illegal activity as defined by the statute. Leaving the bandage in the sock is not ‘abuse and neglect’ as defined in the statute.” The court dismissed the common law whistleblower claim because Plaintiff did not show that Defendants engaged “in illegal conduct or in any way . . . posed a threat to an important public policy of the State when all that was done was to leave an old bandage in a patient’s sock.” Plaintiff appeals the summary dismissal of his claims under the TPPA and common law. We affirm.

Bedford County Court of Appeals 01/29/16
Magdi Mikheil et al v. Nashville General Hospital at Meharry et al.
M2014-02301-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

In this health care liability action, the plaintiffs disagree with a number of the trial court’s rulings upon which it based its decision to grant summary judgment in favor of the defendants. The trial court excluded the plaintiffs’ life care planner due to their failure to provide a complete disclosure of the life care planner’s opinions in a timely manner. The trial court ruled that the plaintiffs’ sole standard of care expert, a neurosurgeon, was not competent to testify as to the standard of care of the defendant nurse practitioner. Furthermore, the trial court precluded the plaintiffs’ standard of care expert from testifying at all due to the plaintiffs’ repeated failure to comply with the court’s orders regarding discovery. We find no abuse of discretion with respect to the trial court’s decisions and affirm the judgment.  

Davidson County Court of Appeals 01/29/16
Fit2Race, Inc., et al v. Janson Miles Pope, et al.
M2015-00387-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ross H. Hicks

Defendants in a federal civil conspiracy case that was voluntarily dismissed filed a malicious prosecution case in state court against the plaintiff and his attorney. The plaintiff and his attorney filed motions for summary judgment, which the trial court granted. The defendants appealed, and we affirm the trial court’s judgment. When a plaintiff voluntarily dismisses a lawsuit, the dismissal does not constitute a “favorable termination” for purposes of satisfying the third element of a malicious prosecution lawsuit.

Davidson County Court of Appeals 01/29/16
Theresa A. Green v. William Phillip Green
M2014-02278-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

In this divorce case, the wife proceeding pro se appeals the division of marital property and the trial court’s denial of her request for alimony. She also appeals the trial court’s award of court costs. She elected not to file a transcript or a statement of the evidence. Because the wife’s first two issues are factual in nature, the lack of transcript or statement of evidence prevents us from reaching the substance of the issues raised by the wife. We find no abuse of discretion by the trial court in assessing court costs. Accordingly, we affirm the judgment of the trial court. We also find that the appeal is frivolous.

Montgomery County Court of Appeals 01/29/16