Court Opinions

Format: 05/03/2015
Format: 05/03/2015
Kevin Lee Johnson v. State of Tennessee
M2014-01575-CCA-R3-PC
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge F. Lee Russell

Petitioner, Kevin Lee Johnson, was convicted of being a habitual motor vehicle offender, driving under the influence, and felony failure to appear, for which he received an effective sentence of nine years, six months to be served in the Tennessee Department of Correction.  He filed a petition for post-conviction relief alleging, inter alia, ineffective assistance of counsel for failing to provide him with a copy of the order declaring him to be a habitual motor vehicle offender.  The post-conviction court denied relief, and petitioner presents the same issue on appeal.  Following our review, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 05/01/15
Deshaun Jantuan Lewis v. State of Tennessee
M2014-01108-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The petitioner, Deshaun Jantuan Lewis,appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received ineffective assistance of appellate counsel.  Based upon our review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Gregory Lee Bray
W2014-01914-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Weber McCraw

Defendant, Gregory Lee Bray, was indicted in two separate cases for delivering Schedule IV substances. After pleading guilty in two separate cases to a total of two counts of delivery of a Schedule IV substance, Defendant was sentenced to an effective sentence of twenty years. Defendant appeals, challenging the trial court‟s imposition of consecutive sentences and denial of an alternative sentence. After a review, we determine there is no evidence that the trial court abused its discretion in sentencing Defendant to an effective sentence of twenty years or that the trial court improperly denied alternative sentencing. Consequently, the judgments of the trial court are affirmed.

Hardeman County Court of Criminal Appeals 05/01/15
Brian Roberson v. State of Tennessee
M2013-02319-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Brian Roberson, appeals the Williamson County Circuit Court’s denial of his petition for writ of habeas corpus. The Petitioner previously entered guilty pleas to two counts of sale of cocaine (counts 1 and 3) and possession of cocaine (count 5). On appeal, he argues that he is entitled to withdraw his guilty pleas because the illegal sentences in counts 1 and 3 were a material, bargained-for element of his plea agreement. Upon review, we affirm the judgment of the habeas corpus court. However, we remand this matter to the original court of conviction for entry of corrected judgments consistent with this opinion.

Williamson County Court of Criminal Appeals 05/01/15
State of Tennessee v. Craig Michael Barbee
W2014-00835-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, Craig Michael Barbee, was convicted of attempted second degree murder, especially aggravated robbery, two counts of aggravated robbery, employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault, which were merged with the aggravated robbery convictions. He received an effective sentence of 106 years. On appeal, the defendant argues that the trial court erred by not granting his motion for change of venue and in sentencing. Following our review, we affirm the judgments of the trial court.

Crockett County Court of Criminal Appeals 05/01/15
State of Tennessee v. Charles Riley, Jr.
M2014-01652-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge David Earl Durham

Charles Riley, Jr. (“the Defendant”) appeals as of right from the trial court’s order revoking his probation, arguing the trial court abused its discretion when it determined that he violated probation.  Upon review, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 05/01/15
VFS Leasing Co. v. Warren Mills
W2014-01085-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This appeal arises from the grant of summary judgment in favor of Appellee on a breach of lease and guaranty agreements case. The trial court entered a judgment against Appellant for the deficiency owed under the lease agreement. Appellant argues that the guaranties executed to secure the lease were not signed by him in front of a notary public and, therefore, are invalid. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/30/15
Charles Allen Hanna v. Jeannettee Lynn Hanna
W2014-02051-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

This is a post-divorce case. The parties executed a marital dissolution agreement, and the trial court incorporated the agreement into the divorce decree. Several years after the divorce, Appellee received a substantial social security disability payment that was deposited into a bank account held jointly with Appellant. Appellant later withdrew approximately one-half of the deposited amount. In response, Appellee took a vehicle that was awarded to Appellant under terms of the marital dissolution agreement. Appellee also filed a petition for contempt to enforce the marital dissolution agreement, asking that he retain ownership of the vehicle and that Appellant be disgorged of the $25,000 she withdrew from the parties’ joint account. In her answer and counterclaim for contempt, Appellant demanded the return of the vehicle, asserted that she was entitled to the funds withdrawn from the joint account, and requested her attorney’s fees. The trial court ordered the parties to return the funds and the vehicle to their original possessors and awarded Appellee attorney’s fees. We affirm in part and reverse in part.

Henderson County Court of Appeals 04/30/15
Flat Iron Partners, LP, et al. v. The City of Covington, et al.
W2013-02235-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Senior Judge Ben H. Cantrell

This is an appeal from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. We conclude that the trial court erred in granting summary judgment on the Open Meetings Act claim. We further conclude that there are disputes of material fact that preclude the grant of partial summary judgment on the FHA claims. Accordingly, we reverse the trial court’s grant of summary judgment and vacate the trial court’s entry of judgment on a jury verdict on the issue of damages. Reversed in part, vacated in part, and remanded.

Tipton County Court of Appeals 04/30/15
Barbara McGinnis v. State of Tennessee, Dissent
W2014-02272-COA-R9-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Commissioner Nancy Miller-Herron, Judge

The majority concludes that Appellee’s failure to file her notice of appeal with the Claims Commission within ninety days of the date the Division of Claims Administration denied the claim is fatal to her appeal. See generally Tenn. Code Ann. § 9-8-402(c). Because I conclude that the issue of whether a notice of appeal to the Claims Commission is jurisdictional is a matter of some import that should first be decided by the Claims Commission, I must respectfully dissent from the majority Opinion.

Court of Appeals 04/30/15
Barbara McGinnis v. State of Tennessee
W2014-02272-COA-R9-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Commissioner Nancy Miller-Herron, Judge

This is an interlocutory appeal of the Tennessee Claims Commission’s denial of Appellant State of Tennessee’s motion to dismiss the Appellees’ appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees’ notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees’ appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

Court of Appeals 04/30/15
State of Tennessee v. Claudale Renaldo Armstrong
M2014-01041-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Franklin Lee Russell

A Marshall County Circuit Court jury convicted the Defendant-Appellant, Claudale Renaldo Armstrong, of sale of .5 grams or more of cocaine base; delivery of .5 grams or more of cocaine base; sale of less than .5 grams of cocaine; and delivery of less than .5 grams of cocaine.  See T.C.A. § 39-17-417 (2011). The trial court merged the four alternative counts into two convictions and sentenced Armstrong as a Range II, multiple offender to a total effective sentence of twenty-six years in the Department of Correction.  The sole issue presented for our review is whether the evidence is sufficient to support the convictions.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/30/15
State of Tennessee v. Melvin Brown
W2014-00162-CCA-R9-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for driving under the influence (“DUI”); DUI with blood alcohol more than .20%; violation of the implied consent law; reckless driving; and driving with a license revoked, suspended, or cancelled. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content. In this interlocutory appeal, the State challenges the trial court’s conclusion that the Code section 55-10-406(f)(1) is unconstitutional and that no exception to the warrant requirement existed to justify the warrantless blood draw. Upon review, we conclude that Code section 55-10-406(f)(1) does not dispense with the warrant requirement and reverse the portion of the trial court’s judgment declaring the statute unconstitutional. Because no exception to the warrant requirement existed, however, we affirm the order of the trial court suppressing the results of the Defendant’s blood alcohol content.

Shelby County Court of Criminal Appeals 04/30/15
State of Tennessee v. Travontay Tremont Berry
W2014-00808-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

A jury convicted the defendant, Travontay Tremont Berry, of tampering with evidence, a Class C felony, and carrying a firearm with the intent to go armed, a Class A misdemeanor. The defendant appeals the sufficiency of the evidence for his felony conviction, arguing that he did not know that an investigation was pending at the time of the offense. Having reviewed the record, we conclude that the evidence is sufficient to support the convictions, and we affirm the judgment of the trial court. We remand for correction of the judgment form to reflect the correct classification of the tampering with evidence offense and for reconsideration of the sentence in light of the correction.

Madison County Court of Criminal Appeals 04/30/15
Alfred Gamble v. Abitibibowater, Inc. et al.
E2014-00449-SC-R3-WC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Lawrence H. Puckett
An employee sustained an injury to his knee while attempting to repair a piece of heavy machinery owned by his employer. Because of a staph infection, three separate surgical procedures were required. The knee gradually healed, leaving a thick and sensitive scar. An independent medical examiner, who testified on behalf of the employee at trial, found a permanent impairment of 7% to the lower extremity and added 5% based upon the disfigurement section of the AMA Guides. The orthopedic surgeon who performed the surgery found a permanent partial impairment of 7% to the lower extremity. A second orthopedist authorized by the employer assigned a permanent impairment of 2%. The trial court assigned a 7% permanent impairment to the lower extremity and also ruled that the employee did not have a meaningful return to work, thereby authorizing an award in excess of 1.5 times the medical impairment rating. In this appeal, the employee contends that he is entitled to an increase in the medical impairment rating from 7% to 12%. In response, the employer argues that the trial court erred by finding an impairment in excess of 2% and by ruling that the employee did not have a meaningful return to work. 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 affirm the judgment of the trial court.
 
McMinn County Workers Compensation Panel 04/30/15
Rogelynn Emory v. Memphis City Schools Board of Education, now known as Shelby County Board of Education
W2014-01293-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Walter L. Evans

This is an appeal by a tenured teacher seeking relief for the school board’s failure to comply with the procedures set forth in the Tennessee Teacher Tenure Act for her termination. After receiving notice of charges pending against her, the teacher demanded a hearing before the school board. Pursuant to the Tenure Act, the school board was required to conduct a hearing on the charges within thirty days of the teacher’s demand. The school board failed to do so. The trial court held that because the delay did not affect the outcome of the hearing, the school board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. On appeal, we conclude that Ms. Emory is entitled to an award of back pay for the number of days over thirty that she was suspended without pay and without a hearing following her demand for a hearing. We therefore reverse the judgment of the trial court and remand the case for a calculation of the proper amount of damages to which the teacher is entitled.

Shelby County Court of Appeals 04/29/15
Legacy Auto Sales, LLC, et al. v. Bank of New York Mellon, et al.
W2014-00637-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Arnold B. Goldin

This appeal arises from a suit by a borrower against a bank and its servicing agent. In its amended complaint, the borrower sought to enjoin a foreclosure sale and set aside the assignment of the deed of trust. Additionally, the borrower sought damages for several statutory violations, including alleged violations of the Tennessee Consumer Protection Act (“TCPA”). Though the trial court granted summary judgment in favor of the defendants on most of the claims, there is no final judgment with regard to the borrower’s TCPA claim. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction and remand the case to the trial court for further proceedings.

Shelby County Court of Appeals 04/29/15
Ginger Ilene Hudson Stump v. State of Tennessee
M2014-01373-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Franklin Lee Russell

The petitioner, Ginger Ilene Hudson Stump, pled guilty to seven counts of forgery, of which six were Class E felonies and one was a Class D felony.  The trial court sentenced her as a career offender to twenty-four years in the Department of Correction.  On direct appeal, this court affirmed the petitioner’s convictions and sentence.  State v. Ginger Ilene Hudson Stump, No. M2012-02723-CCA-R3-CD, 2013 WL 5310526, at *1 (Tenn. Crim. App. Sept. 20, 2013).  Subsequently, she filed a pro se petition for post-conviction relief, alleging she received the ineffective assistance of counsel.  Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition.  Based upon our review, we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 04/29/15
State of Tennessee v. Loreto Espinosa, Jr.
M2013-02751-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Franklin Lee Russell

The Defendant, Loreto Espinosa, Jr., was convicted by a Bedford County Circuit Court jury of eighteen counts of aggravated rape of a child, Class A felonies. See T.C.A. § 39-13-531 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to sixty years for each conviction at 100% service and ordered partial consecutive sentences. The court ordered Counts 1 and 18 to run consecutively to each other and Counts 2 through 17 to run concurrently to each other but consecutively to Counts 1 and 18, for an effective 180-year sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State failed to make a proper election of the offenses for Counts 2 through 17, and (3) his sentence is excessive. We conclude that insufficient evidence exists relative to Counts 1 through 17, and we reverse the judgments of the trial court, vacate the convictions, and dismiss the charges relative to those counts. Although the trial court failed to require the State to make an election of the offense relative to Count 18, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 04/29/15
Connie L. Watson v. Ruby Anne Pike
E2014-02057-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jerri S. Bryant
This is an appeal from an order granting a new trial in a Will contest proceeding initiated by the appellant, Connie Louise Watson (“Watson”), seeking to invalidate the Last Will and Testament executed by her father, Noah Richard Earls, Sr. (“Decedent”), in which the appellee, Ruby Anne Pike (“Pike”), was appointed the Decedent’s Personal Representative and Executrix of his estate. Because the order on appeal contemplates further proceedings in the Trial Court, it is not a final order and we have no jurisdiction to consider this appeal.
 
Bradley County Court of Appeals 04/29/15
Heather Walker Sellers v. Billy Joe Walker
E2014-00717-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jerri S. Bryant

This action involves the modification of a child support award. The trial court determined the self-employed obligor's income to be consistent with amounts deposited in his personal bank account, rather than the income reported on his federal tax returns, and calculated his child support obligation accordingly. The obligor has appealed the trial court's determination regarding his income and resultant child support obligation. We determine that the trial court properly based the obligor's income on the combined amount of his annual deposits. We also determine that the trial court properly set the obligee's income based on her testimony. We reverse the trial court's calculation regarding the amount of child support to be paid, however, due to a mathematical error in the trial court's income calculation and its failure to consider the obligor's self-employment taxes. We remand the case for a recalculation of child support utilizing the proper monthly income for the obligor and taking into consideration the amount of self-employment tax paid by him.

Bradley County Court of Appeals 04/29/15
State of Tennessee v. Glen Sewell
W2014-00984-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, Glen Sewell, was convicted of one count of Class D felony theft of property, two counts of Class D felony vandalism, one count of Class E felony vandalism, and one count of Class A misdemeanor vandalism. The trial court imposed an effective sentence of thirty-six years, with three twelve-year sentences for the Class D felonies to be served consecutively to each other and concurrently with a six-year sentence for the Class E felony conviction and an eleven month and twenty-nine day sentence for the Class A misdemeanor. On appeal, the defendant contends that: (1) the evidence is insufficient to support his convictions for Class E felony vandalism, Class D theft of property, and Class D felony vandalism; (2) the trial court erred when interrupting trial counsel during voir dire; (3) the trial court erred in imposing consecutive sentences. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Anthony Draine aka Anthony Draine-Love
W2013-02436-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a. Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress and contends that the evidence was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Gerald McEwen
W2013-02692-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Paula Skahan

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first degree premeditated murder and attempted first degree murder. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions and contends that the trial court erred by denying his motion for a mistrial. Upon review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
Kerrie Janel Wade v. Vernon Franklin Wade, Jr., concurring in part, dissenting in part
W2014-01098-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Paul G. Summers

BRANDON O. GIBSON, J., concurring in part, and dissenting in part.

Benton County Court of Appeals 04/28/15