Court Opinions

Format: 04/28/2017
Format: 04/28/2017
Craig Dillon v. Tennessee Farmers Mutual Insurance Company
E2016-01080-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge J. Michael Sharp

A policyholder brought suit to recover under personal fire and extended coverage policy for damage caused when burglars broke into his property and removed copper wiring, causing considerable damage. The trial court determined that the majority of the loss was excluded from coverage because it was caused by theft and awarded policyholder the amount previously tendered under the vandalism coverage, less his deductible. Policyholder appeals, contending that the plain language of the policy provides coverage for the damage caused by burglars. Holding that the damages covered under the policy are not limited to damages caused by vandalism, we reverse the judgment and remand the case for reconsideration of the amount of damages due the policyholder.

McMinn County Court of Appeals 04/27/17
Roger L. Holt v. Jimmy Cantrell, et al.
E2016-01929-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jerri S. Bryant

This appeal concerns access to real property (“the lake property”) owned by Roger L. Holt (“Holt”). Holt sued Jimmy Cantrell,1 Shirley Carroll and Tommy Cantrell (“Defendants”) in the Chancery Court for Bradley County (“the Trial Court”) alleging that he was entitled to access his property by means of a road bed (“the Disputed Road Bed”) on Defendants’ property (“the Cantrell property”). Holt advanced three alternative theories: that he was entitled to a prescriptive easement; that he was entitled to an easement by necessity; and that the Disputed Road Bed is a public road by implication. After a hearing, the Trial Court rejected all three of Holt’s theories and dismissed his complaint. Holt appealed to this Court. We affirm the judgment of the Trial Court.

Bradley County Court of Appeals 04/27/17
Robert L. McCullough, Jr. et al. v. Carla Vaughn, et al.
M2016-01458-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This action arises out of a two-car accident. Prior to the commencement of this action, the driver of the vehicle who is the defendant in this action filed a petition in bankruptcy court. Shortly thereafter, and being unaware of the bankruptcy proceeding, Plaintiffs commenced this action naming the driver of the other vehicle as the only named defendant. Summons was issued for the defendant driver as well as Plaintiffs’ uninsured motorist insurance carrier. Summons was served on the carrier; however, summons for Defendant was returned unserved, and more than a year passed before Plaintiffs requested issuance of an alias summons. Upon motions of the defendant and the uninsured motorist carrier, the trial court dismissed all claims as time barred upon the finding that Plaintiffs failed to comply with Tenn. R. Civ. P. 3 by obtaining the issuance of a new summons for service of process on the defendant within one year of the issuance of the previous summons that was not served. Plaintiffs appeal contending their claims are not time barred because the defendant filed her bankruptcy petition prior to the commencement of this action and Tenn. Code Ann. § 28-1-109 expressly states, “When the commencement of an action is stayed by injunction, the time of the continuance of the injunction is not to be counted.” We agree. The bankruptcy court’s automatic stay not only enjoined the commencement of this action but the issuance of process, and Tenn. Code Ann. § 28-1-109 expressly states that the time of the continuance of an injunction is not to be counted in calculating the statute of limitations. The bankruptcy injunction remained in effect for 202 days; therefore, that period is not to be counted. With the addition of 202 days to the period within which Plaintiffs could obtain the issuance of an alias summons under Tenn. R. Civ. P. 3, the issuance of the alias summons was timely. As a consequence, the trial court’s order dismissing this case is vacated, and this matter is remanded with instructions to reinstate the complaint as to the defendant driver and the uninsured motorist carrier for further proceedings consistent with this opinion.

Davidson County Court of Appeals 04/27/17
Ashley Bradshaw v. State of Tennessee
W2016-01692-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Ashley Bradshaw, appeals the denial of post-conviction relief from her 2013 Shelby County Criminal Court jury convictions of aggravated child abuse, aggravated child neglect, and aggravated child endangerment, for which she received a sentence of 20 years. In this appeal, the petitioner contends only that she was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 04/27/17
State of Tennessee v. Ricky Thompson - dissenting opinion
E2015-02464-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green

I agree with the majority’s discussion of the photographs and subsequent legal analysis of their admissibility; however, I do not agree that the error in admitting the surgical photographs was harmless.

Knox County Court of Criminal Appeals 04/27/17
State of Tennessee v. Ricky Thompson
E2015-02464-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Ricky Thompson, appeals from his conviction for reckless aggravated assault, arguing that the trial court abused its discretion when it failed to declare a mistrial after a potential juror made highly prejudicial remarks that undermined the authority of the trial proceedings and contaminated the rest of the venire. Additionally, Defendant argues that the trial court abused its discretion when it admitted photographs of surgical procedures performed on the victim. Following our review, we conclude that the trial court properly exercised its discretion in denying the Defendant’s motion for a mistrial. Additionally, we conclude that the surgical photographs were improperly admitted into evidence but find the error to be harmless. Accordingly, the judgment of the trial court is affirmed.

Knox County Court of Criminal Appeals 04/27/17
Sinan Gider v. Lydia Hubbell
M2016-00838-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

On the petition of a father, a juvenile court held the mother of father’s child in civil contempt. The court found 19 separate instances of mother violating three orders enjoining her from making certain derogatory comments, both in person and on social media. Our review of the record leads us to conclude that the mother violated only two of the orders cited by the father. We also conclude that the court erred in holding the mother in contempt for two of the counts alleged by the father. Even so, the juvenile court properly found the mother in contempt for 17 violations of court orders, and we find the sanctions imposed by the court to be appropriate. Therefore, we affirm in part and reverse in part.

Davidson County Court of Appeals 04/27/17
Sinan Gider v. Lydia Hubbell
M2016-00838-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Sheila Calloway

On the petition of a father, a juvenile court held the mother of father’s child in civil contempt. The court found 19 separate instances of mother violating three orders enjoining her from making certain derogatory comments, both in person and on social media. Our review of the record leads us to conclude that the mother violated only two of the orders cited by the father. We also conclude that the court erred in holding the mother in contempt for two of the counts alleged by the father. Even so, the juvenile court properly found the mother in contempt for 17 violations of court orders, and we find the sanctions imposed by the court to be appropriate. Therefore, we affirm in part and reverse in part. 

Davidson County Court of Appeals 04/27/17
Delta Gypsum, LLC v. Michael Felgemacher
E2016-01447-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge E.G. Moody

A supplier of drywall was a creditor of a company that installed drywall. The owner of the indebted company signed a promissory note in the amount of $370,615 payable to the supplier and paid a small portion of the note before selling the business to his son for $12,000. The supplier filed suit to obtain a judgment for the balance owed on the promissory note after the transfer of the business to the son. The supplier obtained a judgment against the former owner, but not against the company, for the amount owed on the note. The supplier then filed this action against the son in an effort to have the sale set aside on the basis that it was a fraudulent conveyance. The trial court found the supplier was unable to satisfy the elements of either the actual fraud statute, Tenn. Code Ann. § 66-3-305(a)(1), or the constructive fraud statute, Tenn. Code Ann. § 66-3-306(a). We agree and affirm the trial court’s judgment.

Sullivan County Court of Appeals 04/26/17
James Swanger v. Carrie Lowery
M2016-00600-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Phillip R. Robinson

In this appeal of the extension of an order of protection for five years, the appellant contends that the appellee did not prove an allegation of domestic abuse, stalking, or sexual assault by a preponderance of the evidence. Upon our review, we conclude that the evidence supports the finding that the initial order of protection was violated and that the court had the authority to extend the order; accordingly, we affirm the judgment of the trial court.   

Davidson County Court of Appeals 04/26/17
Joe Travis Northern v. State of Tennessee
W2016-01058-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

Joe Travis Northern, Jr. (“Petitioner”) appeals from the denial of his petition for postconviction relief. Petitioner claims that he received ineffective assistance of trial counsel and of counsel appointed to represent him in a Tennessee Rule of Criminal Procedure 36.1 motion. After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 04/25/17
State of Tennessee v. Joseph L. Smith
W2016-01229-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald E. Parish

Joseph L. Smith (“the Defendant”) was convicted of attempted arson under a theory of criminal responsibility and received a three-year sentence; he was ordered to serve one year in the workhouse and the remainder of the sentence on community corrections. On appeal, the Defendant argues that the trial court erred in its denial of his motion for judgment of acquittal and his motion for new trial because the testimony of the accomplices was not sufficiently corroborated by independent evidence. The Defendant also contends that the evidence introduced at trial was insufficient for a rational juror to have found him guilty of attempted arson beyond a reasonable doubt and that the trial court should not have instructed the jury on the offense of attempted arson. After a thorough review of the record and applicable case law, we affirm.

Henry County Court of Criminal Appeals 04/25/17
James Britt v. State of Tennessee
W2016-00928-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The Petitioner, James Britt, appeals the denial of his petition for post-conviction relief from his premeditated first degree murder conviction, alleging he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 04/25/17
Suzanne Bishop West v. Epiphany Salon & Day Spa, LLC
E2016-01860-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge L. Marie Williams

This appeal concerns a jury award of damages in a negligence case. Suzanne Bishop West (“West”) sued Epiphany Salon & Day Spa, LLC (“Epiphany”) in the Circuit Court for Hamilton County (“the Trial Court”) for damages resulting from a facial she received that burned her face. Epiphany conceded liability and the matter went before a jury for a determination of damages. The jury awarded West $125,000 in damages. Epiphany filed a motion for remittitur. The Trial Court, finding the award excessive, reduced the award from $125,000 to $47,800. West appeals to this Court, asking that we restore the original jury award of $125,000. Finding no reversible error, we affirm the judgment of the Trial Court.

Hamilton County Court of Appeals 04/25/17
David Andrew Oliver v. State of Tennessee
E2016-02244-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, David Andrew Oliver, appeals the denial of his petition for post-conviction relief in which he challenged his rape of a child conviction and twenty-five year prison sentence. On appeal, the Petitioner contends that he was denied his right to the effective assistance of counsel, arguing that trial counsel should have advised him to testify at trial. We affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 04/25/17
State of Tennessee v. Mark Oden Potts
M2016-02079-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Franklin L. Russell

Defendant, Mark Oden Potts, pled guilty to various drug-related offenses.  He received an effective sentence of eight years as a standard offender.  On appeal, he argues that the trial court abused its discretion by denying an alternative sentence of probation or community corrections.  After reviewing the record, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 04/25/17
Volodymyr Helyukh, et al. v. Buddy Head Livestock & Trucking, Inc., et al.
W2015-01354-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor-trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee‟s conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.

Henderson County Court of Appeals 04/24/17
State of Tennessee v. Thomas R. Davis
E2016-01622-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

A Knox County jury convicted the Defendant, Thomas R. Davis, of simple possession of a controlled substance; simple possession of a controlled substance, third offense; and misdemeanor evading arrest. Following a sentencing hearing, the trial court sentenced the Defendant to eleven months and twenty-nine days each for simple possession of a controlled substance and evading arrest and one year for simple possession of a controlled substance, third offense. The trial court merged the drug convictions and ordered the Defendant to serve his sentences concurrently, for an effective sentence of one year. On appeal, the Defendant contends that due to an amendment to Tennessee Code Annotated section 39-17-418(e) that went into effect prior to the sentencing hearing, he did not qualify for enhanced punishment for simple possession of a controlled substance based on prior convictions. We conclude that the amendment to Tennessee Code Annotated section 39-17-418(e) controls and that, as a result, the Defendant did not qualify for enhancement punishment for his simple possession conviction based on his prior convictions. Accordingly, the judgments of the trial court are reversed in part and affirmed in part. The Defendant’s conviction for simple possession of a controlled substance as a Class E felony as reflected in the judgment for count 12 is dismissed, and the case is remanded to the trial court for entry of a corrected judgment reflecting the $2,500 fine imposed by the jury in count 11 and for further proceedings in accordance with this opinion.

Knox County Court of Criminal Appeals 04/24/17
Josh L. Bowman v. State of Tennessee
E2016-01028-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Josh L. Bowman, was convicted by a jury of three counts of first degree felony murder, one count of especially aggravated kidnapping, one count of especially aggravated robbery, two counts of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. After the verdict, the Petitioner pled guilty to one count of employing a firearm during the commission of a dangerous felony when he had previously been convicted of a felony. The trial court merged the murder convictions, merged the burglary convictions, and merged the firearms convictions. This court on appeal reversed the especially aggravated kidnapping conviction and remanded for a new trial, affirming all other judgments. See State v. Josh L. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *3 (Tenn. Crim. App. Aug. 29, 2013), overruled in part by State v. Teats, 468 S.W.3d 495 (Tenn. 2015). The Petitioner filed a timely post-conviction petition, alleging that his trial counsel was deficient in allowing him to enter a guilty plea to the firearms offense and deficient in failing to object to the racial composition of the jury venire. The post-conviction court granted relief on the firearms conviction, finding that the Petitioner did not have a qualifying prior “dangerous felony” and dismissing the charge. The post-conviction court found that the Petitioner could not show deficiency or prejudice on the jury issue. Both parties filed notices of appeal in this court. The State asserts that the postconviction court misinterpreted Tennessee Code Annotated section 39-17-1324 (2008) in granting relief and argues that the prior felony need not be a dangerous felony according to statute. The Petitioner asserts that he is entitled to relief from all his convictions based on the jury composition. After a thorough review of the record, we affirm the postconviction court’s judgment. We remand for the post-conviction court to enter judgment on the merged conviction which survives the dismissal of the firearms offense.

Knox County Court of Criminal Appeals 04/24/17
State of Tennessee v. Justin Ray Lane
E2016-01756-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Jerry Beck

A Sullivan County jury convicted the defendant, Justin Ray Lane, of four separate felony offenses for his participation in a controlled drug buy of heroin and cocaine within one thousand feet of a school. On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions arguing the State failed to prove he authored the text messages which established the details of the illegal transaction. Additionally, and for the same reason, the defendant argues photographs of the text messages establishing the drug deal were not properly authenticated at trial. Finally, the defendant contends the trial court prejudiced the jury by including the preamble to the Drug-Free School Zone Act in its charge. After reviewing the record, submissions of the parties, and pertinent authorities, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 04/24/17
Trina A. Henson v. Chris Robert Henson
M2016-01661-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Ross H. Hicks

This is an appeal from a final decree of divorce. The trial court declared the parties divorced, divided the marital property and marital debt, and ordered Husband to pay rehabilitative alimony of $2,500.00 per month for three years, and an award of $20,000.00 for attorney’s fees, as alimony in solido. On appeal, Husband contends that the trial court erred in: (1) its division of the marital debt; (2) its award of rehabilitative alimony; and (3) its award of attorney’s fees. Wife requests attorney’s fees incurred in defending this appeal. We affirm the trial court’s judgment and remand for determination of Wife’s attorney’s fees on appeal.

Robertson County Court of Appeals 04/24/17
M.H.L. ET AL. v. BOYS AND GIRLS CLUB OF GREATER KINGSPORT, INC., ET AL.
E2017-00024-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

The plaintiffs, Michael Lambert and Pamela Lambert, on behalf of themselves and their minor child, M.H.L. (collectively, “Plaintiffs”), seek to appeal from an order granting summary judgment in favor of the defendant, City of Kingsport, Tennessee (“the City”), on Plaintiffs’ claims against the City in this negligence case arising out of injuries sustained by the minor plaintiff while participating in a youth basketball program. In their complaint, Plaintiffs asserted claims against not only the City, the entity who ran the youth basketball program, but also against the defendant, Boys and Girls Club of Greater Kingsport, Inc. (“the Boys and Girls Club”), which owned and managed the property used by the youth basketball program. The order from which Plaintiffs seek to appeal resolves only the claim against the City, leaving unresolved the claim against the Boys and Girls Club. As a result, we lack jurisdiction to consider this appeal. The appeal is dismissed without prejudice to the filing of a new appeal once a final judgment has been entered

Sullivan County Court of Appeals 04/24/17
State of Tennessee v. Gregory Maurice Marlin
M2016-01376-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Franklin L. Russell

The Defendant, Gregory Maurice Marlin, was convicted of evading arrest while operating a motor vehicle, evading arrest on foot, and operating a motor vehicle while declared a habitual traffic offender.  The trial court sentenced the Defendant as a standard offender to two years for the evading arrest while operating a motor vehicle conviction, eleven months and twenty-nine days for the evading arrest on foot conviction, and two years for the operating a motor vehicle while declared a habitual offender conviction, all to be served consecutively to each other.  After the sentencing hearing, the trial court amended the sentence and merged the evading arrest on foot conviction with the evading arrest while operating a motor vehicle conviction, for an effective sentence of four years in prison.  The Defendant argues that the evidence is insufficient to support his convictions and that the trial court abused its discretion in sentencing him.  After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 04/24/17
State of Tennessee v. Johnathan Robert Leonard
M2016-00269-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

Johnathan Robert Leonard (“the Defendant”) appeals his Marshall County convictions for three counts of rape of a child, two counts of soliciting sexual exploitation of a child, and one count of aggravated sexual battery, for which he received an effective sentence of ninety-six years.  The Defendant asserts that he was denied due process and a fair trial based on numerous instances of prosecutorial misconduct and that the cumulative effect of “irregularities” during voir dire and jury selection resulted in structural constitutional error, necessitating a new trial.  After a thorough review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/24/17
State of Tennessee v. Maurice Allen Mills, Jr.
E2016-01118-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steven Wayne Sword

The pro se defendant, Maurice Allen Mills, Jr., appeals as of right from the Knox County Criminal Court’s summary denial of his Tennessee Rule of Criminal Procedure 36.1 (“Rule 36.1”) motion to correct an illegal sentence. The defendant contends his motion stated a colorable claim for relief, so the trial court erred in summarily denying it. Discerning no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 04/21/17