Court Opinions

Format: 03/29/2015
Format: 03/29/2015
State of Tennessee v. Eddie Joe Whitaker
E2014-01066-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Eddie Joe Whitaker, was convicted by a Campbell County jury of retaliation for past action and failure to appear. See Tenn. Code Ann. §§ 39-16-510, -16-609. On appeal, he contends that the evidence is insufficient to support his convictions. Following our review, we conclude that the evidence is sufficient to support the Defendant’s conviction for retaliation for past action but that the evidence is insufficient to sustain the conviction for failure to appear. Therefore, the conviction for retaliation for past action is affirmed, and the conviction for failure to appear is reversed and that charge is dismissed.

Campbell County Court of Criminal Appeals 03/27/15
State of Tennessee v. John D. Bailey
W2014-00705-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Russell Lee Moore, Jr.

Appellant, John D. Bailey, was convicted by a jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, he argues that the trial court erred by failing to suppress his statement to the police and that the evidence was insufficient to support his conviction. Following our review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 03/27/15
State of Tennessee v. Mechelle L. Montgomery
M2013-01149-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge James G. Martin, III

The defendant, who was indicted for driving under the influence and violating the open container law, moved to suppress all evidence discovered during the search of her car, which included an open container of alcohol and a small amount of marijuana. The trial court granted the motion to suppress, holding that one of the officers involved had unreasonably prolonged the investigatory stop. The Court of Criminal Appeals affirmed. Because the officer had a reasonable basis for extending the stop by ten to fifteen minutes while awaiting a second officer and the duration of the detention did not exceed the proper parameters, we set aside the order of suppression and remand to the trial court for further proceedings.

Williamson County Supreme Court 03/27/15
Frederick Moore v. Mike Parris, Warden
W2014-02128-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner, Frederick Moore, appeals the Lake County Circuit Court's denial of his pro se petition for writ of habeas corpus. On appeal, he asserts that his indictment is void and illegal and deprives the trial court of jurisdiction because the State illegally amended it and improperly obtained a superseding indictment. He further asserts that he is entitled to habeas corpus relief because he was denied due process when he was not afforded a second preliminary hearing. Upon review, we affirm the the trial court's denial of the petition.

Lake County Court of Criminal Appeals 03/27/15
Curtis Johnson v. State of Tennessee
W2014-01779-CCA-R3-CO
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Petitioner, Curtis Johnson, appeals the Shelby County Criminal Court's summary dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Petitioner alleges that he was illegally sentenced under the repealed Tennessee Criminal Sentencing Reform Act of 1982 rather than the Tennessee Criminal Sentencing Reform Act of 1989. Upon review, we affirm the judgment of the criminal court.

Shelby County Court of Criminal Appeals 03/27/15
State of Tennessee v. Jordan Alexander Rodrigues
M2014-01001-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Franklin L. Russell

The Defendant-Appellant, Jordan Alexander Rodrigues, appeals the revocation of his probation by the Marshall County Circuit Court.  He previously entered a guilty plea to burglary for which he received a three-year suspended sentence.  In this appeal, he argues that the trial court abused its discretion by revoking his probation and ordering a sentence of full confinement rather than imposing split confinement.  Upon our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 03/27/15
State of Tennessee v. Dennie Louis Price, Jr.
W2014-01331-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The defendant, Dennie Louis Price, Jr., appeals the trial court's revocation of his probation and reinstatement of his sentence of twelve years in the Department of Correction. On appeal, he argues that the trial court erred in revoking his probation. Following our review, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 03/27/15
In Re Kailee M.G.
E2014-01602-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Daniel G. Boyd
The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in November of 2013 (“the Petition”) seeking to terminate the parental rights of Kristen M.C. (“Mother”) to the minor child Kailee M.G. (“the Child”). After a trial the Juvenile Court for Sullivan County (“the Juvenile Court”) terminated Mother’s parental rights to the Child after finding that clear and convincing evidence had been proven of grounds to terminate for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and that clear and convincing evidence had been proven that it was in the Child’s best interest for Mother’s parental rights to be terminated. Mother appeals the termination of her parental rights to the Child to this Court. We find and hold that clear and convincing evidence was proven of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and that clear and convincing evidence was proven that it was in the Child’s best interest for Mother’s parental rights to be terminated, and we affirm.
 
Sullivan County Court of Appeals 03/27/15
Charles Haynes v. Formac Stables, Inc.
W2013-00535-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge William B. Acree

The plaintiff asserted claims for retaliatory discharge pursuant to both the common law and the Tennessee Public Protection Act, alleging that the owner of the employer had engaged in illegal conduct and had terminated the plaintiff’s employment when he acted as a whistleblower by complaining of the conduct to the owner. The trial court dismissed the plaintiff’s claims because, according to his own allegations, he had not reported the illegal activity to anyone other than the person responsible for the activity. The Court of Appeals affirmed. We hold that an employee must report an employer’s wrongdoing to someone other than the wrongdoer to qualify as a whistleblower, which may require reporting to an outside entity when the wrongdoer is the manager, owner, or highest ranking officer within the company. The judgment of the Court of Appeals is affirmed.

Obion County Supreme Court 03/27/15
Brian S. Roberson v. State of Tennessee
M2013-02565-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Timothy L. Easter

The Petitioner, Brian S. Roberson, appeals from the denial of post-conviction relief by the Circuit Court for Williamson County.  He was convicted for the sale of .5 grams or more of cocaine and sentenced to thirty years’ imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of trial and appellate counsel.  Upon review, we affirm the judgment of the post-conviction court.

Williamson County Court of Criminal Appeals 03/27/15
State of Tennessee v. Eric Williams
W2013-01593-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James Lammey, Jr.

A Shelby County Criminal Court Jury convicted the appellant, Eric Williams, of first degree premeditated murder, and the trial court sentenced him to life. On appeal, the appellant contends that the evidence is insufficient to support the conviction, that the trial court erred by refusing to allow State witnesses to testify about his statements after the killing, that the trial court erred by allowing the State to use a shotgun for demonstrative purposes when the gun was not involved in the crime, and that the trial court erred by not using the “reasonable effort method” for the jury’s consideration of the charge. Based upon the record and the parties’ briefs, we conclude that the trial court erred by prohibiting the appellant from crossexamining State witnesses about his stating after the shooting that he did not intend to shoot the victim, by allowing the State’s expert to testify about the trigger pull of double-barrel shotguns, and by allowing the jury to handle a shotgun that was not the murder weapon. Moreover, we conclude that the cumulative effect of the errors warrants reversal of the appellant’s conviction. Therefore, the conviction is reversed, and the case is remanded to the trial court for a new trial.

Shelby County Court of Criminal Appeals 03/27/15
State of Tennessee v. Allen Cornelius Bond
W2014-00069-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Allen Cornelius Bond, was convicted by a Madison County Criminal Court jury of aggravated sexual battery, a Class B felony, and attempted sexual battery, a Class A misdemeanor, and was sentenced to an effective term of sixteen years in the Tennessee Department of Correction to be served consecutively to a prior sentence. On appeal, he argues that: (1) his right to an impartial jury was violated because one of the jurors knew him; (2) the evidence is insufficient to sustain his convictions; (3) the trial court erred in allowing the nurse examiner to testify as an expert witness; and (4) the trial court erred in not exercising its authority as the thirteenth juror and setting aside his convictions. After review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 03/27/15
Garrett Rittenberry, et al. v. Kevin Pennell, et al.
M2013-02106-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tom E. Gray

This appeal concerns a contentious boundary dispute involving multiple parties. Plaintiffs Garrett and Alma Rittenberry (“the Rittenberrys”) initially filed suit seeking to have an easement set aside for their benefit through the property of Kevin and Lana Pennell (“the Pennells”) pursuant to Tennessee Code Annotated § 54-14-101 et seq. Later, the Rittenberrys filed an amended complaint that alternatively sought relief by way of an easement across the property of Appellants Chris Burke and Lesa Hall (“Burke/Hall”). The Pennells moved for summary judgment arguing that the Rittenberrys did not need to resort to the statutory remedy of an easement by necessity. Upon finding that the Rittenberrys’ property was not, in fact, landlocked, but that it abutted a public road, the trial court granted the Pennells’ motion and dismissed the Rittenberrys’ cause of action. We affirm the trial court’s judgment

Sumner County Court of Appeals 03/26/15
Kevin Bloomfield v. The Metropolitan Government of Nashville and Davidson County
M2014-00438-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Plaintiff, a firefighter, who sustained personal injuries while serving in the course and scope of his employment with the Nashville Fire Department, brought this action against the Metropolitan Government of Nashville and Davidson County (“Metro”) asserting that he sustained serious personal injuries due to the negligence of a paramedic who was employed by Metro. The injury occurred while Plaintiff and the paramedic were moving a patient in a wheelchair. Following discovery, Plaintiff filed a motion for partial summary judgment on the issue of liability. After determining that no material facts were in dispute, the trial court granted summary judgment on the issue of liability upon the findings that an established procedure existed for the lifting of patients in a wheelchair, that the paramedic violated the established procedure, that the violation caused Plaintiff’s injuries, and that Plaintiff was not comparatively at fault. Following an evidentiary hearing on the issue of damages, the trial court awarded Plaintiff a judgment of $300,000 in damages. On appeal, Metro contends that there is a genuine dispute of fact regarding the policy for moving patients in wheelchairs, whether the paramedic violated the procedure, and whether Plaintiff is comparatively at fault. We affirm the trial court’s findings that there was an established policy for moving patients in a wheelchair, that the paramedic violated the policy by lifting the foot of the wheelchair without communicating with Plaintiff prior to initiating the lift, and that the paramedic’s violation of the established policy was the sole and proximate cause of Plaintiff’s injuries. Accordingly, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 03/26/15
In Re Kemauri H.
M2014-01357-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Donna Scott Davenport

Mother appeals the termination of her parental rights. The trial court found that six grounds for termination of her parental rights had been established. Mother does not challenge three of the grounds for termination; thus, the trial court’s ruling regarding three of the grounds is final. Because the trial court may terminate parental rights on the basis of only one statutory ground, In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003), we need not examine the other grounds. See In re Alexis L., No. M2013-01814-COA-R3-PT, 2014 WL 1778261, at *1 (Tenn. Ct. App. Apr. 30, 2014). Mother also contends the trial court erred in finding that the requirements of the permanency plan were reasonably related to remedying the conditions that necessitated the child’s removal and that termination was in the child’s best interests. Finding no error, we affirm.

Rutherford County Court of Appeals 03/26/15
Nancy Hart Diehl Harvey, Executrix of The Estate of W. Joseph Diehl, Jr., et al v. Phillips Turner, Jr.
M2014-00368-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ronald Thurman

This is a lawsuit brought for damage to property. After partial summary judgment was denied to the defendant, and after the trial court ruled that the defendant’s request for a jury trial was waived, the parties proceeded to a bench trial. During a hiatus after three days of trial, the parties settled the case and announced the essential terms of the settlement to the court in open court. The parties failed to agree to a written settlement document, and the plaintiffs asked the trial court to enforce the settlement. The trial court found that the settlement was enforceable. The defendant appealed. We affirm.

DeKalb County Court of Appeals 03/26/15
Jessica Catherine Hayes v. Douglas Aaron Hayes
M2014-00237-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge John H. Gasaway, III

This appeal involves various financial issues related to a divorce. Father appeals the trial court’s determination of variable income for Father that he earns as an amateur bowler; the trial court’s award of transitional alimony to Mother; and the trial court’s order that Father pay half of the minor children=s private school tuition. We affirm the trial court’s rulings regarding child support and alimony. However, we vacate the trial court’s ruling on the payment of private school tuition due to the trial court’s failure to comply with the Tennessee Child Support Guidelines.

Montgomery County Court of Appeals 03/26/15
Karen Abrams Malkin v. Reed Lynn Malkin
W2014-00127-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves an obligor’s petition to modify or terminate his alimony obligation due to his retirement. The trial court found that the obligor’s income had decreased to approximately one-third of his previous income level, so the trial court reduced the alimony payments by a corresponding percentage, to roughly one-third of the previous obligation. The recipient appeals. We hold that the trial court applied an incorrect legal standard when considering the petition to modify and also erred in its factual findings. Based on our review of the evidence, the obligor failed to demonstrate that modification of his alimony obligation was warranted. Consequently, we reverse the trial court’s decision, reinstate the previous alimony award, dismiss the petition for modification, and remand for further proceedings.

Shelby County Court of Appeals 03/26/15
State of Tennessee v. Maxwell Monroe Hodge
E2014-01059-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert H. Montgomery, Jr.

Convicted of rape by a Sullivan County Criminal Court jury, the defendant, Maxwell Monroe Hodge, appeals and claims that the evidence is insufficient to support his conviction and that the definition of “sexual penetration” expressed in Tennessee Code Annotated section 39-13-501(7) is impermissibly vague relative to that subsection’s use of the terms “genital or anal openings.” Discerning no error, we affirm the judgment of the criminal court.

Sullivan County Court of Criminal Appeals 03/26/15
State of Tennessee v. Jeremy Danielle McWherter
M2014-00974-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

Defendant, Jeremy McWherter, pled guilty in the Montgomery County Criminal Court to the offense of especially aggravated robbery. Defendant received a sentence of eight years to serve one year in confinement followed by seven years of probation. On March 26, 2014, a probation violation warrant was issued. Following a hearing, the trial court revoked probation and ordered Defendant to serve the balance of his sentence by incarceration. Defendant appeals, and does not challenge the revocation of probation, but argues that the trial court erred by ordering the entire sentence to be served by incarceration and not granting him a furlough to enter an alcohol rehabilitation program. We affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 03/26/15
Hershel Sanders et al v. First Tennessee Bank, N.A. et al.
E2014-00812-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Amy V. Hollars

This appeal concerns a dispute over which statute of limitations applies. Hershel and Alma Sanders (“Plaintiffs”) filed suit against First Tennessee Bank, National Association (“the Bank”) in the Circuit Court for Cumberland County (“the Trial Court”).1 Plaintiffs alleged that the Bank breached its contractual obligations to them by failing to provide long-term financing toward the building of their home as promised. The Bank denied it made any such promise. The Bank filed a motion for summary judgment. After a hearing, the Trial Court granted the Bank’s motion for summary judgment on the basis that the three-year statute of limitations for injury to property or interest in property barred Plaintiffs’ claims. Plaintiffs appeal. We hold that the financial damages alleged by Plaintiffs are in the nature of breach of contract and, therefore, a six-year statute of limitations governs. We reverse the judgment of the Trial Court.

Cumberland County Court of Appeals 03/26/15
State of Tennessee v. Frederick Herron
W2012-01195-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Carolyn W. Blackett

The defendant was charged with and convicted of rape of a child, and he received a twentyfive-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by(1) allowing the prosecution to introduce the child’s prior consistent statement, a recorded forensic interview, during its case-in-chief before the child’s credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals’ conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant’s other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant’s conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

Shelby County Supreme Court 03/26/15
Rhonda Potter et al. v. William Dale Perrigan, M.D. et al.
E2013-01442-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Amy V. Hollars
This is a medical malpractice action. Plaintiffs timely filed a complaint after properly sending pre-suit notices to Defendants. After voluntarily dismissing the initial complaint, Plaintiffs filed a second complaint pursuant to the saving statute with an attached certificate of good faith and a copy of the original pre-suit notices. Defendants moved to dismiss the second complaint for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a). The trial court agreed and dismissed the action. Plaintiffs appealed. We reversed the decision of the trial court. Defendants filed an application for permission to appeal. The Tennessee Supreme Court granted the application and remanded the case for reconsideration in light of its opinion in Foster v. Chiles, No. E2012-01780-SC-R11-CV, 2015 WL 343872 (Tenn. Jan. 27, 2015). Upon remand, we affirm the decision of the trial court.
 
Cumberland County Court of Appeals 03/26/15
Crystal Miranda Kirby v. State of Tennessee
W2014-00679-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Crystal Miranda Kirby, appeals the denial of her petition for writ of habeas corpus, arguing that her judgment for first degree murder is void and illegal on its face because of the trial court’s merger of her second degree murder conviction into the first degree murder conviction after separate judgments had already been entered and the jury had been dismissed. Following our review, we affirm the judgment of the habeas court summarily denying the petition.

Shelby County Court of Criminal Appeals 03/26/15
Trutonio Yancey v. State of Tennessee
W2014-00328-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Trutonio Yancey, was convicted of aggravated robbery, especially aggravated kidnapping, carjacking, and employing a firearm during the commission of a dangerous felony and received an effective sentence of twenty years. On direct appeal, this court affirmed the petitioner’s aggravated robbery and especially aggravated kidnapping convictions but reversed the carjacking and firearm convictions and remanded for a new trial. The Tennessee Supreme Court denied application for permission to appeal. State v. Trutonio Yancey and Bernard McThune, No. W2011-01543-CCA-R3-CD, 2012 WL 4057369, at (Tenn. Crim. App. Sept. 17, 2012), perm. app. denied (Tenn. Jan. 14, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. 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.

Shelby County Court of Criminal Appeals 03/26/15