Court Opinions

Format: 02/15/2019
Format: 02/15/2019
State of Tennessee v. Joseph H. Goostree
M2018-00651-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Defendant, Joseph H. Goostree, complains on appeal that the trial court improperly sentenced him to serve the balance of his eight-year sentence after he admitted to multiple violations of the conditions of his Community Corrections sentence. Because the trial court did not abuse its discretion, we affirm the judgment of the circuit court and remand for entry of a judgment form dismissing Count 1 of the indictment.

Robertson County Court of Criminal Appeals 02/15/19
Ernest Hobbs v. Russell L. Leonard Et Al. - Concurring
M2018-00317-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Vanessa Jackson

In our resolution of this appeal, we hold that the General Release, which the parties executed when Case No. 2014-CV-170 settled, was not against public policy. I concur with that conclusion, under the facts presented.

Coffee County Court of Appeals 02/15/19
Ernest Hobbs v. Russell L. Leonard Et Al.
M2018-00317-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Vanessa Jackson

After a defendant in an earlier action settled the claims against him, the lawyer representing the plaintiffs in the earlier action notified a regulatory agency of the defendant’s alleged conduct at issue in the earlier action. The defendant/current plaintiff filed a breach of contract action against the lawyer, asserting that the lawyer breached the terms of the settlement agreement by filing a complaint against him with the regulatory agency. The lawyer defended the action by claiming that the settlement agreement violated public policy and was unenforceable. The trial court held that the settlement agreement was not contrary to public policy and entered judgment for the plaintiff. The lawyer appealed, and we affirm the trial court’s judgment.

Coffee County Court of Appeals 02/15/19
Tracy Looney v. State of Tennessee
M2018-00214-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Royce Taylor

The petitioner, Tracy Looney, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Rutherford County Court of Criminal Appeals 02/15/19
Sharod Winford Moore v. State of Tennessee
M2017-02314-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Franklin L. Russell

Following the post-conviction court’s granting of a delayed appeal, the petitioner challenges the trial court’s denial of his request for an instruction charging the jury that Jason McCollum was an accomplice as a matter of law. After reviewing the record and considering the applicable law, we conclude the post-conviction court did not follow the proper procedures in granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion.

Marshall County Court of Criminal Appeals 02/15/19
Michael Morton v. Knox County Sheriff's Department, et al.
E2017-02077-COA-R9-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi Davis

The plaintiff brought this action under Tennessee Code Annotated section 40-33-215 after a Knox County deputy seized a vehicle in which the plaintiff had a perfected security interest. The Tennessee Department of Safety and Homeland Security and Knox County both filed motions to dismiss the complaints against them on sovereign immunity grounds. After the motions to dismiss were denied, permission to appeal under Rule 9 was granted. In this interlocutory appeal, we have been asked to determine whether the trial court properly ruled on the sovereign immunity issue. After review, we affirm the trial court’s denials of the motions to dismiss and remand this matter to the trial court for further proceedings.

Knox County Court of Appeals 02/15/19
Unitta Sue Newman v. State of Tennessee
M2018-00948-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

A patient in a state psychiatric facility was killed by another patient. The surviving spouse of the deceased patient brought suit against the State and was awarded damages for the wrongful death of her husband. Because the Tennessee Health Care Liability Act applies to the surviving spouse’s claim, and because she failed to comply with the Act’s requirements of pre-suit notice and good faith certification, we must reverse the decision of the Claims Commission.

Court of Appeals 02/15/19
Donald R. Loveless v. City of New Johnsonville, Et Al.
M2018-00523-SC-R3-WC
Authoring Judge: Senior Judge Don R. Ash
Trial Court Judge: Judge Larry J. Wallace

Donald R. Loveless (“Employee”) alleged he sustained a compensable injury on February 9, 2014, when he fell in the course and scope of his employment with the City of New Johnsonville (“Employer”). Following trial, the trial court awarded permanent partial disability benefits. Employer appeals, contending Employee did not sustain a compensable injury. 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 reverse the trial court’s judgment.

Humphreys County Workers Compensation Panel 02/15/19
In Re Jaxon W.
W2018-00629-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Special Judge Harold W. Horne

In this appeal of the juvenile court’s determination of a petition to establish visitation, the father appeals the setting of supervised therapeutic visitation for him. The father argues that the court disregarded evidence that was favorable to him, that the court erred in relying upon testimony of the child’s counselor, and that the court erred in awarding attorney’s fees to Mother. Upon our review, we vacate the decision setting the father’s visitation and remand the case for the court to enter a judgment that discusses the factors set forth at Tennessee Code Annotated 36-6-106(a)(1)-(15) and makes appropriate findings relative thereto; we conclude that Father has waived any issue pertaining to the testimony of the child’s counselor, as he failed to object to the testimony at trial; in all other respects, we affirm the judgment of the trial court.

Shelby County Court of Appeals 02/15/19
Travis Hewitt Et Al. v. Karin McClain
E2018-02170-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

The pro se appellants, Travis Hewitt and Dustin Hewitt, seek to appeal from a final order entered on October 17, 2018. The Notice of Appeal was not filed until December 3, 2018, more than thirty (30) days from the date of entry of the final order. The appellants accompanied their Notice of Appeal with a motion asking this Court to accept the latefiled notice as having been timely filed. The appellee, Karin McClain, filed a motion to dismiss this appeal arguing, in part, that the Notice of Appeal was not timely filed. Because it appears from all the pleadings filed in this case that the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal and no discretion to waive the filing of a timely Notice of Appeal pursuant to Rule 4(a) of the Tennessee Rules of Appellate Procedure.

Knox County Court of Appeals 02/14/19
State of Tennessee v. Sarah Brinkman
E2018-01011-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tammy M. Harrington

The defendant, Sarah Brinkman, appeals from the revocation of the probationary sentence imposed for her conviction of introducing contraband into a penal institution, arguing that the trial court erred by ordering her to serve 180 days’ incarceration before returning to probation. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 02/14/19
In Re Paetyn M., et al.
W2017-02444-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Van McMahan

Father petitioned to terminate the parental rights of the mother of his child. Father later married and, along with his spouse, joined in an amended petition for termination of parental rights and for adoption. The amended petition alleged mother abandoned the child by failure to visit and failure to support. On the date scheduled for trial, Mother failed to appear, and her attorney was denied a continuance. Following the trial, the juvenile court found by clear and convincing evidence that mother had abandoned her child by willful failure to visit and willful failure to support and a third statutory ground not asserted in the amended petition. The court also found by clear and convincing evidence that termination of mother’s parental rights was in the child’s best interest. On appeal, mother challenges the court’s subject matter jurisdiction. Mother also asserts that the court erred in denying her request for a continuance and that the proof was less than clear and convincing as to the grounds for termination and the child’s best interest. We conclude that the record only supports one statutory ground for termination of parental rights, abandonment by willful failure to visit. Otherwise, we affirm the judgment.

McNairy County Court of Appeals 02/14/19
Belinda Puller Ex Rel. Darel Puller v. Judith Roney
M2018-01234-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

Defendant Judith Roney hired Darel Puller as a handyman to do periodic odd jobs in maintaining her house. Mr. Puller died in an accident when he fell from defendant’s roof while clearing it of debris. No one witnessed the accident. A housekeeper found him unconscious on a patio, with an extension ladder lying on the ground next to him. Defendant testified that she had not spoken to Mr. Puller the day of the accident, and that she did not know he was going to get her ladder from a back garage and use it to get on the roof. She also said that the ladder was probably at least forty years old and that it was missing one of the extension latching hooks. Mr. Puller’s widow, Belinda Puller, brought this action alleging defendant was negligent in failing to warn him of the defective condition of the ladder. Defendant moved for summary judgment, which was granted by the trial court on the ground that “the Plaintiff is unable to establish in any way, the cause of the injury to the Plaintiff or the relation of the Defendant to the Plaintiff’s injury.” We affirm.

Warren County Court of Appeals 02/13/19
State of Tennessee v. Michael Lee Hufford
E2017-02464-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant-Appellant, Michael Lee Hufford, appeals from the order of the Sullivan County Criminal Court revoking his probation. On appeal, the Defendant argues that (1) the trial court erred in denying his motion to dismiss the violation of probation affidavit and arrest warrant, and (2) the trial court erred in revoking his probation and ordering him to serve the remainder of his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 02/13/19
Memphis Light Gas & Water Division v. Tykena Watson, et al.
W2018-00218-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

At issue in this appeal is whether nurse case management fees are recoverable as part of an employer’s workers’ compensation subrogation lien under Tennessee Code Annotated section 50-6-112. The trial court answered this question in the negative and also determined that the employer’s subrogation lien should be reduced by attorney’s fees awarded to the employee’s attorney. For the reasons stated herein, we affirm the judgment of the trial court.

Shelby County Court of Appeals 02/13/19
Tina E. Hayes v. Costco and Liberty Mutual Insurance Company
W2017-02130-SC-R3-WC
Authoring Judge:
Trial Court Judge:

Tina E. Hayes (“Employee”) alleged that she sustained a compensable injury to her left knee on April 8, 2015, in the course of her work as a stocker for Costco (“Employer”). She alleged that this injury required her to undergo a left knee replacement surgery. The Court of Workers’ Compensation Claims held that Employee failed to establish by a preponderance of the evidence a compensable injury or aggravation arising primarily out of and in the course and scope of her employment with Employer. Employee has appealed. 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.

Workers Compensation Panel 02/12/19
In Re: H. A., Et Al.
E2018-01914-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Brad Lewis Davidson

Mother appeals the termination of her parental rights, arguing that termination was not in the children’s best interest. We conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest determination.

Cocke County Court of Appeals 02/12/19
Gloria Andrews, Et Al. v. Norfolk Southern Railway Company
E2018-00508-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge William T. Ailor

This appeal arises from a widow’s suit over her husband’s alleged exposure to asbestos. Raymond Andrews (“Decedent”) worked for Norfolk Southern Railway Company (“Norfolk Southern”) for 24 years before retiring. He later died of lung cancer. Decedent’s wife, Gloria Andrews (“Plaintiff”), sued Norfolk Southern in the Circuit Court for Knox County (“the Trial Court”) under the Federal Employers’ Liability Act (“FELA”) alleging that her late husband had been exposed to asbestos while working for Norfolk Southern. Norfolk Southern filed several evidentiary motions which the Trial Court granted. Norfolk Southern subsequently filed a motion for summary judgment, which also was granted. Plaintiff appeals to this Court raising several evidentiary issues. We hold that the Trial Court did not err in excluding lay testimony regarding the presence of asbestos in areas where Decedent worked because these witnesses lacked personal knowledge about the alleged asbestos. Plaintiff was unable to produce any admissible evidence at the summary judgment stage to support her claim that Norfolk Southern failed to maintain a safe working environment. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 02/12/19
Bettye Shores v. State of Tennessee
M2018-00954-SC-R3-WC
Authoring Judge: Special Judge Ross H. Hicks
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Bettye Shores (“Employee”) alleged she suffered a mental injury during the course and scope of her employment with the State of Tennessee (“Employer”) when a reprimand from her supervisor “lit up” her preexisting post-traumatic stress disorder. Employer moved to dismiss the claim, asserting Employee failed to give timely notice of her alleged injury as mandated by Tenn. Code Ann. § 50-6-201.  After a hearing, the Commissioner granted Employer’s motion to dismiss.  Employee has appealed. 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 Commissioner’s judgment. 

Workers Compensation Panel 02/12/19
State of Tennessee v. Jerry Ray Oakes - dissenting opinion
E2017-02239-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lisa Rice

I respectfully disagree with the majority’s conclusion that the trial court erred in denying the defendant’s motion to suppress. In my opinion, based on the proof presented at the suppression hearing and at trial, the trial court correctly determined that there were exigent circumstances justifying the warrantless blood draw. For the reasons that follow, I would affirm the defendant’s conviction of vehicular homicide.

Carter County Court of Criminal Appeals 02/12/19
State of Tennessee v. Jerry Ray Oaks
E2017-02239-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lisa Rice

The defendant, Jerry Ray Oaks, appeals his Carter County Criminal Court jury conviction of vehicular homicide, claiming that the trial court erred by denying his motion to suppress the results of a warrantless blood draw, that the defendant should have been permitted to argue the results of a vehicle inspection during closing argument, and that the evidence is insufficient to support his conviction of vehicular homicide. The trial court erred by finding that exigent circumstances justified the warrantless blood draw. Accordingly, we reverse the defendant’s conviction of vehicular homicide and remand the case for a new trial.

Carter County Court of Criminal Appeals 02/12/19
State of Tennessee v. Jason White
W2018-00329-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

Jason White, Defendant, was convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone. Co-defendant Kristina Cole and Co-defendant Montez Mullins were also convicted of one count of conspiracy to possess methamphetamine with the intent to sell within a drug-free zone and one count of conspiracy to possess methamphetamine with the intent to deliver within a drug-free zone in the same trial. See State v. Kristina Cole and Montez Mullins, No. W2017-01980-CCA-R3-CD, 2018 WL 5810011, at *1 (Tenn. Crim. App. Nov. 5, 2018), perm. app. filed. The trial court sentenced Defendant to sixty years as a career offender with release after service of 100% of the sentence. On appeal, Defendant asserts that: (1) the trial court erred in allowing Defendant’s trial counsel to represent Defendant despite a conflict of interest; (2) the State constructively amended the indictment by obtaining a superseding indictment; (3) the trial court erred in admitting: testimony from Andrew Brown; Co-defendant Montez Mullins’ confession; text messages that Detective Mark Gaia retrieved from Co-defendant Cole’s three cell phones; and marijuana confiscated from Mr. White’s vehicle; (4) the trial court erred in admitting testimony from Detective Gaia without instructing the jury about witness credibility; (5) the State’s introduction of Co-defendant Mullins’ confession violated Bruton v. U.S., 391 U.S. 123 (1968); (6) the trial court erred in denying Defendant’s motion to sever his case from Co-defendants Cole and Mullins; (7) the evidence was insufficient for a rational juror to have found Defendant guilty; and (8) the State committed prosecutorial misconduct during closing arguments. After a thorough review of the facts and applicable case law, we affirm.

Shelby County Court of Criminal Appeals 02/11/19
State of Tennessee v. Gregory Gill
W2018-00331-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

After a jury trial, Gregory Gill, Defendant, was convicted of two counts of possession of cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to sell or deliver, four counts of unlawful possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony, one count of unlawful possession of a firearm after being convicted of a felony involving the attempted use of force, violence, or a deadly weapon, one count of possession of drug paraphernalia, and one count of evading arrest. The trial court sentenced Defendant to a total effective sentence of thirty-eight years in the Tennessee Department of Correction. On appeal, Defendant asserts that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt; (3) the trial court erred in allowing the State to crossexamine a defense witness about his pending criminal charges; and (4) the trial court imposed an excessive sentence. After a thorough review of the facts and applicable case law, we affirm.

Madison County Court of Criminal Appeals 02/11/19
State of Tennessee v. Daniel Dewayne Kincaid
E2018-01012-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tammy Harrington

The Defendant, Daniel Dewayne Kincaid, appeals as of right from the Blount County Circuit Court’s revocation of his probationary sentence and order of one hundred and eighty days of split confinement for his convictions for DUI. The Defendant contends that the trial court abused its discretion by ordering him to serve one hundred and eighty days of split confinement before being released on supervised probation. Following our review, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 02/11/19
State of Tennessee v. Jacquez Russell
W2017-02184-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Defendant, Jacquez Russell, was found guilty by a Shelby County Criminal Court jury of attempt to commit first degree premeditated murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202 (2018) (first degree murder), 39-12-101 (2018) (attempt), 39-17-1324 (2018) (employment). The trial court sentenced the Defendant as a Range I, standard offender to consecutive terms of sixteen years for attempted first degree murder and six years for the firearm conviction, for an effective twenty-two-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred by limiting his closing argument. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/08/19