Court Opinions

Format: 07/30/2014
Format: 07/30/2014
Scott Clevenger v. State of Tennessee
E2013-01786-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge O. Duane Slone

In this appeal, the Petitioner, Scott Clevenger, contends that he received ineffective assistance of counsel at trial. Specifically, he alleges that trial counsel failed to meet with him an adequate amount of times and failed to give him a copy of the discovery materials so that he could make an informed decision about his case. After considering the record and the applicable authorities, we affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 07/29/14
State of Tennessee v. Terry Scott Yarbrough
M2013-02125-CCA-R3-CD
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Mark Fishburn

Appellant, Terry Scott Yarbrough, pleaded guilty to driving under the influence (“DUI”), first offense, and received a sentence of eleven months, twenty-nine days, with all but forty-eight hours suspended to supervised probation.  As a condition of the plea agreement, appellant reserved the right to certify a question of law challenging the trial court’s denial of a motion to suppress.  Following our review, we conclude that we do not have jurisdiction to address the certified question of law because it does not comply with the strict requirements of Tennessee Rule of Criminal Procedure 37(b)(2) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988).  Accordingly, the appeal is dismissed.

Davidson County Court of Criminal Appeals 07/29/14
State of Tennessee v. Janet Lynn Jared
M2013-01739-CCA-R3-CD
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge David Patterson

Appellant, Janet Lynn Jared, was convicted of theft over $10,000.  She was sentenced to six years, with the sentence to be served on probation if she paid restitution of over $82,000 to her victims.  To satisfy the judgment, she sold the family farm, but the sale resulted in net proceeds of only about $48,000.  The State subsequently filed a motion to order that the remaining amount of restitution be paid.  After several hearings, the Criminal Court ordered that Appellant pay the remainder of her obligation at the rate of $500 a month.  Appellant does not challenge the amount of restitution ordered by the Criminal Court, but she contends on appeal that the Court erred by ordering a payment schedule without considering her means and ability to pay, in violation of Tennessee Code Annotated section 40-35-304(d).  The State asks us to dismiss this appeal because under Tennessee Rule of Appellate Procedure 3(b) there is no appeal as of right from a decision to modify the conditions of probation.  We agree with the State.  This appeal is dismissed.

Putnam County Court of Criminal Appeals 07/29/14
Teddy Wayne Wilcutt v. CAM Electric Systems, et al.
W2013-00772-WC-R3-WC
Authoring Judge: Judge Donald P. Harris
Trial Court Judge: Judge William Michael Maloan

An employee sustained work-related injuries to his head, neck, and shoulders after being struck by a falling ladder. The trial court awarded the employee 60% permanent partial disability to the body as a whole. The employer appealed, arguing that the employee failed to prove causation. After carefully reviewing the record, we affirm the trial court’s judgment.

Obion County Workers Compensation Panel 07/28/14
State of Tennessee v. Anthony Antonio Cole
W2013-02161-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Donald H. Allen

Anthony Antonio Cole (“the Defendant”) was convicted by a jury of driving under the influence, driving without a license, violation of the financial responsibility law, violation of the registration law, and failure to yield the right of way. Following a sentencing hearing, the trial court ordered the Defendant to serve a total effective sentence of twelve months and twenty-nine days in confinement. In this direct appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions for driving under the influence, driving without a license, and failure to yield the right of way. Upon our thorough review of the record and applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/28/14
State of Tennessee v. Dennis Butler
W2013-01397-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Chris Craft

Dennis Butler (“the Defendant”) pleaded guilty to one count of sale of cocaine. Pursuant to the plea agreement, the Defendant was sentenced to four years suspended to probation. Upon the filing of a probation revocation warrant, the Defendant was taken into custody, and a revocation hearing was held. At the conclusion of the hearing, the trial court revoked the Defendant’s probation and ordered him to serve his original sentence in confinement. The Defendant timely appealed the trial court’s ruling. Upon a thorough review of the record, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 07/28/14
State of Tennessee v. Norman Branch
W2013-00964-CCA-R3-CD
Authoring Judge: Special Judge Jeffrey S. Bivins
Trial Court Judge: Judge Paula Skahan

A jury convicted the Defendant, Norman Branch, of theft of $500 or less and intentionally evading arrest in a motor vehicle. After a hearing, the trial court imposed an effective sentence of six years, eleven months, and twenty-nine days, to be served in the workhouse. In this direct appeal, the Defendant contends the following: (1) the trial court erred in allowing him to be impeached with twelve prior convictions; (2) the trial court erred in excluding certain of his testimony as inadmissible hearsay; (3) the evidence was not sufficient to support his evading arrest conviction; (4) the trial court provided an improper jury instruction on the evading arrest charge; (5) the trial court erred in sentencing him as a career offender; and (6) cumulative error entitles him to a new trial. Upon our thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 07/28/14
Discretionary Appeals List - July 28, 2014
Authoring Judge:
Trial Court Judge:
07/28/14
Lisa Doyle v. Town of Oakland
W2013-02078-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge J. Weber McCraw

This is an appeal from a dismissal for improper service of process. The plaintiff filed a complaint against the defendant municipality. The summons and complaint were served on the municipality’s finance director. In its answer, the municipality asserted improper service of process for failure to serve either the municipality’s chief executive or its city attorney. Later, the municipality filed a motion for summary judgment. The motion asserted that, because service of process was insufficient under Tenn. R. Civ. P. 4.04, the complaint was time-barred under the applicable statute of limitations. The trial court granted summary judgment in favor of the municipality. The plaintiff appeals. Discerning no error, we affirm.

Fayette County Court of Appeals 07/28/14
Woodrow Beamer, Jr. v. Agatha Thomas a/k/a Jean T. Beamer
W2013-01279-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge Walter L. Evans

This appeal involves dismissal of a complaint. The plaintiff filed this declaratory judgment action, seeking a declaration that the 30-year marriage of his deceased father was void. The plaintiff asserted in the complaint that the allegedly void marriage interfered with his right to inherit from his deceased father. The defendant widow of the deceased father filed a motion to dismiss, asserting that she and the deceased father had resided in Mississippi for over 30 years and asked the trial court to dismiss the petition for lack of personal and subject matter jurisdiction. The trial court found that jurisdiction over the matter was proper in Mississippi and dismissed the complaint for lack of subject matter jurisdiction. We vacate the order of dismissal and remand for preliminary factual findings necessary for effective appellate review of the trial court’s decision.

Shelby County Court of Appeals 07/28/14
Edna Lee Weaver v. Diversicare Leasing Corp. et al.
E2013-01560-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donald R. Elledge

Edna Lee Weaver (“plaintiff”) was employed as a bookkeeper for the Briarcliff Health Care Center, a nursing home facility in Oak Ridge. After plaintiff’s employment was terminated, she brought this action against her former employer alleging (1) common law retaliatory discharge; (2) violation of the Tennessee Public Protection Act, (“TPPA”), Tenn. Code Ann. § 50-1-304 (2008 & Supp. 2013); and (3) violation of the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-301 (2011). The trial court granted the employer summary judgment on the ground that plaintiff failed to show a causal link between the conduct alleged to be protected, i.e., speaking out against alleged harassment and discrimination against other Briarcliff employees, and her termination. The court further held that the employer established legitimate, non-discriminatory reasons for plaintiff’s termination, and that plaintiff failed to present any evidence tending to show that there were genuine issues of material fact as to whether these reasons were pretextual. We affirm.

Anderson County Court of Appeals 07/28/14
Darrell Trigg v. Little Six Corporation et al.
E2013-01929-COA-R9-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Thomas J. Wright

The issue in this wrongful termination action is the enforceability of an arbitration clause in an agreement between the plaintiff employee and his former employer. Plaintiff executed an employment agreement in 2007. Employer terminated plaintiff without cause in April 2012. He brought this action alleging common law retaliatory discharge and violations of the Tennessee Public Protection Act and the Tennessee Human Rights Act. Employer filed a motion to compel arbitration. Plaintiff argued that the arbitration clause is unenforceable because it is unconscionable due to the “excessive” and “prohibitive” costs of arbitration. The trial court found that the agreement had been freely negotiated and was neither a contract of adhesion nor unconscionable. We affirm the judgment of the trial court enforcing the agreement and ordering arbitration.

Hawkins County Court of Appeals 07/28/14
State of Tennessee v. Michael Anthony Skettini
E2013-02780-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David R. Duggan

The Defendant, Michael Anthony Skettini, appeals as of right from the Blount County Circuit Court’s revocation of his probation and order of confinement for one year. The Defendant contends that the trial court abused its discretion in revoking his probation based upon the “limited evidence” of driving under the influence (DUI) presented at the revocation hearing and that a “lesser period of split confinement . . . would have been more reasonable” under the circumstances. Following our review, we affirm the trial court’s revocation of the Defendant’s probationary sentences and order of confinement.

Blount County Court of Criminal Appeals 07/28/14
Mark L. Peck v. State of Tennessee, et al
E2013-01760-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert E. Cupp

The petitioner, Mark L. Peck, appeals the denial of his petition for writ of error coram nobis, arguing that newly discovered evidence of the unreliability of an FBI agent’s firearms testimony entitles him to a new trial. Following our review, we affirm the denial of the petition.

Sullivan County Court of Criminal Appeals 07/28/14
Barry Craig Taylor v. Sarah Ann McClintock
M2013-02293-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor Tom E. Gray

This appeal involves a Tennessee court’s jurisdiction to modify a parenting order entered by a court in another state. The parties were divorced in Florida, and the Florida court designated the mother as the primary residential parent of the parties’ only child. Soon thereafter, the father moved to Tennessee. Years later, after many parenting disputes, the Florida court entered an order granting the father “make-up” parenting time by allowing the child to live in Tennessee with the father for a defined period of time that exceeded six months. At the same time, the Florida court granted the mother permission to relocate to Alabama. After the child had lived with the father in Tennessee for over six months in accordance with the Florida order, the father filed a petition in the Tennessee trial court below, seeking to modify the Florida parenting plan to designate him as the primary residential parent. The trial court held that it did not have subject matter jurisdiction to modify the Florida parenting order under the Uniform Child Custody Jurisdiction and Enforcement Act.  The father now appeals. We reverse the Tennessee trial court’s holding that it lacked subject matter jurisdiction to adjudicate the father’s Tennessee custodypetition, and remand for further proceedings.

Sumner County Court of Appeals 07/25/14
Town of Crossville Housing Authority v. John A. Murphy, Et Al.
M2013-02576-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Andrew R. Tillman

The buyers of an apartment complex brought this action against the sellers for breach of contractand intentionalmisrepresentationafterdiscoveringthatseveralrepresentations made by the sellers in the transactional documents were false. The buyers challenge the propriety of the trial court’s grant of summary judgment to the defendants. After review, we conclude that the defendants are entitled to summary judgment on the plaintiff’s breach of contract claims, and that Paul Murphy and John Murphy are entitled to summary judgment on the plaintiff’s intentional misrepresentation claims. As to the remainder of the defendants, we conclude that summary judgment on the plaintiff’s intentional misrepresentation claims was improper because theydid not meet their initial burden of production on summaryjudgment. We affirm in part and reverse in part the trial court’s judgment and remand for further proceedings.

 

Fentress County Court of Appeals 07/25/14
Ronald Terry v. Tennessee Dept. of Corrections et al.
M2013-02206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

An inmate in the custody of the Tennessee Department of Correction filed this petition for common law writ of certiorari challenging his placement in involuntary administrative segregation.He contends his placement in administrative segregation is punitive,and violates his constitutional due process rights as well as Department rules. The respondents assert that his placement in administrative segregation was non-punitive because it was necessary for the safety of staff and other inmates; respondents also assert that a writ of certiorari is not the appropriate means to challenge a non-punitive action. Following a review of the record, the trial court dismissed the petition. Finding no error in the trial court’s determination that the inmate’s placement was non-punitive and that, as such, the common law writ of certiorari was not the proper means of challenging his status, we affirm.

Davidson County Court of Appeals 07/25/14
STATE OF TENNESSEE v. TIMOTHY HOWARD CUNNINGHAM
M2013-2844-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County Criminal Court Jury convicted the appellant, Timothy Howard Cunningham, of reckless endangerment by use of a deadly weapon, namely a motor vehicle. The trial court sentenced him to four years in the Tennessee Department of Correction.  On appeal, the appellant challenges the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.
 

Davidson County Court of Criminal Appeals 07/25/14
Jane Field v. The Ladies' Hermitage Association
M2013-02635-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Chancellor Carol McCoy

This is the third round in a battle between these parties over the terms of a deed requiring certain payments to the heirs of the grantor. The property at issue is the historic Tulip Grove Mansion near The Hermitage, in Nashville, Tennessee. The deed conveying Tulip Grove to the Ladies’ Hermitage Association required payments to the heirs of the grantor of one-third “of all gate receipts received by [the LHA] from visitors to Tulip Grove House[.]” In a prior appeal, we held that “the term ‘gate receipts’ in the deed includes the rent paid to LHA for use of the property for special events.” The parties now dispute whether the LHA can deduct expenses from the special event rental fees prior to calculating the heirs’ one-third share. The chancellor held that such a deduction is permissible. We hold that it is not. We therefore reverse and remand for further proceedings.

Davidson County Court of Appeals 07/24/14
In Re Adelyn B.
W2013-02374-COA-R3-JV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John W. Whitworth

This case arises out of the Mother’s request to relocate with the parties’ minor child. The trial court determined it was in the best interest of the child to remain in Tennessee with Father pursuant to Tennessee Code Annotated Section 36-6-108(c). We affirm the trial court’s best interest finding, and remand for entry of a permanent parenting plan naming Father the child’s primary residential parent and setting a parenting schedule taking into account Mother’s move.

Benton County Court of Appeals 07/24/14
Linda Laseter v. J. Martin Regan, Jr.
W2013-02105-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. Highers
Trial Court Judge: Judge Donna Fields

This appeal involves a defendant’s attempts to discover certain financial information from the plaintiff’s medical expert in order to facilitate an inquiry into potential bias. The trial court entered several orders requiring the expert witness to provide the requested financial information, which related to his income and compensation, but the expert witness repeatedly failed to comply with the trial court’s orders. The trial court also ruled that the defendant would be permitted to question the expert witness about certain financial information during cross-examination at trial, and the expert witness communicated to the trial judge that he would refuse to answer any such questions. The trial court eventually excluded the medical expert as a witness and allowed the plaintiff time to find a replacement expert. When the plaintiff failed to identify another expert witness within the time allowed, the trial court dismissed the complaint. The plaintiff appeals. We affirm.

Shelby County Court of Appeals 07/24/14
KENNETH DEWAYNE JOHNSON v. STATE OF TENNESSEE
M2013-02491-CCA-R3-PC
Authoring Judge: Judge Jerry L. Smith
Trial Court Judge: Judge Steve Dozier

Petitioner, Kenneth Dewayne Johnson, pled guilty to aggravated assault in Davidson County on November 17, 2011.  On June 10, 2013, Petitioner filed a pro se petition for post-conviction relief, alleging that the trial court lacked jurisdiction because the foreman of the grand jury that issued the indictment was ineligible to serve for being a convicted felon.  Petitioner also asserted that he received ineffective assistance of counsel and entered an unknowing and involuntary plea.  The post-conviction court dismissed the petition as untimely.  On August 16, 2013, Petitioner, with the assistance of counsel, filed a second petition for post-conviction relief, arguing that the statute of limitations should be tolled in his case because the ineligibility of the grand jury foreman was not made public knowledge until after the statute of limitations had expired and was, therefore, a “later-arising” ground for relief.  The post-conviction court dismissed the petition, finding that the ineligibility of the grand jury foreman did not divest the trial court of jurisdiction and that Petitioner was not denied effective assistance of counsel.  Petitioner appealed.  Upon a thorough review of the law and the facts in this case, we affirm the decision of the post-conviction court.
 

Davidson County Court of Criminal Appeals 07/24/14
Bryant Jennings v. City of Memphis
W2013-02570-COA-R3-CV
Authoring Judge: Presiding Judge Alan E. HIghers
Trial Court Judge: Judge Arnold B. Goldin

This case involves the eligibility of a Memphis police officer for automatic promotion to thirty-year Captain. The trial court granted summary judgment in favor of the officer. However, because the officer was a temporary employee prior to the cut-off date set forth in the automatic promotion provision, we find that he is not entitled to automatic promotion. We reverse the grant of summary judgment in favor of the officer and we grant summary judgment in favor of the City of Memphis. The case is remanded for further proceedings, as may be necessary, consistent with this opinion.

Shelby County Court of Appeals 07/24/14
MYRON L. JOHNSON v. STATE OF TENNESSEE
M2013-02314-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James G. Martin, III

The Appellant, Myron L. Johnson, appeals the trial court's summary dismissal of his petition for habeas corpus relief.  The judgment of the trial court is affirmed.
 

Hickman County Court of Criminal Appeals 07/24/14
Danny Lee Greene v. State of Tennessee
E2013-01583-CCA-R3-PC
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge R. Jerry Beck

The Petitioner, Danny Lee Greene, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his 2007 conviction for second degree murder and his twenty-three-year sentence as a violent offender. The Petitioner contends that the trial court erred by denying him relief because (1) juror bias existed and (2) he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 07/24/14