Court Opinions

Format: 06/01/2020
Format: 06/01/2020
Emerachem Power, LLC, ET AL. v. David Gerregano
E2019-00292-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John F. Weaver

This appeal was filed by the plaintiffs pursuant to the provisions of Tennessee Code Annotated section 67-1-1801 to challenge assessments rendered against them by the Commissioner of Revenue for the State of Tennessee. The dispute involves the plaintiffs’ challenge to Tennessee’s assessments of excise tax for the period 2010 through 2012. After cross motions for summary judgment were filed, the trial court found in favor of the Commissioner. The plaintiffs appeal. We affirm.

Knox County Court of Appeals 06/01/20
David Dykes v. Victor Okorie et al.
M2019-01332-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Barry R. Tidwell

Pro se appellants appeal from the trial court’s judgment in favor of their former landlord. We affirm the trial court.

Rutherford County Court of Appeals 05/29/20
JUSTIN RICE v. BELMONT UNIVERSITY
M2018-01092-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

A private university dismissed a graduate student for poor academic performance. The student sued the university for breach of contract, claiming the university failed to follow its own procedures in considering his grade appeal and other post-dismissal requests. The university moved to dismiss for failure to state a claim upon which relief can be granted, and the trial court dismissed the complaint with prejudice. Because the complaint adequately alleges a claim for breach of contract, we reverse.

Davidson County Court of Appeals 05/29/20
Jermaine Davis v. State of Tennessee
W2019-00743-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Jennifer Johnson Mitchell

Petitioner, Jermaine Davis, claims that he received ineffective assistance of counsel. Following a hearing, the post-conviction court denied his petition for post-conviction relief, finding that Petitioner failed to prove deficient performance and prejudice. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 05/29/20
Shawn Gray, Individually, and as Administrator of the Estate of Angela G. Gray, deceased v. Jeremy G. Baird et al.
M2019-01056-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Barry R. Tidwell

This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

Rutherford County Court of Appeals 05/29/20
Araceli Cordova Ex Rel. Alfredo C. et al. v. Nashville Ready Mix, Inc. et al.
M2018-02002-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Larry J. Wallace

This wrongful-death action arises out of the death of a Lemay Concrete employee who was struck and killed by a third party’s cement-mixer truck while acting in the course and scope of his employment. The issues in this appeal are post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of postsettlement discretionary costs against the carrier. The employee’s family instituted this action after agreeing to pay their first attorney 33% of the gross recovery or “a reasonable attorney’s fee” if they discharged him before recovering. While the action was pending, the insurance carrier paid workers’ compensation benefits to the family and, after declining a settlement offer of $400,000, the plaintiffs discharged their attorney. The plaintiffs then retained substitute counsel. Months later, the wrongful-death claim was settled for $1,350,000. The plaintiffs then sought to void their first attorney’s fee agreement and requested the trial court deduct a portion of their substitute counsel’s fees from the carrier’s subrogation lien. The trial court referred all issues to a special master. The special master found the fee agreement was valid and recommended a fee of $133,333—or 33% of $400,000, the amount of the last “firm offer” secured during the first attorney’s representation. The special master’s report contained no findings and identified no factors relied upon in determining that $133,333 was a “reasonable fee,” other than finding the amount would be one-third of the last “firm offer” obtained by the first attorney. The special master also found the carrier’s own counsel protected its subrogation lien and, thus, recommended that the carrier not be liable for any portion of the plaintiffs’ attorneys’ fees. The trial court adopted verbatim the special master’s findings and recommendations. Additionally, the court assessed post-settlement discretionary costs against the carrier in lieu of a deduction for plaintiffs’ attorneys’ fees. This appeal followed. We have determined that the fee awarded to the plaintiffs’ first attorney was not based on the relevant legal principles or applicable facts because the trial court’s ruling was based entirely on the special master’s recommendation—which addressed only one of the guidelines in Tennessee Rule of Professional Conduct 1.5(a) for determining what a reasonable fee is. Therefore, we vacate the fee awarded to the plaintiffs’ first attorney and remand this issue to the trial court to award “a reasonable fee” that is based on the relevant facts and factors. We also reverse the trial court’s ruling that the workers’ compensation carrier was not liable for any portion of the plaintiffs’ attorneys’ fees and remand this issue for apportionment of the fees incurred by the plaintiffs’ attorneys. Accordingly, we also reverse the assessment of discretionary costs against the workers’ compensation carrier and remand this issue for reconsideration.

Cheatham County Court of Appeals 05/29/20
Deaudric Halmon v. Lane College
W2019-01224-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This case concerns alleged hazing against a student perpetrated by a college fraternity. When suit was brought by the hazed student against the college, the college sought summary judgment regarding the claims asserted against it. Summary judgment was thereafter granted to the college, and the student appealed to this Court. For the reasons that follow, we reverse in part and affirm in part.

Madison County Court of Appeals 05/29/20
Rodolfo Guerra-Rosales v. State of Tennessee
M2019-01375-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Royce Taylor

The Petitioner, Rodolfo Guerra-Rosales, pleaded guilty in General Sessions Court to misdemeanor drug possession, and the court imposed a probation sentence of eleven months and twenty-nine days. The Petitioner timely filed a post-conviction petition in circuit court, alleging that his guilty plea in general sessions court was involuntary based upon the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition, concluding that the claim was not cognizable and that the court lacked jurisdiction to hear the petition. On appeal, the Petitioner asserts, and the State concedes, that the post-conviction court had jurisdiction to consider the petition and that his petition stated a colorable claim. After review, we reverse the post-conviction court’s dismissal and remand for an evidentiary hearing on the Petitioner’s claim.

Rutherford County Court of Criminal Appeals 05/29/20
State of Tennessee v. Daniel T. Ginther
M2019-00112-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Michael W. Binkley

The Defendant, Daniel L. Ginther, appeals as of right from the Williamson County Circuit Court’s revocation of his probation and reinstatement of the remainder of his eight-year sentence for passing worthless checks in the amount of $1,000 or more but less than $10,000. On appeal, the Defendant asserts that the trial court abused its discretion by ordering the Defendant to serve the remainder of his sentence in confinement in spite of the Defendant’s “serious medical issues.” Following our review, we affirm.

Williamson County Court of Criminal Appeals 05/29/20
Linda Sue Brown (Hassler) v. Ridley David Hassler
E2019-01801-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Larry Michael Warner

This appeal concerns the responsibilities of the parties, pursuant to the terms of their marital dissolution agreement, following their divorce. Appellant’s ex-wife filed a petition for contempt, contending that Appellant had failed to refinance a debt allegedly owed on a condominium he was awarded in the divorce. Although the trial court did not find Appellant to be in contempt, it did order Appellant to refinance the loan in question and remove his ex-wife’s name from it. We reverse.

Cumberland County Court of Appeals 05/29/20
Cynthia Anne Knop v. Aaron Charles Knop
E2019-01035-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Douglas T. Jenkins

This appeal concerns a post-divorce motion to show cause filed by wife against husband for unpaid child support, extracurricular expenses and medical expenses for the children and a failure to divide certain financial accounts of the parties. Additionally, husband sought credit for premiums he had paid post-divorce toward a life insurance policy awarded to wife as part of the division of marital property. Given the nature of the relief being sought, the parties entered into an agreed order referring the matter to a special master. A hearing was held before the special master who subsequently filed his findings and recommendations with the trial court. Husband filed objections in the trial court to the special master’s findings. Following a hearing on husband’s objections, the trial court approved the special master’s findings and recommendations in their entirety and adopted them as the judgment of the court. The husband appeals. We affirm.

Greene County Court of Appeals 05/29/20
Jonquarius Cunningham v. State of Tennessee
W2019-01292-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Kyle C. Atkins

Petitioner, Jonquarius Cunningham, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief. In 2015, Petitioner was convicted of one count of attempted second degree murder, one count of reckless endangerment, two counts of employing a firearm during the attempt to commit a dangerous felony, and two counts of aggravated assault, for which he received an effective sentence of twenty-three years’ incarceration. This court affirmed the judgments of conviction on direct appeal. State v. Jonquarius Cunningham, No. W2016-00065-CCA-R3-CD, 2017 WL 3616667, at *1 (Tenn. Crim. App. Aug. 23, 2017), no perm. app. filed. Thereafter, Petitioner instituted a collateral proceeding seeking post-conviction relief. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner contends that he was denied the effective assistance of counsel based on trial counsel’s failure to introduce at trial the deposition transcript of one of the victims. He further contends that his judgment of conviction in count five is void based on inconsistent verdicts. Following a thorough review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 05/28/20
State of Tennessee v. Calvin Cole
W2019-00465-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn Peeples

The Defendant, Calvin Cole, appeals the denial of his Rule 36.1 motion to correct an illegal sentence. Following our review, we affirm the judgment of the trial court summarily denying the petition.

Crockett County Court of Criminal Appeals 05/28/20
State of Tennessee v. Joseph Woodruff
W2018-02083-CCA-R9-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Kyle Atkins

We granted this interlocutory appeal to review the trial court’s suppression of an incriminating statement the Defendant, Joseph Woodruff, made to police. The Defendant was arrested in May 2015 related to an aggravated robbery and an attorney was appointed to represent him. The Defendant later asked to speak with police and, following a waiver of his Miranda rights and without his attorney present, confessed to the robbery. Following his indictment, the Defendant sought to suppress his statement to police and, after a hearing, the trial court granted the motion to suppress. The State filed a motion for an interlocutory appeal challenging the suppression of the statement, which the trial court granted, and this court granted the State’s application for a Rule 9 appeal. After review, we reverse the trial court’s judgment.

Madison County Court of Criminal Appeals 05/28/20
Javier Carrasco v. North Surgery Center, LP, et al.
W2019-00558-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James F. Russell

This is a healthcare liability action resulting from injuries sustained by a guidewire left in the plaintiff’s neck following a procedure. The defendants moved to dismiss the action for failure to comply with notice requirements in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court dismissed the action without prejudice, and the plaintiff appealed. We affirm.

Shelby County Court of Appeals 05/28/20
Anthony Todd Ghormley v. State of Tennessee
M2019-01233-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemyer
Trial Court Judge: Judge John D. Wootten, Jr.

In 2009, a Blount County jury convicted the Petitioner, Anthony Todd Ghormley, of two counts of attempted first degree murder, one count of especially aggravated kidnapping, two counts of especially aggravated burglary, and three counts of aggravated assault. The trial court sentenced the Petitioner to an effective sentence of 105 years. See State v. Anthony Todd Ghormley, No. E2010-00634-CCA-R3-CD, 2012 WL 171940, at *1 (Tenn. Crim. App., at Knoxville, Jan. 20, 2012), no perm. app. filed. On March 13, 2019, the Petitioner filed a petition for writ of habeas corpus, alleging that his indictment was void because it failed to include the requisite level of mens rea for the charged offenses and that the affidavit of complaint had been improperly amended. The habeas corpus court summarily dismissed the petition because the Petitioner failed to state a colorable claim. On appeal, the Petitioner maintains his claims and argues that the trial court improperly dismissed his petition. After review, we affirm the habeas corpus court’s judgment.

Trousdale County Court of Criminal Appeals 05/28/20
State of Tennessee v. Carlos Williamson
M2019-00898-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Carlos Williamson, pleaded guilty to aggravated burglary, aggravated assault, and evading arrest and agreed to allow the trial court to determine the length and manner of service of his sentence. The trial court subsequently ordered the Defendant to serve concurrent twelve-year, three-year, and four-year sentences, respectively, in confinement. On appeal, the Defendant contends that the trial court erred when it applied two enhancement factors to his sentence. After review, we affirm the trial court’s judgments.

Davidson County Court of Criminal Appeals 05/28/20
Luis Jorge Diaz v. State of Tennessee
M2019-01000-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

The Petitioner, Luis Jorge Diaz, was convicted of six counts of aggravated sexual battery and subsequently sentenced to twenty years in confinement. See Tenn. Code Ann. § 39-13-504. Following an unsuccessful direct appeal, the Petitioner filed a petition seeking post-conviction relief, alleging, among other things, that trial counsel was ineffective because of his failure to communicate multiple plea offers from the State to the Petitioner. The post-conviction court denied the petition, and the Petitioner filed a timely appeal. Following our review, we affirm.

Davidson County Court of Criminal Appeals 05/28/20
Cynthia E. Yebuah et al. v. Center for Urological Treatment, PLC
M2018-01652-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Following surgery to remove a cancerous kidney, part of a gelport device was left inside the patient. The patient and her husband brought this health care liability action against multiple defendants, including the surgeon who removed the kidney and the radiologist who initially failed to detect the foreign object. The defendants admitted fault, so the trial focused solely on causation and damages. The jury returned a verdict in favor of the plaintiffs and awarded $4 million in noneconomic damages to the patient for pain and suffering and loss of enjoyment of life and $500,000 in noneconomic damages to her husband for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages to the total damages award and entered a judgment of $750,000 in favor of both plaintiffs. In response to the plaintiffs’ motion to alter or amend, the trial court issued a revised judgment of $750,000 in favor of the patient and $500,000 in favor of the husband. But the court refused to address the plaintiffs’ arguments premised on the constitutionality of the statutory cap, ruling that the issue had been waived. The court also denied the defendant’s motion for a new trial or for a remittitur. Upon review, we conclude that the trial court erred in refusing to consider the plaintiffs’ constitutional issue. But because we also conclude that the statutory cap on noneconomic damages is constitutional and was applied properly and that the defendant is not entitled to a new trial or a remittitur, we affirm.

Davidson County Court of Appeals 05/28/20
Richard Egan v. Rachael Marie Bailey Egan
M2018-01858-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael W. Binkley

In this appeal from a final decree of divorce, the husband contends the trial court abused its discretion in awarding spousal support. He challenges the type, amount, and duration of the alimony awarded. Discerning no abuse of discretion, we affirm.

Williamson County Court of Appeals 05/28/20
State of Tennessee v. Beth Anne Manis
E2018-02098-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge John F. Duggar

The Defendant, Beth Anne Manis, was convicted by a jury of one count of voluntary manslaughter, a Class C Felony. See Tenn. Code Ann. § 39-13-211(a). Thereafter, the trial court denied the Defendant’s request for judicial diversion and ordered the Defendant to serve five years, six months in confinement as a Range I, standard offender. On appeal, the Defendant contends that (1) the evidence was insufficient to negate her claim of self-defense; (2) the trial court erred by declining to give a special jury instruction on self-defense; (3) the Defendant’s constitutional rights were violated by the absence of a jury verdict form regarding self-defense; and (4) the trial court erred by denying judicial diversion. Upon a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Hawkins County Court of Criminal Appeals 05/27/20
State of Tennessee v. Buddy Wayne Mooney
W2019-01309-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald H. Allen

The Defendant, Buddy Wayne Mooney, was convicted by a Henderson County Circuit Court jury of possession with intent to sell 0.5 gram or more of methamphetamine, a Class B felony; possession with intent to deliver 0.5 gram or more of methamphetamine, a Class B felony; possession of drug paraphernalia, a Class A misdemeanor; and unlawful possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony. See T.C.A. §§ 39-17-417(a) (2018) (subsequently amended) (possession of methamphetamine), 39-17-1324 (2018) (subsequently amended) (possession of a firearm), 39-17-425 (2018) (possession of drug paraphernalia). The trial court merged the two possession of methamphetamine convictions and imposed a ten-year probationary sentence, and it imposed sentences of eleven months and twenty-nine days in jail for the possession of drug paraphernalia conviction and three years in the Department of Correction for the weapon possession conviction. The court ordered the sentence for possession of methamphetamine to be served consecutively to the sentence for possession of drug paraphernalia. The court imposed the sentence for firearm possession consecutively to the sentence for methamphetamine possession but concurrently to the sentence for possession of drug paraphernalia. The effective sentence was thirteen years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his felony convictions and (2) that the trial court erred in admitting evidence that the gun found inside the Defendant’s car had been stolen. We affirm the judgments of the trial court.

Henderson County Court of Criminal Appeals 05/27/20
Adam Paul Jasinskis et al. v. Don R. Cameron, III, et al.
M2019-01417-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor James G. Martin, III

Homeowners sued their builder, asserting claims for violations of the Tennessee Consumer Protection Act of 1977 (“TCPA”), among others. The builder counterclaimed for attorney’s fees, contending that the TCPA claims were frivolous, without legal or factual merit, or brought for the purpose of harassment. The trial court denied the builder’s motions to dismiss and for summary judgment, and the builder moved to amend its counterclaim to add a claim for attorney’s fees based on the parties’ purchase and sale agreement. The homeowners nonsuited their claims against the builder before the trial court heard oral argument on the motion to amend, and the trial court subsequently denied the builder’s motion to amend. The homeowners then moved to dismiss the builder’s counterclaim, and the trial court granted the motion. The builder appeals the trial court’s denial of its motions to dismiss and for summary judgment, the denial of its motion to alter or amend, and the dismissal of its counterclaim. We dismiss the appeal of the denial of the builder’s motions to dismiss and for summary judgment, and we affirm the trial court’s denial of the builder’s motion to amend and its dismissal of the builder’s counterclaim for attorney’s fees.

Williamson County Court of Appeals 05/27/20
KELLY LOVE MCGUFFEY v. BELMONT WEEKDAY SCHOOL ET AL.
M2019-01413-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones

A preschool teacher terminated from her employment at a church preschool brought multiple claims against the church, the school, the director of the school, and a church committee. After the teacher presented her evidence to a jury, the court granted motions for a directed verdict as to all defendants except the church and on all claims except common law retaliatory discharge and promissory estoppel. The teacher claimed that the director terminated her employment in retaliation for her complaints about safety issues at the school and that she relied on a promise by the chair of a church committee that a probation report would be removed from her personnel file. The jury found in favor of the church on both counts, and the trial court entered judgment in favor of the church. We affirm the judgment of the trial court in all respects.

Davidson County Court of Appeals 05/27/20
Martha Gilmore, Executrix of the Estate of Nannie Susan Carpenter v. NOL, LLC a/k/a Premier Radiology
M2019-01308-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kelvin D. Jones
A physical therapy patient standing just outside a building was struck by the building’s
automatic door, causing her to fall and suffer broken bones. The patient sued the owner
of the building, asserting negligence and premises liability. The owner asserted the
affirmative defense of comparative fault. The jury returned verdicts finding both parties
negligent and assigned more fault to the patient than to the building owner, thus barring
the patient from any recovery. The patient moved for a new trial, arguing that the jury’s
verdict finding her to be at fault was contrary to the weight of the evidence. The trial
court denied her motion, and the patient appealed. We conclude that the trial judge did
not err in its role as the thirteenth juror, but we vacate the court’s judgment finding the
patient comparatively at fault because no material evidence was introduced at trial to
support this aspect of the jury’s verdict.
Davidson County Court of Appeals 05/27/20