Court Opinions

Format: 10/15/2019
Format: 10/15/2019
Quincy Howze v. State of Tennessee
W2018-02046-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.

A Shelby County jury convicted the Petitioner, Quincy Howze, of aggravated robbery, and the trial court sentenced him as a Range II offender to serve twenty years at 100%. The Petitioner appealed his convictions and sentence to this court, and we affirmed the judgments. State v. Quincy Howze, No. W2014-02449-CCA-R3-CD, 2015 WL 9173701 (Tenn. Crim. App., at Jackson, Dec. 15, 2015), perm. app. denied (Tenn. May 6, 2016). The Petitioner filed a timely petition for post-conviction relief, which the post-conviction court denied after a hearing. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 10/14/19
Bradley Harlow v. Love's Travel Stops et al.
E2018-01905-SC-R3-WC
Authoring Judge: Justice Sharon Lee
Trial Court Judge: Judge Duane Slone

An employer appeals a trial court’s award of workers’ compensation benefits, arguing that the employee failed to rebut the presumption of correctness afforded to the authorized treating physician about causation and that the trial court should have capped any permanent partial disability benefits under Tennessee Code Annotated section 50 6 241(d)(1)(A). This appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law under Tennessee Supreme Court Rule 51. After careful review, we affirm the trial court’s judgment.

Jefferson County Workers Compensation Panel 10/14/19
Donna Jetter v. Piedmont Natural Gas Company, Inc. Et Al.
M2019-00206-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Kelvin D. Jones

This is a negligence action brought by an absentee homeowner against two public utilities to recover compensatory damages. The plaintiff’s unoccupied residence was damaged when frozen water pipes ruptured during the winter and after gas service to the property was terminated. The defendants, Piedmont Natural Gas, Inc. and Duke Energy One, Inc. (collectively, “Defendants”), filed a motion to dismiss pursuant to Tennessee Rules of Civil Procedure 12.02(1) and (3), arguing the court lacked original jurisdiction over the subject matter and that venue was improper because the Tennessee Public Utility Commission (“the Commission” or “the TPUC”) had exclusive and original jurisdiction over the claims at issue. The trial court granted the motion and dismissed the action in its entirety. This appeal followed. We hold that the Commission did not have original or exclusive subject matter jurisdiction over the claims at issue and that the trial court had subject matter jurisdiction over the claims at issue, and it was the proper venue. Therefore, the judgment of the trial court is vacated and this matter is remanded to the trial court with instructions to reinstate the amended complaint filed by the plaintiff, to afford Defendants thirty days to file a responsive pleading, and for further proceedings consistent with this decision.

Davidson County Court of Appeals 10/14/19
State of Tennessee v. Christopher A. Kemp
E2018-00536-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William K. Rogers

The Appellant, Christopher A. Kemp, appeals the trial court’s revocation of his probation, contending that his counsel was ineffective at the probation revocation hearing. Upon review, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 10/11/19
State of Tennessee v. Jonathan Addair
E2018-00799-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James F. Goodwin, Jr.

Following a bench trial, the trial court convicted the Defendant, Jonathan Addair, of child abuse and domestic assault. The trial court merged the domestic assault conviction into the child abuse conviction and sentenced the Defendant to serve three years and six months in confinement. On appeal the Defendant asserts the evidence is insufficient to support his conviction for child abuse, and the trial court’s sentence is excessive. After review, we affirm the trial court’s judgments.

Sullivan County Court of Criminal Appeals 10/11/19
State of Tennessee v. James Floyd Brewer, Jr.
M2018-00566-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

Following a jury trial, the Defendant, James Floyd Brewer, Jr., was convicted of two counts of possession of 0.5 grams or more of a Schedule II controlled substance (methamphetamine) with intent to sell or deliver and one count of misdemeanor possession of drug paraphernalia. The trial court merged the methamphetamine convictions and sentenced the Defendant to an effective twelve years’ incarceration. On appeal, the Defendant contends that the trial court erred in denying the Defendant’s motion to suppress evidence obtained from a warrantless search of the Defendant’s car. Because we conclude that the search was valid as a search incident to an arrest and an inventory search, the judgments of the trial court are affirmed.

Bedford County Court of Criminal Appeals 10/11/19
State of Tennessee v. Leonard Singer
M2018-01936-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge David M. Bragg

A Rutherford County Circuit Court jury convicted the Defendant-Appellant, Leonard Singer, of tampering with evidence, simple possession of cocaine, and possession of drug paraphernalia. See Tenn. Code Ann. §§ 39-16-503, 39-17-418, 39-17-425. On appeal, Singer argues: (1) he received ineffective assistance of counsel from his preliminary hearing through trial; (2) his confession to ingesting a marijuana joint was coerced; (3) his arrest was not supported by probable cause and the police did not have authority to search his person or his truck; (4) the State withheld exculpatory evidence; (5) his indictment was defective; (6) the police, his attorneys, the prosecutors, and the trial judge conspired against him by making materially false statements and representations and by concealing and fabricating government documents; and (7) the Tennessee Board of Probation and Parole violated Code section 40-35-207 and violated his due process rights. We affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 10/11/19
State of Tennessee v. Teros Anderson Sweeney, Alias
E2018-00685-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge:

The Defendant, Teros Anderson Sweeney, alias, was convicted of two counts of aggravated assault, two counts of assault, two counts of resisting arrest, and one count of criminal impersonation. The trial court merged various convictions and imposed an effective sentence of ten years’ imprisonment to be served consecutively to the Defendant’s sentence stemming from a prior federal conviction. On appeal, the Defendant challenges the sufficiency of the evidence related to his aggravated assault convictions, the length of his sentence, and the trial court’s imposition of partial consecutive sentences. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 10/11/19
Dontell Sawyer v. State of Tennessee
E2019-00187-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Jeffery Hill Wicks

On July 7, 2017, the Petitioner entered a guilty plea, pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), to possession with intent to sell a Schedule I controlled substance. In exchange for his plea, the Petitioner received a 10-year sentence to be served as a multiple offender in the Tennessee Department of Correction. The judgment of conviction shows that this 10-year sentence is to be served consecutively to one case from 2012 and two cases from 2013. Handwritten in the pre-trial jail credit section is, “NO J/C.” On October 9, 2018, the Petitioner filed a petition for a writ of habeas corpus, alleging that he did not receive 406 days of pre-trial jail credit. Based on the Petitioner’s failure to comply with the procedural requirements for habeas corpus relief and his failure to state a cognizable claim for relief, the State moved to dismiss the petition, and the habeas corpus court agreed. In this appeal, the Petitioner contends that the habeas corpus court erred in dismissing his petition for writ of habeas corpus. Following our review, we affirm.

Morgan County Court of Criminal Appeals 10/10/19
In Re Justine J. Et Al.
E2019-00306-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Douglas T. Jenkins

This termination of parental rights case involves two children. Father/Appellant appeals the trial court’s termination of his parental rights on the ground of abandonment by willful failure to support and willful failure to visit. Because Father did not receive sufficient notice of the grounds for termination of his parental rights, we vacate the trial court’s order and remand.

Hawkins County Court of Appeals 10/10/19
Harold Wayne Nichols v. State of Tennessee
E2018-00626-CCA-R3-PD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Don R. Ash

Petitioner, Harold Wayne Nichols, pled guilty to first degree murder in 1990. A jury imposed the death penalty. In June of 2016, Petitioner moved to reopen his postconviction petition on the basis that the Supreme Court’s decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015), announced a new rule of constitutional law requiring retroactive application. The post-conviction court granted the motion to reopen, but after Petitioner amended his petition and asserted additional claims, the postconviction court denied relief without a hearing. On appeal, Petitioner argues (1) that the sole aggravating circumstance supporting his death sentence is unconstitutionally vague under Johnson; (2) that a judge, rather than a jury, determined facts in imposing the death penalty in violation of Hurst v. Florida, __ U.S. __, 136 S. Ct. 616 (2016), a new rule of constitutional law requiring retroactive application; (3) that the State committed prosecutorial misconduct at Petitioner’s sentencing hearing, along with a related ineffective assistance of trial counsel claim; (4) that the post-conviction court erred in canceling the scheduled evidentiary hearing without notice and a fair opportunity to be heard; (5) that the post-conviction court erred in denying the parties’ proposed settlement agreement to vacate the death sentence and enter a judgment of life imprisonment; and (6) that Petitioner’s death sentence is invalid due to the cumulative effect of the asserted errors. Following our review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 10/10/19
James Mulloy, Et Al. v. Eugene G. Mulloy, Jr. Et Al.
M2017-01949-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Two brothers formed a limited liability company to own and lease a commercial property. When the tenant sought to expand, both brothers sought to find a suitable space for the tenant to lease. The younger of the two brothers found a property that would ideally suit the tenant’s needs, a fact that was communicated to his brother. The older brother purchased the property through a newly created limited liability company without his younger sibling’s involvement. The older brother’s new limited liability company then leased the new property to the tenant. The younger brother brought a derivative suit against his brother and the newly formed limited liability company, claiming usurpation of a corporate opportunity belonging to the limited liability company that the brothers had formed together and tortious interference with business relationships. The younger brother also claimed unjust enrichment. Following a trial, the chancery court found in favor of the older brother and his newly formed limited liability company and dismissed the complaint. After our review of the record, we affirm.

Davidson County Court of Appeals 10/10/19
In Re Estate of Philip Roseman, Et Al.
M2019-00218-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge David Randall Kennedy

This appeal originated from three related cases filed in the Probate Court for Davidson County. The issue on appeal relates to attorney’s fees and expenses. Finding no error, we affirm the decision of the trial court.

Davidson County Court of Appeals 10/10/19
In Re Omari T.
M2018-02227-COA-R3-JV
Authoring Judge: Chief Judge D. Michel Swiney
Trial Court Judge: Judge Timothy K. Barnes

This appeal results from a custody action. A Missouri court issued an initial custody decision providing Cherita L. (“Mother”) with primary custody of Omari T. (“the Child”). Both parents and the Child later moved out of that state. Both Mother and the Child relocated to Tennessee. The father, Otis T. (“Father”), resided in Tennessee for a time but more recently had been living and working in Germany. In response to a petition to domesticate the foreign decree and modify custody, the Juvenile Court for Montgomery County (“Juvenile Court”) subsequently entered in July 2017 an “agreed order” reflecting that the parties resided in Tennessee and approving an agreed parenting plan designating Father as the primary residential parent of the child. The agreed order was signed only by the Juvenile Court Judge and Father’s counsel. Mother’s signature was not included on the agreed order nor was a certificate of service included showing that the order was provided to Mother. Approximately a year later, Father filed a contempt petition when Mother refused to return the Child to Father’s custody. In response, Mother filed a motion to set aside the agreed order modifying custody, pursuant to Tennessee Rule of Civil Procedure 60.02(3), (4), and (5). The Juvenile Court denied Mother’s Rule 60.02 motion and determined that Mother had violated the Juvenile Court’s July 2017 order and held Mother in contempt. We hold that the Juvenile Court’s July 2017 order had no effective entry date pursuant to Tennessee Rule of Civil Procedure 58, and Mother, therefore, could not have been in contempt of that order. We affirm the Juvenile Court’s order transferring venue to Shelby County, and we vacate the July 2017 order and all other subsequent orders by the Juvenile Court concerning Father’s contempt petition.

Montgomery County Court of Appeals 10/10/19
Kenneth A. Weber, Et Al. v. Harold W. Kroeger, ET Al.
M2019-00406-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Anne C. Martin

Two adjoining property owners disputed their shared boundary line. The contractor who renovated the houses on each of the parcels owned both properties before selling them to the parties, and he erected a privacy fence where he thought the property line was located. A survey conducted years after the parties had purchased the properties placed the boundary line in a somewhat different location than the location of the privacy fence. When one of the property owners began dismantling the fence in an effort to utilize the property that the survey showed belonged to them, the neighboring owners obtained a temporary restraining order to maintain the status quo and filed a declaratory judgment complaint to determine the boundary line. The trial court entered a judgment declaring that the privacy fence was the boundary line and that the parties jointly owned the fence. On appeal, we affirm the trial court’s ruling declaring the location of the boundary line, but we reverse the ruling that the fence is jointly owned.

Davidson County Court of Appeals 10/10/19
Stephen Richard Mayes v. State of Tennessee
M2018-01459-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert L. Jones

The Petitioner, acting pro se, appeals from the denial of his petition for writ of habeas corpus relief. Upon our review, we affirm.

Wayne County Court of Criminal Appeals 10/10/19
State of Tennessee v. Joseph Marquis Jeffries
M2018-00625-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James G. Martin, III

A jury convicted the Defendant, Joseph Marquis Jeffries, of two counts of aggravated assault, two counts of reckless endangerment, domestic assault, interference with emergency communications, trafficking for a commercial sex act, and promotion of prostitution. The trial court merged various offenses and imposed an aggregate sentence of twenty-five years. The Defendant asserts that the trial court erred in not severing the sexual offenses from the assaultive offenses and that the trial court erred in allowing evidence of prior bad acts. We conclude that the offenses were properly joined and that there was no error in the admission of evidence, and we accordingly affirm the judgments.

Williamson County Court of Criminal Appeals 10/10/19
State of Tennessee v. Frank Deangelo Taylor
W2019-00328-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Chris Craft

Defendant, Frank D. Taylor, appeals from the dismissal of his motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the trial court’s dismissal of the motion.

Shelby County Court of Criminal Appeals 10/09/19
Kondaur Capital Corporation v. Keith T. Finley
W2019-00143-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Gina C. Higgins

The mortgage holder on property in Cordova, Tennessee initiated foreclosure proceedings against the mortgagor in general sessions court and obtained a judgment. The mortgagor appealed to circuit court, the mortgage holder moved for summary judgment, and the circuit court ultimately granted summary judgment in favor of the mortgage holder. The circuit court denied the mortgagor’s motion for relief pursuant to Tenn. R. Civ. P. 60.02, and this Court dismissed the mortgagor’s appeal.

In the case at issue in the present appeal, the mortgagor filed another motion for relief pursuant to Tenn. R. Civ. P. 60.02 in the circuit court, and the circuit court again denied the motion. We conclude that the mortgagor has failed to comply with the Tennessee Rules of Appellate Procedure and has waived all issues stated in his brief. Consequently, we dismiss the appeal.

Shelby County Court of Appeals 10/09/19
Gabriel C. Torres v. State of Tennessee
M2018-01629-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Gabriel C. Torres, appeals from the Robertson County Circuit Court’s denial of his petition for post-conviction relief from his rape of a child conviction, for which he is serving a twenty-five-year sentence. On appeal, he contends that the
post-conviction court erred in denying his claim that trial counsel provided ineffective relative to the communication of guilty plea offers. We affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 10/09/19
In Re Brendan G.
M2019-00081-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Larry B. Stanley

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the trial court found that clear and convincing evidence existed to support the statutory grounds of (1) failure to establish or exercise paternity; (2) severe child abuse; and (3) sentence of imprisonment for severe child abuse. The trial court also found that termination was in the best interest of the child. We affirm the trial court.

Warren County Court of Appeals 10/09/19
State of Tennessee v. Yodelkis Contreras
M2017-02210-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge F. Lee Russell

The defendant, Yodelkis Contreras, appeals from the revocation of the probationary sentence imposed for his 2005 Circuit Court guilty-pleaded conviction of aggravated robbery, claiming that, because the original sentence of probation was illegal, the trial court lacked jurisdiction to revoke his probation and that the delay between the issuance of the original probation violation warrant and the probation revocation hearing violated his constitutional right to a speedy disposition of the violation. We conclude that although the originally-imposed sentence of 10 years’ probation was illegal, see T.C.A. § 40-35-303(a), the defendant’s current sentence of 10 years’ confinement is not. Thus, regardless OF whether the trial court possessed jurisdiction to revoke the defendant’s probation due to the sentencing illegality, the trial court retained jurisdiction to correct the illegal sentence and impose a sentence of 10 years’ confinement. Accordingly, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 10/09/19
Denita McMahan v. City of Cleveland, Tennessee
E2018-01719-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge J. Michael Sharp

In this action brought under the Governmental Tort Liability Act, the plaintiff sought damages from the City of Cleveland for injuries received when she fell after tripping on a raised, cracked and uneven section of a public sidewalk. In pertinent part, the plaintiff alleged that the city’s immunity under the Act should be removed based on constructive notice because the city created the dangerous condition by planting trees along the sidewalk in the 1990s and roots from those trees caused the unsafe condition. Alternatively, the plaintiff asserted that immunity should be removed under the common occurrence theory of constructive notice because the tree roots caused numerous and similar defects in other sections of the city’s sidewalks. Following a bench trial, the trial court found that the city did not have actual or constructive notice of the alleged defect in the sidewalk and held that the city was immune from liability under Tennessee Code Annotated § 29-20-203(b). This appeal followed. Because the evidence does not preponderate against the trial judge’s finding that the plaintiff failed to prove that the city had actual or constructive notice of the alleged defect in the sidewalk where she tripped and fell, we hold that immunity under the GTLA was not removed and affirm the judgment of the trial court.

Bradley County Court of Appeals 10/09/19
State of Tennessee v. Curtis Logan Lawson - concurring in part, dissenting in part
E2018-01566-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge:

For the reasons stated in State v. Welch, No. E2018-00240-CCA-R3-CD, 2019 WL 323826, at *5 (Tenn. Crim. App. Jan. 23, 2019)(J. McMullen, dissenting), appeal granted (May 17, 2019), I dissent from Part I of the majority conclusion in this case. In all other respects, I concur.

Knox County Court of Criminal Appeals 10/08/19
State of Tennessee v. Curtis Logan Lawson
E2018-01566-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Curtis Logan Lawson, appeals from his Knox County convictions for burglary, theft of merchandise, and criminal trespass. Defendant argues that his burglary conviction should be dismissed because the burglary statute, Tennessee Code Annotated section 39-14-402(a)(3), does not apply to buildings that are open to the public. Defendant also argues that the trial court erred in failing to instruct the jury on principles of statutory construction and on the defense of ignorance or mistake of fact, that the evidence is insufficient to sustain his conviction for burglary, and that the trial court erred in denying his request for a community corrections sentence. Based upon our review of the record, briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 10/08/19