Court Opinions

Format: 09/01/2014
Format: 09/01/2014
State of Tennessee v. Dewoyne Gwynn
W2012-01865-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge John T. Fowlkes Jr.

Defendant, Dewoyne Gwynn, and two co-defendants, Ms. Chronda Walker, and Mr. Markhayle Jackson, were charged in a six-count indictment with (1) premeditated first degree murder of Kelvin Cooper; (2) felony murder of Kelvin Cooper during the perpetration of kidnapping; (3) felony murder of Kelvin Cooper during the perpetration of robbery; (4) especially aggravated kidnapping of Kelvin Cooper by use of a deadly weapon; (5) especially aggravated kidnapping of Kelvin Cooper wherein the victim suffered serious bodily injury; and (6) especially aggravated robbery of Kelvin Cooper. Defendant was tried by himself in a jury trial. The jury acquitted Defendant of all three counts of first degree murder and of especially aggravated robbery. On each of the two remaining counts, the jury convicted Defendant of the lesser included offense of facilitation of especially aggravated kidnapping. At sentencing the trial court merged the two convictions and sentenced Defendant to serve twelve years’ incarceration. Defendant raises three issues on appeal; (1) the evidence was insufficient to support the conviction of facilitation of especially aggravated kidnapping; (2) the trial court failed to properly charge the jury; and (3) the trial court erred in sentencing Defendant. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/29/14
Andrew Spencer v. Norfolk Southern Railway Company
E2012-01204-SC-R11-CV
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The plaintiff, who was injured while pulling a switch for his employer, Norfolk Southern Railway, filed suit for negligence under the Federal Employers’ Liability Act. The jury returned a verdict in favor of the defendant railroad.  The Court of Appeals, ruling that the trial court had provided an erroneous jury instruction, reversed the jury verdict and granted the plaintiff a new trial. Because we find that the instruction qualifies as “substantially accurate” in the context of the entire charge, we reverse the judgment of the Court of Appeals and reinstate the verdict of the jury.

Hamilton County Supreme Court 08/29/14
Everette Ivey v. CRS Exteriors
E2014-01518-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Deborah C. Stevens

The appellant, Everette Ivey (“Plaintiff”), appeals from an order of the trial court which granted the motion for summary judgment filed by the appellee, CRS Exteriors (“Defendant”), entered judgment in favor of Defendant on its counterclaim and dismissed Plaintiff’s claim for relief in the original complaint. The order held in abeyance “[t]he remaining issues with regard to the damages due [Defendant], along with the issue of attorneys’ fees recoverable by [Defendant] under the terms of the contract” at issue in the proceedings below. Because it is clear that the order appealed from does not resolve all issues raised in the proceedings below, this appeal is dismissed for lack of jurisdiction.

Knox County Court of Appeals 08/29/14
In Re Asher S.C.
E2013-01830-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex Henry Ogle

This is a termination of parental rights case concerning A.S.C. (“the Child”), the son of A.G.S. (“Mother”) and C.D.T. (“Father”). Mother and Father were never married. Two years after the Child was born, Mother, as the sole plaintiff, filed a petition to terminate Father’s parental rights based on his alleged abandonment of the Child. After Mother and C.R.S. (“Stepfather”) were subsequently married, Mother filed a motion to join Stepfather and an amended petition to terminate Father’s rights and allow Stepfather to adopt the Child. Father objected and filed a counterclaim in which he requested that he be designated as the alternate residential parent and granted traditional visitation rights. After a bench trial, the court terminated Father’s rights based on its finding, said to be made by clear and convincing evidence, that multiple forms of abandonment exist. The court further found, also by clear and convincing evidence, that termination was in the best interest of the Child. Father appeals. He challenges the four-month period of time used to establish abandonment by failure to visit or support the Child; the sufficiency of the evidence of grounds for termination; and the trial court’s best-interest determination. We conclude that the trial court erred in its calculation of the four-month period for consideration of abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i)(2010). As a result, we vacate the trial court’s finding of abandonment by failure to provide child support as a ground for termination. In all other respects, the judgment is affirmed.

Sevier County Court of Appeals 08/29/14
Justin Michael Nunnery v. State of Tennessee
M2013-01841-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David Earl Durham

Petitioner, Justin Michael Nunnery, appeals the dismissal of his pro se petition for post-conviction relief.  The trial court summarily dismissed the petition on the basis that it failed to state a colorable claim.  On appeal, Petitioner argues that the trial court erred in dismissing his petition without holding an evidentiary hearing.  The State concedes that the trial court erred in summarily dismissing the petition because if Petitioner’s claims are true, they would entitle him to post-conviction relief. Following a review of the record, we agree and accordingly reverse the order of dismissal and remand this case to the post-conviction court for an evidentiary hearing pursuant to all provisions of Tenn. Code Ann.  § 40-30-107 and Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3).  Furthermore, the trial judge is recused from further proceedings in this case.

Trousdale County Court of Criminal Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton - Dissent
E2013-01985-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jeffrey M. Atherton

I cannot concur in the majority’s treatment of the marital residential property as joint property. The majority concludes that it was, in the language of the parties’ prenuptial agreement, “Co-Owned Property.” The trial court held that a finding of “Co-Owned Property” would be “inconsistent with the intent and conduct of the parties, not compelled by the pre-marital agreement.” The court went on to say that such a finding “would result in an unequivocally inequitable windfall.” Hence, in my judgment, the issue for us is whether the evidence preponderates against the trial court’s findings on this subject.

Hamilton County Court of Appeals 08/29/14
Carolyn M. Heaton v. Jason Barrett Heaton
E2013-01985-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jeffrey M. Atherton

This case focuses on whether the trial court properly enforced and interpreted the parties’ prenuptial agreement when equitably dividing their assets incident to a divorce and whether the trial court properly set child support pursuant to the Child Support Guidelines. The plaintiff filed a complaint for divorce on May 30, 2012. The parties proceeded to trial in May 2013 on the issues of property division, child support, and attorney’s fees. An agreement was reached concerning a co-parenting schedule for their daughter. The court found that the parties’ prenuptial agreement was enforceable but that it did not require that the parties’ jointly owned marital residence be divided equally. The trial court did, however, divide the parties’ jointly owned personalty equally. In making findings with regard to the parties’ respective annual income amounts, the court set child support accordingly. The trial court also declined to award attorney’s fees to either party. Husband timely appealed. We vacate the trial court’s rulings regarding division of the real property, the award of child support, and attorney’s fees, and we remand this case to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

Hamilton County Court of Appeals 08/29/14
Robert Faulkner v. State of Tennessee
W2012-00612-CCA-R3-PD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Otis Higgs Jr.

The Petitioner, Robert Faulkner, appeals the denial of his petition for post-conviction relief from his conviction of first degree premeditated murder and resulting sentence of death. On appeal, the Petitioner contends that (1) the jury foreperson demonstrated bias and violated the Petitioner’s right to a fair and impartial jury; (2) he is intellectually disabled and, thus, ineligible for the death penalty; (3) he received the ineffective assistance of counsel during the guilt and penalty phases of trial; (4) the prosecution failed to disclose exculpatory evidence; (5) the prosecution presented false and misleading testimony; (6) the trial court demonstrated bias; (7) the “acquittal-first instruction” violated his due process rights; (8) Tennessee’s death penalty scheme is unconstitutional; and (9) cumulative error warrants a new trial. We conclude that due to the jury foreperson’s false statements about past domestic violence, the Petitioner was denied his constitutional right to a fair and impartial jury. Accordingly, we reverse the judgment of the post-conviction court, vacate the Petitioner’s conviction and death sentence, and remand the case to the trial court for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
State of Tennessee v. James Chesteen
W2012-01998-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge W. Mark Ward

A Shelby County Criminal Court Jury convicted the appellant, James Chesteen, of rape of a child, and the trial court imposed a sentence of twenty-five years in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence supporting his conviction and the trial court’s decision to admit a photograph of the victim taken by a nurse practitioner at the Our Kids Center. Upon review, we conclude that the evidence is sufficient but that the trial court’s admission of the photograph was reversible error. Accordingly, the appellant’s conviction and sentence are reversed, and the case is remanded for a new trial.

Shelby County Court of Criminal Appeals 08/29/14
In Re Hayden L.E.B.
E2013-01880-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Tim Irwin

Rebecca H. and Christopher H. (“Petitioners”) filed a petition seeking to terminate the parental rights of Kayla H. (“Mother”) and Aaron B. (“Father”) to the minor child Hayden L.E.B. (“the Child”). After a trial the Juvenile Court for Knox County 1 (“the Juvenile Court”) terminated Father’s parental rights to the Child after finding clear and convincing evidence of grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(iv) for abandonment by willful failure to pay support and abandonment by wanton disregard and clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. Father appeals the termination of his parental rights to this Court. We find and hold that the evidence does not preponderate against the Trial Court’s findings made by clear and convincing evidence, and we affirm.

Knox County Court of Appeals 08/29/14
Frank Taylor v. State of Tennessee
W2012-01993-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James M. Lammey

The petitioner, Frank Taylor, was convicted of one count of first degree felony murder, a Class A felony, and criminal attempt: especially aggravated robbery, a Class B felony. He appeals the denial of his petition for post-conviction relief. On appeal, the petitioner contends that he received ineffective assistance of counsel when: (1) trial counsel failed to investigate and pursue as a defense the petitioner’s absence from his juvenile detention hearing, his lack of representation at the hearing, and the fact that he did not receive advice regarding the ability to appeal the detention order; (2) trial counsel failed to pursue the denial of a meaningful transfer hearing; and (3) trial counsel failed to challenge the probable cause of the petitioner’s arrest warrant. After a review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/28/14
Charles Lane v. Bruce Westbrook, Warden
E2014-00356-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Buddy D. Perry

The petitioner, Charles Lane, filed a petition for habeas corpus relief challenging his Sevier County convictions of first degree murder and aggravated sexual battery. Petitioner seeks relief alleging he was not warned of his Miranda rights before giving a statement, and that he was suffering from mental deficiencies at the time of his guilty plea. Because the petition fails to present a cognizable claim for habeas corpus relief, we affirm the habeas corpus court’s summary dismissal of the petition.

Bledsoe County Court of Criminal Appeals 08/28/14
In Re J.F., Et Al.
E2013-01712-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge O. Duane Slone

C.R.H. (“Mother”) appeals the trial court’s order terminating her rights to two minor children. The Department of Children’s Services (“DCS”) removed the children from Mother’s care following allegations that she locked one child in a bedroom for three days without access to water, food, or a bathroom. The children entered protective custody and were adjudicated dependent and neglected. DCS filed a petition to terminate Mother’s parental rights. After a bench trial, the court found (1) that multiple 1 grounds exist to terminate Mother’s rights and (2) that termination is in the children’s best interest, both findings said by the trial court to be made by clear and convincing evidence. Mother appeals. She challenges the trial court’s findings with respect to grounds, but does not contest the best-interest determination. We affirm.

Jefferson County Court of Appeals 08/28/14
State of Tennessee v. Alex Hardin Huffstutter
M2013-02788-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark Fishburn

The appellant, Alex Hardin Huffstutter, entered a plea of nolo contendre to driving under the influence (DUI), reserving the following certified question of law concerning whether Tennessee Code Annotated section 40-35-313 (2007) precludes judicial diversion for a charge of DUI.  The State contends that the question presented is not dispositive and, therefore, that this court is without jurisdiction to consider the appeal.  Upon review of the record and the parties’ briefs, we agree with the State and conclude that the appeal should be dismissed.

Davidson County Court of Criminal Appeals 08/28/14
State of Tennessee Ex Rel. Mark B. Garrett v. City of Norris, Tennessee
E2013-02355-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor William Lantrip

This appeal arises from a challenge to an annexation ordinance. The City of Norris, Tennessee (“Norris”) passed two annexation ordinances on the same day. The second territory to be annexed was contiguous to the city only through bordering the territory annexed earlier that same day. Mark B. Garrett (“Garrett”), a property owner in the second annexed territory, sued Norris in the Chancery Court for Anderson County (“the Trial Court”) in a bid to stop the annexation of this second territory (“the Territory”). The Trial Court eventually voided the annexation of the Territory on the basis that the Territory was not contiguous to the city. Norris appeals. We hold, inter alia, that the annexation ordinance purporting to annex the Territory is void because at the time of the passage of the annexation ordinance, the first annexation was not yet operative and the Territory, therefore, was not contiguous to the city as required by law. We affirm the Trial Court.

Anderson County Court of Appeals 08/28/14
Union County Education Association v. Union County Board of Education
E2013-02686-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Andrew R. Tillman

A Union County schoolteacher was twice interviewed by school administrators in an investigation of charges regarding the teacher’s alleged improper conduct. Both times, the teacher’s request to have a representative from the Union County Education Association (“the Association”) present with him for the investigatory interview was denied. After the investigation was complete, the teacher was not disciplined and no adverse action was taken against him. The Association brought this action alleging that the Union County Board of Education (“the Board”), acting through its agents, violated the Professional Educators Collaborative Conferencing Act of 2011 (“the Collaborative Conferencing Act”), Tenn. Code Ann. § 49-5-603 (2013), which provides that “[p]rofessional employees have the right to selforganization, to form, join or be assisted by organizations, to participate in collaborative conferencing . . . and to engage in other concerted activities for the purpose of other mutual aid and benefit. . . .” The Association sought a declaratory judgment that the Board’s refusal to allow the teacher to have a representative present was an unlawful act under Tenn. Code Ann. § 49-5-606. The trial court granted the Board summary judgment on the ground that the Association “had no injury in fact and therefore lacked standing to proceed with this action.” We hold that the rights provided to professional employees under section 603 of the Collaborative Conferencing Act include the right to have a representative of his/her organization present, upon the employee’s request, at an investigative interview where the employee reasonably believes the investigation may result in disciplinary action against him or her. We further hold that the Association has standing to pursue this action. Consequently, we vacate the trial court’s judgment.

Union County Court of Appeals 08/28/14
In Re Shainna S.C., Et Al.
E2014-00407-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Daniel Ray Swafford

This is an appeal by Joseph C. from an order terminating his parental rights to his two minor children, Shainna S. C. and Jason L. C. Because the record does not support the trial court’s finding that the Department of Children’s Services (DCS) proved by clear and convincing evidence the only ground relied upon in support of the termination of the appellant’s parental rights to his children, we vacate the order and remand for further proceedings.

Bradley County Court of Appeals 08/28/14
State of Tennessee v. Curtis Gordon, Jr.
M2013-02699-CCA-R3-CD
Authoring Judge: Judge Joe H. Walker, III
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Curtis Gordon, Jr. entered a plea of guilty to robbery.  He appeals the sentence imposed of fifteen years as a persistent offender, consecutive to a sentence for which he was on probation at the time of the robbery.   Finding no error, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/28/14
Malinda Annette Stills v. Chadburn Ober Harmon
E2014-01180-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Judge Douglas T. Jenkins

This is an appeal from a Restraining Order entered on May 20, 2014. The Notice of Appeal was not filed until June 20, 2014, thirty-one (31) days after the date of entry of the Restraining Order. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Greene County Court of Appeals 08/27/14
Reelfoot Utility District of Lake County, Tennessee v. Samburg Utility District of Obion County, Tennessee, et al.
W2013-01952-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Judge W. Michael Maloan

This appeal involves water service by one utility district to a neighboring utility district. The plaintiff utility district provided water service to the defendant neighboring utility district for many years pursuant to a series of contracts. The last contract included a date certain on which the contract expired. Before the expiration date, the defendant neighboring utility district agreed to begin purchasing its water from a different provider upon expiration of the water service contract with the plaintiff. The plaintiff filed this lawsuit seeking, inter alia, to enjoin the defendant provider and the neighboring utility district from entering into a contract for water services. The trial court granted summary judgment in favor of the defendant neighboring utility district and denied the plaintiff’s motion for summary judgment, holding that the defendants were permitted to contract for water services. It then dismissed all remaining claims against the defendants. The plaintiff now appeals. We affirm the decision of the trial court in all respects.

Obion County Court of Appeals 08/27/14
Travis Davison v. State of Tennessee
W2013-02048-CCA-R3-CO
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John W. Campbell

The petitioner, Travis Davison, appeals the trial court’s summary dismissal of his motion to correct an illegal sentence, asserting that his sentence was illegal in that he received a shorter term than that mandated by statute. The State agrees that the petitioner has made a colorable claim that his sentence is illegal and that the matter should be remanded. After review, we remand the case for the appointment of counsel and an evidentiary hearing pursuant to Tennessee Rule of Criminal Procedure 36.1.

Shelby County Court of Criminal Appeals 08/27/14
Courtney Watkins v. State of Tennessee
W2013-02046-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter Jr.

The Petitioner, Courtney Watkins, appeals from the denial of post-conviction relief by the Criminal Court for Shelby County. He was convicted of especially aggravated robbery and sentenced to twenty-three years’ imprisonment in the Tennessee Department of Correction. On appeal, the Petitioner argues that he received ineffective assistance of counsel and that the post-conviction court erred in denying his motion for continuance. Upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/27/14
Joseph Pollard v. State of Tennessee
W2013-01398-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Joseph Pollard, appeals the Shelby County Criminal Court’s denial of postconviction relief. He was convicted of first degree murder, attempted voluntary manslaughter, and aggravated assault and received an effective sentence of life with the possibility of parole. In this appeal, the Petitioner contends that he received ineffective assistance of trial counsel due to trial counsel’s failure to qualify an expert witness or anticipate the trial court’s rejection of the witness’s qualifications. The Petitioner further claims that appellate counsel was ineffective due to his failure to include the same issue on direct appeal. Upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/27/14
State of Tennessee v. Daniel Mosby
W2013-01874-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James C. Beasley Jr.

The Defendant, Daniel Mosby, appeals from the Shelby County Criminal Court’s order revoking his community corrections sentence. The Defendant previously entered a guilty plea to aggravated burglary and, pursuant to the plea agreement, was sentenced to 10 years to be served in the community corrections program with credit for time served. On appeal, the Defendant argues that the trial court abused its discretion in revoking his community corrections sentence and ordering him to serve his original sentence in confinement. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 08/27/14
Lakeith Humphrey v. State of Tennessee
W2013-01877-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Lakeith Humphrey, appeals the Shelby County Criminal Court’s denial of post-conviction relief from his conviction for first degree premeditated murder and his sentence of life imprisonment. On appeal, he argues that trial counsel was ineffective in failing to challenge the legal accuracy of the special jury instruction regarding premeditation given at trial. Upon review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/27/14