Court Opinions

Format: 12/19/2014
Format: 12/19/2014
In Re: Estate of John J. Goza
W2013-02240-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kathleen N. Gomes

This is an appeal from a probate court order denying an Estate’s request to enter a writ of scire facias to show cause why a bank acting as trustee of certain funds should not be divested of those funds. The probate court determined in a prior case that the Estate’s claim to the funds was barred by res judicata. The court of appeals affirmed the probate court’s order and remanded the case for the sole purpose of resolving issues related to an award of attorney’s fees to the bank. On remand, the Estate filed its request for a writ of scire facias before the court addressed the issue of attorney’s fees. The probate court denied the Estate’s motion, stating that it raised the same issues that multiple courts determined were barred by res judicata. The Estate appealed. We affirm the judgment of the probate court and award damages for frivolous appeal under Tennessee Code Annotated section 27-1-122.

Shelby County Court of Appeals 12/19/14
Diane West et al. v. Shelby County Healthcare Corporation d/b/a Reginal Medical Center at Memphis
W2012-00044-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Donna M. Fields

This appeal involves the ability of a hospital to use a hospital lien to recover from a third-party tortfeasor the unadjusted cost of the medical services it provided to a patient whose injuries were caused by the third party. Three patients were injured in separate, unrelated motor vehicle accidents in Memphis, Tennessee. All of them were treated at the Regional Medical Center at Memphis, and either their insurance company or TennCare paid the hospital the full amount of the adjusted charges for their care, in accordance with their contracts with the hospital. Despite receiving these payments, the hospital declined to release the lien it had perfected under the Tennessee Hospital Lien Act, Tenn. Code Ann. §§ 29-22-101 to -107 (2012). The patients filed suit in the Circuit Court for Shelby County seeking to quash the liens and monetary damages. In response, the hospital asserted that its refusal to release the liens was consistent with the Tennessee Hospital Lien Act and was permitted by its contracts with the patients’ insurance companies. The trial court dismissed the suit on the merits, and the patients appealed to the Court of Appeals. The intermediate appellate court reversed the trial court, determining that the hospital could not maintain its lien because each of the patients’ debts had been extinguished when the hospital accepted payment from the patients’ insurance companies for the full amount of the hospital’s bill based on the adjusted charges it had agreed to with either the patient’s insurance company or TennCare. West v. Shelby Cnty. Healthcare Corp., No. W2012-00044-COA- R3-CV, 2013 WL 500777 (Tenn. Ct. App. Feb. 11, 2013), reh’g denied (Tenn. Ct. App. Mar. 12, 2013). We granted two of the three patients’ Tenn. R. App. P. 11 applications for permission to appeal. We have determined that, except for the unpaid co-pays and deductibles which are a patient’s responsibility, neither the Tennessee Hospital Lien Act nor the hospital’s contracts with the patients’ insurance companies authorized the hospital to maintain its lien after the patients’ insurance company paid the adjusted bill. However, we have also determined that one of the patients who had not extinguished her debt to the hospital was not entitled to have the lien against her extinguished.

Shelby County Supreme Court 12/19/14
In Re: Estate of John J. Goza
W2013-00678-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kathleen N. Gomes

This is an appeal from a probate court order denying the request of an estate’s personal administrator to resign and be replaced by his attorney. This matter came to the probate court on remand from the court of appeals for the sole purpose of resolving issues related to an award of attorney’s fees. Before the probate court addressed the issue of attorney’s fees, the personal representative filed a motion seeking to resign as personal representative and have his attorney appointed in his place. The court entered an order denying the motion, and the Estate appealed. We find that the probate court’s denial of the personal representative’s motion to resign was within its discretion. We therefore affirm the judgment of the probate court.

Shelby County Court of Appeals 12/19/14
State of Tennessee v. Kenneth Paul Colvett
M2013-02488-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge F. Lee Russell

Following a jury trial, the Defendant, Kenneth Paul Colvett, was convicted of premeditated first degree murder and sentenced to life imprisonment with the possibility of parole. See Tenn. Code Ann. § 39-13-202. In this appeal as of right, the Defendant contends (1) that the jury erred by rejecting the defense of insanity; (2) that the trial court erred by not allowing defense counsel to take home prior written statements made by a witness and by not admitting extrinsic evidence of the statements of two witnesses during trial; (3) that the State failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83 (1963); (4) that the trial court erred by refusing to provide the Defendant with a transcript of a prior hearing in this case; (5) that the State committed prosecutorial misconduct during the cross-examination of the Defendant’s expert witness; (6) that the trial court erred by questioning the Defendant about his decision not to testify at trial; (7) that the State committed prosecutorial misconduct during its closing argument by commenting on the Defendant’s decision not to testify; and (8) that the Defendant is entitled to a new trial based upon cumulative error.1 Following our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 12/19/14
State of Tennessee v. Clifton Swift
W2013-02182-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Glenn Wright

The defendant, Clifton Swift, appeals his Shelby County Criminal Court jury conviction of rape of a child, claiming that the trial court abused its discretion by permitting impeachment of the defendant by his prior conviction for attempting to violate the sexual offender registry act and by admitting into evidence the victim’s rape kit. In addition, the defendant contends that the evidence was insufficient to support his conviction of rape of a child. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/18/14
State of Tennessee v. David A. Brimmer
E2014-01393-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dnald Ray Elledge

In 1999, Appellant, David A. Brimmer, pled guilty to aggravated kidnapping in relation to the October 1989 disappearance and death of the  victim, for which he had been previously found guilty of first degree murder and sentenced to death. His death sentence was remanded by this Court. See Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998). At resentencing, Appellant agreed to plead to aggravated kidnapping as a Class A felony with a sentence of 60 years to be served at 100%, consecutively to a life sentence for first degree murder, in exchange for the State not seeking the death penalty. Appellant subsequently filed a petition to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1, alleging that his sentence for aggravated kidnapping is in contravention of the 1989 Sentencing Reform Act. The trial court summarily dismissed the petition for failing to state a colorable claim. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Anderson County Court of Criminal Appeals 12/18/14
C. L. Gilbert,Jr. v. Izak Frederick Wessels, M. D.
E2013-00255-SC-R11-CV
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Jacqueline S. Bolton

The issue we address in this appeal is whether the Court of Appeals properly granted the defendant a Tennessee Rule of Appellate Procedure 10 extraordinary appeal. The trial court denied the defendant’s motion for a waiver of the contiguous state requirement in Tennessee Code Annotated section 29-26-115(b) as to an expert witness. The Court of Appeals granted the defendant’s Rule 10 appeal and held that the trial court did not abuse its discretion in declining to waive the contiguous state requirement. We hold that the Court of Appeals improvidently granted the appeal because the trial court did not so far depart from the accepted and usual course of judicial proceedings as to require immediate review and because a review was not necessary for a complete determination of the action on appeal. Tenn. R. App. P. 10(a). Accordingly, we remand this case to the Circuit Court for Hamilton County for further proceedings.

Hamilton County Supreme Court 12/18/14
Tamir Clark v. State of Tennessee
M2014-00618-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge M. Keith Siskin

The Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping, arson, especially aggravated robbery, and attempted robbery, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Corrections.  The Petitioner filed a petition for post-conviction relief, in which he alleged that he had received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  The post-conviction court dismissed the petition after a hearing.  On appeal, the Petitioner contends that the post-conviction court erred when it dismissed his petition, maintaining that he received the ineffective assistance of counsel and that his guilty plea was not knowingly and voluntarily entered.  After a thorough review of the record and applicable law, we  affirm the post-conviction court’s judgment.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Oren Ray Johnson
M2014-00908-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Forest Durard

The Defendant, Oren Ray Johnson, pleaded guilty to simple assault, and the trial court ordered a probationary sentence of eleven months and twenty-nine days.  Thereafter, the Defendant was arrested for aggravated domestic assault, an offense to which he pleaded guilty.  The trial court issued a probation violation warrant and, after a hearing, revoked the Defendant’s probation sentence.  On appeal, the Defendant contends that the trial court improperly ordered him to serve the remainder of his sentence in confinement for violating the terms of his probation.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Marshall County Court of Criminal Appeals 12/18/14
Gabriel Kimball v. State of Tennessee
M2014-00182-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Gabriel Kimball, pleaded guilty to rape of a child in Bradley County Criminal Court, and the trial court sentenced him to serve fifteen years.  The Petitioner unsuccessfully sought post-conviction relief.  Gabriel Kimball v. State, No. E2006-01562-CCA-R3-PC, 2007 WL 2757634, at *1 (Tenn. Crim. App. Sept. 24, 2007), perm. app. denied (Tenn. Feb. 4, 2008).  The Petitioner then sought state habeas corpus relief alleging that the judgment of conviction entered was void and that his attorney rendered ineffective assistance.  The habeas corpus court summarily dismissed the petition finding that the Petitioner had failed to raise a cognizable habeas corpus claim.  The Petitioner appeals this dismissal, maintaining that the judgment is void and that he received the ineffective assistance of counsel.  After a thorough review of the record and applicable law, we affirm the habeas corpus court’s judgment.

Davidson County Court of Criminal Appeals 12/18/14
Secdrick L. Booker v. State of Tennessee
M2014-00846-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve Dozier

The Petitioner, Secdrick L. Booker, appeals the Davidson County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that his convictions are void because he was sentenced in direct violation of Tennessee statutory law.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Davidson County Court of Criminal Appeals 12/18/14
State of Tennessee v. Rafael Antonio Bush
M2014-01193-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David M. Bragg

The Petitioner, Rafael Antonio Bush, was convicted of especially aggravated robbery, aggravated burglary, and aggravated assault.  On direct appeal, this Court affirmed his convictions and sentence.  State v. Rafael Antonio Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755 (Tenn. Crim. App., at Nashville, April 14, 2004), no Tenn. R. App. P. 11 application filed.  Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial.  The trial court denied the petition after a hearing, and this Court affirmed the post-conviction court’s judgment denying relief.  Rafael Antonio Bush v. State, No. M2005-02967-CCA-R3-PC, 2006 WL 2682825 at *1 (Tenn. Crim. App., at Nashville, Sept. 7, 2006), perm. app. denied (Tenn. Dec. 27, 2006).  On April 24, 2014, the Petitioner filed a motion to reopen his petition for post-conviction relief.  The post-conviction court denied the motion to reopen, and the Petitioner appeals that decision.  After a thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 12/18/14
State of Tennessee v. Charles Anderson Clark Jr.
W2014-00445-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Roy B. Morgan Jr.

The Defendant-Appellant, Charles Anderson Clark, Jr., was convicted by a Henderson County jury as charged of rape, see T.C.A. § 39-13-503, and sentenced as a Range III, persistent offender to a term of twenty-five years’ imprisonment. In this direct appeal, the Defendant-Appellant challenges the sufficiency of the evidence and the sentence imposed by the trial court. Following our review, we affirm the judgment of the trial court.

Henderson County Court of Criminal Appeals 12/17/14
Elizabeth B. Turner v. Selina C. Gaviria
W2014-01087-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert L. Childers

This is the second appeal of this case involving enforcement of an oral loan agreement. Appellant appeals the judgment entered against her. Because the appellate record contains no transcript or statement of the evidence pursuant to Tennessee Rule of Appellate Procedure 24, we conclude that the findings made by the trial court in support of its conclusions of law were based upon sufficient evidence. Affirmed and remanded.

Shelby County Court of Appeals 12/17/14
Kem Ralph, et al. v. Scruggs Farm Supply LLC, et al.
W2014-00841-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge William C. Cole

This consolidated appeal stems from the attempted foreclosure of real property in Tipton and Haywood County. In commencing the present case, Plaintiffs filed complaints in Chancery Court in both Tipton and Haywood County seeking to enjoin foreclosure and to obtain an accounting of the financial transactions between them and Defendants. Both trial judges found that Plaintiffs’ claims were barred by the doctrine of res judicata. We affirm.

Tipton County Court of Appeals 12/17/14
Toney R. Gonzales v. J.W. Carell Enterprises, LLC d/b/a Careall Home Care Services-Knoxville/McMinnville
E2013-02072-SC-R3-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Dale Workman

In this workers’ compensation action, the employee alleged that he suffered a compensable injury to his lower back. The trial court ruled for the employer, finding that the employee was not a credible witness and had failed to carry his burden of proof. The employee appealed to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. At issue in this appeal is whether the trial court abused its discretion by admitting into evidence records from the employee’s Social Security Disability proceedings and whether the evidence preponderates against the trial court’s decision that the employee failed to sustain his burden of proof. After a careful review, we find no error and affirm the trial court’s decision.

Knox County Workers Compensation Panel 12/17/14
William Carter King v. State of Tennessee
M2014-00512-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge E. Shayne Sexton

The Petitioner, William Carter King, appeals the Fentress County Criminal Court’s denial of his petition for post-conviction relief from his 2011 guilty plea to possession of a controlled substance in a penal institution and his five-year sentence.  The Petitioner contends that (1) he received the ineffective assistance of counsel and (2) his guilty plea was unknowingly and involuntarily entered.  We affirm the judgment of the post-conviction court.

Fentress County Court of Criminal Appeals 12/17/14
State of Tennessee v. Karl P. Cooper
M2013-01084-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James G. Martin, III

A Williamson County Circuit Court Jury convicted the appellant, Karl P. Cooper, of driving under the influence (DUI), second offense; speeding; and violating the open container law.  The appellant received a total effective sentence of eleven months and twenty-nine days and was ordered to spend sixty days of the sentence in jail before being released on probation.  On appeal, the appellant contends that the trial court erred by allowing the State to violate the rule of witness sequestration, that the trial court erred by sustaining the State’s objection to the appellant’s request to have the arresting officer demonstrate a field sobriety test, and that the evidence was insufficient to sustain his DUI conviction.  The State concedes that the trial court erred by allowing the violation of the rule of sequestration but contends the error was harmless.  Upon review, we conclude that the violation of the rule of sequestration was reversible error; accordingly, the judgment of the trial court is reversed, and the case is remanded for a new trial.

Williamson County Court of Criminal Appeals 12/17/14
Leon Flannel v. State of Tennessee
W2014-00181-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Carolyn W. Blackett

The Petitioner, Leon Flannel, was convicted of murder in the perpetration of a theft and premeditated murder. In this appeal from the trial court’s denial of his petition for writ of error coram nobis, the Petitioner argues that the individual tests performed by the defense’s expert witness, along with their results, should have been introduced at trial to bolster the Petitioner’s diminished capacity defense. Upon review, we find that the petition for writ of error coram nobis is barred by the statute of limitations. Additionally, we find that the trial court did not abuse its discretion when it denied relief on the merits.

Shelby County Court of Criminal Appeals 12/17/14
Carlos Eaton v. State of Tennessee
W2014-00791-CCA-R3-ECN
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge W. Mark Ward

The appellant, Carlos Eaton, appeals the denial of his petition for writ of error coram nobis in which he challenged his 1995 guilty plea to first degree murder and his life sentence. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/17/14
Sean William Lee v. State of Tennessee
W2014-00335-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, Sean William Lee, pled guilty in 2004 to attempted aggravated sexual battery and was sentenced to three years, which then was suspended to six years probation. In 2013, after a probation violation warrant was filed against him, he filed a pleading styled “Motion to Revoke Probation and Impose a Sentence in Absentia.” He followed this pleading by filing a petition for writ of error coram nobis, based upon what he saw as newly discovered evidence. The coram nobis court dismissed the petition without a hearing, concluding that the statute of limitations for such a pleading had expired eight years earlier and no issues were raised which could be the basis for coram nobis relief. Following our review, we affirm the order of the coram nobis court dismissing the petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/17/14
Elm Children's Educational Trust v. Wells Fargo Bank, N.A.
E2013-02482-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Harold Wimberly

This Court entered an order in September of 2014 directing ELM Children’s Educational Trust (“the Trust”) to show good cause why this appeal should not be dismissed for lack of jurisdiction because the Notice of Appeal was signed by a non-attorney, non-party. The Trust failed to show good cause. We hold that a non-attorney trustee may not represent a purportedly pro se trust. As such, the Notice of Appeal signed by the non-attorney trustee was insufficient to initiate an appeal on behalf of the Trust. This appeal, therefore, is dismissed for lack of jurisdiction.

Knox County Court of Appeals 12/17/14
State of Tennessee v. Terrence Wooden, also known as Terrence Wooten
W2014-00173-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The defendant, Terrance Wooden, also known as Terrence Wooten, was convicted of the rape of the victim, who was confined to a wheelchair, and sentenced to confinement for twelve years at 100%. On appeal, he argues that the evidence is insufficient to support the conviction. Following our review, we affirm the judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 12/17/14
Tarrence Parham v. State of Tennessee
W2013-01437-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula Skahan

The petitioner, Tarrence Parham, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions for attempted second degree murder and reckless aggravated assault. On appeal, he argues that he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 12/17/14
Michael Brandon Adams v. State of Tennessee
M2014-01025-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

The Petitioner, Michael Brandon Adams, appeals the Sumner County Criminal Court’s dismissal of his motion to correct an illegal sentence.  The Petitioner contends that the trial court erred when it dismissed his motion without appointing counsel and without conducting an evidentiary hearing.  In his motion, the Petitioner asserts that his sentence is illegal on the grounds that his guilty plea was not entered knowingly and voluntarily because he received the ineffective assistance of counsel.  Upon a review of the record in this case, we are persuaded that the trial court properly denied the motion.  Accordingly, the judgment of the trial court is affirmed.

Sumner County Court of Criminal Appeals 12/17/14