Court Opinions

Format: 01/25/2021
Format: 01/25/2021
Colonial Pipeline Company v. TN State Board Of Equalization
M2020-00247-COA-R12-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Tennessee State Board of Equalization Executive Director

An interstate pipeline company filed this direct appeal from a decision of the Tennessee Board of Equalization rejecting the company’s claims for equalization relief. Having considered the company’s arguments that Tenn. Code Ann. § 67-5-501(10)(B)(iii) has been inconsistently applied, we affirm the Board’s decision.  

Court of Appeals 01/25/21
Antonio Maurice Wiggins v. Carol Ann Wiggins
M2019-02006-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ted A. Crozier

This appeal arises out of a divorce action in which the wife requested alimony. Following a trial, the trial court awarded the wife alimony in futuro and alimony in solido to assist her in paying for health insurance premiums and attorney’s fees, respectively. On appeal, the husband claims the wife had no need for such support; rather, the trial court used the alimony awards as a means to punish the husband for his infidelity. We find that, while the trial court considered the husband’s fault in making its decision, it did so in conjunction with other relevant factors in accordance with Tenn. Code Ann. § 36-5-121(i), including the wife’s financial need, her relative earning potential, her contributions to the marriage, and the parties’ standard of living. Having determined that the trial court applied the correct legal principles, made factual findings supported by the evidence in the record, and reached a decision within the range of acceptable dispositions, we affirm the trial court’s decision.

Montgomery County Court of Appeals 01/22/21
In Re: Winston Bradshaw Sitton, BPR#018440 - Concurring in Section III, not joining in Sections I and II
M2020-00401-SC-BAR-BP
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge:

I join only in Section III of the majority opinion, agreeing that we should increase Mr. Sitton’s punishment to a four-year suspension from the practice of law with one year on active suspension and the remainder on probation.

I do not join in Sections I and II because those sections exceed the scope of our review under Tennessee Supreme Court Rule 9, section 15.4 and this Court’s March 20, 2020 Order. See Order, In re Sitton, No. M2020-00401-SC-BAR-BP (Tenn. Mar. 20, 2020) (order deeming attorney discipline to be “inadequate” and “propos[ing] that the punishment should be increased”).

Supreme Court 01/22/21
In Re: Winston Bradshaw Sitton, BPR#018440
M2020-00401-SC-BAR-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge:

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.” In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney’s conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney’s advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel’s judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

Supreme Court 01/22/21
Ronald L. Cosper v. State of Tennessee
E2020-00024-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry A. Steelman

The petitioner, Ronald L. Cosper, appeals the denial of his petition for post-conviction relief, which petition challenged his convictions of first degree felony murder and attempted especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Hamilton County Court of Criminal Appeals 01/22/21
In Re Conservatorship of Mary Ann Tapp
W2020-00216-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor William C. Cole

This appeal stems from a petition to remove a co-conservator for a person with a disability. Several years ago, the ward’s brother and her personal attorney were appointed as coconservators of the ward’s person and estate. Subsequently, the ward’s remaining siblings filed this action to remove the brother as a co-conservator, alleging that the brother had failed to act in the best interest of the ward. After a hearing on the petition, the trial court dismissed the petition to remove the brother as a co-conservator and awarded the coconservators attorney’s fees. Some of the siblings appealed the trial court’s award of attorney’s fees. We reverse the trial court’s award of attorney’s fees and remand.

Fayette County Court of Appeals 01/22/21
Darla Jo Adams Audirsch v. Griffin Lynn Audirsch
M2020-00279-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor J. B. Cox

The Appellant, who is the former spouse of the Appellee, appeals the trial court’s denial of his motion for “Rule 60” relief seeking residential time with the Appellee’s child. There is no dispute that the Appellant has been excluded as the father of the child based upon DNA testing he requested. Discerning no error on the part of the trial court, we affirm its judgment.

Moore County Court of Appeals 01/22/21
In Re Investigation Of Law Solutions Chicago, LLC
M2020-00411-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Russell T. Perkins

The trial court granted the Tennessee Attorney General’s petition seeking to compel the respondent corporation, Law Solutions Chicago LLC d/b/a UpRight Law (“UpRight”), to provide information regarding the identities of consumers who had paid for but allegedly not received UpRight’s services. In so ruling, the trial court determined that the attorney general had established that UpRight’s practices, if proven, would likely constitute violations of the Tennessee Consumer Protection Act. The trial court also determined that the information sought was not protected by the attorney-client privilege. UpRight has appealed. Discerning no reversible error, we affirm the trial court’s ruling.

Davidson County Court of Appeals 01/22/21
Samuel Lee Bachelor, Jr. v. Aja Michelle Bachelor n/k/a Aja Michelle Burrell
W2020-00516-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This case involves a divorce that was granted in January, 2019. As a part of their divorce, the parties entered into a marital dissolution agreement which was thereafter incorporated into the final decree of divorce. Subsequently, the Appellant filed a petition for contempt, alleging that the Appellee was in noncompliance with his obligations under the marital dissolution agreement and requested, among other relief, attorney’s fees for having to file the petition. The trial court found that while the Appellee had been noncompliant with the marital dissolution agreement, the noncompliance was not willful and therefore concluded that the Appellant was not entitled to attorney’s fees. For the reasons stated herein, we reverse the trial court’s decision to not award the Appellant her attorney’s fees and additionally award the Appellant her attorney’s fees on appeal.

Shelby County Court of Appeals 01/21/21
In Re Crystal W. Et Al.
E2020-00617-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Gregory S. McMillan

In this dependency and neglect action, the mother appealed the determination made by the Knox County Juvenile Court (“juvenile court”) that the two minor children at issue were dependent and neglected to the Knox County Circuit Court (“trial court”). The father of the children had initiated the action by filing a petition for dependency and neglect against the mother in the juvenile court, alleging, inter alia, the mother’s inability to properly care for the children due to ongoing mental health issues. The Tennessee Department of Children’s Services (“DCS”) had intervened in the juvenile court proceedings, and following entry of an adjudicatory order, the juvenile court had awarded legal and physical custody of the children to the father. In a separate proceeding not at issue in this appeal, the juvenile court subsequently awarded temporary custody of the children to the paternal grandfather and step-grandmother. Following a de novo bench trial on the mother’s appeal, the trial court determined that the children were dependent and neglected as to the mother and maintained custody of the children with the paternal grandfather and step-grandmother. The mother has appealed to this Court.1 Discerning no reversible error, we affirm.

Knox County Court of Appeals 01/21/21
Donald R. Wright v. Carol Sieglitz, Et Al.
E2020-00867-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John C. Rambo

This is an appeal of a case seeking judicial determination of child support. Because the appellant, Donald R. Wright (“Appellant”) attempted to raise an issue regarding a separate case, which was not timely appealed, and all issues with regard to the instant case were waived, we dismiss this appeal

Washington County Court of Appeals 01/21/21
State of Tennessee v. Tammy Lynn Walker
E2019-00501-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge E. Shayne Sexton

Following a bench trial, the Defendant, Tammy Lynn Walker, was convicted of passing a worthless check, a Class D felony. On appeal, the Defendant contends that the trial court erred in determining that she made a knowing and voluntary waiver of her right to counsel and by requiring her to proceed pro se at trial when she had not executed a written waiver to the effect. The State, after initially contending that the trial court did not err, alternatively argues that the Defendant implicitly waived her right to counsel by failing to retain counsel in a timely manner. In addition, the Defendant, as a separate issue, contends that the trial court violated her constitutional rights when it compelled her to testify against herself. We conclude that the non-indigent Defendant knowingly and voluntarily explicitly waived her right to counsel by her statements and conduct and that she was not compelled to testify against herself. Accordingly, the judgment of the trial court is affirmed.

Campbell County Court of Criminal Appeals 01/20/21
State of Tennessee v. Jarvis Tyvon Morgan
E2019-02027-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G. Scott Green

Aggrieved of the Knox County Criminal Court’s revocation of the sentence of probation imposed for his 2016 guilty-pleaded conviction of aggravated assault, the defendant, Jarvis Tyvon Morgan, appeals. He argues that the trial court deprived him of due process by basing its decision on a ground not alleged in the violation warrant. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 01/20/21
Dennis Williamson v. Regional One Health, et al.
W2019-02213-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

In this healthcare liability action, Appellant/patient appeals the trial court’s grant of summary judgment in favor of Appellee/hospital. The trial court granted summary judgment based, inter alia, on its conclusion that Appellant failed to provide evidence that Appellee’s immunity under the Governmental Tort Liability Act is waived due to some action/inaction of its employee. Affirmed and remanded.

Shelby County Court of Appeals 01/15/21
Crystal Spearman, Individually and as Parent and Next Friend of Kenji Lewis, a Minor v. Shelby County Board of Education, et al.
W2019-02050-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Yolanda R. Kight

This suit involves an injury sustained by a minor at a track and field tryout at the middle school he attended. The minor’s mother brought suit individually and on behalf of her minor child against the county school system and the school board for the minor’s injuries and subsequent medical expenses. After a bench trial, the trial court found in favor of the plaintiff and awarded her $200,000 in compensatory damages. The defendants appealed. We affirm the trial court’s decisions and remand.

Shelby County Court of Appeals 01/15/21
Jabari Issa Mandela a/k/a John Wooden v. Tennessee Department of Correction, et al.
W2019-01171-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge R. Lee Moore, Jr.

This appeal arises from a petition for writ of certiorari filed by a prisoner, Jabari Issa Mandela a/k/a John Wooden (“Petitioner”), seeking relief pursuant not only to a writ of certiorari but also including in his petition an action seeking damages pursuant to 42 U.S.C. § 1983 due to an alleged violation of his constitutional rights. Following the respondents’ motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(1) and (6) and Petitioner’s response thereto, the Trial Court dismissed Petitioners’ original civil rights cause of action, filed pursuant to section 1983, due to its impermissible joinder with an appellate cause of action. The Trial Court further granted the motion to dismiss as to the writ of certiorari, in part, because Petitioner had failed to exhaust his administrative remedies. Because Petitioner has failed to comply with Tennessee Rule of Appellate Procedure 27 by not presenting an argument concerning whether he had exhausted his administrative remedies prior to filing his petition for writ of certiorari, he has waived this issue on appeal. As such, the Trial Court’s dismissal of the petition is affirmed. Petitioner also raises an issue concerning the amount of filing fees he was required to pay by the Trial Court to initiate the current action. On remand, the Trial Court shall revisit its order regarding the amount of filing fees to determine compliance with Tennessee Code Annotated § 8-21-401.

Lake County Court of Appeals 01/15/21
In Re Scarlet W., et al.
W2020-00999-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chancellor James F. Butler

This is a termination of parental rights case. The Chancery Court for Henderson County terminated the parental rights of a mother to two minor children based upon two statutory grounds: persistence of conditions and a ten-year prison sentence while the children were under the age of eight years old. We reverse the trial court’s finding that the ground of persistence of conditions was satisfied by clear and convincing evidence. We affirm, however, the trial court’s finding that clear and convincing evidence supports termination of the mother’s parental rights based upon her current prison sentence. We also affirm the trial court’s conclusion that termination is in the best interests of both children.

Henderson County Court of Appeals 01/15/21
Anthony Justice v. Craftique Construction, Inc., Et Al.
E2019-00884-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Frank V. Williams, III

A homeowner in a subdivision sued the construction company that developed the subdivision and the president of the company for damages, claiming that the subdivision was a “failed development” because only five out of thirty-one lots were developed before construction ceased and promised amenities, including a club house and swimming pool, were never built. The homeowner obtained default judgments for liability and money damages against the company and a default judgment for liability against the company president. During the trial to determine damages against the company president, the homeowner orally stated his intent to nonsuit his claim for damages while retaining the default judgment for liability. The trial court entered an order nonsuiting the homeowner’s entire claim against the company president. The homeowner appeals, claiming the right to a partial nonsuit. We affirm the trial court’s judgment.

Loudon County Court of Appeals 01/15/21
State of Tennessee v. Michael E. White
W2020-00857-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Michael E. White, appeals the order of the trial court revoking his probation and ordering him to serve his original
nine-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation by imposing the original sentence. Accordingly, the judgment of the trial court is affirmed.

Madison County Court of Criminal Appeals 01/15/21
State of Tennessee v. Jeremy Lynn Thornton
W2020-00159-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Creed McGinley

The State appeals the trial court’s imposition of a community corrections sentence, arguing the defendant did not qualify for alternative sentencing. Upon our review of the record and the applicable law, we find the trial court erred in not considering all the applicable factors. Accordingly, we reverse the decision of the trial court and remand the matter for a new sentencing hearing consistent with this opinion.

Benton County Court of Criminal Appeals 01/15/21
State of Tennessee v. Brian Howard
W2020-00207-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James Lammey

Brian Howard, Defendant, was indicted for one count of second degree murder, one count of convicted felon in possession of a firearm, one count of attempted second degree murder, and one count of employing a firearm during the commission of a dangerous felony. A co-defendant, Quinton Brown, was also indicted for his role in the offenses and the two were tried together. Defendant asked the trial court to bifurcate the possession of a firearm by a convicted felon count prior to trial. The trial court denied the motion. After a jury trial, Defendant was convicted of the lesser-included offenses of voluntary manslaughter and attempted voluntary manslaughter as well as possession of a firearm by a convicted felon and employing a firearm during the commission of a felony as charged in the indictment. Defendant was sentenced to an effective sentence of 67 years, to be served consecutively to a fifteen-year federal sentence. After the denial of a motion for new trial, Defendant appeals to this Court arguing that the trial court erred by denying the motion to bifurcate the possession of a firearm by a convicted felon charge and that the evidence was insufficient to support the convictions where the proof indicated that Defendant acted in self-defense. For the following reasons, we affirm the judgments of the trial court but remand the matter for correction of the judgment form in Count 4 to reflect that the conviction for employing a firearm during the commission of a felony is a class C felony.

Shelby County Court of Criminal Appeals 01/15/21
State of Tennessee v. Michael Ray Perna
M2019-01032-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Vanessa A. Jackson

The Defendant, Michael Ray Perna, pleaded guilty to a Class E felony violation of the Tennessee Code Annotated section 40-39-211(d)(1)(A) Sex Offender Registry Act. At sentencing, the Defendant argued that he was acting as the minor victim’s legal guardian pursuant to Tennessee Code Annotated section (d)(2)(D) and thus was only eligible for a fine by way of punishment, pursuant to Tennessee Code Annotated section 40-39-211(g)(4). The trial court rejected the Defendant’s argument and imposed a two-year sentence, suspended to probation after ninety days in jail. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Coffee County Court of Criminal Appeals 01/15/21
State of Tennessee v. Robert Collier
W2019-01985-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jennifer Johnson Mitchell

On July 12, 2019, Defendant-Appellant, Robert Collier, entered a guilty plea to criminal attempt aggravated sexual battery and indecent exposure, for which he received an effective sentence of seven years, eleven months, and twenty-nine days, all of which was to be served on supervised probation. Tenn. Code Ann. §§ 39-12-101, 39-13-504 (2019). As part of his sentence, the Defendant was also ordered to register as a violent sex offender and placed on community supervision for life. Tenn. Code Ann. § 39-13-524 (2014). Within three months, on October 15, 2019, the trial court revoked the Defendant’s supervised probation based on a violation of Tennessee Code Annotated section 40-39-211(d)(1)(B) (2019), which restricts movement of violent sex offenders, and ordered the Defendant to serve the original sentence in the Tennessee Department of Correction. The Defendant now appeals the order of the trial court arguing that subsection (d)(1)(B) is unconstitutional in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution because certain terms including “playground,” “any other specific or legitimate reason,” “stand,” “sit idly,” and “remain” are not defined and ambiguous.” He additionally argues that subsection (d)(1)(B) is overbroad in violation of his First Amendment rights because (1) it applies to all sex offenders even if the offense did not involve a child victim; and (2) the term “playground” can include a church, an offender’s front yard, and places where other adults are present. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/14/21
State of Tennessee v. Robert Jason Allison
M2017-02367-SC-R11-CD
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge Mark J. Fishburn

We granted permission to appeal to the Defendant to examine the propriety of his convictions for money laundering based on his receipt of payment for drugs he “fronted” to a confidential informant.  On separate occasions, the Defendant delivered a quantity of marijuana to the informant.  At the time of delivery, the informant paid the Defendant for a portion of marijuana, but the Defendant also fronted additional marijuana to the informant, meaning the Defendant had an expectation that he would be paid later with proceeds from the informant’s sale of the drugs.  The Defendant subsequently received payment.  Based on these actions, the Defendant was charged with and convicted of two counts of delivering marijuana and two counts of money laundering.  See Tenn. Code Ann. § 39-14-903(c)(1) (2006); Tenn. Code Ann. § 39-17-417(a)(2) (2006 & Supp. 2008).  The Defendant challenged whether the evidence supported his money laundering convictions, whether those convictions violated double jeopardy protections, and whether the money laundering statute was unconstitutionally vague.  The trial court rejected the Defendant’s challenges, and the Court of Criminal Appeals affirmed the trial court’s judgments.  We hold that the evidence supporting one of the money laundering convictions was legally sufficient, because the proof supported an inference that the Defendant purchased marijuana with the proceeds he had received with the intent to promote the carrying on of the sale of marijuana.  With respect to the second money laundering conviction, we hold that the evidence was insufficient, because the proof showed only that the Defendant received payment for drugs he had fronted.  We further hold that the Defendant’s punishment for both delivery of marijuana and money laundering does not violate double jeopardy protections and that the money laundering statute is not unconstitutionally vague by virtue of its use of the undefined phrase “carrying on.”  Accordingly, we affirm in part and reverse in part the decision of the Court of Criminal Appeals.

Davidson County Supreme Court 01/14/21
State of Tennessee v. Christopher C. Sullivan
E2019-01853-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant, Christopher C. Sullivan, was charged with violation of the sex offender registry and perjury. A Sullivan County jury found the Defendant not guilty of violating the sex offender registry and guilty of perjury. The trial court sentenced the Defendant to an effective sentence of six years on probation, sixty days of which were to be served in confinement. The Defendant appeals his conviction and sentence, arguing that the evidence presented at trial was insufficient to convict him of perjury, that the trial court abused its discretion in admitting as evidence a judgment of conviction form from New York and the indictment underlying that conviction, that the jury’s verdicts were inconsistent, and that the trial court imposed an excessive sentence. After review of the record, we affirm the trial court’s judgment.

Sullivan County Court of Criminal Appeals 01/14/21