Court Opinions

Format: 09/22/2018
Format: 09/22/2018
Samuel Sanders, et al. v. Marvin Jackson, et al.
W2017-01643-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor William C. Cole

This matter involves a dispute between record owners of adjacent lots. Plaintiffs claim ownership of both lots. Defendant claims ownership of one lot and a shed situated on the other lot. Each sought compensation for damages and loss of use of their respective personal and real property during the dispute. The trial court held that each side owned the lot to which it was the record owner and that the shed was on plaintiffs’ lot. It held that both sides failed to meet its burden of proof on the issue of damages. Accordingly, the court declined to award damages. Plaintiffs appeal. We affirm.

McNairy County Court of Appeals 09/18/18
Marlon Yarbro v. State of Tennessee
W2017-00125-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Charles C. McGinley

This is a State appeal of the Hardin County Circuit Court’s grant of post-conviction relief. The Petitioner was convicted by a jury of various drug related offenses including sale of .5 grams or more of a Schedule II controlled substance within 1000 feet of a school zone, see Tenn. Code Ann. §§ 39-17-417(c)(1), 39-17-432(b)-(c), for which he received an effective sentence of 25 years with no parole. State v. Marlon Yarbro, No. W2015-00475-CCA-R3-CD, 2015 WL 5813383, at *3 (Tenn. Crim. App. Oct. 5, 2015), perm. app. denied (Tenn. Feb. 18, 2016). After his conviction was affirmed by this court, the Petitioner filed a pro se petition for post-conviction relief which did not include as grounds for relief that trial counsel was ineffective in advising the Petitioner of his sentence range or a due process claim based on the Petitioner’s rejection of a more favorable settlement offer from the State. Post-conviction counsel was appointed, and no amendments were filed. An evidentiary hearing was held, and the post-conviction court granted the Petitioner relief based on the evidence adduced at the post-conviction hearing. The State now appeals, raising the following issues: (1) whether the postconviction court may, on its own initiative, constructively amend a post-conviction petition; (2) if the constructive amendment were proper and if the basis for relief was that the petitioner’s rejection of the State’s plea offer was unknowing, whether that basis is a cognizable ground for post-conviction relief where there is no constitutional right to a knowing and voluntary rejection of a plea offer; and (3) if the constructive amendment were proper and if the basis for relief was ineffective assistance of counsel, whether the post-conviction court erred in granting relief where the court did not conduct the Strickland two-pronged analysis. Upon our review, we affirm the judgment of the postconviction court.

Hardin County Court of Criminal Appeals 09/17/18
Erika Louise (Brown) Dewald v. Baya Paul Dewald
M2017-02158-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John Thomas Gwin

A husband appeals the trial court’s division of marital assets and denial of attorney’s fees.  Both parties sought a divorce. Prior to trial, the parties stipulated that the husband was entitled to a divorce based on the wife’s admitted adultery. The parties also stipulated to the value of the husband’s premarital interest in his 401(k) retirement account. As to the division of marital assets, the parties stipulated that the husband would receive the marital home, and the wife would receive another piece of real property. The parties stipulated to the values of all remaining assets and debts but not to their division, and the wife waived any claims to alimony. After a four day bench trial, the trial court granted the husband a divorce and approved a permanent parenting plan which designated him as primary residential parent for the parties’ one child. In addition, the trial court classified the parties’ assets and divided the remaining marital estate, awarding fifty-four percent (54%) of the marital estate to the wife and forty-six percent (46%) to the husband, and declined to award either party attorney’s fees. The husband takes issue on appeal with the manner in which the trial court divided the marital estate and with the trial court’s decision to not award him any attorney’s fees. We affirm the trial court’s division of the parties’ marital estate, as well as the trial court’s decision not to award the husband any attorney’s fees. We also decline to award the wife her attorney’s fees on appeal.

Wilson County Court of Appeals 09/17/18
Wardley Homes, LLC. et al. v. Michael C. Johnson et al.
E2017-01831-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a lawsuit over the construction of a house. Wardley Homes, LLC (“Wardley Homes”), owned by James A. Wardley, II, and Teresa Smith Wardley (“the Wardleys”), contracted with Michael C. Johnson and Deborah A. Johnson (“the Johnsons”) to build the Johnsons’ house. A dispute arose over payment, and Wardley Homes sued the Johnsons in the Chancery Court for Loudon County (“the Trial Court”). The Johnsons, in turn, filed a counterclaim against Wardley Homes. The Johnsons later attempted to bring the Wardleys into the case individually under a theory of piercing the corporate veil. The record contains no order relating to whether the Wardleys were brought into this suit. Despite there being no order in the record bringing them into this suit, the Wardleys filed a motion for partial summary judgment relating to their individual liability. The Trial Court at a hearing apparently orally granted the Wardleys’ motion, although the record contains no order to that effect either. The Johnsons later filed a Tenn. R. Civ. P. 60.02 motion for relief, which the Trial Court denied. Wardley Homes and the Johnsons settled their dispute. The Johnsons appeal to this Court with respect to their effort to bring the Wardleys into the case individually. The absence of key orders precludes our review. We, therefore, vacate the Trial Court’s judgment, to the extent it exists, as it relates to partial summary judgment and remand for the Trial Court to (1) enter an order on the Johnsons’ motion to bring in the Wardleys, and if granted, (2) enter an order on the Wardleys’ motion for partial summary judgment that states the legal grounds and complies with Tenn. R. Civ. P. 56.04. We otherwise affirm the Trial Court.

Loudon County Court of Appeals 09/17/18
John M. North v. Westgate Resorts, LTD., L.P. et al.
E2017-01560-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety

In this appeal, Westgate Resorts, Ltd., L.P., asserts that the trial court erred in awarding plaintiffs John M. North and Vickie C. North $29,716.19 in attorney’s fees and expenses. Before trial, the Norths accepted Westgate’s offer of judgment pursuant to Tenn. R. Civ. P. 68. It provided that Westgate would pay “an award of reasonable attorney’s fees and expenses, in an amount to be set by the [trial] court.” The Norths argue that because Westgate agreed to this provision under Rule 68 without specifically reserving the right to appeal, it may not appeal the award of attorney’s fees. Westgate argues that the fee amount was unreasonable. We hold that Westgate did not waive its right to appeal the attorney’s fee and expense award. We further hold that the trial court did not abuse its discretion in finding the amount awarded to be reasonable. The judgment of the trial court is affirmed.

Sevier County Court of Appeals 09/17/18
In Re T.R. et al.
E2017-02115-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Terry Stevens

The Department of Children’s Services filed a petition to terminate the parental rights of J.E.R. (mother) and R.A.R. (father) with respect to their three children, T.E.R., M.A.R., and T.Z.R. The trial court determined that clear and convincing evidence supported three grounds for terminating mother and father’s parental rights: (1) abandonment for failure to provide a suitable home; (2) substantial noncompliance with the permanency plan; and (3) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. Mother appeals the trial court’s order terminating her rights. We affirm.

Roane County Court of Appeals 09/17/18
William M. Phillips v. State of Tennessee - concurring in part and dissenting in part
M2017-00118-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert L. Jones

I agree with the conclusion reached by the majority pertaining to the Petitioner’s recusal claim. I respectfully part ways with the lead opinion; however, because it fails to address the issue squarely before the court, which is whether the Petitioner was entitled to counsel during his post-sentencing motion to withdraw his guilty plea. This issue, as noted in Judge Easter’s dissent, requires us to determine whether a post-sentencing motion to withdraw a guilty plea is a critical stage of the proceedings. Because a defendant’s substantial rights are affected, I would have concluded that a post-sentence motion to withdraw a guilty plea is a critical stage in judicial proceedings. Accordingly, I would have reversed the judgment of the post-conviction court and vacated its order denying relief. I also would have reversed and vacated the trial court’s denial of the Petitioner’s post-sentencing motion to withdraw his guilty plea and remanded for a new evidentiary hearing on the motion to withdraw following the appointment of counsel or valid waiver thereof.

Giles County Court of Criminal Appeals 09/17/18
William M. Phillips v. State of Tennessee - concurring
M2017-00118-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Robert L. Jones

I concur with the conclusion reached by Judge Ogle that the post-conviction court properly denied the petition for post-conviction relief. I further agree with Judge Ogle’s conclusion that any claims regarding judicial bias and recusal are waived. I write separately to address the Petitioner’s claim that he was disadvantaged by not having appointed counsel to represent him at the hearing on his motion to withdraw his guilty plea. I do not believe a post-sentencing motion to withdraw a guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f) is a critical stage of the prosecution to which the right to counsel attaches.

Giles County Court of Criminal Appeals 09/17/18
William M. Phillips v. State of Tennessee
M2017-00118-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

The Petitioner, William M. Phillips, pled guilty in the Giles County Circuit Court to possession of one-half gram or more of cocaine with intent to sell and was sentenced as a Range II, multiple offender to twenty years in confinement. Subsequently, the Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied, and a petition for post-conviction relief, which the post-conviction court denied. On appeal, the Petitioner contends that he is entitled to post-conviction relief because he was prejudiced by “a derogatory, racially based remark” made by the trial court during a hearing and because he was prejudiced by the trial court’s denial of his pro se motion to withdraw his guilty plea without the appointment of counsel. Based upon the oral arguments, the record, and the parties’ briefs, the denial of the petition for post-conviction relief is affirmed.

Giles County Court of Criminal Appeals 09/17/18
Pamela Lyles v. Titlemax of Tennessee, Inc. ET AL.
W2017-00873-SC-WCM-WC
Authoring Judge: Justice Roger Page
Trial Court Judge: Judge Mary Wagner

Pamela Lyles (“Employee”) was employed by Titlemax of Tennessee, Inc. (“Employer”). On May 19, 2010, an armed robbery occurred, during which the offender brandished a handgun at Employee. Employee immediately began exhibiting symptoms of post-traumatic stress disorder (“PTSD”) and was diagnosed with PTSD no later than July 13, 2010. Employee filed a Request for Benefit Review Conference with the Tennessee Department of Labor on September 16, 2011, which resulted in an impasse. Employee brought suit and the trial court granted summary judgment in favor of Employer, stating that the statute of limitations barred her claim. Employee has appealed. The appeal has been referred 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. We affirm the judgment.

Shelby County Workers Compensation Panel 09/14/18
C. K. Smith, Jr. v. Goodall Buildings, Inc. Et Al.
M2017-01935-SC-R3-WC
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge Clara W. Byrd

C.K. Smith, Jr. (“Employee”) suffered a compensable shoulder injury and was awarded lifetime medical care pursuant to a settlement agreement with Goodall Buildings, Inc. (“Employer”). Employee suffered from long-term chronic pain because of his injury and was referred to Dr. Jeffrey Hazlewood for pain management. Upon entering the care of Dr. Hazlewood, Employee was already prescribed a high dosage of opioids to manage his pain. Dr. Hazlewood continued this treatment, slowly raising Employee’s prescription. However, Dr. Hazlewood began to have concerns about Employee forming an addiction, and new medical guidelines on pain management indicated that Employee was taking too high a dosage of opioids. Dr. Hazlewood recommended weaning Employee off opioids, or at least lowering his dosage. In response, Employee left the care of Dr. Hazlewood and filed a motion for a new panel of physicians. That motion was heard for the first time almost two years later. The trial court granted Employee’s motion and ordered Employer to provide a new panel of physicians. Employer appealed, arguing Tennessee Code Annotated section 50-6-204(j) precludes Employee from receiving a new panel of physicians. The appeal has been referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We reverse the judgment of the trial court.

Trousdale County Workers Compensation Panel 09/14/18
Nashboro Golf Course, LLC v. Townhouses of Nashboro Village, L. P et al.
M2017-00226-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle

This action involves claims relating to the relocation of an approximate ten-foot wide golf cart path located on an easement granted in 1996. The plaintiff owner of the easement sought, inter alia, an injunction and compensatory and punitive damages for the interference with the easement. The case proceeded to a hearing on cross-motions for summary judgment, after which the court granted summary judgment in favor of the defendant owner of the servient property and the defendant construction company that relocated the path. The plaintiff appeals. We affirm.

Court of Appeals 09/14/18
State of Tennessee v. Maurice Gray
W2017-01897-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted Defendant, Maurice Gray, of aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, convicted felon in possession of a firearm, convicted felon in possession of a handgun, and evading arrest. Defendant received a total effective sentence of twenty-nine years. On appeal, Defendant argues the following: (1) the evidence was insufficient for a rational juror to have found Defendant guilty on all charges beyond a reasonable doubt; (2) the trial court erred in ordering partially consecutive sentence alignment; and (3) the trial court erred in failing to merge counts three, four, and five. After a thorough review of the facts and applicable case law, we affirm Defendant’s judgments of conviction but remand for merger of counts four and five.

Shelby County Court of Criminal Appeals 09/14/18
Loring Justice v. Kim Nelson
E2017-02009-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Larry Michael Warner

Father appeals the trial court’s dismissal of his complaint for modification of the court’s order adopting a permanent parenting plan in a previous custody action. Subsequent to Father’s filing of this appeal, he filed a similar or identical petition for modification in the original custody action, and the trial court is scheduled to hear that petition prior to the adjudication of this appeal. We have, therefore, determined that this appeal is moot.

Roane County Court of Appeals 09/14/18
State of Tennessee v. Tyson Reed King
M2017-01594-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Tyson Reed King, was found guilty by a Maury County Circuit Court jury of destroying, tampering with, or fabricating evidence and of unlawful possession of drug paraphernalia. See T.C.A. §§ 39-16-503 (2014) (destruction, tampering, or fabrication of evidence), 39-17-425 (2014) (unlawful possession of drug paraphernalia). The trial court sentenced the Defendant, a Range II offender, to serve nine years at 35% for destroying, tampering with, or fabricating evidence and to eleven months, twenty-nine days for unlawful possession of drug paraphernalia. The sentences were imposed to run concurrently. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Maury County Court of Criminal Appeals 09/14/18
In Re Abagail D.
M2017-02557-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ronald Thurman

This action involves the termination of a mother’s parental rights to her minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to visit and to support and that termination was in the best interest of the Child. We vacate the order and remand for additional findings of fact. 

White County Court of Appeals 09/13/18
State of Tennessee v. Jamal P. Hicks
M2017-01628-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge William R. Goodman, III

Defendant, Jamal P. Hicks, was convicted of sexual battery in 2004. As a result of that conviction, Defendant was declared a registered sex offender and required to comply with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004. T.C.A. § 40-39-201. et seq. In 2016, Defendant was convicted by a jury of falsifying a registration form, failing to report a change in circumstance on a registration form, and perjury. As a result, he received an effective sentence of three years. On appeal, Defendant argues that the trial court improperly admitted three exhibits at trial and that the evidence was insufficient to support the convictions. After a thorough review, we conclude that the trial court improperly admitted several exhibits at trial and, as a result, the evidence is insufficient to support the judgments. Consequently, Defendant’s convictions are reversed and vacated.

Montgomery County Court of Criminal Appeals 09/13/18
State of Tennessee v. Brandon Gillenwater
E2017-01387-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

Defendant, Brandon Gillenwater, appeals from the Sullivan County Criminal Court’s judgment denying him alternative sentencing. Defendant’s counsel has filed a motion to withdraw from representation pursuant to Rule 22 of the Rules of the Tennessee Court of Criminal Appeals. We conclude that counsel’s motion is well-taken and, in accordance with Rule 22(F), affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Sullivan County Court of Criminal Appeals 09/13/18
State of Tennessee v. Kaylecia Woodard
E2017--1893-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steven Wayne Sword

The defendant, Kaylecia Woodard, was convicted of two counts of aggravated robbery and received an effective sentence of fifteen years. The sentence was vacated on appeal and the case was remanded for re-sentencing. On remand, the defendant was sentenced to ten years’ incarceration. On appeal the defendant contends the trial court erred in applying enhancement factor (2) and in improperly weighing the enhancement factor. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 09/13/18
Oscar Armando Delgado v. State of Tennessee
M2017-01231-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas W. Graham

The Petitioner, Oscar Armando Delgado, appeals the denial of his petition for post-conviction relief, arguing that trial counsel was ineffective for not fully advising him of the immigration consequences of his plea or providing him with a Spanish language interpreter, thereby rendering his guilty plea unknowing and involuntary. Following our review, we affirm the judgment of the post-conviction court.

Marion County Court of Criminal Appeals 09/13/18
Larry Wade v. State of Tennessee - concurring in part and dissenting in part
E2017-02177-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Thomas C. Greenholtz

I join the majority in affirming the post-conviction court’s denial of the petitioner’s petition for post-conviction relief. However, I write separately to dissent from the majority’s holding that a hearing on a motion to withdraw a guilty plea, which a defendant files after sentencing but before the judgment becomes final, does not constitute a “critical stage” of the proceedings and, therefore, does not provide the constitutional right to the effective assistance of counsel.

Hamilton County Court of Criminal Appeals 09/13/18
Larry Wade v. State of Tennessee
E2017-02177-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Thomas C. Greenholtz

The petitioner, Larry Wade, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel upon the entry of his guilty plea and during the subsequent hearing on the motion to withdraw his guilty plea. Following our review, we affirm the denial of the petition and further conclude the petitioner does not have a constitutional right to effective assistance of counsel during a hearing on a motion to withdraw a guilty plea after sentence has been imposed.

Hamilton County Court of Criminal Appeals 09/12/18
Derrick Chambers v. State of Tennessee
W2017-01177-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Paula Skahan

The Petitioner, Derrick Chambers, appeals from the denial of his petition for postconviction relief, wherein he challenged the validity of his guilty plea to attempted first degree murder. On appeal, the Petitioner alleges that he received ineffective assistance from his trial counsel because trial counsel (1) “failed to adequately investigate, or prepare for trial, develop defenses, speak to witnesses, file motions, or meet with the [Petitioner] to prepare for trial”; (2) “failed to object to raise a statutory claim with respect to charging him with attempted murder by using a firearm and employing a firearm in the commission of the same offense”; and (3) coerced him into pleading guilty by providing incorrect advice. The Petitioner further contends that, but for trial “counsel’s ineffective representation,” he “would have received a greatly reduced sentence.” After a thorough review of the record, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 09/12/18
State of Tennessee v. Willie Mitchell
W2018-00101-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Following a trial, a Shelby County jury found Defendant, Willie Mitchell, guilty of aggravated robbery and aggravated burglary. The trial court sentenced Defendant, as a career offender, to a total effective sentence of forty-five years in the Tennessee Department of Correction. On appeal, Defendant challenges both the sufficiency of the evidence as it relates to his conviction for aggravated robbery and the sentence imposed by the trial court. Following a thorough review, we affirm the judgments of conviction.

Shelby County Court of Criminal Appeals 09/12/18
Thiermo Mamadou Diallo v. State of Tennessee
M2017-01410-CCA-R3-ECN
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Petitioner, Thiermo Mamadou Diallo, filed a petition for writ of error coram nobis, seeking relief from his conviction of statutory rape, which was the result of a guilty plea, based upon the victim’s recantation of her allegations against him. The Petitioner acknowledged that the petition was untimely but alleged that due process justified tolling the statute of limitations. After a brief hearing on the issue, the coram nobis court dismissed the petition. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 09/12/18