Court Opinions

Format: 07/25/2017
Format: 07/25/2017
John H. Brichetto, Jr. v. State of Tennessee
E2016-01855-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Paul G. Summers

The Petitioner, John H. Brichetto, Jr., and his wife were convicted of Class B felony theft of property. The Petitioner was sentenced to ten years’ incarceration. As part of an agreement for a reduced sentence for his wife, the Petitioner executed a written waiver of his right to appeal, his right to file for post-conviction relief, and his right to collaterally attack his conviction. The Petitioner then filed a petition for post-conviction relief. Finding that the waiver was entered knowingly, intelligently, and voluntarily, the post-conviction court summarily dismissed the petition. Following our review, we affirm the judgment of the post-conviction court.

Morgan County Court of Criminal Appeals 07/18/17
State of Tennessee v. Paul Avery Reno
M2016-01903-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Thomas W. Graham

The Defendant, Paul Avery Reno, pleaded guilty to statutory rape, a Class E felony. See T.C.A. § 39-113-506 (2014). Pursuant to the plea agreement, the Defendant agreed to a six-year sentence as a Range III offender, with the method and manner of service to be determined by the trial court. The court ordered him to serve his sentence in confinement. On appeal, the Defendant contends that the court erred by (1) denying judicial diversion, (2) denying alternative sentencing, and (3) ordering the Defendant to register as a sex offender. We affirm the judgment of the trial court but remand for a new sentencing hearing.

Sequatchie County Court of Criminal Appeals 07/18/17
State of Tennessee v. Micah Alexander Cates
E2014-01322-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

The Tennessee Supreme Court has remanded this case for reconsideration in light of State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016). See State v. Micah Alexander Cates, No. E2014-01322-CCA-R3-CD, 2015 WL 5679825, at *1-6 (Tenn. Crim. App. Sept. 28, 2015), perm. app. granted, case remanded (Tenn. Nov. 16, 2016). Relevant to the current remand, this court concluded in the previous appeal that a new trial was necessary because the warrantless blood draw was not justified by exigent circumstances and that the evidence obtained from the blood draw should have been suppressed. Upon further review, we conclude that the good-faith exception to the exclusionary rule permitted the admission of the relevant evidence, and we affirm the judgment of the trial court.

Carter County Court of Criminal Appeals 07/17/17
State of Tennessee v. Whitney Kristina Harris
E2016-00604-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stacy L. Street

The Defendant, Whitney Kristina Harris, was convicted upon her guilty pleas of tampering with evidence, a Class C felony, and accessory after the fact to first degree murder, a Class E felony. See T.C.A. §§ 39-16-503 (2014) (tampering with evidence), 39-11-411 (2014) (accessory after the fact). The Defendant pleaded guilty as a Range II offender as a term of the plea agreement and agreed to an effective ten-year sentence. The manner of service of her sentence was reserved for the trial court’s determination. On appeal, the Defendant contends that the trial court erred in imposing incarceration rather than an alternative sentence. We affirm the judgments of the trial court, and we remand the case for correction of a clerical error on the accessory after the fact judgment.

Carter County Court of Criminal Appeals 07/17/17
Shawn Bough v. State of Tennessee
E2017-00015-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Shawn Bough, appeals from the Knox County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his convictions for felony murder and especially aggravated robbery, for which he is serving an effective life sentence. The coram nobis court dismissed the petition after a hearing because it determined the newly discovered evidence was not credible and would not have led to a different result at the trial. On appeal, the Petitioner contends that the court erred by dismissing the petition. We affirm the judgment of the coram nobis court.

Knox County Court of Criminal Appeals 07/17/17
State of Tennessee v. Anna Chick
M2016-01907-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The defendant, Anna Chick, appeals her Williamson County Circuit Court conviction of failure to appear, see T.C.A. 39-16-609, arguing that Code section 39-16-609 is unconstitutional; that the evidence was insufficient to support her conviction; that the trial court erred by admitting certain evidence in violation of the defendant’s constitutional right to confront the witnesses against her; that the State failed to establish that the offense was committed before the finding of the indictment; and that the six-year sentence imposed in this case constitutes unconstitutionally cruel and unusual punishment. Discerning no error, we affirm the judgment of the trial court.

Williamson County Court of Criminal Appeals 07/17/17
In Re: Bryson F.
E2016-01303-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Alex E. Pearson

This is a termination of parental rights case in which the mother and stepfather sought termination of the biological father’s parental rights to his child. The trial court found that clear and convincing evidence existed to support the termination on the statutory ground of abandonment for failure to remit child support. The court further found that termination was in the best interest of the child. The father appeals. We affirm.

Hamblen County Court of Appeals 07/17/17
Jonelle Hyde v. South Central Tennessee Development District
M2015-02466-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Defendant that admitted liability for vehicle accident appeals the award of damages to the injured Plaintiff, contending that the awards for lost wages, lost future earnings, pain and suffering, past and future, loss of ability to enjoy life, past and future, and permanent impairment awards, are against the preponderance of the evidence. Upon a thorough review of the record, we modify the award for past medical expenses; affirm the awards for past pain and suffering, permanent impairment, past loss of ability to enjoy life and for loss of ability to enjoy life in the future, and for lost wages; reverse the award for future pain and suffering; and vacate the award for loss of earning capacity and remand the case for further consideration of the award.

Davidson County Court of Appeals 07/14/17
The Metropolitan Government of Nashville And Davidson County v. RSF Investors, LLC
M2016-02221-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from an enforcement action by the Metropolitan Government of Nashville and Davidson County (“Metro”) against the owner of a restaurant located within the Broadway Historic Preservation District in Nashville, Tennessee. Metro commenced the action to require the owner to comply with Metropolitan Code of Laws (M.C.L) § 17.40.410 and the preservation permit the Metropolitan Historic Zoning Commission (“the Commission”) issued upon the application of the owner. Following discovery, the parties filed cross motions for summary judgment. The trial court granted Metro’s motion and denied the owner’s motion. The order required the owner to remove the portion of the installation that did not comply with the permit. This appeal followed. The owner raises three principal issues. It contends: (1) the glass panels it was ordered to remove do not fall within the purview of the Commission; (2) Metro cannot enforce a permit that has expired; and (3) summary judgment is inappropriate because material facts are in dispute. Metro contends we lack jurisdiction to hear this appeal because the appeal is untimely. We have determined the appeal is timely, and the issues raised by the owner are unavailing. Therefore, we affirm. 

Davidson County Court of Appeals 07/14/17
Karen H. Foster v. Douglas S. Foster
M2016-01749-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This post-divorce case involves the interpretation of a paragraph in a marital dissolution agreement regarding the allocation of a portion of Husband’s military retirement benefits to Wife. Both parties petitioned the trial court to interpret the terms of the agreement. The trial court held that the agreement awarded Wife 33% of Husband’s actual disposable military retirement pay at the rank of Captain (his rank at the time of the divorce). On appeal, Husband contends that the award was intended to be alimony in solido calculable at the time of the divorce based on the value of his accrued benefits at that time. He also contends that Wife should be bound by her acknowledgment in pre-litigation discussions of $465.86 per month as the correct amount of the award. Having considered the issues advanced on appeal, we agree with the trial court’s interpretation of the marital dissolution agreement and affirm its judgment in all respects. Additionally, we hold that Wife is entitled to an award of reasonable attorney’s fees incurred on appeal pursuant to the terms of the marital dissolution agreement and remand this case to the trial court for a determination of the appropriate amount of those fees.  

Montgomery County Court of Appeals 07/14/17
Trina A. Scott v. Sharfyne L'Nell White
M2015-02488-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ross H. Hicks

A judgment creditor moved to extend her judgment for an additional ten years under Tennessee Rule of Civil Procedure 69.04, and the trial court issued an order requiring the judgment debtor to show cause why the judgment should not be extended. Almost a year later, the judgment debtor filed a motion for relief from the judgment based upon an error in the certificate of service on the show cause order. In her response, the judgment creditor acknowledged that the address shown for the judgment debtor was incorrect but stated that, after the order was returned by the post office, it was mailed to the correct address. The judgment creditor also asserted that the motion for relief was premature because the court had not yet entered an order extending the judgment. The trial court entered an order extending the judgment for an additional ten years. We affirm.

Montgomery County Court of Appeals 07/14/17
Joletta Summers v. State of Tennessee
W2016-02157-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Carolyn W. Blackett

Petitioner, Joletta Summers, appeals the denial of her petition for post-conviction relief from her convictions for voluntary manslaughter, attempted voluntary manslaughter, and employment of a firearm during the commission of a dangerous felony. On appeal, Petitioner asserts that she received ineffective assistance of counsel because trial counsel mentioned during opening statement an inculpatory statement that was never introduced into evidence; failed to adequately argue for severance of her case from her codefendant’s; failed to object to the State’s improper closing argument; failed to file a timely motion for new trial; and failed to argue on appeal that the trial court erred in failing to specify the predicate felony in the jury instructions for the employment of a firearm charge. Upon our review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 07/14/17
State of Tennessee v. Dewayne Jones
W2016-00074-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Dwayne Jones, was convicted by a Shelby County Criminal Court jury of aggravated assault, a Class C felony, and was sentenced by the trial court as a Range I, standard offender to five years of incarceration. The trial court also imposed the $7000 fine assessed by the jury. The Defendant raises three issues on appeal: whether the trial court lacked subject-matter jurisdiction due to the Defendant’s pending petition to remove the case to federal court, pursuant to 28 U.S.C. § 1443; whether the evidence is sufficient to sustain his conviction because the proof did not show that the victim suffered serious bodily injury; and whether the trial court erred in imposing the $7000 fine without making any specific findings of fact regarding the Defendant’s financial circumstances and ability to pay. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/14/17
Zella Balentine v. City of Savannah, Tennessee
W2016-01865-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Carma Dennis McGee

This appeal results from the trial court’s ruling that the city was allowed to demolish appellant’s home based on her failure to bring the building into compliance as required by the settlement agreement reached by the parties. Based on appellant’s failure to comply with the Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals, we decline to address the merits of the case and dismiss the appeal.

Hardin County Court of Appeals 07/13/17
Rickey Joe Taylor v. Town of Lynnville - Concurring
M2016-01393-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge David L. Allen

I concur in the majority’s opinion, but I write separately to express my concern regarding one facet of statutory interpretation in this case.

Giles County Court of Appeals 07/13/17
Rickey Joe Taylor v. Town of Lynnville
M2016-01393-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge David L. Allen

This is an appeal from a dispute litigated under the Tennessee Public Records Act. Although the trial court concluded that the Town of Lynnville violated the Act by denying the petitioner’s request for records, the court held that the denial of records was not willful. Accordingly, the petitioner’s request for attorney’s fees was denied. Having reviewed the record transmitted to us on appeal, we disagree with the trial court’s determination that the denial of records was not willful and reverse the trial court on this issue. In light of our conclusion that the denial of records was willful, we remand the case to the trial court to reconsider its decision to deny an award of attorney’s fees. We also remand for a determination of Mr. Taylor’s costs and attorney’s fees incurred in this appeal.

Giles County Court of Appeals 07/13/17
Floyd E. Rayner, III v. Tennessee Department of Correction, et al
M2017-00223-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellant, an inmate in the custody of Appellee Tennessee Department of Correction, appeals the trial court’s dismissal of his petition for declaratory judgment under the Uniform Administrative Procedures Act. Specifically, Appellant challenges the Tennessee Department of Correction’s calculation of his criminal sentence, and also challenges the constitutionality of the criminal statutes, under which he was convicted. We conclude that the calculation of Appellant’s sentence comports with the judgments of the criminal court. Appellant’s constitutional arguments challenge his criminal sentence. As such, he has no recourse under the Uniform Administrative Procedures Act. Affirmed and remanded.

Davidson County Court of Appeals 07/13/17
State of Tennessee v. Arnold Travis Nunnery
M2016-01932-CCA-R9-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Deanna B. Johnson

The Defendant was indicted for driving under the influence of an intoxicant (DUI); driving with a blood alcohol concentration of .08 or more (DUI per se); DUI, second offense; and unlawful possession of a weapon. The Defendant filed a motion to suppress evidence obtained as a result of a blood draw taken pursuant to a search warrant, and the trial court granted the motion. The State sought and was granted permission to appeal pursuant to Tennessee Rule of Appellate Procedure 9. We hold that the police officer’s execution of the search warrant was unconstitutional, that exigent circumstances did not justify the blood draw, and that the good faith exception does not apply. Accordingly, we affirm the trial court’s judgment suppressing the results of the blood draw and remand the case to the trial court for further proceedings consistent with this opinion.

Lewis County Court of Criminal Appeals 07/13/17
State of Tennessee v. Robert Allen Territo
M2016-00548-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Brody N. Kane

Pro se petitioner, Robert Allen Territo, appeals the summary dismissal of his Rule 36.1 motion to correct an illegal sentence by the Circuit Court for Jackson County. On appeal, the petitioner argues that (1) he should have been sentenced as a Range I offender; (2) the trial court erred by improperly enhancing his sentence above the statutory minimum; (3) the trial court violated Rule 11 by accepting his guilty plea; and (4) he received ineffective assistance of counsel. Upon review, we affirm the judgment of the trial court.

Jackson County Court of Criminal Appeals 07/13/17
In Re: Quintin S., et al.
E2016-02150-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Robert M. Estep

The Department of Children’s Services filed this petition to terminate the parental rights of the mother and two fathers of four children on various grounds. We affirm the termination of the parental rights of all three parents on multiple grounds, but reverse as to some of the grounds found by the trial court. We agree with the trial court’s decision that termination of parental rights is in the best interest of the children.

Claiborne County Court of Appeals 07/13/17
State of Tennessee v. Willie Hardy, Jr. - concurring in part, dissenting in part
M2016-01748-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Ross Hicks

I agree with the majority's conclusion that the evidence was sufficient to support the Defendant's conviction for aggravated robbery and that the record supports the length of the Defendant's within-range sentences. However, I respectfully dissent from the majority's conclusion regarding the trial court's imposition of consecutive sentences.

Montgomery County Court of Criminal Appeals 07/13/17
State of Tennessee v. Willie Hardy, Jr.
M2016-01748-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Ross Hicks

The defendant, Willie Hardy, Jr., appeals his Montgomery County Circuit Court jury conviction of aggravated robbery, claiming that the evidence was insufficient to support his conviction and that the sentence imposed was excessive. Because the trial court failed to make the requisite findings, we vacate the trial court’s imposition of consecutive sentencing and remand for the limited purpose of making the appropriate findings on this issue. In all other respects, we affirm the judgment of the trial court.

Montgomery County Court of Criminal Appeals 07/13/17
Alexander A. Stratienko, et al. v. Oscar H. Brock, et al.
E2016-01467-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerri S. Bryant

This is a jury case arising from the formation and management of a limited liability company. The jury determined that the Appellee developer was entitled to payment for his membership interest in the LLC. The jury also determined that the Appellant investor, his wife, and the LLC should indemnify the developer for the judgment relating to the lease of an adjacent lot. Because there is material evidence to support the jury’s verdict, we affirm and remand

Hamilton County Court of Appeals 07/13/17
Randall Eugene Denton v. Deborah Meadows Denton
W2017-00472-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor James F. Butler

Appellant, a sixty-nine year old retiree, was found guilty of civil contempt for failure to comply with a marital dissolution agreement. We reverse the trial court’s order incarcerating Appellant “until payment of the debt” and instead order his immediate release from incarceration based upon his inability to pay the debt.

Henderson County Court of Appeals 07/12/17
Kevin Cash v. Turner Holdings, LLC a/k/a Prairie Farms Dairy, Inc.
W2016-02288-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

This case involves the application of the doctrine of res judicata. Appellant filed a complaint against appellee alleging retaliatory discharge, fraud, and intentional infliction of emotional distress in the first lawsuit. The trial court granted appellee’s Rule 12.02(6) motion to dismiss “in its entirety.” Appellant thereafter filed a second lawsuit against appellee alleging the same causes of action. The trial court granted summary judgment to appellee based on the doctrine of res judicata. Discerning no error, we affirm.

Shelby County Court of Appeals 07/12/17