Court Opinions

Format: 12/11/2017
Format: 12/11/2017
State of Tennessee v. Reba Nell Woods
M2017-00910-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

Pro se Defendant, Reba Nell Woods, appeals the denial of her “Motion to Modify Judgment,” which was interpreted by the trial court as a motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35. In this appeal, the Defendant argues that the trial court retained jurisdiction to decide her motion, even though she was in custody of the Tennessee Department of Correction. In response, the State contends that the Defendant’s motion was untimely by 118 days, an alternative basis upon which the trial court relied in denying relief. Upon our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/29/17
Estate of Ella Mae Haire, Et Al. v. Shelby J. Webster, Et Al.
E2017-00066-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This appeal arises from a family dispute over joint bank accounts. Phillip Daniel Haire (“Danny Haire”) sued First Tennessee Bank National Association (“the Bank”) in the Chancery Court for Knox County (“the Trial Court”) alleging, among other things, breach of contract. The Bank had allowed Danny Haire’s late mother Ella Mae Haire (“Decedent”) to remove him unilaterally as joint tenant with right of survivorship from certain accounts. The Bank filed a motion to dismiss, which the Trial Court granted. Danny Haire appealed. We hold, inter alia, that Danny Haire’s complaint failed to identify which contract term the Bank allegedly breached, and that Decedent could have removed all of the funds from the account, thus effectuating the same practical result as that which actually occurred. We affirm the judgment of the Trial Court.

Knox County Court of Appeals 11/29/17
In Re Arabella L.
M2017-01069-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Wayne C. Shelton

Three years after the juvenile court in Tennessee approved a parenting plan for a child, the child’s father filed a petition to modify custody, alleging a material change in circumstances. The mother, who had filed a modification petition in Alabama, requested that the Tennessee court communicate with the Alabama court to determine which court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The Tennessee court, after communicating with the Alabama court, determined that Alabama was a more convenient forum, declined to exercise jurisdiction, and dismissed the father’s petition. On appeal, the father argues that the Tennessee court failed to allow the parties access to a record of its communication with the Alabama court or an opportunity to present evidence before making its decision. Because we conclude that the juvenile court abused its discretion in declining to exercise jurisdiction without allowing the parties an opportunity to present evidence, we vacate the court’s decision and remand for further proceedings.  

Montgomery County Court of Appeals 11/28/17
Hoover, Inc. v. Ashby Communities, LLC, Et Al.
M2016-01877-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge James G. Martin, III

An asphalt paving company brought suit against the developer of a subdivision, and its managing member and guarantor, for breach of contract based on the developer’s failure to pay for services rendered under the contract. The developer answered, asserting multiple affirmative defenses, and counterclaimed, asserting that the company breached the contract, violated the Tennessee Consumer Protection Act, and mispresented that it would perform the work for the price specified in the contract. The trial court held that the developer breached the contract by failing to pay and awarded damages, interest, and attorney’s fees to the paving company. The developer appeals. Upon a thorough review of the record, we affirm the judgment in all respects.  

Williamson County Court of Appeals 11/28/17
In Re Caleb F. Et Al.
M2016-01584-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy K. Barnes

Shortly after entry of an agreed permanent parenting plan, Father filed a petition to find Mother in contempt and to modify the parenting plan. The petition alleged that a material change in circumstance had occurred since the adoption of the agreed plan, such as Mother allegedly interfering with Father’s parenting time. The juvenile court found a material change in circumstance had occurred and modified the parenting plan by increasing Father’s parenting time. From this ruling, Father appealed, claiming that the court erred by not granting him equal parenting time. Because the court’s order modifying the plan contains insufficient findings of fact and conclusions of law, we vacate and remand.

Montgomery County Court of Appeals 11/28/17
James McKinley Cunningham v. State of Tennessee
M2017-00348-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Larry B. Stanley

Petitioner, James McKinley Cunningham, was convicted of first degree murder after shooting his father.  The conviction was affirmed on direct appeal.  State v. James McKinley Cunningham, No. M1999-01995-CCA-R3-CD, 2000 WL 1520247, at *1 (Tenn. Crim. App. Oct. 13, 2000), perm. app. denied (Tenn. Apr. 23, 2001).  Petitioner initially sought post-conviction relief in 2002 and amended the petition in 2015.  Nearly fourteen years after the original petition was filed, the post-conviction court held a hearing and denied relief.  We affirm the denial of post-conviction relief.

Grundy County Court of Criminal Appeals 11/28/17
Julie Ann Norman v. Joshua Shane Norman
M2016-01990-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

A Father appeals the trial court’s decision to name the Mother as Primary Residential Parent of the parties’ two children. Discerning no error, we affirm the decision of the trial court, award the Mother her attorneys’ fee incurred on appeal, and remand the case for a determination of the amount.

Wayne County Court of Appeals 11/28/17
In Re Estate of Alfred C. Diviney, Sr.
M2017-00739-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Randy M. Kennedy

In an agreed order settling a widow’s claim for exempt property and homestead against her husband’s estate, the parties included language that they were settling “all claims that the Petitioner asserted or might have asserted in the Petition.” When the widow subsequently petitioned for a year’s support and elective share, the trial court held that her claim was barred by res judicata. We affirm the judgment of the trial court. 

Davidson County Court of Appeals 11/28/17
Kathy Carroll v. Morgan County Board Of Education
E2017-00038-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael S. Pemberton

The plaintiff Kathy Carroll, an employee of the defendant Morgan County Board of Education, was transferred to a position that she alleges she was physically unable to perform. She notes that her transfer occurred after she sent an email to a school board member complaining about school policy and practice regarding cancellation for bad weather. She brought this action stating claims for (1) age and gender discrimination under the Tennessee Human Rights Act; (2) breach of contract; (3) violation of the consitutional right to free speech; and (4) invasion of privacy. The trial court granted summary judgment on the invasion of privacy claims, stating that “all other issues are reserved for trial.” During the bench trial that followed, plaintiff’s counsel stated that plaintiff was not asserting a claim pursuant to a private right of action for violation of her right to free speech. The attorney also stated that the plaintiff was not seeking damages for such a claim. The trial court found in defendant’s favor on all claims. On appeal, plaintiff raises the sole issue of whether the trial court erred in dismissing her claim for violation of her right to free speech. We hold that plaintiff waived and abandoned this issue at trial. Accordingly, the judgment of the trial court is affirmed.

Morgan County Municipal Courts 11/28/17
In Re Chloe C.
M2017-00612-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge John Thomas Gwin

The trial court denied Appellant’s motion to set aside a default judgment in this parentage action. Because Appellant was not properly served notice of the default judgment under Rule 55.01 of the Tennessee Rules of Civil Procedure, we reverse and remand the trial court’s decision for further proceedings pursuant to this opinion. 

Wilson County Court of Appeals 11/28/17
State of Tennessee v. Melanie C. Moore
E2017-00027-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Thomas C. Greenholtz

Melanie C. Moore, the Defendant, entered an open plea of guilty to Class C felony theft of property valued at $10,000 or more but less than $60,000 (Count 1), Class D felony, theft of property valued at $1,000 or more but less than $10,000, (Count 2), Class E felony reckless endangerment (Count 3), and Class A misdemeanor escape (Count 4). The trial court sentenced the Defendant to four and one-half years on Count 1, three years on Count 2, two years on Count 3, and three months for Count 4. The trial court ordered Counts 2, 3 and 4 to be served consecutively to Count 1 but concurrently with each other for an effective sentence of seven and one-half years. The trial court ordered Count 1 to be served in the Department of Correction and suspended the other sentences. On appeal, the Defendant argues that the trial court abused its discretion in its sentencing decisions. After a thorough examination of the facts and applicable case law, we affirm the sentences except for the partial consecutive alignment of the misdemeanor escape. We remand for correction of the judgment sheets to provide for consecutive alignment of Count 4 with Counts 2 and 3.

Hamilton County Court of Criminal Appeals 11/28/17
Embraer Aircraft Maintenance Services, Inc. v. Aerocentury Corp.
M2016-00649-SC-R23-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Aleta A. Trauger

In this case, the petitioner had a repairman’s lien on personal property and filed an action in federal district court to enforce the lien by original attachment of the lien-subject property. During the pendency of the federal court action, the lien-subject property was sold to a purchaser and was no longer available for attachment, so the lienholder sought to reach the proceeds from the sale of the lien-subject property. The federal court then sought certification under Tennessee Supreme Court Rule 23 of two questions: (1) May a repairman’s lien arising under Tennessee Code Annotated section 66-19-101 (2015) be enforced by a method other than attachment of the lien-subject property itself? and (2) In Tennessee, under what circumstances, if any, may a court attach the proceeds of the sale of lien-subject property, or otherwise reach them with a judgment, where the owner has rendered attachment of the lien-subject property impracticable or impossible after the initiation of a foreclosure proceeding? We answer the first question by interpretation of Tennessee Code Annotated section 66-21-101 (2015), which addresses enforcement of a statutory lien by original attachment where the lien statute does not specify a method to enforce the lien. The lienholder has no statutory lien on the proceeds from the sale of the lien-subject property, and section 66-21-101 addresses only enforcement of a statutory lien. Accordingly, section 66-21-101 is not a statutory vehicle for the lienholder to reach the proceeds from the sale of the lien-subject property. Section 66-21-101 neither provides for nor excludes other remedies that may be available to the lienholder to reach the proceeds from the sale of the lien-subject property. The second question certified by the federal district court in this case is not a defined question of unsettled Tennessee law, but it is more in the nature of an open-ended inquiry regarding other remedies that might enable the lienholder to reach the proceeds from the sale of the lien-subject property. Such an open-ended inquiry is not suitable for certification under Tennessee Supreme Court Rule 23, and there is ample Tennessee case law available to the parties on other possible remedies, so we respectfully decline to address the merits of the second certified question.

Supreme Court 11/27/17
Blue Water Bay At Center Hill, LLC, Et Al. v. Larry J. Hasty, Et Al.
M2016-02382-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Deanna Johnson

This appeal follows the trial court’s confirmation of an arbitration award. There are four participating parties on appeal, the Appellant and three separate Appellees. With respect to the claims asserted by Appellee Blue Water Bay against the Appellant, we hereby vacate the trial court’s orders and remand for further proceedings because the trial court erred in not allowing the Appellant pre-arbitration discovery regarding issues pertaining to arbitrability. With respect to the claims involving the other two Appellees, we reverse the trial court’s orders due to the absence of a sufficient basis to establish arbitrability.

Williamson County Court of Appeals 11/27/17
Steve Merriweather, et al. v. Debra Merriweather, et al.
W2016-02287-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor James R. Newsom

Because the order appealed is not a final judgment, we must dismiss this appeal for lack of jurisdiction.

Shelby County Court of Appeals 11/27/17
State of Tennessee v. Daniel Stephen Collins
E2016-02580-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John F. Dugger, Jr.

The Defendant, Daniel Stephen Collins, was convicted by a Hawkins County jury of the aggravated sexual battery of his eight-year-old daughter, a Class B felony, and was sentenced by the trial court to nine years at 100% in the Department of Correction. The Defendant raises three issues on appeal: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by not qualifying the victim as a competent witness and by allowing the prosecutor to lead her testimony; and (3) whether the presentment was constitutionally defective because it failed to charge the crime for which he was convicted. Following our review, we affirm the judgment of the trial court.

Hawkins County Court of Criminal Appeals 11/27/17
Dale (Crafton) Roberts v. James Frederick Roberts
W2016-01810-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Rhynette N. Nurd

This is the second time we have considered this child custody case on appeal. The parties have been embattled in post-divorce litigation almost continuously since entry of the final decree of divorce in 2007. In 2012, the parties sought to modify their parenting arrangement, and the trial court allowed a divorce referee to hear the matter. The court then attempted to retroactively appoint the divorce referee as a Special Master and adopted a modified version of the findings and recommendations of the divorce referee/Special Master. Father appealed, and on December 28, 2015, this Court vacated the trial court’s order and remanded the case for further proceedings as needed to adjudicate the parties’ petitions related to custody and parenting. On remand, the trial court held a three day hearing to determine whether to modify the parties’ current permanent parenting plan. The court concluded that the primary residential parent of the parties’ remaining minor child should be changed from Father to Mother. Father appeals. We hold that the trial court erred in refusing to consider all of the applicable best interest factors set forth in Tennessee Code Annotated section 36-6-106, specifically the preference of a child age twelve or older. We, therefore, vacate the order of the trial court and remand for further proceedings consistent with this Opinion. We decline mother’s request for attorney’s fees incurred on appeal.

Shelby County Court of Appeals 11/22/17
Edward Ronny Arnold v. Bob Oglesby, Et Al.
M2017-00808-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

A former state employee filed suit claiming that he should have been paid for the state holiday on November 27, 2015, because he worked on October 12, 2015, the day from which the holiday was shifted pursuant to Tenn. Code Ann. § 4-4-105(a)(3). His position was terminated before the November 27, 2015 holiday occurred. The general sessions and circuit courts granted the Department of General Services Commissioner’s motion to dismiss based on sovereign immunity. We reverse.

Davidson County Court of Appeals 11/22/17
Tennessee Clutch And Supply , Inc. v. Auto-Owners (Mutual) Insurance Company
M2016-02195-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

This appeal arises from a dispute between an insured and its insurance carrier concerning the coverage limits under an “Employee Dishonesty” endorsement to a commercial general liability policy for an employee’s dishonesty that spanned two policy years. After the insured discovered that one of its employees embezzled approximately $100,000 in 2014 and 2015, it filed a claim for $30,000, the aggregate of the policy limits of $15,000 for each policy year. The insurer took the position that the limitation of coverage for such an occurrence was $15,000, paid that amount, and denied the balance of the claim. The trial court held that the policy language was ambiguous and by construing the policies in favor of the insured, determined there were two policies, each of which provided $15,000 of coverage and ruled that Plaintiff was entitled to recover $30,000. The insurer appealed. Finding no ambiguity, we have determined that the 2015 policy was not a separate policy but a renewal of the 2014 policy, that the policy limit for employee dishonesty is $15,000 per occurrence, and that there was one continuous occurrence, as that term is defined in the policy, which spanned two years. We have also determined that the policy prohibits “stacking” of coverage from one policy year to the next. For these reasons, we respectfully reverse the judgment of the trial court and hold that the policy limits for the claim asserted by the insured is $15,000.

Davidson County Court of Appeals 11/22/17
In Re Bentley D.
E2016-02299-SC-RDO-PT
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge J. Eddie Lauderback

The trial court terminated the father’s parental rights. The father timely filed a notice of appeal signed by his attorney but not signed personally by the father. The Court of Appeals filed an order directing the father to show cause why his appeal should not be dismissed for lack of jurisdiction for failure to comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” The father’s response to the show cause order included a challenge to the constitutionality of section 36-1-124(d). The Tennessee Attorney General filed a notice of intent to defend the constitutionality of the statute. This Court, upon its own motion, assumed jurisdiction over the case and directed the parties and the Attorney General to address the following issues: (1) whether failure to comply with Tennessee Code Annotated section 36-1-124(d) is a jurisdictional defect; and (2) whether Tennessee Code Annotated section 36-1-124(d) is unconstitutional based on separation of powers, due process, and/or equal protection grounds. We conclude that that the statute does not require a notice of appeal to be signed personally by the appellant. Because the timely notice of appeal signed by the father’s attorney satisfies the signature requirement, we hold that the father’s appeal is not subject to dismissal. This holding renders moot the other issues before us. We remand the case to the Court of Appeals for consideration of the merits of the father’s appeal.  

Washington County Supreme Court 11/22/17
In Re: Estate of J. Don Brock
E2016-00637-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Chancellor Jeffrey M. Atherton

We granted permission to appeal to determine whether the contestants—five of the decedent’s seven children—have standing to bring this will contest. The contestants were expressly disinherited by a will dated October 1, 2013, and admitted to probate and by a prior will, dated October 11, 2012, produced during this litigation. The trial court dismissed this will contest for lack of standing, concluding that two prior decisions of this Court—Cowan v. Walker, 96 S.W. 967 (Tenn. 1906) and Jennings v. Bridgeford, 403 S.W.2d 289 (Tenn. 1966)—required the dismissal. The Court of Appeals affirmed. Although we agree with the courts below that Cowan and Jennings include imprecise language that could be viewed as establishing a broad, bright-line rule that persons disinherited by facially valid successive wills lack standing, we conclude that those decisions are factually distinct and did not announce such a broad rule. We reaffirm the general rule, long recognized in Tennessee, that to establish standing a contestant must show that he or she would be entitled to share in the decedent’s estate if the will were set aside or if no will existed. The contestants here have satisfied this requirement by showing that they would share in the decedent’s estate under the laws of intestacy and under prior wills. Thus, the judgments of the trial court and Court of Appeals dismissing this will contest for lack of standing are reversed, and this matter is remanded to the trial court for further proceedings consistent with this decision. 

Hamilton County Supreme Court 11/22/17
State of Tennessee v. Marcus Thomas
W2017-00692-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The defendant, Marcus Thomas, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2013 Shelby County Criminal Court
guilty-pleaded convictions of aggravated robbery. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 11/22/17
State of Tennessee v. Raymond Banjard Mims
E2016-02425-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge R. Jerry Beck

After being charged by presentment with three counts of the Class A felony, criminal conspiracy to commit first degree murder, as well as one count of criminal conspiracy to possess more than ten pounds of marijuana with the intent to sell or deliver and one count of simple possession of marijuana, Defendant, Raymond Banjard Mims, entered a quite favorable plea agreement. Defendant pled guilty to greatly reduced counts of conspiracy to commit assault, Class B misdemeanors, in addition to conspiracy to possess over ten pounds of marijuana for sale or delivery and simple possession of marijuana in exchange for an effective sentence of two years. He reserved the right to seek an alternative sentence. The trial court denied alternative sentencing. Defendant appeals the denial of an alternative sentence. After a review, we determine that the trial court did not abuse its discretion in ordering Defendant to serve his sentence in confinement. Accordingly, the judgments of the trial court are affirmed.

Sullivan County Court of Criminal Appeals 11/22/17
Melissa Duck v. Cox Oil Company, ET AL.
W2016-02261-SC-WCM-WC
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Allen Phillips

The employee in this case worked as a clerk at a convenience store. While at work, the employee orally informed her supervisor that she was quitting and turned to leave the store. On her way out of the store, the employee fell. She later complained of injuries from the fall and sought workers’ compensation benefits. The employer denied the claim on the basis that the employment relationship had already ended by the time the injury occurred. The Court of Workers’ Compensation Claims awarded benefits. The Workers’ Compensation Appeals Board reversed and remanded. The employer then filed a motion for summary judgment, which was granted. The employee appealed to the Supreme Court pursuant to Tennessee Code Annotated section 50-6-239(c)(7) (2014), and the Supreme Court referred the appeal to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We hold that the appeal is not barred by the law of the case doctrine and that the employee remained employed at the time the alleged injury occurred for a reasonable length of time to effectuate the termination of her employment, so she was still employed for purposes of the workers’ compensation statutes. Accordingly, we reverse and remand for further proceedings.

Workers Compensation Panel 11/21/17
State of Tennessee v. Elvis Hester
W2016-01822-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John W. Campbell

A Shelby County Criminal Court Jury found the Appellant guilty of possession of marijuana, and the trial court imposed a sentence of six years. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction and the trial court’s sentencing him for a Class E felony instead of a Class A misdemeanor as was required by the recent amendment to Tennessee Code Annotated section 39-17-418(e). Upon review, we conclude that the evidence was sufficient to sustain the Appellant’s conviction. We further conclude that the trial court erred by sentencing the Appellant for a Class E felony, and we remand to the trial court for entry of a corrected judgment reflecting that the conviction is a Class A misdemeanor and that the accompanying sentence is eleven months and twenty-nine days.

Shelby County Court of Criminal Appeals 11/21/17
State of Tennessee v. Antoine Perrier
W2015-01642-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge W. Mark Ward

We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues:  (1) the meaning of the phrase “not engaged in unlawful activity” in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity.  We hold that the legislature intended the phrase “not engaged in unlawful activity” in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.  We further conclude that the defendant’s conduct in this case constituted unlawful activity for the purposes of this statute.  The defendant has also presented four other issues to this Court, arguing that the trial court erred by failing to properly instruct the jury on the lesser-included offenses of employing a firearm during the commission of a dangerous felony, that the second count of the indictment was deficient, that the trial court should have given the jury an instruction on the defense of necessity, and that the evidence was insufficient to support the defendant’s conviction for assault.  We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds. 

Shelby County Supreme Court 11/21/17