Court Opinions

Format: 02/15/2019
Format: 02/15/2019
Steven Anderson v. Russell Washburn, Warden - dissenting
M2018-00661-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge John D. Wootten, Jr.

I respectfully disagree with the conclusions and opinions of the majority. Therefore, I must dissent from the majority’s opinion.

Trousdale County Court of Criminal Appeals 02/05/19
Steven Anderson v. Russell Washburn, Warden
M2018-00661-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The petitioner, Steven Anderson, appeals from the denial of his petition for writ of habeas corpus, which petition challenged his 1994 convictions of aggravated robbery, especially aggravated robbery, and second degree murder. Because the petitioner has stated entitlement to habeas corpus relief in the form of the application of pretrial jail credit, we reverse and vacate the order of the habeas corpus court summarily dismissing the petition. The cause is remanded to the habeas corpus court so that that court may transfer the case to the trial court for the entry of an amended judgment reflecting the appropriate award of pretrial jail credit.

Trousdale County Court of Criminal Appeals 02/05/19
State of Tennessee v. James Hall
M2018-00096-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Seth W. Norman

Defendant, James Hall, appeals the trial court’s denial of his motion to modify his sentence pursuant to Tennessee Rule of Criminal Procedure 35. Defendant argues that the trial court abused its discretion when it failed to consider Defendant’s rehabilitation efforts. After a review of the record, we determine that the trial court did not abuse its discretion. However, the judgment for case 2015-C-1974 contains an error that warrants remand for correction.

Davidson County Court of Criminal Appeals 02/05/19
Jonathan George Carter v. Elizabeth Jo Browne
W2018-00429-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

Following a bench trial, the trial court entered a final decree of divorce in which it determined that Appellant/Wife was not entitled to an award of alimony in futuro, but awarded Wife alimony in solido and transitional alimony. The trial court further determined that the parties’ marital residence was Wife’s separate property. On appeal, Wife argues that the trial court erred in denying her alimony in futuro, while Appellee/Husband appeals the classification of the parties’ home as Wife’s separate property. With respect to the trial court’s decision that alimony in futuro is inappropriate in this case, we affirm. However, because we conclude that the trial court erred in classifying the parties’ home as Wife’s separate property, we reverse in part and remand for further proceedings

Shelby County Court of Appeals 02/04/19
In Re: Estate Of Mary Ruth Davis Hudson
E2018-00583-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

In this estate proceeding, the appellants, three of the five adult children of the decedent, appeal the probate court’s interpretation of the decedent’s last will and testament as demonstrating the decedent’s intent to have her real property administered as part of her estate by her personal representative. Having determined that the probate court’s order was premature due to ongoing proceedings in the decedent’s conservatorship case, we vacate the probate court’s order interpreting the last will and testament. We remand for further proceedings consistent with this opinion.

Knox County Court of Appeals 02/04/19
Wells Fargo Bank, N.A. v. William S. Lockett, Jr., ET Al.
E2018-00129-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: E2018-00129-COA-R3-CV

The mortgagors sought to rescind the foreclosure sale of their property, claiming that the sale was invalid because it had been conducted improperly. A jury found the sale process was properly followed and the verdict was approved by the trial court. The mortgagors appeal. We affirm

Knox County Court of Appeals 02/04/19
State of Tennessee v. Hugh A. Niceley
M2017-02535-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge William R. Goodman, III

In 1994, the petitioner, Hugh A. Niceley, was convicted of eight counts of aggravated rape and one count of aggravated sexual battery, occurring over the course of several years from 1988 until 1992. For his crimes, the petitioner received an effective sentence of fifty-three years, to be served at 30 percent. In 1999, the trial court entered a new judgment as to Count 9, requiring the sentence be served at 100 percent, as required by the applicable statute. As a result, the petitioner asserts the 1999 judgment created an illegal sentence, arguing his sentence in Count 9 should be served at 30 percent, as originally ordered. The trial court disagreed, as do we. Accordingly, the order of the trial court requiring service of Count 9 at 100 percent is affirmed.

Robertson County Court of Criminal Appeals 02/01/19
State of Tennessee v. Whelchel Randall Hogan
M2017-02254-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Larry J. Wallace

Following the denial of a suppression motion, the defendant, Whelchel Randall Hogan, entered a guilty plea in Dickson County Circuit Court to possession with intent to sell or deliver .5 grams or more of cocaine and reserved the right to appeal a certified question of law relating to the initial seizure of the defendant and the validity of the search warrant issued in this case. The defendant asserts the police did not have reasonable suspicion for the initial seizure of the defendant and the search warrant issued in this case lacked probable cause. Upon our review of the record, arguments of the parties, and pertinent authorities, we affirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 02/01/19
State of Tennessee v. Eric Henry
E2018-00537-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Tammy M. Harrington

The defendant, Eric Henry, appeals the Blount County Circuit Court’s order revoking his probation and ordering him to serve the balance of his two-year sentence for reckless endangerment in confinement. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 02/01/19
State of Tennessee v. Elvis Louis Marsh
M2017-02360-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Franklin L. Russell

The Defendant, Elvis Louis Marsh, was convicted of the sale of less than 0.5 grams of methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to sell or deliver less than 0.5 grams of methamphetamine, possession of 0.5 grams or more of methamphetamine with the intent to sell or deliver, and possession of drug paraphernalia. He received an effective sentence of thirty years. On appeal, the Defendant argues that the evidence presented at trial is insufficient to support his convictions. Upon reviewing the record and applicable law, we affirm the trial court’s judgments.

Marshall County Court of Criminal Appeals 02/01/19
Victor Eugene McConnell v. State of Tennessee
M2018-00883-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Steve R. Dozier

The pro se petitioner, Victor Eugene McConnell, appeals the denial of his petition for writ of habeas corpus by the Davidson County Criminal Court, arguing the trial court erred in summarily dismissing the petition. The petitioner asserts the State breached the plea agreement in this case, entitling the petitioner to habeas corpus relief. After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Davidson County Court of Criminal Appeals 02/01/19
Richard Alan Ellis v. Donica Ann Woods Ellis
W2017-02287-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge James F. Russell

This is an appeal from a final decree of divorce. The trial court ordered Husband to pay Wife alimony in futuro in the amount of $9,000 per month. In addition, the trial court awarded Wife her attorney’s fees as alimony in solido in the amount of $121,873.81. We vacate the trial court’s award of alimony in futuro and, for the reasons stated herein, remand the issue of Wife’s alimony for reconsideration. Additionally, we vacate the trial court’s award of Wife’s attorney’s fees and remand for the trial court to reconsider whether or not to award Wife her attorney’s fees and, if so, to award a reasonable attorney’s fee and state the basis for its decision. We also vacate the trial court’s order denying Wife’s motion for discretionary costs, and remand the issue to the trial court for a reconsideration of Wife’s motion on its merits.

Shelby County Court of Appeals 01/31/19
In Re J'Khari F.
M2018-00708-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William M. Locke

This is a termination of parental rights case involving the parental rights of the mother, Alexis F. (“Mother”), to her minor child, J’Khari F. (“the Child”), who was five years old at the time of trial. On April 10, 2015, the Warren County Juvenile Court (“trial court”) entered an order removing the Child from Mother’s custody and placing the Child into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”), effective April 9, 2015. The Child was immediately placed in foster care, where he remained at the time of trial. The trial court subsequently entered an order on September 24, 2015, finding that the Child was dependent and neglected due to Mother’s insufficient housing, Mother’s insufficient means to support the Child, and the Child’s positive drug test result for methamphetamine. On April 18, 2017, DCS filed a petition to terminate the parental rights of Mother. Following a bench trial, the trial court terminated Mother’s parental rights to the Child upon determining by clear and convincing evidence that (1) Mother had abandoned the Child by willfully failing to support him, (2) Mother had abandoned the Child by willfully failing to visit him, (3) Mother had abandoned the Child by engaging in conduct prior to her incarceration that exhibited wanton disregard for the Child’s welfare, (4) Mother had not substantially complied with the reasonable requirements of the permanency plans, (5) the conditions leading to the Child’s removal from Mother’s custody persisted, and (6) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Child. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Child. Mother has appealed. Upon a determination that the evidence presented at trial did not support a finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to support him during the four months prior to her incarceration, we reverse as to that statutory ground. We affirm the trial court’s judgment in all other respects.

Warren County Court of Appeals 01/31/19
Ronna Lyn Ueber v. Anthony James Ueber
M2018-02053-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph Woodruff

This is an accelerated interlocutory appeal from the trial court’s denial of Appellant’s motion for recusal. Because the record contains insufficient evidence of bias requiring recusal under Tennessee Supreme Court Rule 10B, we affirm.

Williamson County Court of Appeals 01/31/19
Katherine D. Chaney v. Team Technologies, Inc.
E2018-00248-SC-R9-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Thomas J. Wright

The issue in this interlocutory appeal is whether an employer, who did not use an automated external defibrillator (AED) to assist an employee who suffered a non-work related medical emergency, can be liable for workers’ compensation benefits. An employee collapsed at work because of a medical condition unrelated to her employment. The employer knew of the employee’s need for immediate medical assistance. The employer had acquired an AED but did not use it to assist the employee while awaiting the arrival of emergency medical responders. Medical responders assisted the employee, but she suffered a brain injury because of oxygen deprivation. We hold that an injury that is caused by an employer’s failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee’s helplessness, and the employer can provide reasonable medical assistance but does not do so. Here, the employee’s claim did not arise out of her employment because her employer provided reasonable medical assistance and had no statutory or common law duty to use its AED to assist the employee. Therefore, the employer is not liable for workers’ compensation benefits. We reverse the trial court’s denial of the employer’s motion to dismiss and remand to the trial court for an order of dismissal.

Hamblen County Supreme Court 01/31/19
Kimberly J. Smith v. Gregory A. Smith Et Al.
E2017-01295-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Jerri Bryant

Judgment creditor appeals the trial court’s decision to set aside a conditional judgment, to dismiss her claims of bad faith, civil contempt, and conversion against the garnishee, and to deny certain requests for discovery and sanctions. We affirm the trial court’s decision to set aside the conditional judgment, as well as the dismissal of the judgment creditor’s conversion claim. We reverse, however, the trial court’s dismissal of the judgment creditor’s claims of bad faith and civil contempt. We also vacate the trial court’s decisions with regard to sanctions and discovery, except to the extent that the trial court allowed withdrawal of certain requests for admission, which is affirmed.

Bradley County Court of Appeals 01/31/19
Christopher L. Shaw v. State of Tennessee
M2018-00686-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The petitioner, Christopher L. Shaw, appeals the denial of his petition for writ of habeas corpus, which petition challenged his 2012 Davidson County Criminal Court jury convictions of possession of 26 grams or more of cocaine in a drug-free zone, possession of drug paraphernalia, and felony evading arrest. Discerning no error, we affirm the denial of relief.

Trousdale County Court of Criminal Appeals 01/31/19
Mary Beth Harcrow v. Clyde Harcrow
M2019-00141-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joe Thompson

This is an accelerated interlocutory appeal pursued pursuant to Tennessee Supreme Court Rule 10B. Because Appellant admits that no order has been entered by the trial court with respect to her motion to recuse, we must dismiss this appeal for lack of subject matter jurisdiction.   

Sumner County Court of Appeals 01/31/19
State of Tennessee v. Nathan Todd Cooke - concurring
M2017-01947-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry B. Stanley, Jr.

While I agree with the majority’s conclusion that the officer’s actions were a proper exercise of the community caretaking function, I disagree with the majority’s holding that the Defendant was not seized when the officer approached the Defendant with activated blue lights. Without a seizure, there would be no need for the officer’s actions to be deemed the exercise of the community caretaking function.

Van Buren County Court of Criminal Appeals 01/31/19
State of Tennessee v. Nathan Todd Cooke
M2017-01947-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Nathan Todd Cooke, was convicted by a Van Buren County Circuit Court jury of two counts of driving under the influence, a Class A misdemeanor. See T.C.A. § 55-10-401 (2017). The trial court merged the convictions and sentenced him to eleven months, twenty-nine days, with ten days to be served in jail and the balance on probation. On appeal, the Defendant contends that the trial court erred in denying his motion to suppress and that the admission of the blood alcohol test result was plain error. We affirm the judgment of the trial court.

Van Buren County Court of Criminal Appeals 01/31/19
McKayla Taylor v. Miriam's Promise Et Al.
M2017-01908-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Amy V. Hollars

This action arises from an agreed-upon adoption that the birth mother revoked within 30 days of the child’s birth. The defendants include three adoption agencies, three social workers, two attorneys, a hospital, and the prospective adoptive parents. Generally stated, the complaint alleges that the defendants acted in concert to abduct the mother’s child by inducing the mother to surrender her parental rights, consent to the adoption, and waive her right of revocation. The articulated claims include conspiracy to commit fraud and tortious civil kidnapping, negligence, professional negligence, healthcare liability, and conversion of her child. All defendants filed motions to dismiss the complaint under Tennessee Rule of Civil Procedure 12.02 for some or all of the following reasons: (1) the adoption documents were valid under Tennessee law and not fraudulent; (2) Tennessee does not recognize the torts of civil kidnapping and conversion of a child; (3) the claims are time-barred; (4) the mother’s first certificate of good faith was non-compliant because it did not disclose a prior violation of Tennessee Code Annotated § 29-26-122; (5) the Tennessee Governmental Tort Liability Act barred the mother’s intentional tort claims against the hospital; and (6) the mother released some of the defendants from liability by signing a release agreement. Additionally, the healthcare providers contended the complaint should be dismissed because the mother failed to comply with the pre-suit notice requirement of the Tennessee Health Care Liability Act. The trial court granted the motions on various grounds and dismissed the complaint with prejudice for all defendants. Having determined that Tennessee does not recognize a tort of conversion of a child or tortious civil kidnapping and that conspiracy to commit fraud is not a standalone claim, we affirm the dismissal of these claims. We also affirm the dismissal of all remaining claims as time-barred. Therefore, the judgment of the trial court is affirmed.

Putnam County Court of Appeals 01/31/19
State of Tennessee v. Antoine Dewayne Clark
M2017-02525-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Monte Watkins

A jury convicted the Defendant, Antoine Dewayne Clark, of aggravated arson, and he was sentenced to serve thirty years in prison. On appeal, he alleges that the trial court erred in limiting defense counsel’s questions during voir dire; in allowing testimony regarding the injuries suffered by the victims; in denying a mistrial based on the introduction of evidence that the Defendant was wearing an ankle monitor; and in permitting hearsay testimony. After a thorough review of the record, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/31/19
Mohammad Hamad v. Real Time Staffing Services, LLC, Et Al.
M2017-02538-SC-R3-WC
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge J. Mark Rogers

In April 2011, Mohammad Hamad (“Employee”) was working at a Pillsbury factory through the defendant agency, Real Time Staffing Services (“Employer”), when he slipped on a wet floor and tore his left meniscus. After undergoing knee surgery, he returned to work at the factory. In September 2012, Employee once again was injured while lifting a heavy box. He sustained an injury to his left shoulder and an inguinal hernia. Employee has not returned to work since this second injury. Employee filed suit, arguing that he was totally and permanently disabled. The trial court found Employee only permanently partially disabled. Employee timely appealed, arguing that this Court should: (1) reverse and remand to the trial court to reconsider his contention that he is permanently and totally disabled under Tennessee Code Annotated section 50-6-207(4)(B); (2) increase his disability award under Tennessee Code Annotated section 50-6-242 (“the Escape Clause”); or (3) increase his disability award under Tennessee Code Annotated section 50-6-241. 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 of the trial court.

Rutherford County Workers Compensation Panel 01/30/19
Sherry Smith Ex Rel Lauren Taylor Agee v. Hannah Nicole Palmer - Concurring
M2017-01822-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jonathan L. Young

I concur in the reversal of the grant of summary judgment. But, because the basis of the reversal is Hannah Nicole Palmer’s failure to “satisfy her initial burden to produce evidence showing there was not a genuine issue of fact for trial,” I conclude it is unnecessary to reach the merits of the rulings on the motions in limine. I would vacate those rulings without further comment as, in my view, they were premised on the mistaken assumption that Ms. Palmer had shifted the burden to Sherry Smith.

DeKalb County Court of Appeals 01/30/19
Sherry Smith Ex Rel Lauren Taylor Agee v. Hannah Nicole Palmer
M2017-01822-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jonathan L. Young

The mother of a woman whose body was discovered in Center Hill Lake, where she had been camping with several friends, brought this wrongful death action against those friends, alleging that they caused her daughter’s death and conspired to cover it up. One of the defendants asserted her Fifth Amendment privilege against self-incrimination in her answer to the complaint and in response to discovery requests; in due course, the defendant moved for summary judgment. The mother filed several affidavits and declarations in response, as to which the defendant filed motions in limine and motions to strike in total or in part. The defendant also asserted her Fifth Amendment privilege as to additional statements of disputed facts filed by the mother in response to the summary judgment motion. The trial court granted or denied, in whole or in part, each motion in limine and to strike; held that the mother was not entitled to an adverse inference as to the defendant’s invocation of the privilege in response to discovery and mother’s statement of disputed facts in opposition to the summary judgment motion; and granted summary judgment to the defendant. Mother appeals. Upon a thorough review of the record, we reverse the grant of summary judgment, vacate the rulings on the motions in limine that are at issue in this appeal, vacate the holdings relative to defendant’s invocation of her Fifth Amendment privilege, and remand the case for further proceedings consistent with this opinion. 

DeKalb County Court of Appeals 01/30/19