Court Opinions

Format: 02/23/2017
Format: 02/23/2017
City of Chattanooga, et al. v. Tax Year 2011 City Delinquent Real Estate Taxpayers
E2016-00025-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Pamela A. Fleenor

This appeal was filed by a purchaser who bought a parcel of real property in Hamilton County, Tennessee, at a delinquent tax sale. After the sale, the person who had owned the property at the time of the sale conveyed it to a married couple. The title agency, who assisted with the closing, the original owner, and the couple moved to redeem the property upon learning of the tax sale. The trial court granted their request, divested title from the tax sale purchaser, and vested it in the original owner. The tax sale purchaser appeals. We affirm as modified.

Hamilton County Court of Appeals 02/10/17
Rhonda Sue Watkins v. Kenneth Danny Watkins
M2016-00165-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

This is the second appeal of this case. In the first appeal, this Court affirmed the trial court’s grant of appellee’s petition to modify child custody and child support but vacated the trial court’s judgment with respect to appellant’s petition to modify alimony for lack of findings. On remand, the trial court found that appellant failed to establish a material change in circumstances justifying an increase in the alimony award that she was already receiving. Appellant appeals. Because appellant’s brief failed to comply with the applicable rules, we dismiss her appeal in its entirety. In addition, we deny appellee’s request for attorney’s fees. 

Williamson County Court of Appeals 02/10/17
State of Tennessee v. Travis Pallaria
E2016-00748-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David R. Duggan

The Defendant, Travis Pallaria, appeals as of right from the Blount County Circuit Court’s revocation of his community corrections sentence. The Defendant cites evidence excusing his violation and contends that the trial court was unduly harsh and abused its discretion in ordering the Defendant to serve the balance of his sentence in confinement. Following our review, we affirm the revocation and confinement order of the trial court.

Blount County Court of Criminal Appeals 02/09/17
State of Tennessee v. Billy Hill
E2015-00811-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Billy Hill, was convicted by a Knox County Criminal Court jury of second degree murder, a Class X felony, for the 1986 killing of his mother. See T.C.A. § 39-2-211 (1986) (repealed 1989). The trial court sentenced the Defendant to twenty-four years‘ confinement. On appeal, the Defendant contends that (1) the trial court erred by denying his motions to dismiss based upon lost and destroyed evidence, a due process violation created by the extensive pre-indictment delay, and a violation of his right to a speedy trial, (2) the trial court erred by allowing improper witness testimony, (3) the trial court erred by denying his motion for a mistrial after a witness violated a court order prohibiting testimony about the Defendant‘s alleged violent conduct against the witness, (4) the trial court erred by refusing to provide a jury instruction relative to the State‘s obligation to corroborate his statements, and (5) the prosecutor engaged in misconduct during closing argument. We have also considered whether the statute of limitations for second degree murder had expired before the commencement of the prosecution. Although we affirm the Defendant‘s conviction, we remand for the entry of a corrected judgment reflecting the proper felony classification for second degree murder at the time of the offense.

Knox County Court of Criminal Appeals 02/09/17
Mark George v. Shelby County Board of Education
W2016-01191-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James R. Newsom

This is a teacher tenure case. Appellant, a tenured teacher employed by Appellee Shelby County Board of Education, was fired for insubordination and conduct unbecoming. Appellant appealed the Shelby County School Board’s decision to the Chancery Court for Shelby County. In a post-trial motion, Appellee petitioned the court to consider an email notification of the board’s decision that was sent to Appellant’s attorney. Specifically, Appellee argued that the email constituted statutory notice to the Appellant so as to start the thirty-day time period for filing an appeal of the board’s decision in the trial court. Tenn. Code Ann. 49-5-513(b). The trial court denied the motion as newly discovered evidence. We conclude that the email goes directly to the question of whether the Appellant’s petition was timely so as to confer subject-matter jurisdiction on the trial court. Accordingly, the trial court erred in treating the motion as one for permission to file “newly discovered evidence.” Because the trial court applied an incorrect legal standard in ruling on the admissibility of the email evidence and did not address the question of its subject-matter jurisdiction, we vacate the trial court’s order and remand for further proceedings.

Shelby County Court of Appeals 02/08/17
Shameka Rushing v. AMISUB (SFH), Inc., et al.
W2016-01897-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Robert Samual Weiss

This is a premises liability case. Appellant slipped and fell in a clear liquid on the floor of the St. Francis Hospital emergency room and filed suit against the hospital. In its answer, the hospital denied liability and alleged comparative fault on the part of Appellant and its housekeeping management service, Crothall Healthcare, Inc. Appellant amended her complaint to name Crothall as a defendant. Appellees filed motions for summary judgment. The trial court granted both motions, finding that Appellant had failed to show that Appellees had actual or constructive notice of a dangerous condition. Appellant appeals. Discerning no error, we affirm the trial court’s grant of summary judgment.

Shelby County Court of Appeals 02/08/17
Nancy Lynn Hopper v. Anthony Angelo Debboli
M2016-00861-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Howard W. Wilson

Former Husband and Wife owned a business together while they were married. In a post-divorce order, the trial court decreed that the business was to be wrapped up and sold. Former Husband failed to comply with the order and Former Wife filed a motion for a temporary restraining order (“TRO”) and a petition for civil contempt. The court granted Former Wife a TRO but did not rule on the petition for contempt. Former Wife filed a motion to set a hearing on her petition for contempt two years later, and the trial court dismissed the motion as moot. Former Wife appealed, and we reverse the trial court’s judgment. We conclude that this Court lacks subject matter jurisdiction over this appeal because the trial court failed to resolve all outstanding issues in the case.

Rutherford County Court of Appeals 02/08/17
Eddie A. Medlock v. State of Tennessee
M2016-02460-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John D. Wooten, Jr.

The Appellant, Eddie A. Medlock, is appealing the trial court’s order denying his petition for a writ of habeas corpus.  The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20.  Said motion is hereby granted.

Trousdale County Court of Criminal Appeals 02/08/17
Michael Joseph Lugiai, Sr. v. State of Tennessee
M2016-00369-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

In July 2012, the Petitioner, Michael Joseph Lugiai, Sr., entered a “best interests” guilty plea to four counts of aggravated assault.  He timely filed a petition for post-conviction relief alleging that he received ineffective assistance of counsel and that his plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 02/08/17
State of Tennessee v. Robreka Jay Quan Sullivan
M2015-01407-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Appellant, Robreka Jay Quan Sullivan, was found guilty by a Davidson County Criminal Court Jury of aggravated robbery and aggravated burglary, and she received a total effective sentence of ten years.  On appeal, the Appellant challenges the sufficiency of the evidence sustaining her convictions.  Specifically, she contends that the victim’s testimony was not credible and that the State proved, at most, that she was involved in the disposition of stolen property.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 02/08/17
Margaret Cruce v. Memmex Inc. d/b/a Salsa Cocina Mexicana Restaurant
W2016-01167-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

In this premises liability case, the plaintiff appeals the trial court’s grant of summary judgment to the defendant property owner. Discerning no error, we affirm.

Shelby County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al., Concur in part and Dissent in part
W2016-00901-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald H. Allen

I concur in the majority opinion’s denial of West Tennessee Health Network and West Tennessee Healthcare, Inc.’s Motion to Dismiss and/or for Summary Judgment. Like the majority, I express no opinion whatsoever on whether dismissal of these two parties might be appropriate under other theories. However, I must respectfully dissent from the majority opinion’s holding that pre-suit notice was provided to the District and that amendment of Ms. Runions’ complaint was proper. The majority opinion states: “we cannot ignore the unmistakable acknowledgement from Ms. Zamata’s letter that Ms. Runions did, in fact, provide written notice of a potential claim against the District.” Herein lies my disagreement with the majority opinion.

Madison County Court of Appeals 02/07/17
Tiffine Wendalyn Gail Runions, et al. v. Jackson-Madison County General Hospital District, et al.
W2016-00901-COA-R9-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This is an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. In this health care liability action, we must determine whether the plaintiff properly complied with the pre-suit notice requirement found in Tennessee Code Annotated section 29-26-121(a)(1). The original defendants in this matter all filed a motion to dismiss and/or for summary judgment alleging that they did not provide medical treatment to the plaintiff/appellee. Subsequently, the plaintiff filed a response to the defendants' motion acknowledging that she had mistakenly identified a proper defendant in this suit. The plaintiff also filed a motion to amend her complaint attempting to remedy that mistake by substituting in the proper defendant. After both motions were heard, the trial court denied the original defendants' motion to dismiss and/or for summary judgment and granted the plaintiff/appellee's motion to amend her complaint. For the following reasons, we affirm the decision of the trial court and remand for further proceedings.

Madison County Court of Appeals 02/07/17
In Re Braylin D.
M2015-02491-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sheila Calloway

Mother, who had been designated as the primary residential parent of her eight-year-old child, appeals an order changing the designation to the child’s Father, contending that the material change of circumstances since the entry of the original parenting plan, as found by the trial court, was not sufficient to justify the modification of custody. We have determined that the evidence does not show that the child’s well-being has been adversely affected by the difficulties the parents have encountered in complying with the parenting plan or that the modification is in the child’s best interest; accordingly, we reverse the order changing the designation of the primary residential parent. We reverse the order denying Mother’s request for attorney’s fees for services incurred in securing a judgment for back child support and remand for a determination of the amount of the award.

Davidson County Court of Appeals 02/07/17
In re Colton R.
E2016-00807-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Tammy M. Harrington

This is a termination of parental rights case. Mother and Stepfather filed a petition to terminate the parental rights of Father to the child. The trial court found that the grounds of (1) abandonment for willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i), (2) abandonment for willful failure to visit by an incarcerated parent as defined by Tennessee Code Annotated section 36-1-102(1)(A)(iv), and (3) abandonment based on conduct demonstrating a wanton disregard for the welfare of the child had been proven by clear and convincing evidence. The trial court also found that termination was in the best interest of the child. Father appeals. We reverse the trial court’s finding of abandonment by willful failure to visit as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i) but affirm the trial court in all other respects.

Blount County Court of Appeals 02/07/17
Herman Sowell, Jr. v. State of Tennessee
M2016-01037-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David M. Bragg

In 2011, the Petitioner, Herman Sowell, Jr., pleaded nolo contendreto attempted aggravated rape, attempted aggravated sexual battery, and incest, and the trial court sentenced him to fifteen years, at 30%.  The trial court ordered a “time served” sentence followed by probation.  In April 2013, after the statute of limitations had expired, the Petitioner filed a petition for post-conviction relief, using a separate case number but challenging as ineffective the representation of his counsel for the November 2011 case.  At some point thereafter, the trial court revoked the Petitioner’s probation.  The Petitioner amended his petition for post-conviction relief to challenge his November 2011 convictions.  The post-conviction court summarily dismissed the post-conviction petition.  We affirm the post-conviction court’s judgment.

Rutherford County Court of Criminal Appeals 02/07/17
State of Tennessee v. Roxann Lee Cruse
W2016-00119-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee Moore

The defendant, Roxann Lee Cruse, appeals the revocation of the probationary sentence imposed for her Dyer County Circuit Court guilty-pleaded convictions of the sale of a Schedule III narcotic. Discerning no error, we affirm.

Dyer County Court of Criminal Appeals 02/06/17
State of Tennessee v. Richard W. Wilburn
M2016-00704-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David M. Bragg

The Defendant, Richard W. Wilburn, was sentenced to an effective ten-year sentence for his guilty-pleaded convictions to one count of initiating the methamphetamine manufacturing process and three counts of driving on a revoked license, second offense or more.  On appeal, the Defendant contends that the trial court erred by applying enhancement factor 10—the Defendant had no hesitation about committing a crime when the risk to human life was high—to increase his sentence for initiating the manufacturing methamphetamine process because, he asserts, there was no proof that anyone was endangered by his actions.  He also submits that the trial court erred by denying any form of alternative sentencing based upon his need for drug treatment.  Following our review, we find no abuse of discretion in the trial court’s sentencing decision.  Accordingly, the judgments are affirmed.

Rutherford County Court of Criminal Appeals 02/06/17
Samuel C. Clemmons, et al v. Johnny Nesmith
M2016-01971-COA-T10B-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Michael Binkley

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. After thoroughly reviewing the record on appeal, we affirm the decision of the trial court to deny the recusal motions. 

Williamson County Court of Appeals 02/06/17
State of Tennessee v. Wesley Howard Luthringer
M2016-00780-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

Wesley Howard Luthringer (“the Defendant”) was convicted of two counts of aggravated vehicular homicide by a Bedford County jury.  The trial court sentenced the Defendant to twenty-four years for each count to be served consecutively as a Range I standard offender.  On appeal, the Defendant argues that the evidence was insufficient for a rational juror to find him guilty of aggravated vehicular homicide beyond a reasonable doubt and that the trial court erred in ordering his sentences to be served consecutively.  After a thorough review of the record and case law, we affirm.

Bedford County Court of Criminal Appeals 02/06/17
State of Tennessee v. Misty Ann Miller
M2016-01165-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Monte Watkins

The defendant, Misty Ann Miller, appeals the trial court’s denial of her Rule 35 motion to modify the sentences imposed against her pursuant to a negotiated plea deal.  On appeal, the defendant argues the trial court abused its discretion in finding no new post-sentencing developments exist to justify a modification of her sentences.  After our review, we affirm the decision of the trial court.

Davidson County Court of Criminal Appeals 02/06/17
Bull Market, Inc. v. Adel Elrafei
W2016-01767-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph H. Walker, III

A purchaser of property entered into an installment contract and signed a promissory note specifying the day on which monthly payments were to be made. The purchaser began making payments on different days of the months and the seller accepted these payments over a course of years. Over seven years after the contract was executed, the seller sought to declare the contract null and void because the purchaser failed to tender his payment on the day specified in the note. The trial court awarded the seller relief and granted it possession of the property. The purchaser appealed, and we reverse the trial court’s judgment. We conclude the parties modified the terms of the promissory note through their course of conduct and that the purchaser did not breach the contract.

Tipton County Court of Appeals 02/03/17
In Re: Neveah W.
W2016-00932-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Walter L. Evans

This is the second appeal in this case involving a long-running battle between foster parents and the Tennessee Department of Children’s Services (“DCS”). In 2014, DCS removed the three-year-old child at issue from her foster home of three years. In the context of this already pending termination and adoption proceeding, the chancery court held an evidentiary hearing and determined that there was insufficient evidence to justify removal and that DCS had taken steps adverse to the child’s best interest. The chancery court ordered DCS to return the child to her foster home. On extraordinary appeal, this Court determined that a trial court cannot direct the placement of a foster child within DCS legal custody, but we recognized that the trial court could remove legal custody from DCS and place custody directly with the foster parents if warranted. One week prior to the hearing on remand, DCS participated in a surrender proceeding under a separate docket number and contemporaneously obtained an order of full guardianship over the child. DCS then moved to dismiss as moot the termination, adoption, and custody petitions pending in this case because DCS, as guardian, refused to consent to an adoption by the child’s former foster parents. The child’s current foster mother attempted to intervene. After a two-day trial, the trial court dismissed the former foster parents’ petitions as moot and granted the adoption to the current foster mother, as DCS in its role as guardian would only consent to an adoption by her. The child’s guardian ad litem appeals. The former foster parents and DCS raise additional issues. We affirm in part, vacate in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 02/03/17
Joseph Skernivitz v. State of Tennessee Department of Safety and Homeland Security
M2016-00586-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Claudia C. Bonnyman

In this drug forfeiture case, we have concluded that the trial court lacked subject matter jurisdiction because the property owner failed to filed a petition for judicial review within the sixty-day time period required under Tenn. Code Ann. § 4-5-322(b).  We, therefore, vacate the trial court’s decision.

Davidson County Court of Appeals 02/03/17
240 Poplar Avenue General Partnership v. Cheryl Gray
W2016-00697-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Felicia Corbin-Johnson

This is a breach of contract action in which the lessor filed suit against the lessee for non-payment of rent, utilities, and repairs pursuant to the terms of a lease agreement for two units in a commercial building. Following a hearing, the trial court entered a judgment in favor of lessor. The lessee appeals. We affirm.

Shelby County Court of Appeals 02/02/17