Court Opinions

Format: 12/16/2018
Format: 12/16/2018
Jared S. Aguilar v. State of Tennessee
M2017-01763-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge William R. Goodman, III

Petitioner, Jared S. Aguilar, appeals from the summary dismissal of his second petition for post-conviction relief. Petitioner was convicted of six counts of sexual exploitation of a minor and received an effective ten-year sentence. Petitioner claims that his grounds for relief in his original post-conviction petition were not resolved on the merits and that he did not receive a full and fair hearing. The State contends that the post-conviction court properly dismissed Petitioner’s second post-conviction petition. Upon review, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 11/27/18
Larry Jereller Alston v. State of Tennessee
E2017-02528-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Scott Green

The petitioner, Larry Jereller Alston, appeals the denial of his petition for post-conviction relief, which petition challenged his Knox County Criminal Court jury convictions of especially aggravated kidnapping, aggravated burglary, and aggravated robbery. In this appeal, the petitioner contends that the “all or nothing” plea offer extended by the State to the petitioner and his co-defendants was illegal, that the prosecutor’s subsequent withdrawal of that offer based upon personal animus toward his co-defendant’s counsel entitles him to post-conviction relief, and that the behavior of his co-defendant’s counsel during plea negotiations equates to a deprivation of the effective assistance of counsel sufficient to warrant post-conviction relief. Because the petitioner has failed to establish that he is entitled to post-conviction relief, we affirm.

Knox County Court of Criminal Appeals 11/27/18
Steak N Shake v. Thomas Yeager
M2017-01558-SC-R3-WC
Authoring Judge: Special Judge J. Russell Parkes
Trial Court Judge: Chancellor Russell T. Perkins

This cause of action originated when Thomas Yeager (“Employee”) sustained an on the job injury when he slipped and fell while performing duties in the course and scope of his employment with Steak N Shake (“Employer”). Employee was originally treated at Hendersonville Medical Center in the Hendersonville Medical Center Emergency Department. Employee was treated for acute neck and back pains and was released on said day with limiting instructions as well as various prescriptions. On October 21, 2012, Employee returned to the emergency department with abdominal pain. It was determined that Employee had a gastrointestinal bleed. Employer maintained that neither the abdominal pain nor gastrointestinal bleed and resulting medical treatment were related to the work injury. After a request for assistance and based on medical records then available, the Department of Labor ordered Employer to pay medical expenses arising from said gastrointestinal condition. Employer brought this action, seeking recovery of payments made pursuant to the Department of Labor Order. Employer filed a Motion for Summary Judgment, which was denied by the trial court. After certain stipulations were entered, a trial was had on the merits at which time the trial court found that Employee’s gastrointestinal bleeding and accompanying treatment was caused by medications prescribed to treat the initial work-related injury. Employer has appealed. The appeal has been referred to the Special Worker’s Compensation Appeals Panel for hearing and a report of findings of fact and conclusions of law, pursuant to Tennessee Supreme Court Rule 51. We reverse the trial court judgment.

  

Davidson County Workers Compensation Panel 11/26/18
Conoly Brown, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee
M2017-01207-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

Landowners appeal the trial court’s dismissal of their petition seeking a declaratory judgment that the requirement in the Metropolitan Nashville zoning ordinance that alternative financial services providers be located 1,320 feet apart violates the due process and equal protection provisions of the state and federal constitutions. Upon our de novo review, we affirm the judgment.

Davidson County Court of Appeals 11/26/18
Steak N Shake v. Thomas Yeager
M2017-01558-SC-R3-WC
Authoring Judge: Special Judge J. Russell Parkes
Trial Court Judge: Chancellor Russell T. Perkins

This cause of action originated when Thomas Yeager (“Employee”) sustained an on the job injury when he slipped and fell while performing duties in the course and scope of his employment with Steak N Shake (“Employer”). Employee was originally treated at Hendersonville Medical Center in the Hendersonville Medical Center Emergency Department. Employee was treated for acute neck and back pains and was released on said day with limiting instructions as well as various prescriptions. On October 21, 2012, Employee returned to the emergency department with abdominal pain. It was determined that Employee had a gastrointestinal bleed. Employer maintained that neither the abdominal pain nor gastrointestinal bleed and resulting medical treatment were related to the work injury. After a request for assistance and based on medical records then available, the Department of Labor ordered Employer to pay medical expenses arising from said gastrointestinal condition. Employer brought this action, seeking recovery of payments made pursuant to the Department of Labor Order. Employer filed a Motion for Summary Judgment, which was denied by the trial court. After certain stipulations were entered, a trial was had on the merits at which time the trial court found that Employee’s gastrointestinal bleeding and accompanying treatment was caused by medications prescribed to treat the initial work-related injury. Employer has appealed. The appeal has been referred to the Special Worker’s Compensation Appeals Panel for hearing and a report of findings of fact and conclusions of law, pursuant to Tennessee Supreme Court Rule 51. We reverse the trial court judgment.  

Davidson County Workers Compensation Panel 11/26/18
State of Tennessee v. Jamie Lynn Moore
M2017-01877-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Steve R. Dozier

The Defendant-Appellant, Jamie Lynn Moore, was convicted by a Davidson County jury of aggravated kidnapping and violation of an order of protection, see T.C.A. §§ 39-13-304, -113, for which he received an effective sentence of nine years in confinement. The sole issue presented in this appeal is whether the evidence is sufficient to support his conviction for aggravated kidnapping. Specifically, the Defendant claims that the State failed to prove that he substantially interfered with the victim’s liberty. After review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 11/26/18
State of Tennessee v. Sherry Anastasia Dodson
E2017-02480-CCA-WR-CO
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bob McGee

On petition for writ of certiorari from the Knox County Criminal Court, the State challenges the order of that court denying its petition to have the appellee, Sherry Anastasia Dodson, declared a Motor Vehicle Habitual Offender (“MVHO”). The trial court erred by concluding that the State was required to proceed via Code section 55-10- 618 to have the appellee declared an MVHO in this case and that the State had waived the right to proceed at all by failing to follow the requirements of that section. Accordingly, the judgment of the trial court denying the State’s petition to have the appellee declared an MVHO is reversed, and the case is remanded for proceedings on the merit of the State’s petition.

Knox County Court of Criminal Appeals 11/26/18
State of Tennessee v. Cameron Wayne Caraker
M2017-02277-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant, Cameron Wayne Caraker, appeals the trial court’s decision to revoke his probation and order Defendant to serve 120 days in custody before being restarted on probation. Defendant argues the trial court abused its discretion because there was insufficient evidence to prove he knowingly violated an order of protection. Upon review of the record, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 11/26/18
In Re Savanna I.
E2018-00392-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

This is a termination of parental rights case involving the parental rights of the mother, Melody I. (“Mother”), to her minor child, Savanna I. (“the Child”), who was eight months old at the time of trial. Shortly after the Child’s birth, the Knox 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”). The Child was immediately placed in foster care, where she remained at the time of trial. The trial court subsequently entered an order on November 28, 2017, finding that the Child was dependent and neglected due in part to Mother’s prenatal drug use, incarceration, and severe abuse of the Child. The trial court relieved DCS from making reasonable efforts to reunite Mother with the Child. Also on November 28, 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 severely abused the Child, (2) Mother had abandoned the Child by engaging in conduct prior to her incarceration that exhibited wanton disregard for the Child’s welfare, and (3) 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. Discerning no reversible error, we affirm.

Knox County Court of Appeals 11/26/18
State of Tennessee v. Carl Thomas Grosse
M2017-02202-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Gary McKenzie

Pursuant to a plea agreement, the Appellant, Carl Thomas Grosse, pled guilty to two counts of aggravated burglary and received consecutive sentences of eight years and three years with the manner of service to be determined by the trial court. After a sentencing hearing, the trial court ordered the Appellant to serve his sentences in confinement. In this delayed appeal, the Appellant challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the judgments of the trial court.

Putnam County Court of Criminal Appeals 11/26/18
Carl Allen v. Joseph S. Ozment
W2017-00887-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

Appellant appeals the dismissal of his legal malpractice claim, arguing that the affirmative defenses raised by the defendant attorney were waived. Because we conclude that the defendant attorney’s affirmative defenses were not waived, we affirm the decision of the trial court.

Shelby County Court of Appeals 11/26/18
Dent Road General Partnership, et al. v. Synovus Bank, et al.
W2017-01550-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Jim Kyle

Appellants appeal the grant of summary judgment to defendants title company and legal professionals on claims related to a real estate transaction that occurred in 2004. We affirm the grant of summary judgment as to Appellants’ legal malpractice claim based upon the expiration of the statute of limitations. Based upon agreement of the parties, we also affirm the dismissal of Counts I through VII against the title company. The grant of summary judgment in favor of the title company as to all remaining claims is vacated.

Shelby County Court of Appeals 11/26/18
In Re Camdon H.
E2017-02311-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Dennis Roach, II

This action involves the termination of a mother’s and father’s parental rights to their minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support, to visit, and to provide a suitable home; substantial noncompliance with the permanency plan; and the persistence of conditions which led to removal. The court further found that termination was in the best interest of the child. We affirm.

Jefferson County Court of Appeals 11/21/18
Steven E. Warrick, Sr., et al. v. Penny Mullins
E2018-00197-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

Steven E. Warrick, Sr. and Cindy Heffernan (petitioners) filed this action to enforce a settlement agreement and partition a parcel of real property pursuant to Tenn. Code Ann. § 29-27-101 (2012) et seq. Penny Mullins (respondent) filed a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. The trial court, relying on the terms of the settlement agreement filed as an exhibit to the petition, granted the motion. We hold that the agreement conclusively establishes that petitioners have no present ownership interest in the property, and thus have no standing to ask the court for partition. We consequently affirm the trial court’s judgment.

Hawkins County Court of Appeals 11/20/18
Freddie Armstrong v. Shelby County Juvenile Court, et al.
W2018-00169-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves the termination of a county employee for insubordination and intentional failure to carry out instructions. The employee appealed to the Shelby County Civil Service Merit Board, which upheld his termination after a hearing. The employee then sought review in chancery court, and again his termination was upheld. He now seeks review before this Court. For the following reasons, we affirm the decision of the chancery court and remand for further proceedings.

Shelby County Court of Appeals 11/20/18
State of Tennessee v. James Allen Jenkins - concurring in part, dissenting in part
E2017-01983-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge James F. Goodwin

I agree with the majority’s conclusion that the Defendant-Appellant is not entitled to relief from his convictions. However, I write separately to address the admission of evidence during Tennessee Bureau of Investigation (TBI) Agent Michael Turbyville’s testimony related to CODIS and DNA profiles contained in CODIS. I conclude that the evidence was not hearsay because it was not offered to establish the presence of the Defendant-Appellant’s DNA on the cigarette butt found at the scene. Agent Turbyville’s testimony, in addition to other witness testimony, regarding CODIS and DNA profiles was offered to explain why the investigating officers obtained a sample of the Defendant- Appellant’s DNA, which, upon analysis by Agent Turbyville, matched the DNA profile on the cigarette butt.

Sullivan County Court of Criminal Appeals 11/20/18
State of Tennessee James Allen Jenkins
E2017-01983-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin

The Defendant-Appellant, James Allen Jenkins, was convicted by a Sullivan County jury of aggravated robbery, aggravated assault, unlawful possession of a weapon, and theft of property $1,000 or less, for which he received an effective sentence of eleven years. See T.C.A. §§ 39-13-402, -102; 39-14-103; 39-17-1307(c)(1). On appeal, the Defendant argues (1) the evidence was insufficient to support each of his convictions; (2) the trial court erred in allowing the State to cross-examine the Defendant regarding his prior convictions because the parties had previously entered a stipulation as to his status as a convicted felon; (3) the trial court erroneously permitted the testimony of a forensic expert regarding a Combined DNA Index System (CODIS) “hit” as inadmissible hearsay; and (4) whether his aggravated robbery and theft convictions violate principles of double jeopardy. Upon our review, we merge the Defendant’s theft conviction and remand for entry of amended judgments reflecting merger of the theft conviction into the Defendant’s aggravated robbery conviction. In all other respects, the judgments of the trial court are affirmed.

Sullivan County Court of Criminal Appeals 11/20/18
Mary Wenzler v. Dr. Xiao Yu, et al.
W2018-00369-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Mary L. Wagner

This is a health care liability case filed against a dentist and the dental practice that employed him. Before filing the complaint, the plaintiff gave written notice to the two potential defendants of her health care liability claims against them. Tennessee Code Annotated section 29-26-121(a)(2)(E) requires that a plaintiff’s pre-suit notice include a HIPAA compliant medical authorization permitting the health care provider receiving the notice to obtain complete medical records from every other provider that is being sent a notice. After the plaintiff filed suit, the defendants moved to dismiss the complaint based on noncompliance with the statute, as the defendants alleged that the HIPAA authorizations provided by the plaintiff did not contain all of the required information and were therefore invalid. After a hearing, the trial court granted the motion to dismiss, concluding that the authorizations provided by the plaintiff were not HIPAA compliant and therefore the plaintiff did not substantially comply with the statute. The plaintiff appeals. We affirm in part, reverse in part, and remand for further proceedings.

Shelby County Court of Appeals 11/20/18
Roy Thomas Rogers, Jr. v. State of Tennessee
W2017-01939-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Clayburn Peeples

The Petitioner, Roy Thomas Rogers, Jr., was convicted by a Gibson County jury of initiating the manufacture of methamphetamine, promoting the manufacture of methamphetamine, possessing drug paraphernalia, and criminal impersonation, see T.C.A. §§ 39-16-301(a)(1); 39-17-425(a)(1), -433(a)(1), -435(a), for which he received an effective sentence of twelve years. Thereafter, Petitioner’s trial counsel filed an untimely motion for new trial, which was denied, and an untimely notice of appeal. On direct appeal, this court held that the Petitioner had waived his issue regarding the admissibility of certain evidence because trial counsel failed to file a timely motion for new trial and then dismissed the appeal without addressing the insufficiency of the evidence claim because the interest of justice did not warrant waiver of the requirement for timely filing of a notice of appeal. State v. Roy Thomas Rogers, No. W2015-00988-CCA-R3-CD, 2016 WL 1045352, at *2 (Tenn. Crim. App. Mar. 15, 2016). The Petitioner, following his unsuccessful direct appeal, then filed a petition for postconviction relief, alleging that trial counsel had provided ineffective assistance in failing to file a timely motion for new trial and notice of appeal and in failing to challenge the admission of illegal evidence at trial. After conducting a non-evidentiary hearing, the post-conviction court entered a written order granting the Petitioner a delayed appeal and giving the Petitioner “30 days from the entry of this order to file a notice of appeal with the Tennessee Court of Criminal Appeals based on the Motion for New Trial previously filed in this cause.” The Petitioner subsequently filed a timely notice of appeal to this court, arguing (1) the trial court erred in admitting certain evidence at trial and (2) the evidence is insufficient to support his convictions. After conducting a thorough review, we conclude that the trial court did not follow the post-conviction procedures prior to granting the Petitioner a delayed appeal. Accordingly, we reverse and vacate the order granting a delayed appeal and remand the case to the post-conviction court for further proceedings consistent with this opinion. We also remand the case for entry of a corrected judgment in Count 5 reflecting an indicted and conviction offense of criminal impersonation in violation of Tennessee Code Annotated section 39-16-301(a)(1).

Gibson County Court of Criminal Appeals 11/20/18
Eliot Russell v. State of Tennessee
W2017-02262-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John W. Campbell

The Petitioner, Eliot Russell, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief related to his convictions for attempted rape of a child and aggravated sexual battery, for which he is serving an effective twenty-four-year sentence. On appeal, he contends that the post-conviction court erred in (1) excluding expert testimony and (2) denying his ineffective assistance of counsel claim. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/20/18
State of Tennessee v. Adam Lee Ipock
M2017-01374-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Shayne Sexton

The defendant, Adam Lee Ipock, appeals his Fentress County Circuit Court jury convictions of vehicular assault, driving under the influence (“DUI”), and simple possession of methadone, claiming that he is entitled to a new trial because the trial court erred by permitting the State to question him about the facts underlying his prior convictions and that the charges of vehicular assault and DUI must be dismissed because the State relied on a blood toxicology report obtained in violation of his right to due process. The prosecutor improperly inquired into the facts underlying the defendant’s prior convictions, and the error was not harmless when viewed in light of the evidence of the defendant’s guilt of vehicular assault and DUI. In consequence, we affirm the defendant’s conviction of simple possession but reverse the convictions of vehicular assault and DUI and remand those charges for a new trial.

Fentress County Court of Criminal Appeals 11/20/18
James Curtis Pierce v. Hollie Marie Pierce (Marszalek)
W2017-02447-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert S. Weiss

In this post-divorce matter, the trial court determined that the father’s child support obligation should be increased due to the father’s significant increase in income subsequent to the parties’ divorce. In calculating the father’s new child support obligation amount, however, the trial court included the children’s private school expenses, which the father had previously agreed to bear, as a “work-related childcare” expense for the father on the respective child support worksheet, thereby reducing the father’s child support obligation. The mother has appealed. We vacate the trial court’s modifications to the parties’ permanent parenting plan and its calculation of child support, including its inclusion of private school tuition and health insurance premiums paid by a stepparent on the child support worksheet. We remand the child support issue to the trial court for recalculation of the father’s child support obligation consistent with this opinion. We also vacate the trial court’s partial award of attorney’s fees to the mother and remand that issue to the trial court for determination of a reasonable award of all attorney’s fees incurred by the mother concerning her petition to increase the father’s child support obligation. We affirm the trial court’s judgment in all other respects. In addition, we grant the mother’s request for attorney’s fees incurred on appeal.

Shelby County Court of Appeals 11/19/18
Bailey Cooper, et al. v. Pete Patel
W2017-02319-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor George R. Ellis

This is a breach of contract case. Defendant-lessee operated a motel pursuant to a lease with plaintiffs-lessors, which contained two options to renew for two additional 25-year terms that allowed the renewal options to be exercised if there had been no breaches of the lease terms. When defendant attempted to exercise the option for the second additional 25-year term, plaintiffs-lessors refused and subsequently brought suit, alleging defendant had breached several provisions of the lease. The chancery court agreed with plaintiffs, assigning to defendant six breaches of the terms of the lease and holding that, as a result, defendant could not exercise the renewal option. Finding all of the alleged breaches to be either de minimis or non-issues to the case, we reverse.

Gibson County Court of Appeals 11/19/18
In Re E.W.N.
M2017-02463-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Franklin L. Russell

This case involves a custody dispute between M.J.L. and J.L. (paternal grandparents) and B.G. and M.N. (maternal grandparents) with respect to their grandchild, E.W.N. Paternal grandparents initiated a dependency and neglect action in juvenile court. The juvenile court adjudicated the child dependent and neglected and awarded full custody to paternal grandparents. Soon thereafter, maternal grandparents filed a petition to intervene, seeking custody or joint custody of the child. The juvenile court entered a final order that granted all grandparents joint legal custody of the child. The court’s order further provided that during the school year paternal grandparents would have primary physical custody and that during the summer maternal grandparents would have primary physical custody. Both sets of grandparents were also awarded visitation. Maternal grandparents appealed the decision of the juvenile court to the circuit court. After a hearing, the circuit court ordered a custody arrangement essentially identical to the one ordered by the juvenile court. Maternal grandparents appeal. We affirm.

Lincoln County Court of Appeals 11/19/18
Frederick E. Braxton v. State of Tennessee
M2018-00443-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Frederick E. Braxton, appeals the Davidson County Criminal Court’s denial of his petition for a writ of error coram nobis from his attempted second degree murder conviction, for which he received a nineteen-year sentence. The Petitioner contends that the court erred by denying relief. We affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 11/19/18