Court Opinions

Format: 01/20/2017
Format: 01/20/2017
Erin Alford Fuller v. Roger Darnell Fuller
E2016-00243-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jerri S. Bryant

This appeal stems from a divorce action involving, inter alia, issues of proper valuation of a marital asset, child support, and alimony. The trial court found that the “trail” income from the father's financial planning business was a divisible marital asset, valuing it according to the evidence presented. The trial court set child support and alimony based on its determination of the father's income as an average of the prior two years' gross revenues from his business. The father has appealed. We determine that the trial court properly classified and valued the father's trail income from his business. We also determine, however, that the trial court erred by including in the father's income, for child support and alimony purposes, the amount of the trail income distributed as a marital asset. We vacate the trial court's determination regarding the amount of child support and alimony to be paid by the father. We remand this matter for a proper determination regarding the father's income, as well as an appropriate calculation of child support and determination of alimony in favor of the mother resulting therefrom. We determine the father's issue regarding the allocation of days in the permanent parenting plan to be moot. We affirm the trial court's judgment in all other respects. We decline to award attorney's fees on appeal to either party

Bradley County Court of Appeals 12/21/16
In re Linette B.
E2016-01316-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Timothy E. Irwin
This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights on the grounds of: (1) failure to substantially comply with the requirements of the permanency plan; and (2) persistence of the conditions that led to the child’s removal from Appellant’s custody. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the child’s best interest. Discerning no error, we affirm.
 
Knox County Court of Appeals 12/21/16
Gai D. Kuot v. State of Tennessee
M2016-00485-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte Watkins

A Davidson County jury convicted the Petitioner, Gai D. Kuot, of first degree premeditated murder, first degree felony murder, and especially aggravated robbery.  On appeal, this Court affirmed his convictions and sentence.  State v. Gai D. Kuot, No. M2012-01884-R3-CD, 2013 WL 4539020, at *1 (Tenn. Crim. App., at Nashville, Aug. 26, 2013), perm. app. denied (Tenn. Dec. 11, 2013).  The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his trial counsel had failed to obtain a translator to explain to him his rights.  After a hearing, the post-conviction court denied the petition.  We affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 12/21/16
Martez D. Matthews v. State of Tennessee
M2015-02422-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Martez D. Matthews, of first degree felony murder, and a life sentence was imposed.  On appeal, this Court affirmed the trial court’s judgments.  See Deangelo M. Moody and Martez D. Matthews, No. M2011-01930-CCA-R3-CD, 2013 WL 1932718, at *1 (Tenn. Crim. App., at Nashville, May 9, 2013), perm. app. denied (Tenn. Oct. 17, 2013).  Subsequently, the Petitioner filed a petition for writ of error coram nobis, which the trial court denied.  On appeal, this Court affirmed the trial court’s denial of relief.  See Martez D. Matthews v. State, No. M2014-01663-CCA-R3-ECN, 2015 WL 3814164, at *1 (Tenn. Crim. App., at Nashville, June 19, 2015), perm. app. denied (Tenn. Oct. 15. 2015).  The Petitioner also filed a post-conviction petition, and the post-conviction court denied relief following a hearing.  On appeal, the Petitioner maintains that he received the ineffective assistance of counsel and that his sentence is unconstitutional pursuant to Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012).  After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 12/21/16
Dement Construction Company, LLC v. Lucas C. Nemeth, et al.
M2015-02204-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Mark Rogers

This case arises from landowners’ counter-suit for damages allegedly resulting from a construction company’s use of the landowners’ property to store excess topsoil from a road construction project. Following a trial, the jury returned a verdict in favor of the construction company, finding that the construction company was not responsible for the alleged damage to the property. The landowners appeal, asserting that the trial court made erroneous evidentiary rulings and failed to properly instruct the jury. Finding no error, we affirm the trial court.

Rutherford County Court of Appeals 12/20/16
In re Estate of Elwood R. Darken
M2016-00711-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor James G. Martin, III

The sons of the decedent challenge the executrix’s administration of the decedent’s estate, contending that she breached her fiduciary duty by, inter alia, refusing to provide them with certain documents and by converting personal property they claim their father intended for them. They also claim that the antenuptial agreement their father entered into with the executrix prior to their marriage established a trust that nullifies the specific bequest in their father’s will that gives his tangible personal property to the executrix. The executrix denied breaching any of her duties or converting any assets. She also disputed the contention that the antenuptial agreement created a trust. The trial court found that the executrix had not breached her fiduciary duties or converted any assets and that the antenuptial agreement did not create a trust. The court also ordered that the estate pay the fees of the attorney who represented the executrix in her fiduciary capacity. The decedent’s sons appeal, challenging each of the foregoing rulings. They also contend that the trial court erred in limiting their cross examination of the executrix at trial. We affirm in all respects.

Williamson County Court of Appeals 12/20/16
Hannah Turner Ex Rel. Liam Turner v. Charles Michael Howe, et al.
M2015-02386-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Justin C. Angel

This appeal involves in personam jurisdiction over the Appellees, Georgia and Alabama corporations. The trial court granted Appellees’ Tennessee Rule of Civil Procedure 12.02(2) motions to dismiss for lack of personal jurisdiction. Appellants appeal. Discerning no error, we affirm and remand.

Marion County Court of Appeals 12/20/16
Kobie Turner v. City of Memphis
W2015-02510-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

Appellee sued the City of Memphis, alleging that he was injured in a car accident caused by a police officer employed by the City. After a bench trial, the trial court ruled in Appellee’s favor, awarding him $90,000.00 in damages. Appellant appeals. On appeal, Appellant argues that the trial court erred when it found that Appellee had proven that Appellant was the proximate cause of Appellee’s injuries and when it awarded Appellee what Appellant deemed to be an excessive amount of damages. We affirm.

Shelby County Court of Appeals 12/20/16
In re Lynx C.
E2016-01568-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Timothy E. Irwin
This appeal involves the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) removed the child at issue from the mother’s home prior to his first birthday. Four months later, DCS filed a petition to terminate the mother’s parental rights. The juvenile court found clear and convincing evidence of two grounds for termination and that termination of the mother’s parental rights was in the child’s best interest. We, however, conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the child by willful failure to support. Because the record contains clear and convincing evidence of the remaining ground— abandonment by willful failure to visit—and that termination was in the best interest of the child, we affirm.
 
Knox County Court of Appeals 12/20/16
State of Tennessee v. Dylan Ward Hutchins
E2016-00187-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Stacy L. Street

The defendant, Dylan Ward Hutchins, appeals the Washington County Criminal Court’s denial of his request for judicial diversion from his mitigated statutory rape conviction, arguing that the trial court failed to consider and properly weigh all relevant factors and improperly considered facts outside the record in rendering its decision. Following our review, we affirm the judgment of the trial court denying diversion. However, we remand to the trial court for entry of a corrected judgment reflecting the conviction offense as mitigated statutory rape.

Washington County Workers Compensation Panel 12/20/16
Aarene Contracting, LLC v. Krispy Kreme Doughnut
E2016-01155-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Pamela A. Fleenor

A contractor sued an owner for violations of the Prompt Pay Act, Tenn. Code Ann. §§ 66-34-101 et seq., and notified the owner of its violations by Federal Express and e-mail. The owner moved for summary judgment on the ground that the contractor failed to strictly comply with the notice provision requiring notice be sent by registered or certified mail, return receipt requested. The trial court found strict compliance was required and dismissed the contractor's claims under the Act. The contractor appealed, and we reverse the trial court's judgment, holding substantial compliance is sufficient under the facts of this case.

Hamilton County Court of Appeals 12/20/16
State of Tennessee v. Daniel McCaig
W2015-01842-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge R. Lee Moore, Jr.

Following a jury trial in the Dyer County Circuit Court, Defendant, Daniel McCaig, was found guilty of misdemeanor theft. Defendant appeals this conviction. The theft charge was in Circuit Court by virtue of Defendant’s appeal from a conviction for the offense following a bench trial in the Dyersburg Municipal Court. The Dyersburg Municipal Court also partially revoked Defendant’s probation in an unrelated offense. Defendant appealed both judgments to the Circuit Court for de novo review. Defendant was sentenced by the Circuit Court to serve 11 months and 29 days in the Dyer County Jail for the theft conviction. The Circuit Court judge (hereinafter “trial judge”) also revoked his probation on the other case and ordered him to serve that sentence concurrently with the sentence for theft. Defendant has also appealed to this court the revocation of probation. In this appeal, Defendant raises the following issues for our review: 1) the evidence was insufficient to support his theft conviction; and 2) his due process rights were violated by the State’s failure to provide written notice of the allegation against him which was the basis for the trial court’s revocation of probation. Having reviewed the record and the briefs of the parties, we conclude that the evidence was sufficient to support Defendant’s conviction for theft. We also conclude that the written notice to Defendant of his probation violation did not include the theft charge, and therefore, that ground cannot be a basis to revoke probation. Furthermore, the trial court failed to base its decision on a de novo review. Therefore, we affirm Defendant’s theft conviction and reverse the trial court’s revocation of Defendant’s probation, and dismiss the probation violation warrant.

Dyer County Court of Criminal Appeals 12/19/16
Eric Benson v. Southern Electric Corporation of Mississippi
W2015-02053-SC-R3-WC
Authoring Judge: Judge William B. Acree, Jr.
Trial Court Judge: Judge William C. Cole

Eric Benson (“Employee”) worked for Southern Electric Corporation of Mississippi (“Employer”) as a lineman. On July 12, 2011, he sustained an electric shock injury while working on a power line. The mechanism of the injury is not known, as Employee has no recollection of the incident nor were there any witnesses. He sustained burns to his back and groin area  and the left side of his head. He bit his tongue severely and injured his right knee. He further asserted he developed depression, headaches and post-traumatic stress disorder (“PTSD”) as a result of the accident and contended he was totally and permanently disabled due to his injuries. Employer disputed the assertion. After a trial on the merits, the Chancery Court for McNairy County found Employee permanently and totally disabled and entered judgment accordingly. Employer appealed. The Supreme Court referred the appeal 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.

McNairy County Workers Compensation Panel 12/19/16
In Re Casey C., et al
M2016-01344-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Tim Barnes

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to three minor children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to support; and (3) persistence of the conditions that led to the children’s removal from Appellant’s custody. The trial court also found, by clear and convincing evidence, that termination of Appellant’s parental rights is in the children’s best interests. Discerning no error, we affirm.

Montgomery County Court of Appeals 12/19/16
Monica Chamberlain v. Myra Danielle Brown
E2015-01658-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Douglas Jenkins

Monica Chamberlain (“Grandmother”) sued Myra Danielle Brown (“Mother”) seeking to be awarded grandparent visitation with Mother's child Talan B. (“the Child”) pursuant to Tenn. Code Ann. § 36-6-306. After a trial, the Circuit Court for Greene County (“the Trial Court”) entered its judgment awarding Grandmother visitation with the Child after finding and holding, inter alia, that Grandmother had proven that Mother had denied visitation, that Mother had failed to rebut the presumption that denial of visitation may result in irreparable harm to the Child, that Grandmother and the Child had a significant existing relationship, and that visitation was in the best interest of the Child. Mother appeals to this Court. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm

Greene County Court of Appeals 12/19/16
State of Tennessee v. Lemaricus Devall Davidson
E2013-00394-SC-DDT-DD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Senior Judge Walter C. Kurtz

A jury imposed two sentences of death on the defendant after convicting him of multiple counts of first degree murder, especially aggravated robbery, especially aggravated kidnapping, aggravated rape, and facilitation of aggravated rape. The Court of Criminal Appeals affirmed the convictions and sentences. State v. Davidson, No. E2013 00394 CCA-R3-DD, 2015 WL 1087126, at *1 (Tenn. Crim. App. Mar. 10, 2015). We have carefully considered the defendant’s claims of error and conducted the review mandated by Tennessee Code Annotated section 39-13-206. We hold that the trial court did not err by admitting evidence obtained during searches of the defendant’s house and of his person; the trial court did not err by admitting the defendant’s statement to law enforcement officers; the trial court did not abuse its discretion by allowing the victims’ family members to wear buttons containing images of the victims; the trial court did not abuse its discretion by admitting into evidence post-mortem photographs of the victims; the trial court did not abuse its discretion by allowing the jury to view the defendant’s video recorded statement in the courtroom during deliberations; the trial court did not abuse its discretion by admitting expert testimony regarding ballistics and fingerprint evidence; the defendant’s convictions were supported by sufficient evidence; and the trial court properly effectuated merger of the convictions. We affirm the Court of Criminal Appeals on the remaining issues and include relevant portions of its opinion in the appendix. We hold the sentences of death were not imposed in an arbitrary fashion; the evidence fully supports the jury’s findings of aggravating circumstances in Tennessee Code Annotated sections 39-13-204(i)(5), (6), (7), and (13); the evidence supports the jury’s finding that these aggravating circumstances outweighed the mitigating circumstances presented by the defendant; and the defendant’s death sentences are neither excessive nor disproportionate to the penalty imposed in similar cases. We affirm the defendant’s convictions and sentences of death and vacate the Court of Criminal Appeals’ remand to the trial court for correction of the judgment documents.

Knox County Supreme Court 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Dissent
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jean A. Stanley

I cannot concur in the majority’s conclusion that Judge Stanley’s “personal extrajudicial knowledge” created “an appearance of impropriety . . . under Canon 2.11 of the Code of Judicial Conduct necessitating recusal.” Therefore, I respectfully dissent

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc. - Concurring
E2016-02178-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Jean A. Stanley

I concur in the opinion as authored by Judge Stafford and write separately to reiterate the conclusion that nothing in the record leads me to believe that the trial judge is biased or prejudiced for or against any party or that there was any improper motive in the court’s contact with Dr. Mulkey. As gatekeeper of the expert opinion evidence proffered at trial, the court has the responsibility under Tenn. R. Evid. 702 and 703 to determine whether the evidence “will substantially assist the trier of fact to understand the evidence or to determine a fact at issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The record fully supports the trial court’s statement that the purpose of the call to Dr. Mulkey was to gain basic knowledge of the field of rehabilitation counseling, a discipline taught at the University of Tennessee. My concern, and what leads me to conclude that recusal is appropriate in this case, is the limited and specific nature of the court’s inquiry and how that inquiry could reasonably create the appearance of impropriety

Carter County Court of Appeals 12/19/16
Jeanie Holsclaw v. Ivy Hall Nursing Home, Inc.
E2016-02178-COA-T10B-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Jean A. Stanley

When asked to rule on the defendant‘s motion for physical examination by a certified rehabilitation counselor, the trial judge telephoned the director of a university department for information regarding the program in order to determine whether rehabilitation counselors "are even qualified to testify as experts." The trial judge disclosed the communication on the record and granted the examination. Later, the defendant filed a motion to recuse. The trial judge denied the motion and this accelerated interlocutory appeal followed. Because the trial judge learned information concerning facts in dispute from an extrajudicial source, we conclude that recusal is required by Canon 2.11 of the Tennessee Code of Judicial Conduct

Carter County Court of Appeals 12/19/16
ULYSSES STRAWTER v. MUELLER COMPANY
E2015-02374-SC-R3-WC
Authoring Judge: JUDGE KRISTI M. DAVIS
Trial Court Judge: JUDGE PAMELA A. FLEENOR
Ulysses Strawter ("Employee") was injured on August 11, 2012, in the course of his
employment with Mueller Company ("Employer"). After several months of temporary
disability, he returned to work at his pre-injury job. Subsequently, his position was
eliminated. He remained with Employer but was assigned to a lower-paying job. He
filed an action for workers' compensation benefits in the Chancery Court for Hamilton
County. The trial court held that Employee had a meaningful return to work and that his
award of permanent disability benefits was limited to one and one-half times the
impairment rating. Between the trial and the filing of the court's decision, Employee
returned to his previous job at a wage higher than his pre-injury wage. The trial court's
decision was not appealed. During the months after entry of judgment, Employee was
re-assigned to a lower paying position. He filed a petition for reconsideration. The trial
court held that Employee was entitled to reconsideration and awarded additional
permanent disability benefits in a stipulated amount. Employer has appealed. 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. The judgment of the trial court is affirmed.
Hamilton County Workers Compensation Panel 12/16/16
DYSON-KISSNER-MORAN CORPORATION v. GERRY SHAVERS
E2015-02005-SC-R3-WC
Authoring Judge: JUDGE KRISTI M. DAVIS
Trial Court Judge: JUDGE JEFFREY HOLLINGSWORTH
Gerry Shavers ("Employee") worked for Dyson-Kissner-Moran Corporation d/b/a Burner
Systems International, Inc. ("Employer"), as a senior manufacturing engineer. In 2008,
he developed symptoms of carpal tunnel syndrome. His claim was accepted as
compensable. He continued to work at the same job until August 2009, when he was
terminated for violation of company policy. The primary issue at trial was whether his
award of permanent disability benefits was subject to the one and one-half times
impairment cap set out in Tennessee Code Annotated section 50-6-241(d)(1)(A) (2008).
Finding that the cap applied because Employee was terminated for misconduct, the trial
court awarded permanent partial disability benefits of 46.5% to the body as a whole.
Judgment was entered in accordance with the trial court's findings, and Employee has
appealed. 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.
Hamilton County Workers Compensation Panel 12/16/16
State of Tennessee v. Timothy Andrew Bishop
M2015-00314-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Defendant, Timothy Andrew Bishop, appeals his convictions for two counts of child abuse, a Class D felony.  The Defendant challenges the trial court’s admission of lay opinion testimony from a detective regarding the victim’s bruises, the prosecutor’s statements during closing argument, and the admission of a hearsay statement under the then existing state of mind exception. He also asserts on appeal that the trial court erred in admitting, under the excited utterance exception to the rule against hearsay, the victim’s statements at school that the Defendant was responsible for his bruises.  After a thorough review, we conclude that the hearsay statements admitted as excited utterances were admitted in error and that the error was not harmless.  Accordingly, we reverse and remand for a new trial.

Davidson County Court of Criminal Appeals 12/16/16
Maurice Dotson v. State of Tennessee
W2016-00344-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Petitioner, Maurice Dotson, appeals the Madison County Circuit Court's denial of his petition for post-conviction relief from his convictions of possessing marijuana with intent to sell and deliver, possessing a firearm during the commission of a dangerous felony, possessing drug paraphernalia, and theft of property valued under five hundred dollars and resulting effective eleven-year sentence. On appeal, the Petitioner contends that his guilty pleas were involuntary and that he received the ineffective assistance of counsel. Based upon the record and the parties' briefs, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 12/15/16
Larry Hunt v. State of Tennessee
W2015-01836-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Glenn Wright

The Petitioner, Larry Hunt, appeals the Shelby County Criminal Court's denial of his petition for post-conviction relief from his aggravated robbery, aggravated kidnapping, and aggravated rape convictions, for which he is serving an effective thirty-two-year sentence. He contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/15/16
State of Tennessee v. Jakeil Malik Waller
W2015-02361-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Donald H. Allen

In December 2014, the Madison County Grand Jury indicted Jakeil Malik Waller (“the Defendant”) and the Defendant’s brother, Jernigal Blackwell, for second degree murder and aggravated assault. Following a trial, a jury convicted the Defendant of second degree murder and felony reckless endangerment, as a lesser included offense of aggravated assault, and the trial court sentenced the Defendant to an effective sentence of twenty-seven years’ incarceration. On appeal, the Defendant contends that: (1) the evidence was insufficient to support his conviction for second degree murder; (2) the prosecutor committed misconduct during closing argument; and (3) the trial court abused its discretion by admitting two photographs of the victim that were not relevant to any issue at trial. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 12/15/16