Court Opinions

Format: 06/22/2018
Format: 06/22/2018
Graham Clark, et al. v. Timothy Curtis Johnson
E2017-01286-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John S. McLellan, III

In this case involving grandparent visitation, the petitioners, Graham Clark and Marisa Clark (“Grandparents”), filed a petition in the Sullivan County Juvenile Court (“juvenile court”) in November 2016, approximately thirteen months after the death of their daughter, Megan Clark Johnson (“Mother”), who was the mother of the four minor children at issue here. Naming the children’s father, Timothy Curtis Johnson (“Father”) as the respondent, Grandparents averred that the children were dependent and neglected due to the death of Mother in October 2015 and an allegedly severe reduction in Grandparents’ visitation with the children since December 2015. The case was subsequently transferred to the Sullivan County Chancery Court (“trial court”), with Grandparents having given notice to Father that they were seeking relief in the form of grandparent visitation. The trial court thereafter treated the petition as one for grandparent visitation. Following a hearing, the trial court entered a temporary order directing that Grandparents would enjoy unsupervised visitation with the children on alternate weekends. Following a subsequent bench trial, the trial court granted visitation to Grandparents upon finding that, pursuant to Tennessee Code Annotated §§ 36-6-306 and -307 (2017) (collectively, the “Grandparent Visitation Statute”), their visitation and relationship with the children had been severely reduced over several months prior to the petition’s filing and that such reduction posed a risk of substantial emotional harm to the children. Also finding that it was in the best interest of the children to grant Grandparents a set visitation schedule, the trial court ordered overnight visitation one weekend a month and two additional nights monthly, as well as one week’s uninterrupted visitation in the summer and the sharing of major holidays. Father timely appealed. Having determined that the evidence preponderates against a finding that the reduction in Grandparents’ visitation and relationship with the children in the months preceding the petition’s filing met the statutory definition of a severe reduction, we reverse.

Sullivan County Court of Appeals 05/29/18
State of Tennessee v. Jasper Vick
W2017-02164-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

The defendant, Jasper Vick, appeals from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his sentences are illegal because the court clerk failed to sign his original and superseding indictments. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/25/18
State of Tennessee v. Willie Jermaine Cunningham
W2017-01134-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Glenn Ivy Wright

Defendant, Willie Jermaine Cunningham, appeals from the dismissal of several attempts to receive relief from an “illegal sentence” under Tennessee Rule of Criminal Procedure 36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the dismissal of the motion for relief.

Shelby County Court of Criminal Appeals 05/25/18
Lesa C. Williams, Et Al. v. Renard A. Hirsch, Sr.
M2016-00503-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Don A. Ash

This is the third appeal in this declaratory judgment action. The action seeks a determination of whether a discharged attorney is entitled to compensation for his services in connection with a tort action that settled after his discharge. After a bench trial, the trial court determined that the discharged attorney’s right to compensation was governed by a retainer agreement with the client, as modified by a subsequent letter agreement. The retainer agreement entitled the attorney, upon discharge, to compensation calculated at a reasonable hourly rate or one third of any offer made to settle the case, whichever was greater, plus expenses. Because no bona fide settlement offer was made before the attorney was discharged and the attorney provided insufficient evidence of the time he spent on the case, the trial court declared that the discharged attorney was not entitled to compensation. The trial court also awarded sanctions against the attorney for discovery abuse. Upon review, we discern no reversible error. So we affirm.

Davidson County Court of Appeals 05/25/18
State of Tennessee v. William S. Vanwinkle
M2017-00812-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Royce Taylor

The Defendant, William S. Vanwinkle, pleaded guilty in case numbers F-72538 and F- 74515 to initiating a process intended to result in the manufacture of methamphetamine, see T.C.A. § 39-17-435, and in case number M-75892 to shoplifting, see id. § 39-14-146. In this appeal, the Defendant contends that the twenty-year effective sentence imposed in this case is excessive and that the trial court erred by denying all forms of alternative sentencing. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court.

Court of Criminal Appeals 05/25/18
State of Tennessee v. Frank Edward Small
E2017-01266-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge R. Jerry Beck

The Defendant, Frank Edward Small, was convicted by a Sullivan County Circuit Court jury of robbery, a Class C felony, and home improvement fraud, a Class D felony. See T.C.A. §§ 39-13-401 (2014) (robbery), 39-14-154 (2010) (amended 2012, 2017) (home improvement fraud). He received a Range I, effective five-year sentence to be served in the Department of Correction. On appeal, he contends that (1) the evidence is insufficient to support his convictions and (2) the trial court erred in denying his motion to review the victim’s medical records. We affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 05/25/18
Marvin Seibers, ET Al. v. Carol Latimer
E2017-01285-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Elizabeth C. Asbury

This appeal involves a request for visitation by the maternal grandparents. The paternal grandmother had been awarded legal custody when the petition was filed. Before the trial, the children were adopted by the paternal grandmother. The trial court granted visitation pursuant to Tennessee Code Annotated section 36-6-302. We affirm the decision of the trial court.

Campbell County Court of Appeals 05/25/18
State of Tennessee v. Michael C. Carter
E2017-01292-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge R. Jerry Beck

Defendant, Michael C. Carter, was charged via presentment with one count of failure to appear, one count of being a habitual traffic offender, one count of failure to provide law enforcement evidence of financial responsibility, one count of operating a motor vehicle on a public road with a false registration, and one count of failure to dim headlights within 500 feet of an oncoming vehicle. Defendant pled guilty and was sentenced to an effective sentence of four years in incarceration. Defendant appeals to this Court, arguing that the trial court improperly denied alternative sentencing. After a complete review of the record, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 05/25/18
Sharon K. Yuhasz v. Joseph D. Yuhasz
M2017-00880-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Deanna B. Johnson

Husband appeals the trial court’s decision regarding wife’s monthly need for spousal support and its division of the parties’ marital assets.  Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets.  We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal.

Williamson County Court of Appeals 05/24/18
In Re: Emersyn W.
M2017-02074-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kenneth R. Goble

This is an appeal from an order changing the Child’s surname from that of Mother alone to the double last name of Mother and Father, respectively. The juvenile court determined that the Child’s last name should be changed based on a standardized policy of the court because the parents could not reach an agreement. Mother appeals. We reverse.

Montgomery County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
M2017-00635-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Michael Binkley

I concur in the result reached by the majority and with its analysis, except in one respect. In my view, Tennessee Code Annotated § 36-5-121 does not authorize an award of attorney fees in these circumstances.

Williamson County Court of Appeals 05/24/18
Dale Robert Scherzer v. Melissa Marie Scherzer
M2017-00635-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Michael Binkley

In this post-divorce action, the husband filed a petition to terminate or modify $2,000.00 in monthly transitional alimony that had been previously awarded to the wife as part of the marital dissolution agreement incorporated into the divorce decree.  Following a bench trial, the trial court found that the wife was cohabiting with her fiancé and had failed to rebut the statutory presumption, pursuant to Tennessee Code Annotated § 36-5-121(g)(2)(C), that she was either providing support to or receiving support from a third person and no longer needed the amount of alimony previously awarded.  The trial court suspended the husband’s transitional alimony obligation retroactive to October 2015, the month when he had begun to deposit payments into an escrow account at the court’s direction.  The court also awarded to the husband attorney’s fees and expenses in the amount of $19,331.50.  The wife has appealed.  Having determined that the wife failed to rebut the statutory presumption, we affirm the suspension of the husband’s transitional alimony obligation.  However, having also determined that the evidence does not support a finding that the wife had the ability to pay the husband’s attorney’s fees, we reverse the trial court’s award of attorney’s fees to the husband.  We decline to award attorney’s fees incurred on appeal to either party.

Williamson County Court of Appeals 05/24/18
Carolyn Annette Young v. Sugar Hollow Properties, LLC, Et Al.
E2017-00981-SC-R3-WC
Authoring Judge: Justice Sharon Lee
Trial Court Judge: Judge Elizabeth C. Asbury

In June 2004, an employee sustained a work-related injury. After the employee sued her employer and its insurer for workers' compensation benefits, the parties settled the case. The trial court approved the settlement and, in part, ordered the defendants to pay the employee's reasonable and necessary authorized future medical expenses. In 2016, the employee moved to compel the defendants to provide medical treatment recommended by the employee's authorized treating physician; she also sought a finding of civil contempt and an award of attorney fees. The trial court ordered the defendants to provide the requested medical services and denied the motion for contempt. The defendants then authorized the employee's requested medical treatment. At a later hearing, the trial court awarded the employee her attorney fees under Tennessee Code Annotated section 50-6- 204(b)(2) (2005). The defendants appeal the trial court's award of medical benefits and attorney fees. After careful review, we hold that the issue of medical benefits is moot and the trial court erred in awarding the employee her attorney fees.

Campbell County Workers Compensation Panel 05/24/18
Camilo Sanchez Et Al. v. Robert L. Banton
E2016-01916-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Frank V. Williams, III

This case involves a dispute between owners of adjacent property. Plaintiffs sued Defendant for erecting a gate and steel posts, which they alleged impeded access to a deeded joint roadway. The court ordered Defendant to remove the gate and steel posts and awarded plaintiffs punitive damages. We reverse the award of punitive damages because the court did not find by clear and convincing evidence that Defendant acted with the requisite intent to justify such an award. We affirm the judgment in all other respects.

Loudon County Court of Appeals 05/24/18
Charles Elsea v. State of Tennessee
E2017-01676-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: E2017-01676-CCA-R3-PC

Petitioner, Charles Elsea, appeals the denial of his petition for post-conviction DNA analysis on unprocessed specimens relating to his October 10, 1997 conviction for first degree murder. Because we hold that even favorable DNA results from the unprocessed specimens do not create a reasonable probability that Petitioner would not have been prosecuted or convicted or would have received a more favorable verdict or sentencing, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 05/24/18
Robert Edward Fritts v. State of Tennessee
E2017-00996-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald Ray Elledge

Petitioner, Robert Edward Fritts, was convicted of first degree murder and received a sentence of life without the possibility of parole. See State v. Robert Edward Fritts, No. E2012-02233-CCA-R3-CD, 2014 WL 545474, at *1 (Tenn. Crim. App. Feb. 10, 2014), perm. app. denied (Tenn. Sept. 19, 2014). Petitioner’s conviction was affirmed on direct appeal. Id. Petitioner subsequently sought post-conviction relief on the basis of a multitude of allegations of ineffective assistance of counsel. The post-conviction court denied relief after a hearing. After a complete review, we affirm the judgment of the post-conviction court.

Anderson County Court of Criminal Appeals 05/24/18
In Re: D.T. ET AL.
E2017-00051-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Frank V. Williams, III

In this termination of parental rights case, P.T. and K.T., great aunt and uncle of the child at issue in this case, filed a petition to terminate the rights of N.D. (mother) with respect to her child, D.T. Mother did not appear for trial. She had previously filed a second request for a continuance, which the trial court had denied. At trial, P.T. and K.T. alleged the following grounds for termination: (1) four independent conditions or occurrences constituting severe child abuse; (2) mental incompetence; (3) two separate instances of abandonment by failure to support; (4) two separate instances of abandonment by failure to visit; and (5) failure to assume by act or omission, legal/physical custody or financial responsibility of the child. The court found clear and convincing evidence of all ten grounds. By the same quantum of proof, the court also found that termination is in the child’s best interest. Mother appeals. We affirm.

Loudon County Court of Appeals 05/24/18
State of Tennessee v. John Wesley Cantrell, Jr.
M2017-00842-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Cheryl A. Blackburn

The Appellant, John Wesley Cantrell, Jr., pled guilty in the Davidson County Criminal Court to possessing one-half gram or more of cocaine with intent to sell and selling less than one-half gram of cocaine and received ten- and three-year sentences, respectively, to be served on supervised probation. Subsequently, the trial court revoked his probation. On appeal, the Appellant contends that the trial court erred by ordering that he serve his ten-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 05/24/18
State of Tennessee v. Larry E. Orozco - Concurring in Part, Dissenting in Part
M2017-00327-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Senior Judge Paul G. Summers

I join the majority in affirming the Defendant’s convictions for two counts of attempted second degree murder, two counts of unlawful employment of a firearm during the attempt to commit a dangerous felony, and seven counts of reckless endangerment committed with a deadly weapon. I write separately to dissent from the majority’s conclusion that the trial court did not err by admitting exhibit 13, the photograph showing the Defendant pointing two handguns at the camera, into evidence.

Rutherford County Court of Criminal Appeals 05/24/18
State of Tennessee v. Larry E. Orozco
M2017-00327-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Senior Judge Paul G. Summers

The Defendant, Larry E. Orozco, was convicted of two counts of attempted second degree murder, two counts of unlawful employment of a firearm during an attempt to commit a dangerous felony, and seven counts of reckless endangerment committed with a deadly weapon. The trial court sentenced him as a Range I, standard offender to an effective term of thirty-one years’ imprisonment. On appeal, the Defendant argues that (1) the trial court erred in admitting certain evidence in violation of Tennessee Rules of Evidence 403 and 404(b); (2) the evidence was insufficient to sustain his convictions; and (3) his sentence was erroneous and excessive. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 05/24/18
Delvin Allison v. State of Tennessee
W2017-00707-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Carolyn W. Blackett

Petitioner, Delvin Allison, pled guilty to aggravated robbery with an agreed sentence of seven years and two months as a mitigated offender, which was ordered to be served in the Department of Correction. Petitioner now appeals the post-conviction court’s denial of his petition for post-conviction relief in which he contends: the post-conviction court improperly determined that he was not entitled to discovery of the audio recording of the juvenile court transfer hearing; trial counsel rendered ineffective assistance both prior to and during the guilty plea proceedings; and his guilty plea was not knowing and voluntary. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 05/23/18
State of Tennessee v. Jamie Crowell
W2017-00799-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Jamie Crowell, was convicted by a Chester County Circuit Court jury of aggravated kidnapping, a Class B felony; facilitation of aggravated assault, a Class D felony; possession of methamphetamine with intent to sell, a Class B felony; possession of methamphetamine with intent to deliver, a Class B felony; possession of a Schedule II controlled substance, oxymorphone, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. The trial court merged the methamphetamine convictions into one conviction and sentenced the Defendant to a total effective term of seventeen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions; (2) the State’s questioning about the prior methamphetamine use of defense witnesses denied him a fair trial; and (3) the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

Chester County Court of Criminal Appeals 05/23/18
Hershel Sanders Et Al. v. First Tennessee Bank National Association Et Al.
E2017-01814-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Amy V. Hollars

The plaintiffs, Hershel Sanders and his wife, Alma Sanders, secured a construction loan from the defendant, First Tennessee Bank, N. A., for the purpose of building a home in Cumberland County. The first contractor hired by the plaintiffs did not complete the construction in a timely fashion. At the urging of First Tennessee Bank, the plaintiffs dismissed the original contractor and hired a new one, who finished the job. The bank refused to make the plaintiffs a permanent loan. Ultimately, the property went into foreclosure. The plaintiffs sued the bank and others, alleging various theories of recovery. The case proceeded, but only as to one defendant – First Tennessee Bank – and only as to one theory, i.e., breach of contract to make the plaintiffs a permanent loan. First Tennessee Bank filed a motion to dismiss and for judgment on the pleadings. The trial court held that, since there is no written agreement signed by First Tennessee Bank reflecting a promise by it to make the plaintiffs a permanent loan, the plaintiffs’ suit is barred by the Statute of Frauds, Tenn. Code Ann. § 29-2-101 (2012). The trial court also granted the bank’s motion on another ground. The plaintiffs appeal. We affirm

Cumberland County Court of Appeals 05/23/18
Ronald Miller v. Mark Gywn, Director Of The Tennessee Bureau Of Investigation
E2017-00784-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge E.G. Moody

In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-year-old niece. When he moved to Tennessee in 2007, he registered with the sex offender registry (SOR). The Tennessee Bureau of Investigation subsequently reclassified him several times. In 2013, the TBI granted Miller’s request to be removed from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. § 40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant to this amendment. Miller appealed to the trial court under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court reversed the TBI’s decision, holding that “TBI is bound by the face of the [Maryland] conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime registry requirements.” The Maryland statute at the time of the offense provided that “a person may not engage in . . . sexual contact with another without the consent of the other.” We hold that the TBI demonstrated that Miller was convicted of this offense, and that his victim was eleven years old at the time of the offense. Based on our review of the record, we hold that the TBI’s decision was neither arbitrary nor capricious or unsupported by substantial and material evidence. We reverse the trial court’s judgment and hold that Miller must be registered on the SOR for life.

Sullivan County Court of Appeals 05/23/18
In Re: Neamiah R. Et Al.
E2017-02000-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

In this action, the trial court terminated the respondent father’s parental rights to his children, following its finding that clear and convincing evidence existed to establish the statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the reasonable requirements of a permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The father has appealed solely the best interest determination. Discerning no error regarding the statutory grounds for termination found by the trial court or the court’s best interest analysis, we affirm.

Knox County Court of Appeals 05/23/18