Court Opinions

Format: 11/22/2017
Format: 11/22/2017
Neighbors of Old Hickory, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2016-01815-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Senior Judge Robert E. Lee Davies

This is a declaratory judgment action in which the plaintiff property owners sought a finding that the defendant’s right to operate a rock quarry had not vested prior to the adoption of BL2015-13, which prohibits such activity on the property in question. All parties then moved for summary judgment as relevant to their respective positions. The trial court granted summary judgment in the defendant’s favor, finding that the quarry qualified as a pre-existing nonconforming use. We affirm.  

Davidson County Court of Appeals 10/25/17
In Re: Eric G.
E2017-00188-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Dwight E. Stokes

In this termination of parental rights case, a mother appeals the termination of her rights to her son on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and mental incompetence and upon the finding that termination was in the child’s best interest. Upon our review, we discern no error and affirm the judgment of the juvenile court.

Sevier County Court of Appeals 10/25/17
Commercial Bank & Trust Company, Et. Al. v. Children's Anesthesiologists, P.C., Et Al.
E2016-01747-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Deborah C. Stevens

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. (collectively “Plaintiffs”) sued Children’s Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi (“Albert”) in May of 2011. After a trial, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm

Knox County Court of Appeals 10/25/17
Alice Marie Cherqui v. Moshe Laor
W2016-02502-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor James F. Butler

This case involves the interpretation and enforcement of an alimony termination provision in the parties’ marital dissolution agreement. Wife filed a Notice of Termination of Alimony Payments in the Chancery Court of Madison County, alleging that Husband’s non-compliance with the parties’ permanent parenting plan relieved her of any further obligation to pay alimony pursuant to the alimony provision of their marital dissolution agreement. Husband then filed a motion to enforce the marital dissolution agreement and for a temporary injunction. Wife subsequently moved for summary judgment to enforce the alimony provision of the marital dissolution agreement. Husband did not dispute that he failed to comply with the “Passport Provision” of the parties’ permanent parenting plan but argued that his violation of the agreement did not relieve Wife’s obligation to continue to pay alimony in solido. The trial court concluded that the marital dissolution agreement unambiguously provided that Wife would be immediately relieved of her total obligation to pay alimony if Husband failed to comply with his obligations under the parties’ permanent parenting plan and granted Wife’s motion for summary judgment. Husband appeals the trial court’s granting of summary judgment, while Wife seeks an award of her attorney’s fees on appeal. Finding no error, we affirm the trial court’s granting of summary judgment and award the Wife her attorneys’ fees incurred on appeal which the trial court shall calculate upon remand.

Madison County Court of Appeals 10/25/17
Sons of Confederate Veterans Nathan Bedford Forrest Camp #215 v. City of Memphis, ET AL.
W2017-00665-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge JoeDae L. Jenkins

Appellant appeals from the trial court's grant of summary judgment in favor of appellee concerning appellees' authority to rename three city parks by way of resolution.  After a thorough review of the record, we affirm the decision of the trial court.

Shelby County Court of Appeals 10/24/17
State of Tennessee v. David Sharp
M2016-01072-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert L. Jones

A Maury County Circuit Court Jury convicted the Appellant, David Sharp, of evading arrest, a Class E felony, and driving on a revoked license, a Class B misdemeanor. After a sentencing hearing, he received an effective eighteen-month sentence to be served as ninety days in jail and the remainder on supervised probation. On appeal, the Appellant contends that the trial court erred by allowing the State to introduce a photograph into evidence to rebut a defense witness’s testimony and that the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by admitting the photograph and that the error was not harmless. Therefore, the Appellant’s convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

Maury County Court of Criminal Appeals 10/24/17
State of Tennessee v. Joshua Iceman
M2016-00975-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David A. Patterson

The Defendant, Joshua Iceman, was convicted by a jury of aggravated child abuse and first degree felony murder, for which he received concurrent terms of eighteen years and life imprisonment, respectively. The Defendant appeals, arguing (1) that his statement at the hospital resulted from custodial interrogation given without proper Miranda warnings and, therefore, that statement should have been suppressed; (2) that the State experts’ testimony on “shaken-baby syndrome and/or non-accidental trauma” was not sufficiently reliable to warrant its admission; (3) that the evidence was insufficient to support his convictions because the jury was faced with conflicting expert testimony; and (4) that the trial court erred in enhancing his sentencing term for his aggravated child abuse conviction above the minimum in the Class A felony range. Following our review of the record, we affirm the judgments of the trial court.

White County Court of Criminal Appeals 10/24/17
James Estel Jeffers v. Armstrong Wood Products et al.
E2017-00499-SC-R3-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge John D. McAfee

An employee filed a claim for workers’ compensation benefits, alleging that he injured his back in the course and scope of his employment. His employer denied the claim. The trial court ruled the employee was permanently and totally disabled and apportioned liability fifty-two percent to the employer and forty-eight percent to the Second Injury Fund. The employer appealed, arguing the trial court erred in finding the employee established a work-related injury and in apportioning the liability for the award. After careful review, we affirm the trial court’s judgment.

Scott County Workers Compensation Panel 10/24/17
United Parcel Service, Inc. et al. v. Robert Charles Millican, Jr.
E2016-02424-SC-R3-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge L. Marie Williams

An employer filed a complaint to resolve a dispute with an employee regarding workers’ compensation benefits. The employee alleged he suffered gradual hearing loss arising out of and in the course of his employment. The trial court held that the employee’s claim, filed three years after his doctor advised him that his hearing loss was work related, was barred by the statute of limitations. Further, the trial court found the statute of limitations was not tolled because the employee failed to prove that any work-related noise caused a progression of the employee’s hearing loss. The employee appealed. We affirm the trial court’s judgment.

Hamilton County Workers Compensation Panel 10/24/17
Amy Jo Slocum v. Jamie Don Slocum
M2016-01881-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Clara Byrd

This is a divorce case. Jamie Don Slocum appeals the trial court’s division of the marital estate and the trial court’s award of rehabilitative support to his spouse, Amy Jo Slocum. Husband argues that the trial court erred in finding that he dissipated marital assets (1) before the parties’ separation and (2) during the pendency of the divorce. Husband also asserts that wife has an earning capacity higher than the $1,449 per month found by the trial court. Wife posits that the trial court’s findings of fact are correct and supported by the preponderance of the evidence. She argues, however, that her spousal support award of $1,264 per month until May 31, 2025, should be classified as transitional support rather than rehabilitative. We hold that the trial court’s judgment with respect to spousal support should be modified to reflect that her support award is in the nature of transitional spousal support. As modified, the trial court’s judgment is affirmed.

Wilson County Court of Appeals 10/23/17
Craig Robert Nunn v. Tennessee Department of Correction, Et Al.
M2016-01518-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Russell T. Perkins

This case involves a sex offender’s complaint for declaratory relief under state law and 42 U.S.C. § 1983 raising various constitutional and other challenges to the conditions imposed on him in accordance with his sentence to community supervision for life. The trial court found that most of the offender’s constitutional claims were time-barred. The trial court reviewed the substantive merit of the remaining claims and found them meritless. As a result, the trial court granted the motion for summary judgment filed by the defendants, the Tennessee Department of Correction and the Tennessee Attorney General. The offender raises numerous issues on appeal. We affirm in part, reverse in part, and remand for further proceedings.

Davidson County Court of Appeals 10/23/17
Stacey Fair, Et Al. v. Clarksville Montgomery County School System
M2017-00206-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William R. Goodman, III

This appeal involves a determination by a school system that children were attending the wrong schools based upon their domicile within the county. We grant the school system’s motion to consider post-judgment facts indicating that the children no longer attend any school in the school system and accordingly dismiss this appeal as moot. 

Montgomery County Court of Appeals 10/23/17
Billy Joe Greenwood v. Tennessee Board of Parole
M2016-02059-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This appeal arises from the denial of parole to an inmate by the Tennessee Board of Parole (“the Board”). The inmate was convicted in 1990 of first degree murder and first degree burglary. The Board denied parole on the basis that the inmate’s release at the time of the hearing would depreciate the seriousness of the crime for which he was convicted. The inmate filed a petition for writ of certiorari with the Davidson County Chancery Court (“trial court”), alleging violations of due process and equal protection. The trial court denied relief, determining that no grounds existed to disturb the Board’s decision. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 10/23/17
Joshua Paul Lewis v. State of Tennessee
E2016-01993-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David A. Patterson

A Cumberland County jury convicted the Petitioner, Joshua Paul Lewis, of two counts of rape of a child and one count of attempted rape of a child, and the trial court sentenced him to serve an effective sentence of twenty-five years. This court affirmed the Petitioner’s convictions and sentence. State v. Joshua Paul Lewis, No. E2014-00918- CCA-R3-CD, 2015 WL 795856 (Tenn. Crim. App., at Knoxville, Feb. 25, 2015), no Tenn. R. App. P. 11 filed. The Petitioner subsequently filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel. The post-conviction court held a hearing on the petition and denied relief. We affirm the post-conviction court’s judgment.

Cumberland County Court of Criminal Appeals 10/23/17
State of Tennessee v. David A. Brimmer
E2017-00720-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Donald R. Elledge

The pro se Appellant, David A. Brimmer, appeals the Anderson County Circuit Court’s order summarily dismissing his motion to correct an illegal sentence. See Tenn. R. Crim. P. 36.1. The State has filed a motion to affirm the trial court’s order pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Anderson County Court of Criminal Appeals 10/23/17
David L. Alford v. State of Tennessee
E2017-00436-CCA-R3-ECN
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bobby R. McGee

The pro se petitioner, David L. Alford, appeals from the Knox County Criminal Court’s judgment summarily dismissing his petition for a writ of error coram nobis. The State has filed a motion to affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s position is well-taken and affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 10/23/17
State of Tennessee v. Derrick Richardson
E2016-02293-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Barry A. Steelman

On December 10, 1992, Derrick Richardson, the Petitioner, was convicted of first degree felony murder and sentenced to life. On appeal, this court affirmed the Petitioner’s conviction. See State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL 247114, at *1 (Tenn. Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994) (concurring in results only). The Petitioner filed a petition for writ of error coram nobis based on the affidavits of three individuals who claimed that one of the State’s “key witnesses,” LaKeysh Davis, lied about seeing the Petitioner shoot the victim because she was inside her home and could not have seen the location where the shooting occurred. The Petitioner claims that the information provided by the affiants is newly discovered evidence. Following a hearing, the coram nobis court denied coram nobis relief. We affirm. 

Hamilton County Court of Criminal Appeals 10/23/17
State of Tennessee v. Jeffrey W. Tittle
M2016-02006-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Brody N. Kane

A jury convicted the Defendant, Jeffrey W. Tittle, of attempted aggravated kidnapping and aggravated assault, Class C felonies, for grabbing the victim, placing a knife to her throat, and dragging her approximately twenty feet down a dark driveway into a scrap yard. The Defendant was sentenced to ten years for each offense, to be served consecutively. On appeal, the Defendant challenges the trial court’s decision to introduce a video from the responding officer’s patrol car, the trial court’s decision to permit the jury to view the video more than once, and the trial court’s refusal to merge the offenses based on the principles of double jeopardy and due process. We conclude that there was no error in admitting the video, that there was no error in allowing the jury to view it during deliberations, that double jeopardy principles do not bar dual convictions for attempted aggravated kidnapping and aggravated assault, and that there is no basis to disturb the determination of the jury that any removal or confinement was beyond that necessary to commit the aggravated assault. Accordingly, we affirm the trial court’s judgments. We remand only for the correction of clerical errors in the judgment form.

Wilson County Court of Criminal Appeals 10/23/17
Wade Harvey, Ex Rel. Alexis Breanna Gladden v. Cumberland Trust And Investment Company, Et Al.
E2015-00941-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Thomas J. Wright

In this interlocutory appeal, the trustee of a trust executed an investment/brokerage account agreement that included a provision requiring the arbitration of disputes. The trust beneficiary filed a lawsuit asserting claims against the investment broker, and the defendant broker sought to compel arbitration under the arbitration provision in the account agreement. The trial court granted the motion to compel arbitration and granted permission for this interlocutory appeal. The Court of Appeals reversed. On appeal, we are asked to determine whether the signature of the trustee on the account agreement binds the beneficiary of the trust to the predispute arbitration provision. We hold that the Tennessee Uniform Trust Code is intended to give trustees broad authority to fulfill their duties as trustee. We also hold that the Tennessee Uniform Trust Code gives trustees the power to enter into predispute arbitration agreements, so long as doing so is not prohibited under the operative trust instrument. We hold that the trust instrument in this case gives the named trustee broad authority and does not prohibit the trustee from entering into a predispute arbitration agreement. As a result, we interpret the trust instrument as authorizing the trustee to execute the account agreement with the defendant broker, including the predispute arbitration provision therein. Thus, under both the Tennessee Uniform Trust Code and the operative trust instrument, the trustee had authority to enter into the arbitration agreement contained within the account agreement. The question of whether the trust beneficiary in this case is bound by the arbitration provision is governed by the principle that a third party who seeks the benefit of a contract must also bear its burdens. Applying this principle, the trust beneficiary in this case may be bound to arbitrate claims against the investment broker that seek to enforce the account agreement. We reverse the decision of the Court of Appeals and vacate the trial court order compelling arbitration of all claims. We remand the case to the trial court for further proceedings, including a determination as to which if any of the claims asserted by the trust beneficiary seek to enforce the account agreement.

Hamblen County Supreme Court 10/20/17
In Re Estate of Veronica Stewart
M2016-02355-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Larry B. Stanley

This appeal arises from a will contest. The contestant insists the purported Last Will and Testament of the decedent, dated June 19, 2015, is invalid because the attesting witnesses, who duly executed the attestation affidavit, failed to affix their signatures to the will as required by the Tennessee Execution of Wills Act at the time the will was executed. The proponent insists the will was validly executed based on a 2016 amendment to Tenn. Code Ann. § 32-1-104, which applies to wills executed prior to July 1, 2016, and states “to the extent necessary for the Will to be validly executed, witness signatures affixed to an affidavit meeting the requirements of § 32-2-110 shall be considered signatures to the Will.” The trial court ruled that the 2016 amendment did not apply because the testator died before it went into effect. Consequently, the 2015 will was invalid because it was not executed in accordance with the law then in effect. We have determined that the 2016 amendment to Tenn. Code Ann. § 32-1-104 applies retrospectively to wills executed prior to July 1, 2016, because that is the clear and unambiguous intent of the legislation. We have also determined that the retrospective application of the law does not impair any vested legal right of the contestant. Therefore, we reverse and remand for further proceedings consistent with this opinion.

Warren County Court of Appeals 10/20/17
Donriel A. Borne v. Celadon Trucking Services, Inc - Concurring in Part and Dissenting in Part
W2013-01949-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Robert S. Weiss

I concur in the majority’s decision regarding the pretrial agreement. I dissent from the majority’s analysis regarding superseding cause. The trial court did not err in declining to give an instruction on superseding cause; the majority’s analysis confuses causation in fact with superseding cause. Further, I dissent from the majority’s analysis of the remittitur issue and its remand to the trial court. The majority, in five lengthy footnotes, attempts to defend its decision. The reasoning in this separate opinion is clearly stated; I will not debate with the majority in a series of footnotes.

Shelby County Supreme Court 10/20/17
Donriel A. Borne v. Celadon Trucking Services, Inc.
W2013-01949-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Robert S. Weiss

This appeal arises out of sequential rear-end collisions involving three tractor trailer vehicles. The plaintiff’s tractor trailer was rear-ended by a tractor trailer owned by the defendant, which was in turn rear-ended by a third tractor trailer. The plaintiff sued the owners and drivers of both of the other tractor trailers, seeking compensation for personal injuries. Before trial, the plaintiff entered into an agreement with the owner of the third tractor trailer that neither would take any action adverse to the other and that the owner of the third tractor trailer would only owe the plaintiff half of any judgment entered against it. The owner of the third tractor trailer was later dismissed on a directed verdict. The jury returned a verdict for the plaintiff against the defendant. The trial court denied the defendant’s motion for new trial and, with little explanation, also suggested a remittitur of the jury’s verdict in all four categories of damages awarded. After the defendant appealed, the Court of Appeals affirmed the trial court’s rulings regarding the pretrial agreement between the plaintiff and the owner of the third tractor trailer. Regarding the trial court’s remittitur, the Court of Appeals reinstated the jury’s award for lost earning capacity, suggested a further remittitur to the award for loss of enjoyment of life, and affirmed the remitted award in the remaining two categories of damages. On appeal, we affirm the trial court’s rulings regarding the pretrial agreement. We find no error in the trial court’s decision not to give the jury a special instruction on superseding cause. We hold that the Court of Appeals had no authority to suggest a further remittitur absent a finding that the jury’s award—as remitted by the trial court—exceeds the uppermost boundary of the range of reasonableness under the evidence at trial, and so we reverse the Court of Appeals’ remittitur of the award for loss of enjoyment of life. As to the trial court’s remittitur, in view of the sharply conflicting evidence on the plaintiff’s damages, the trial court’s failure to indicate the reasons for its suggested remittitur leaves us unable to determine whether the evidence preponderates against the remittitur and, consequently, unable to conduct a proper appellate review of the trial court’s remittitur decision. Accordingly, we remand the case to the trial court for explanation of its reasons for suggesting remittitur of the jury’s award. For the same reason, the Court of Appeals was without sufficient information to perform a meaningful review of the trial court’s suggested remittitur, so we vacate the Court of Appeals’ decision to reverse the trial court’s remittitur of the award on lost earning capacity. The decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the trial court for further proceedings.  

Shelby County Supreme Court 10/20/17
Richard Lloyd Odom v. State of Tennessee
W2015-01742-CCA-R3-PD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Senior Judge Don R. Ash

The Petitioner, Richard Lloyd Odom, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his conviction of first degree felony murder and resulting sentence of death. On appeal, the Petitioner contends that he received the ineffective assistance of counsel, raises various issues related to his post-conviction evidentiary hearing, and challenges the imposition of the death penalty. Having discerned no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 10/20/17
State of Tennessee v. Robert J. Bynum
M2016-01580-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge J. Curtis Smith
The defendant, Robert J. Bynum, appeals his Franklin County Circuit Court jury conviction of facilitation of the possession with intent to sell or deliver .5 grams or more of cocaine, challenging the sufficiency of the evidence as well as the propriety of the total effective sentence imposed for all the convictions in this case. Discerning no error, we affirm.
 
Franklin County Court of Criminal Appeals 10/20/17
Joe David Erwin, et al. v. Great River Road Supercross, LLC, et al.
W2017-00150-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Tony Childress

At oral argument, the parties agreed that the trial court made a finding concerning the reliance element of Appellants’ fraud claim that was not supported by the record. Accordingly, we vacate the trial court’s order and remand the case for further proceedings.

Dyer County Court of Appeals 10/19/17