Court Opinions

Format: 02/23/2017
Format: 02/23/2017
State of Tennessee v. Corey Forest
M2016-00463-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Robert Jones

The Defendant, Corey Forest, was indicted for possession of twenty-six grams of cocaine with the intent to sell in a drug-free school zone, possession of marijuana, and unlawful possession of a firearm.  The Defendant filed a pretrial motion to suppress the warrantless search of his vehicle.  The trial court denied the Defendant’s motion, and the Defendant pleaded guilty to the lesser-included offense of possession of more than .5 grams of a Schedule II substance and to unlawful possession of a firearm, and attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) about whether the stop of the Defendant’s vehicle by law enforcement was lawful.  After review, because the Defendant has failed to properly comply with Rule 37, we dismiss the Defendant’s appeal.

Maury County Court of Criminal Appeals 01/31/17
Battery Alliance, Inc., et al. v. Allegiant Power, LLC, et al.
W2015-02389-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Jim Kyle

In this dispute among competing battery distribution companies, the plaintiff companies appeal the trial court's grant of summary judgment in favor of the defendant company and its employees. The plaintiffs also appeal the trial court's denial of their motion to dismiss the defendant company's counterclaim on jurisdictional grounds. Having determined that the trial court granted summary judgment without stating the legal basis for its decision prior to instructing the defendants' counsel to prepare a template for the court's order, we conclude that the trial court failed to fully comply with the procedural requirements of Tennessee Rule of Civil Procedure 56.04. We therefore vacate the trial court's order granting summary judgment in favor of the defendants and denying the plaintiffs' motion to compel discovery. We affirm the trial court‟s denial of the plaintiffs' motion to dismiss the defendant company's counterclaim. We remand to the trial court for further proceedings consistent with this opinion, including a determination of the defendants' motion for summary judgment in compliance with Rule 56.04 and of the plaintiffs' motion to compel discovery.

Shelby County Court of Appeals 01/30/17
State of Tennessee v. William M. Cole
W2015-01764-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Clayburn L. Peeples

The defendant, William M. Cole, was indicted for rape of a child and entered a best-interest guilty plea to incest on May 6, 2015. He was sentenced on September 8, 2015, to six years as a Range I, standard offender. On September 14, 2015, he filed a timely notice of appeal of his sentence. On September 28, 2015, he filed in the trial court a motion to withdraw his plea of guilty, arguing that he was not related to the victim by blood or marriage and, therefore, could not be found guilty of incest. In this direct appeal filed after his plea of guilty and sentencing, but before he sought to withdraw his guilty plea, he argues that his plea of guilty was involuntary and should be set aside and that the trial court failed to consider all relevant factors in sentencing him. The State responds that the defendant may attack the voluntariness of his plea only in a petition for post-conviction relief and not in a direct appeal. We agree with this response, as well as the State’s assertion that the defendant was properly sentenced. Accordingly, we affirm the judgment of the trial court.

Gibson County Court of Criminal Appeals 01/30/17
Terrell Loverson v. State of Tennessee
W2015-01381-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge James C. Beasley, Jr.

The petitioner, Terrell Loverson, appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred by concluding that appellate counsel rendered effective assistance. According to the petitioner, appellate counsel should have raised, as an issue on appeal, the trial court's denial of his request for a self-defense jury instruction. Following our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/30/17
Sandra Prewitt, et al v. Kamal Brown
M2016-00874-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kelvin D. Jones

This appeal arises from a two-car accident. The parties do not dispute that Plaintiff’s vehicle sustained irreparable damage and that Defendant, the driver of the other vehicle, was 100% at fault. Prior to the commencement of this action, the automobile insurance carrier for Defendant, Allstate Insurance Company, paid the lien-holder of Plaintiff’s vehicle $7,852.57, the amount Allstate believed to be the fair market value of the vehicle. Thereafter, Plaintiff sued Defendant to recover the balance of the fair market value of her car and damages for loss of use. She also asserted a direct action against Allstate, alleging that Allstate reached a settlement with her lien-holder before exploring the full extent of her damages. The trial court dismissed the direct action against Allstate for failure to state a claim upon which relief could be granted, pursuant to Tenn. R. Civ. P. 12.02(6), because Tennessee law does not permit a direct action against an insured’s insurance carrier “without first establishing that the insured . . . has become ‘legally obligated’ to pay damages.” Ferguson v. Nationwide Prop. & Cas. Ins. Co., 218 S.W.3d 42, 52 (Tenn. Ct. App. 2006) (quoting Seymour v. Sierra, 98 S.W.3d 164, 165 (Tenn. Ct. App. 2002)). Following the dismissal of Plaintiff’s claims against Allstate, the trial court summarily dismissed Plaintiff’s claims against Defendant upon the finding that Plaintiff failed to present any evidence that the fair market value was more than Allstate paid on behalf of Defendant. The court also summarily dismissed Plaintiff’s claim for the loss of use of her car, because it could not be repaired and she never sought to rent a replacement vehicle. Plaintiff appealed. We affirm.

Davidson County Court of Appeals 01/30/17
Jack Osborne, et al. v. Michael Hardin
E2016-01158-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge John C. Rambo
Jack Osborne, Margaret Howell, and Kathy Street (collectively “Plaintiffs”) sued Michael
P. Hardin (“Defendant”) seeking to extinguish any right Defendant had to a right-of-way
(“the Right-of-Way”) on real property located in Unicoi County, Tennessee. After a trial,
the Chancery Court for Unicoi County (“the Trial Court”) entered a judgment finding and
holding, inter alia, that the Right-of-Way is for the benefit of both Plaintiffs and
Defendant and neither may block or impede the other’s use of the Right-of-Way.
Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in
setting aside a judgment by default and proceeding with trial, whether the Trial Court
erred in proceeding with trial in the absence of two of the Plaintiffs, and whether the Trial
Court erred in finding that Plaintiffs failed to prove adverse possession. We find and
hold that the Trial Court did not abuse its discretion in setting aside the judgment by
default, that Plaintiffs never objected to proceeding with trial in the absence of the two
Plaintiffs, and that Plaintiffs failed to prove adverse possession. We affirm the Trial
Court’s judgment.
 
Unicoi County Court of Appeals 01/30/17
State of Tennessee v. Stephanie Lynn Ferguson
M2016-01123-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Monte Watkins

The Defendant, Stephanie Lynn Ferguson, pleaded guilty to two counts of aggravated vehicular homicide and one count of vehicular assault in the Criminal Court for Davidson County.  Following a sentencing hearing, the trial court imposed an effective sentence of twenty-six years in the Department of Correction.  On appeal, the Defendant contends that her effective sentence does not comport with the fundamental purposes and principles of sentencing.  Specifically, she contends that the sentence imposed was not the “least severe measure necessary,” that the trial court ignored applicable mitigating factors, and that the court improperly determined she was a dangerous offender.  Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 01/30/17
Sandra Jo Robbins v. Robert Scholze Robbins
E2016-02396-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Jeffrey Hollingsworth
The Notice of Appeal filed by the appellant, Robert Scholze Robbins, stated that the appellant was appealing from a final judgment entered on July 28, 2016. However, there is no final judgment in the proceedings below and the case remains pending in the Trial Court. As such, we lack jurisdiction to consider this appeal.
 
Hamilton County Court of Appeals 01/30/17
State of Tennessee v. Radames Antonio Rivera
M2016-00938-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jill Bartee Ayers

The defendant, Radames Antonio Rivera, was indicted for one count of first degree murder, one count of attempted tampering with evidence, and one count of unlawful possession of a weapon.  Following trial, the jury found the defendant guilty of one count of second degree murder.  The trial court sentenced the defendant to fifteen years of incarceration.  On appeal, the defendant argues the evidence was insufficient to support his conviction.  After our review, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 01/30/17
Keith Lamont Farmer v. Tennessee Department of Correction, et al.
E2016-01327-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Jeffrey F. Stewart
This appeal arises from a prisoner’s disciplinary hearing. Keith Lamont Farmer (“Farmer”), an inmate in the custody of the Tennessee Department of Correction (“TDOC”), was convicted of a disciplinary offense. Farmer filed a petition for common law writ of certiorari seeking judicial review of the decision to discipline him. The Chancery Court for Bledsoe County (“the Trial Court”) dismissed Farmer’s petition on the grounds that it did not state that it was the first application for the writ, and, that it neither was sworn to nor verified. Farmer appeals to this Court. We affirm the Trial Court.
 
Bledsoe County Court of Appeals 01/27/17
In Re Property of Twyla Miles
W2016-00132-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge J. Robert Carter, Jr.

This appeal involves an in rem forfeiture proceeding which was initiated after the appellant’s property was seized as proceeds of illegal drug sales. The appellant did not file a claim in the forfeiture proceedings. On appeal, she asserts that she was denied due process because she did not receive notice of the forfeiture proceedings. The record does not support the appellant’s assertion that she was not afforded adequate notice. We, therefore, affirm the decision of the trial court forfeiting the appellant’s interest in the seized property.

Shelby County Court of Appeals 01/27/17
State of Tennessee v. Robin Bass
W2015-02484-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge W. Mark Ward

The Defendant, Robin Bass, was convicted of first degree murder in the perpetration of or attempt to perpetrate a robbery. See Tenn. Code Ann. § 39-13-202(a)(2). In this appeal as of right, the Defendant contends that the evidence was insufficient to sustain his conviction, arguing that there was no proof that he intended to rob the victim or that the murder occurred during the perpetration of or attempt to perpetrate a robbery. Additionally, the Defendant argues that the extrajudicial confessions used to convict him were uncorroborated. Following our review, the judgment is affirmed.

Shelby County Court of Criminal Appeals 01/27/17
State of Tennessee v. David Richardson
W2016-00174-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Lee V. Coffee

The defendant, David Richardson, appeals the trial court’s imposition of consecutive sentences upon remand for a new sentencing hearing. After review, we affirm the sentencing decision of the trial court.

Shelby County Court of Criminal Appeals 01/27/17
E. Louis Thomas v. Grady Perry, Warden
W2016-01514-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Joe H. Walker, III

The Petitioner, E. Louis Thomas, appeals the Hardeman County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus from his 2008 conviction for first degree premeditated murder and his life sentence. He contends that (1) he received the ineffective assistance of counsel, (2) the trial court violated his right to a fair trial by admitting the Petitioner’s confession, and (3) the habeas corpus court violated his due process rights by summarily dismissing his petition. We affirm the judgment of the habeas corpus court.

Hardeman County Court of Criminal Appeals 01/27/17
Gale Marleen Krizka v. State of Tennessee
E2015-02243-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge E. Eugene Eblen

Petitioner, Gale Marleen Krizka, appeals from the denial of her petition for post-conviction relief, in which she alleged that her counsel was ineffective for failing to obtain an expert witness, failing to call witnesses, and failing to give an opening statement. Following our review, we affirm the judgment of the post-conviction court.

Morgan County Court of Criminal Appeals 01/27/17
Spirit Broadband, LLC, et al v. Joseph Anthony Armes, et al
M2015-00559-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Carol L. McCoy

This case arises from the sale of the assets of a small cable television system. DirecTV program channels constituted the majority of the system’s programming. Three years after the sale, DirecTV stopped providing its programming signal to the cable system, claiming the signal had been obtained illegally. The buyer of the cable system filed suit against DirecTV for breach of contract and defamation. After reaching a settlement with DirecTV, the buyer filed this action against the seller of the cable system, seeking damages for breach of contract and fraud and a declaratory judgment that the promissory note the buyer had executed as part of the purchase was not yet due and payable. The seller filed a counterclaim, seeking payment of the promissory note. After a bench trial, the trial court dismissed the buyer’s claims against the seller. The court also dismissed the seller’s counterclaim under the doctrine of unclean hands. After a review of the record, we conclude that the chancery court did not abuse its discretion in determining that the doctrine of unclean hands barred the seller’s counterclaim. Accordingly, we affirm.

Davidson County Court of Appeals 01/27/17
State of Tennessee v. Teddy Reece Ragan
M2015-02316-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte D. Watkins

A Davidson County jury convicted the Defendant, Teddy Reece Ragan, of sexual exploitation of a minor, and the trial court sentenced him to a ten-year sentence to be served at 100% in the Tennessee Department of Correction.  On appeal, the Defendant contends that the evidence is insufficient to support his conviction, that the trial court improperly admitted the Defendant’s prior conviction for violation of the sex offender registry, and that the trial court erred by failing to charge the jury with attempted sexual exploitation of a minor.  After a thorough review of the record and the applicable law, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 01/27/17
Luis Napoleon Paz v. State of Tennessee
M2016-00069-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Luis Napoleon Paz, appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred in finding he received effective assistance of counsel. Following our review, we affirm the denial of the petition.

Davidson County Court of Criminal Appeals 01/27/17
Christopher Earl Watts v. State of Tennessee
M2016-00303-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

The petitioner, Christopher Earl Watts, appeals the denial of post-conviction relief from his convictions for aggravated child abuse and aggravated child neglect, for which he received an effective sentence of seventy-five years.  On appeal, the petitioner argues trial counsel provided ineffective counsel by failing to fully explain the nature and consequences of waiving his right to testify, failing to call certain witnesses, and failing to file a motion in limine to exclude evidence regarding living in the “projects” and “on the streets.”  Due to the cumulative effect of this allegedly ineffective representation, the petitioner requests a new trial.  Following our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/27/17
State of Tennessee v. Jonathan Wayne Utz
M2016-01244-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Jonathan Wayne Utz, pled guilty to one count of aggravated sexual battery, a Class B felony.  SeeTenn. Code Ann. § 39-13-504.  The trial court sentenced the Defendant as a Range I, standard offender to a term of imprisonment of nine years and six months to be served at one hundred percent.  In this appeal as of right, the Defendant contends that “the sentence in this case is excessive and contrary to the law.”  Discerning no error, we affirm the judgment of the trial court.

Moore County Court of Criminal Appeals 01/27/17
In re I.G.
M2015-01974-COA-R3-JV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Donna Scott Davenport

This appeal pertains to an effort to set aside a default judgment. M.V. (Mother) filed a petition seeking a restraining order against M.A.G. (Father) and modification of their permanent parenting plan. Father was served with Mother’s petition. He did not file a response. Mother later filed a motion for a default judgment and mailed the same to Father. He did not respond or attend the noticed hearing. At the hearing, the trial court granted Mother’s proffered permanent parenting plan and awarded her attorney’s fees. The court mailed the final judgment to Father. Father then moved to set aside the judgment, claiming, in part, that he had not received Mother’s motion for default. The trial court denied his request after finding that the motion for default was mailed to Father’s address on file with the court and that Father had not asserted just cause as to why the final judgment should be set aside. Finding no abuse of discretion, we affirm.

Rutherford County Court of Appeals 01/27/17
Shirley M. Lurks, et al. v. The City of Newbern, Tennessee, et al.
W2016-01532-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge R. Lee Moore, Jr.

This is a premises liability case filed pursuant to the Tennessee Governmental Tort Liability Act. Appellant was walking down a sidewalk when she fell and sustained injuries. She and her husband brought suit alleging that she fell because the sidewalk was in a dangerous and defective condition due to the negligence of the City of Newbern. After a bench trial, the trial court found that the sidewalk in question was in a defective condition and that the upkeep of the sidewalk was the responsibility of the City of Newbern. However, the plaintiffs failed to provide any evidence that the sidewalk was the cause of the fall. The trial court issued a memorandum opinion and final judgment order dismissing the plaintiffs’ claims. We affirm.

Dyer County Court of Appeals 01/26/17
Clear Water Partners, LLC v. Charles e. Benson, et al.
E2016-00442-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

A purchaser of property filed a complaint against numerous individuals asserting intentional interference with its business relationships and tortious interference with its contracts based on the individuals' alleged misconduct aimed at preventing the development of the property the purchaser was attempting to acquire. The defendants filed motions to dismiss based on Tennessee Rules of Procedure 10.03 and 12.02(6), which the trial court granted. The trial court also awarded the defendants their attorneys' fees pursuant to Tenn. Code Ann. § 4-21-1003(c). The plaintiff appealed, and we find the plaintiff properly stated a claim for tortious interference with business relationships and civil conspiracy; the plaintiff did not state a claim for tortious interference with contracts; and the defendants are not entitled to an award of their attorneys' fees at this stage of the proceedings.

Knox County Court of Appeals 01/26/17
Timothy Parker, et al v. James Mark Parker, et al
M2016-00528-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor J. B. Cox

This appeal arises from a will contest. The witnesses to the will failed to sign the body of the will, but they signed the self-proving affidavit in the presence of the testator. After the will was admitted to probate in common form, the contestants filed a complaint challenging the validity of the will. The contestants later filed a motion for summary judgment, arguing that the decedent did not comply with the execution requirements of Tenn. Code Ann. § 32-1-104, because the witnesses did not sign the body of the will. The trial court granted the motion based on In re Estate of Bill Morris, No. M2014-00874-COA-R3-CV, 2015 WL 557970 (Tenn. Ct. App. Feb. 9, 2015), holding that a will is not validly executed if the witnesses sign only the self-proving affidavit. The executor appealed. While this appeal was pending, the General Assembly passed an amendment to Tenn. Code Ann. § 32-1-104, which states that wills executed prior to July 1, 2006, satisfy Tennessee’s due execution requirements if the witnesses to the will signed the self-proving affidavit. In this appeal, both parties ask this Court to determine whether the newly enacted amendment applies and, if so, whether it comports with Tennessee’s constitutional prohibition against retrospective laws. But for a few exceptions, we will not consider issues the parties did not present to the trial court. Because the General Assembly enacted this amendment while this appeal was pending, the trial court has not had the opportunity to consider these issues. In order to afford the trial court that opportunity, we vacate the judgment declaring the will invalid. Further, we remand to the trial court with instructions to reinstate the petition to admit the will to probate and to reinstate the amended complaint challenging the will, which will give the parties the opportunity to present these issues to the trial court.

Bedford County Court of Appeals 01/26/17
Stephanie N. Potts v. Tony Conatser
M2015-02351-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Tim Barnes

Father appeals the modification of a parenting plan, which changed the designation of primary residential parent to Mother and decreased Father’s parenting time. We vacate the judgment and remand the case for entry of factual findings in accordance with Tenn. R. Civ. P. 52.01.

Montgomery County Court of Appeals 01/26/17