Court Opinions

Format: 02/15/2019
Format: 02/15/2019
Melo Enterprises, LLC ET Al. v. D1 Sports Holdings, LLC
M2017-02294-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Deanna B. Johnson

This appeal follows the trial court’s denial of a motion to compel arbitration as to a claim for fraudulent inducement.  For the reasons stated herein, namely that there was no agreement to arbitrate such a claim, we affirm.

Williamson County Court of Appeals 01/25/19
Dialysis Clinic, Inc. v. Kevin Medley, Et Al
M2017-01352-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Joseph P. Binkley, Jr.

In this interlocutory appeal, we address whether the attorney-client privilege protects communications between a corporation’s legal counsel and a third-party nonemployee of the corporation. After acquiring four commercial properties, a corporation filed unlawful detainer actions against the properties’ tenants. The tenants subpoenaed documents from a property management company hired by the corporation to manage its properties. The corporation and the property management company objected to producing documents containing communications between the corporation’s legal counsel and the property management company, arguing that the attorney-client privilege protected the documents. The trial court held that the documents were protected because the attorney-client privilege extended to the property management company as an agent of the corporation. We hold that the attorney-client privilege applies to communications between an entity’s legal counsel and a third-party nonemployee of the entity if the nonemployee is the functional equivalent of the entity’s employee and when the communications relate to the subject matter of legal counsel’s representation of the entity and the communications were made with the intention that they would be kept confidential. Applying this framework, we hold that the property management company was the functional equivalent of an employee of the corporation, that the communications related to the subject matter of counsel’s representation of the corporation, and that the communications were made with the intention that they would be kept confidential. We affirm the ruling of the trial court and remand to the trial court for further proceedings.

Davidson County Supreme Court 01/25/19
Charles Pennington v. State of Tennessee
W2017-01596-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Petitioner, Charles Pennington, appeals the denial of his petition for post-conviction relief from his convictions for first degree felony murder and attempted especially aggravated robbery. On appeal, Petitioner asserts that he received ineffective assistance of counsel due to trial counsel’s failure to investigate and present a defense regarding the victim’s ownership of the gun and failure to
cross-examine his codefendants regarding the details of their plea agreements. Petitioner also asserts that his due process right to a fair trial was violated by the prosecutor’s knowing use of perjured testimony from one of his codefendants. Although we waive the timely filing of the notice of appeal in the interest of justice, we conclude that Petitioner’s grounds for relief are waived because they were not raised in the post-conviction court. Thus, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 01/25/19
Kim Renae Nelson v. Loring E. Justice
E2017-01546-COA-R3-JV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Don R. Ash, Senior Judge

After entering an order granting Mother sole residential custody and providing Father restricted parenting time, the trial court awarded Mother discretionary costs in the amount of $45,238.85. Father appeals the trial court’s award of discretionary costs. Because Father failed to prove that the trial court abused its discretion, we affirm the award of discretionary costs.

Roane County Court of Appeals 01/25/19
In Re Mickeal Z. Et Al.
E2018-01069-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert M. Estep

This is a termination of parental rights case. The trial court found that the proof supported three grounds for termination as to both parents: substantial noncompliance with the permanency plan requirements pursuant to Tennessee Code Annotated section 36-1-113(g)(2), persistence of conditions pursuant to Tennessee Code Annotated section 36-1-113(g)(3), and failure to manifest an ability to parent pursuant to Tennessee Code Annotated section 36-1-113(g)(14). The court further found that the termination of both parents’ parental rights was in the children’s best interests. Having reviewed the record on appeal, we affirm the trial court’s finding that the proof supported the substantial noncompliance ground as to Mother, reverse its finding that the proof supported the substantial noncompliance ground as to Father, vacate the other grounds for termination against both Mother and Father based upon insufficient findings by the trial court, affirm the trial court’s finding that termination of Mother’s parental rights is in the children’s best interests, and remand the case for further proceedings consistent with our direction in this Opinion.

Claiborne County Court of Appeals 01/25/19
Kim Renae Nelson v. Loring E. Justice
E2017-00895-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Don R. Ash, Senior Judge

A mother filed a complaint seeking to establish paternity. After years of litigation, the trial court established paternity and designated mother as the primary residential parent. The trial court determined that the father engaged in conduct that necessitated limiting his residential parenting time with the child. As a result, the trial court fashioned a residential parenting schedule that severely restricted the father’s parenting time, and the father appealed. We affirm the trial court’s judgment in all respects.

Roane County Court of Appeals 01/25/19
In Re Estate Of Louis Dell'Aquila
M2018-01090-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr
Trial Court Judge: Judge David Randall Kennedy

The dispositive issue on appeal is whether the Probate Court of Davidson County, Tennessee has subject matter jurisdiction over the decedent’s estate. The decedent resided in Pennsylvania most of his life. Three weeks before his death, the decedent moved into an assisted living facility in Nashville, Tennessee to be near one of his sons. Shortly following his death, the son who was nominated to be the executor filed a Petition for Letters Testamentary in Davidson County Probate Court. The decedent’s daughter from Pennsylvania contested the court’s jurisdiction, arguing the decedent was domiciled in Pennsylvania at the time of death. Following a four-day evidentiary hearing on the issue of domicile, the probate court determined the decedent was domiciled in Tennessee and admitted the will to probate. Because the evidence preponderates in favor of the trial court’s determination that the decedent was domiciled in Tennessee, we affirm.

Davidson County Court of Appeals 01/25/19
East Tennessee Pilot's Club, Inc. v. Knox County Tennessee, Et Al.
E2018-00649-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John F. Weaver

After a state administrative law judge concluded the proper tax classification for the property owned and operated by a private pilot’s club in 2010 and 2011 to be “farm property,” the county property assessor reclassified it in 2013 as split property, commercial and farm. The club paid its 2013 to 2016 taxes “under protest” and filed consolidated complaints in chancery court, seeking a refund under Tennessee Code Annotated section 67-5-901. The club argued that the chancery court had jurisdiction over its claim because purely legal issues were involved and the doctrines of res judicata and/or collateral estoppel prevented such reclassification. Upon determining that it lacked subject matter jurisdiction, the trial court granted the government’s motion to dismiss. We affirm.

Knox County Court of Appeals 01/25/19
Earl Vantrease v. CoreCivic, et al.
W2018-00819-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr,
Trial Court Judge: Judge J. Weber McCraw

Earl Vantrease and Justin Howell, both of whom are inmates at Whiteville Correctional Facility, filed a complaint against several defendants alleging various claims, including the failure to provide a diet program that comports with the plaintiffs’ religious beliefs. Mr. Vantrease filed an affidavit of inability to pay costs and statutorily mandated accompanying documents. See Tenn. Code Ann. § 41-21-801, et seq. Defendants filed a motion to dismiss arguing that Mr. Vantrease failed to include all required information in his accompanying documents. The trial court agreed; it entered an order dismissing the complaint for failure to comply with Tenn. Code Ann. § 41-21-805. Mr. Vantrease appeals. We affirm the trial court’s dismissal of the complaint without prejudice.

Hardeman County Court of Appeals 01/25/19
Gerald Stanley Green v. Board of Professional Responsibility Of The Supreme Court Of Tennessee
W2017-02358-SC-R3-BP
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Senior Judge William B. Acree

This direct appeal involves a lawyer disciplinary proceeding against a Memphis attorney arising from two client complaints and the lawyer’s failure to satisfy fully Mississippi’s requirements for pro hac vice admission before representing a criminal defendant in Mississippi. A Hearing Panel of the Board of Professional Responsibility (“Hearing Panel”) determined that the lawyer had violated four provisions of the Tennessee Rules of Professional Conduct (“RPC”). After consulting the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”) and considering the mitigating and aggravating circumstances, including the lawyer’s seventeen prior disciplinary sanctions, the Hearing Panel suspended the lawyer for six months and directed thirty days of the sanction to be served on active suspension with the remainder to be served on probation with conditions, including a practice monitor, restitution, and continuing legal education focused on law office management, client communication, and client relations. The lawyer appealed the Hearing Panel’s judgment, and the Chancery Court for Shelby County affirmed. The lawyer then appealed to this Court. After carefully reviewing the record, we affirm.

Shelby County Supreme Court 01/24/19
In Re Jeffery D.
M2018-01280-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Michael Binkley

Father appeals the trial court’s decision to terminate his parental rights on the grounds of abandonment by failure to visit and abandonment by wanton disregard for the welfare of the child as well as the court’s best interest determination. Because we find clear and convincing evidence supports the trial court’s decisions regarding both grounds for termination and the best interest of the child, we affirm the judgment of the trial court.  

Lewis County Court of Appeals 01/24/19
State of Tennessee v. Jayme Lynn Shaffer
E2017-02432-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge G. Scott Green

The Defendant, Jayme Lynn Shaffer, pleaded guilty to two counts of theft of property valued at more than $1,000 with an agreed effective sentence of three years. The parties agreed to allow the trial court to determine the manner of service of her sentence and whether she was entitled to judicial diversion. After the hearing, the trial court denied the Defendant’s request for judicial diversion but granted her request for a probationary sentence. On appeal, the Defendant contends that the trial court erred when it denied her request for judicial diversion. After review, we affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 01/24/19
State of Tennessee v. Nehemiah Rimmer
W2018-00496-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John Wheeler Campbell

The Appellant, Nehemiah Rimmer, was convicted in the Shelby County Criminal Court of rape of a child, a Class A felony, and received a twenty-year sentence to be served at one hundred percent. On appeal, he contends that the trial court erred by denying his motion to suppress his confession, that the trial court erred by allowing the victim’s and her mother’s out-of-court statements to be read to the jury, and that the evidence is insufficient to support the conviction. Based upon the record and the parties’ briefs, we discern no reversible error and affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/24/19
Antonio Howard v. State of Tennessee
W2018-00786-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The Petitioner, Antonio Howard, filed a petition for post-conviction relief, alleging, among other things, that trial counsel was ineffective for failing to file a timely motion for new trial. After a review of the record, we hold that the Petitioner’s trial counsel was deficient in this regard and that the Petitioner was presumptively prejudiced by the deficiency. Therefore, we reverse the judgment of the post-conviction court denying the petition and remand this case with instructions to that court that it grant the Petitioner a delayed appeal, beginning with the right to file a delayed motion for new trial.

Shelby County Court of Criminal Appeals 01/24/19
Byron L. Jackson, Jr. v. Jay Howard Crippen, et al.
E2018-00850-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

At an earlier time, Byron L. Jackson, Jr. (plaintiff) and defendant Jay Howard Crippen operated a company named Swiss Technologies, Inc. There were disagreements. The parties engaged in mediation. Following mediation, the parties, including Swiss, entered into a three year consulting agreement for Jackson pursuant to which he was to be paid $30,000 annually, “less the cost of health and related insurance.” The contract provides that plaintiff “shall be entitled to health and related insurance . . . on the same term as other employees of [Swiss].” The parties stipulated that every other employee paid no more than one-half the cost of their health insurance, and employer paid the other half. Defendants Crippen and Swiss (collectively defendants) deducted the full amount of health insurance premiums from plaintiff’s pay. Plaintiff brought this action for breach of contract. The trial court held that the contract was unambiguous, and that it required defendants to pay one-half of plaintiff’s health care insurance costs. We affirm.

Knox County Court of Appeals 01/24/19
State of Tennessee v. Jasper Lee Vick
W2018-00823-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the Defendant, Jasper Lee Vick, of one count of especially aggravated kidnapping, two counts of aggravated kidnapping, and one count of sexual battery. The trial court merged his convictions for aggravated kidnapping into his conviction for especially aggravated kidnapping and sentenced the Petitioner, as a Range II offender, to an effective sentence of forty years of incarceration. After multiple appeals and remands, this court ordered that the Defendant be sentenced as a Range I offender and reduced his sentence to twenty-six years. State v. Vick, 242 S.W.3d 792, 795 (Tenn. Crim. App. 2007). The Defendant filed this, his second Rule 36.1 motion to correct an illegal sentence, and asked the trial court to credit him for pretrial jail credits. The trial court denied the Defendant’s motion, finding that his judgments appeared correct. On appeal, the Defendant maintains that he has not been awarded the proper amount of jail credits. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 01/23/19
State of Tennessee v. Horatio Lamont Harrison
W2017-01798-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Kyle C. Atkins

The Defendant, Horatio Lamont Harrison, was indicted for driving under the influence (DUI), failure to yield, violation of the financial responsibility law, and violation of the implied consent law. See Tenn. Code Ann. §§ 55-8-131, -10-401, -10-406, -12-139. The Defendant filed a motion to suppress all evidence gathered during his traffic stop. The trial court concluded that the traffic stop was not supported by probable cause, granted the Defendant’s suppression motion, and dismissed the indictments. On appeal, the State contends that the trial court erred in granting the Defendant’s suppression motion. Following our review, we conclude that the trial court erred by not considering the State’s alternative theory attempting to establish that the stop was supported by probable cause or a reasonable suspicion. Accordingly, we reverse the judgments of the trial court and remand the case for a new suppression hearing.

Madison County Court of Criminal Appeals 01/23/19
Ercil K. Rayford v. Tennessee Board Of Parole, et al
W2018-00863-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Joe H. Walker, III

In 1992, the Petitioner, Ercil K. Rayford, pleaded guilty to especially aggravated robbery and aggravated robbery for an effective sentence of thirty years. On April 23, 2018, the Petitioner filed a pro se writ of habeas corpus, alleging that his sentence had expired on July 12, 1999. The habeas corpus court denied the petition because the record failed to establish that the Petitioner’s sentence had expired. On appeal, the Petitioner maintains that his sentence has expired. After review, we affirm the habeas corpus court’s dismissal.

Hardeman County Court of Criminal Appeals 01/23/19
State of Tennessee v. Marico Vales
W2018-00424-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Marico Vales, was convicted by a Shelby County Criminal Court jury of first degree felony murder and especially aggravated robbery. See T.C.A. §§ 39-13-202 (2018) (first degree murder); 39-13-403 (2018) (especially aggravated robbery). The trial court sentenced the Defendant to concurrent terms of life imprisonment and twenty-five years. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 01/23/19
Morris Rucker v. State of Tennessee
M2018-00987-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Morris Rucker, appeals the Davidson County Criminal Court’s summary denial of his petition requesting DNA analysis of evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 01/23/19
State of Tennessee v. Abbie Leann Welch - concurring in part and dissenting in part
E2018-00240-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge G. Scott Green

I write separately in this case to note my concerns and to reiterate that “burglary is a serious offense with serious consequences. . . . [It] is no petty crime.” State v. Office of the Public Defender ex rel. Muqqddin, 285 P.3d 622, 636 (N.M. 2012). The facts are simple and not in dispute. The Defendant, who previously had been banned from a retail store, entered the same retail store and shoplifted several clothing items valued under $100. Minutes later, the Defendant’s friends returned the stolen items in exchange for a store gift card or credit. This factual scenario is ordinarily prosecuted as a criminal trespass and shoplifting/theft, both misdemeanor offenses with a penalty of no more than eleven months and twenty-nine days. See, e.g., State v. Constance Elaine Archer, No. M2012-00154-CCA-R3-CD, 2012 WL 5188079, at *1 (Tenn. Crim. App. Oct. 19, 2012). Remarkably, the Defendant here was charged with and convicted of theft by shoplifting as described above and burglary, a felony with a penalty of two to twelve years imprisonment.

Knox County Court of Criminal Appeals 01/23/19
State of Tennessee v. Abbie Leann Welch
E2018-00240-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge G. Scott Green

Defendant, Abbie Leann Welch, entered a Walmart store and stole merchandise after she had received notification that she was banned from all Walmart properties. Defendant was convicted at a bench trial of one count of misdemeanor theft and one count of burglary. On appeal, Defendant argues that the burglary conviction should be dismissed because the burglary statute, Tennessee Code Annotated section 39-14-402, does not apply to entry into buildings open to the public. Upon our review, we hold that the burglary statute is not unconstitutionally vague and affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 01/23/19
Adrian Lynn McWilliams Et Al. v. Brenda Chaney Vaughn Et Al.
E2017-01942-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Jeffrey M. Atherton

Following a bench trial, the Hamilton County Chancery Court determined that Appellants had converted the assets of a
check-cashing business, to the detriment of the majority shareholder, Appellee. Appellants argue that the trial court erred in a 2011 decision to grant Appellee partial summary judgment and to prohibit Appellants from raising any claims or defenses based on the Uniform Fraudulent Transfer Act at trial. Because we have determined that the trial court’s 2011 grant of summary judgment to Appellee was erroneous, the decision of the trial court is vacated and remanded.

Hamilton County Court of Appeals 01/23/19
Jill Smothers Lucchesi v. Eugene Anthony Lucchesi
W2017-01864-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Gina C. Higgins

In this divorce proceeding, the Husband appeals the trial court’s reliance on certain evidence in valuing the marital assets, the classification and valuation of specific assets, and failure to recuse itself. Wife appeals the award to her of alimony in solido as being insufficient. After a thorough review of the record, we affirm the court’s classification and valuation of the marital assets, with the exception of one, which we vacate and remand for further consideration; we reject Husband’s argument that the court should have recused itself. We modify the award of alimony and remand the case for the court to consider whether an additional award of alimony is appropriate.

Shelby County Court of Appeals 01/23/19
Wendy Sterling Weinert, et al. v. City of Sevierville, Tennessee
E2018-00479-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Telford E. Forgety

Wendy Sterling Weinert, a former City of Sevierville police officer, brought this retaliatory discharge action against her former employer pursuant to the Tennessee Public Protection Act (TPPA), Tenn. Code Ann. § 50-1-304 (Supp. 2018). She alleged that she was discharged solely because of her whistleblowing activities of reporting an alleged incident of excessive force and alleged sexual harassment by other officers. The trial court granted summary judgment, holding that plaintiff could not establish that her termination was solely caused because of her whistleblowing activities, as required by the TPPA. We affirm.

Sevier County Court of Appeals 01/23/19