Court Opinions

Format: 02/15/2019
Format: 02/15/2019
State of Tennessee v. Jacquet Moore
W2017-02058-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey, Jr.

In November 2014, a Shelby County grand jury indicted the defendant, Jacquet Moore, for an aggravated rape committed in 2000. A jury convicted the defendant as charged and he received a sixty-year sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction and the trial court’s evidentiary rulings prohibiting him from eliciting testimony from witnesses regarding the area of the crime being one “known for prostitution” and from cross-examining the State’s DNA expert on an unidentified individual’s DNA found on the victim’s vaginal swab. Based upon our review of the record, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 01/18/19
Kentrail Sterling v. State of Tennessee
W2018-00989-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John Wheeler Campbell

The pro se petitioner, Kentrail Sterling, appeals the denial of his petition for writ of habeas corpus by the Shelby County Criminal Court, arguing the trial court erred in summarily dismissing the petition as the judgments against him are void for lack of subject matter jurisdiction. After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 01/18/19
Adonis Lashawn McLemore v. State of Tennessee
M2018-00351-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Adonis Lashawn McLemore, appeals from the denial of post-conviction relief, alleging that trial counsel was ineffective in failing to impeach a witness, to present an alibi witness, and to rebut the State’s expert witness. Upon our review, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 01/18/19
Individual Healthcare Specialists, Inc. v. Bluecross Blueshield of Tennessee, Inc.
M2015-02524-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Chancellor Ellen H. Lyle

We granted permission to appeal in this breach-of-contract case to address the use of extrinsic evidence in the interpretation of contracts. Tennessee judges have long used extrinsic evidence of the context and circumstances at the time the parties entered into the contract to facilitate interpretation of contractual terms in accord with the parties’ intent. However, the written words are the lodestar of contract interpretation, and Tennessee courts have rejected firmly any notion that courts may disregard the written text and make a new contract for parties under the guise of interpretation. Tennessee has consistently enforced the parol evidence rule to prohibit the use of evidence of precontract negotiations in order to vary, contradict, or supplement the contractual terms of a fully integrated agreement. Thus, in interpreting a fully integrated contract, extrinsic evidence may be used to put the written terms of the contract into context, but it may not be used to vary, contradict, or supplement the contractual terms in violation of the parol evidence rule. As applied to this case, we hold that the defendant insurance company did not breach the parties’ agreement by modifying renewal commission rates on existing policies, but it did breach the agreement by refusing to pay commissions to the plaintiff agency after their agreement was terminated. In addition, because the indemnity provision in the parties’ agreement does not specifically authorize fee shifting in a suit between the two contracting parties, we hold that the plaintiff agency is not entitled to an award of attorney fees. We further conclude that the alleged systemic commission underpayments in this case were not inherently undiscoverable under any definition of that term. Consequently, even if we were to conclude that the discovery rule applies when the contractual breach is “inherently undiscoverable,” the plaintiff agency’s claim for any underpayments would not qualify under the facts of this case. The case is remanded for further proceedings consistent with this opinion.

Davidson County Supreme Court 01/18/19
State of Tennessee v. Sommer Leininger
M2017-02020-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Sommer Leininger, appeals as of right, from the Maury County Circuit Court’s revocation of her diversionary sentence and order of six months’ incarceration for her conviction for reckless aggravated assault. Tenn. Code Ann. § 39-13-102. The Defendant contends that (1) the trial court abused its discretion by ordering her to serve six months of split confinement instead of probation and (2) the trial court improperly restricted her ability to accumulate good behavior credits while incarcerated. Following our review, we affirm the judgment of the trial court in part but reverse and remand the case for entry of a corrected judgment removing the trial court’s restriction on the Defendant’s ability to accumulate good behavior credits.

Maury County Court of Criminal Appeals 01/18/19
State of Tennessee, ex rel., Heavenney Groesse v. Christopher Lee Sumner
W2016-01953-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge Harold W. Horne

This appeal involves a petition for contempt of court for willful failure to pay child support related to one child. In June 2014, the mother filed a petition for contempt, alleging that the father had not paid his child support obligation as previously ordered by the trial court. Following a hearing in July 2014, the trial court magistrate found the father to be in civil contempt of court for willful refusal to pay child support and ordered the father to make a $2,600.00 “purge” payment, which the father did. Upon the father’s request, the trial court special judge conducted a rehearing in August 2016, again finding the father to be in civil contempt of court for willful refusal to pay child support. The trial court ordered a purge payment in the amount of $8,525.00, reflecting a child support arrearage that had accrued since the initial contempt hearing. Father has appealed. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 01/18/19
Mario Johnson v. State of Tennessee
W2017-02461-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge James C. Beasley, Jr.

The Petitioner, Mario Johnson, appeals from the denial of his petition for post-conviction relief, wherein he challenged his jury convictions for aggravated assault and misdemeanor reckless endangerment. On appeal, the Petitioner alleges that he received ineffective assistance from his attorneys (1) because counsel1 failed to seek a hearing under Tennessee Rule of Evidence 609 to determine which of the Petitioner’s former convictions could have been used against him at trial had he chosen to testify; and (2) because lead counsel failed to present any mitigation witnesses at the sentencing hearing. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/17/19
Robert Wade v. State of Tennessee
W2017-01042-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris B. Craft

The Petitioner, Robert Wade, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that his plea agreement was not knowingly and voluntarily entered into because of his trial counsel’s ineffective assistance. Discerning no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/17/19
State of Tennessee v. Soncerae Lobbins
W2017-01398-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Paula Skahan

A Shelby County jury convicted the Defendant, Soncearae Lobbins, of two counts of aggravated kidnapping and one count of robbery. The trial court sentenced the Defendant to ten years of incarceration. On appeal, the Defendant claims that: (1) the evidence is insufficient to support her convictions; (2) the trial court erred when it failed to require the State to make a proper election of offenses; (3) the trial court’s jury instructions failed to ensure that the jury’s verdicts were unanimous as to each conviction; and (4) the trial court committed errors during sentencing. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 01/17/19
State of Tennessee v. Lesergio Duran Wilson
M2017-01950-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Cheryl A. Blackburn

A Davidson County grand jury indicted Lesergio Duran Wilson, the defendant, with first degree premeditated murder as a result of the death of David Hurst, the victim. Following trial, the jury returned a guilty verdict, for which the defendant received a life sentence. On appeal, the defendant challenges the trial court’s exclusion of his experts, denial of his motion to recuse the trial court, admission of certain photographic evidence, admission of evidence related to the actions of the victim’s girlfriend following his death, jury instructions regarding the use of deceptive practices by law enforcement, and imposition of a consecutive sentence. Discerning no errors, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/17/19
State of Tennessee v. Joshua Hill
E2018-00619-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge G. Scott Green

The Defendant, Joshua Hill, appeals the trial court’s revocation of his probation, arguing that the court should have imposed an alternative sentence rather than ordering him to serve the balance of his original sentence incarcerated and therefore abused its discretion. After thorough review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 01/17/19
Michael W. Tibbs v. Valerie E. Lowe
M2018-02252-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Phillip R. Robinson

This is an appeal from an order denying a motion to set aside an order of protection. Because the appellant did not file his notice of appeal within thirty days after entry of the order as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Davidson County Court of Appeals 01/17/19
J.W. Smith, et al. v. TimberPro, Inc., et al.
W2018-00878-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donald E. Parish

This is the second appeal of this case, which involves the destruction of a TimberPro TL735B harvester by electrical fire. In the first appeal, we affirmed the grant of summary judgment for all claims against the defendants except for claims of the breach of the implied warranties of merchantability and fitness against appellee, Woodland Equipment, Inc. (“Woodland”). After the first appeal, the trial court found that Woodland breached the implied warranty of merchantability with respect to the protective plastic covering used to cover the wires that caused the electrical fire. Nonetheless, the trial court did not hold Woodland liable, finding appellant, J.W. Smith, leaving the master switch “on” was the “last precipitating cause” of the fire. The court also determined that if an appellate court was to reverse its findings, the damages Smith would be entitled to would be $330,000 for the harvester, which was determined by subtracting the salvage value of the harvester ($45,000) from the value of the harvester before the fire ($375,000). We conclude that Smith’s failure to turn “off” the master switch was not an intervening cause, and the evidence does not preponderate against the trial court’s prospective award of damages. We affirm in part, reverse in part, and remand for further proceedings.

Carroll County Court of Appeals 01/17/19
Anthony T. Grose, et al. v. David Kustoff, et al.
W2017-01984-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

Plaintiff siblings appeal the dismissal of their legal malpractice action on the basis of the statute of limitations. Because the trial court did not comply with Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. 1993), in ruling on Plaintiffs’ motions to amend their complaints, we vacate the trial court’s judgment and remand for reconsideration.

Shelby County Court of Appeals 01/17/19
Joe Butler v. Tennessee Municipal League Risk Management Pool
E2017-01981-SC-R3-WC
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Judge John D. McAfee

Joe Butler (“Employee”) alleged he developed invasive pulmonary aspergillosis due to his exposure to the aspergillus fungus during the course and scope of his employment with the Oneida Water Department (“Employer”).  After a trial, the court concluded Employee failed to prove by a preponderance of the evidence his work activities were the proximate cause of his injury.  Employee appeals, arguing the evidence preponderates against the trial court’s findings. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51.  After review, we reverse the trial court’s judgment and remand for further proceedings.

Scott County Workers Compensation Panel 01/16/19
State of Tennessee v. Martinos Derring
W2017-02290-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Defendant, Martinos Derring, was convicted by a jury of robbery, theft, felony evading arrest, and evading arrest. The trial court sentenced Defendant to a total effective sentence of fourteen years, eleven months, and twenty-nine days. Defendant appealed, asserting various challenges to his convictions and effective sentence. On appeal, we determine that the trial court should have merged Defendant’s convictions for robbery and theft and committed a clerical error by marking the box rendering Defendant infamous for misdemeanor evading arrest. For those reasons, we reverse and remand to the trial court for entry of amended judgment forms. In all other respects, the judgments of the trial court are affirmed.

Shelby County Court of Criminal Appeals 01/16/19
Jay R. Hassman v. State of Tennessee
W2018-00784-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Jay R. Hassman, pled guilty to unspecified charges in August of 2016 in exchange for a four-year sentence to be served on probation. The trial court subsequently revoked Defendant’s probation after a hearing and ordered Defendant to serve his original sentence. Defendant filed a “Motion for New Revocation Hearing” in which he argued that he received ineffective assistance of counsel at the revocation hearing. The trial court denied relief on the basis that the motion was untimely as a motion for reduction of sentence under Tennessee Rule of Criminal Procedure 35 and that the motion could not be construed as a petition for post-conviction relief. After a review of the scant record, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Madison County Court of Criminal Appeals 01/16/19
State of Tennessee v. Mack Transou
W2018-01009-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Mack Transou, seeks appellate review of his motion to reopen his post-conviction petition, which has its origin in the rapes he committed over seventeen years ago. After a review of the filings in this case, we conclude that Defendant failed to meet the procedural requirements for seeking review of the dismissal of his motion and that Defendant’s claims are devoid of merit and frivolous. Therefore, we dismiss the appeal.

Madison County Court of Criminal Appeals 01/16/19
June Acuff v. Sally Baker
W2018-00687-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Felicia Corbin Johnson

This appeal involves a complaint for damages for breach of an alleged oral agreement to conduct an estate sale. After a bench trial, the trial court awarded Appellee damages for breach of contract, negligent bailment, and violation of the Tennessee Consumer Protection Act (“TCPA”). For violation of the TCPA, the trial court trebled the compensatory damages awarded Appellee and also awarded attorney’s fees and costs against Appellant. Because the parties did not have a sufficiently definite agreement to be enforceable, we reverse the trial court’s award of damages for breach of contract. We also reverse the trial court’s findings of negligent bailment and violation of the TCPA, which resulted in the award of treble damages and attorney’s fees. We affirm the trial court’s award of the sale proceeds to Appellee.

Shelby County Court of Appeals 01/16/19
Lataisha M. Jackson v. Charles Anthony Burrell, et al. -Concur in Part/Dissent in Part
W2018-00057-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Valerie L. Smith

Here, as I perceive it, the majority opinion contains four central holdings: (1) both Defendant Burrell and Defendant Gould’s are “health care providers,” and, as such, any claims against them that relate to the provision of health care services are governed by the Tennessee Health Care Liability Act (“THCLA”); (2) the intentional tort claims against Defendant Burrell are not governed by the THCLA because they are not related to the provision of health care services; (3) all vicarious liability claims against Defendant Gould’s fail to state a claim upon which relief can be granted; and (4) the remaining direct liability claims against Gould’s, i.e., the claims of negligent retention and supervision, are governed by the THCLA and fail due to the lack of a good faith certificate. While I agree with the result reached by the majority with regard to the first three holdings, I cannot agree that Plaintiff’s negligent retention and supervision claims fail due to the lack of a good faith certificate. As such, I respectfully file this partial dissent.

Shelby County Court of Appeals 01/16/19
Lataisha M. Jackson v. Charles Anthony Burrell, et al.
W2018-00057-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Valerie L. Smith

This is a sexual assualt/health care liability case wherein a female customer alleges she was assaulted while receiving a massage at a day spa. The customer sued both the massage therapist as well as the employer-business, bringing intentional tort, negligence, and vicarious liability claims. The customer complied with the pre-suit notice requirements as required by the Tennessee Health Care Liability Act; however, she failed to file a certificate of good faith with her complaint. The massage therapist and the business both moved for summary judgment and noted such failure, asking the trial court to dismiss the customer’s claims with prejudice. The trial court granted both parties’ motions for summary judgment, dismissing all of the customer’s claims. The customer appealed. Because we find that the requirements of the Tennessee Health Care Liability Act are not applicable to the claims against the massage therapist but are applicable to the claims against the employer, we affirm in part and reverse in part.

Shelby County Court of Appeals 01/16/19
State of Tennessee v. Gregory L. Hatton
M2018-00909-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Robert L. Jones

The pro se Defendant, Gregory L. Hatton, appeals the Giles County Circuit Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

Giles County Court of Criminal Appeals 01/16/19
Lorenza Zackery v. State of Tennesse
M2018-00944-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Seth W. Norman

The Petitioner, Lorenza Zackery, appeals the Davidson County Criminal Court’s denial of his petition for writ of habeas corpus. On appeal, the Petitioner argues that his convictions are invalid because the trial court clerk failed to file-stamp his judgments of conviction. We affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 01/16/19
State of Tennessee v. James Arthur Johnson
M2018-00337-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The pro se Defendant, James Arthur Johnson, appeals the Davidson County Criminal Court’s summary denial of his motion to correct an illegal sentence pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. After review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 01/16/19
James Nathan Mitchell v. Electric Employees' Civil Service And Pension Board Of The Metropolitan Government Of Nashville And Davidson County, Tennessee
M2018-00186-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor William E. Young

An employee of Nashville Electric Service (“NES”) was terminated in 2015 due to false and misleading information he provided on his initial application for employment nine years earlier, in 2006. NES did not discover that the information was false until the employee submitted an application for promotion in 2015 and one of his supervisors noticed a discrepancy between the two applications. NES provided the employee with a due process hearing and a hearing by an administrative law judge before the Electric Employees’ Civil Service and Pension Board of the Metropolitan Government of Nashville and Davidson County (“the Board”), which voted to terminate his employment. The employee filed a petition for judicial review of the Board’s decision, which the chancery court affirmed. On appeal to this Court, we affirm the trial court’s judgment upholding the Board’s decision.

Davidson County Court of Appeals 01/16/19