Court Opinions

Format: 07/23/2019
Format: 07/23/2019
Richard Alan Pearson v. Christen Creighton Pearson
W2018-01188-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor JoeDae L. Jenkins

This is a divorce case. Husband filed for divorce after 20 years of marriage. Following a three-day trial, the trial court determined Wife could not be rehabilitated and ordered Husband to pay $9,700 per month in alimony in futuro. We conclude that the trial court erred by failing to consider Wife’s earning capacity in setting Husband’s alimony obligation. Accordingly, we modify Husband’s alimony obligation by the amount of Wife’s earning capacity as determined by the trial court. Affirmed as modified.

Shelby County Court of Appeals 06/06/19
State of Tennessee v. Justin Patrick Kiser
E2018-00696-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The defendant, Justin Patrick Kiser, appeals his Knox County Criminal Court jury convictions of facilitation of aggravated burglary and theft of property valued at $500 or less, arguing that the trial court erred by permitting the State’s fingerprint expert to testify that another examiner had verified his conclusions; by admitting into evidence a document showing the work performed by the second, non-testifying analyst; and by denying his motion for a mistrial after the prosecutor relied on the verification of the nontestifying analyst during closing argument. He also claims that the evidence was insufficient to support his conviction of facilitation of aggravated burglary because the State failed to establish that he did not intend to promote or assist in the burglary or to benefit from its proceeds and that the trial court erred by denying his bid for judicial diversion. Discerning no reversible error, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/06/19
State of Tennessee v. Tairon Slappey
E201801380-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge G. Scott Green

Tairon Slappey, Defendant, pled guilty to one count of aggravated assault and one count of domestic assault with a recommendation from the State that he receive concurrent sentences of three years as a Range I offender for aggravated assault and eleven months and twenty-nine days for domestic assault. The manner and method of service were to be determined by the trial court. Following a sentencing hearing, the trial court ordered Defendant to serve three years in the Tennessee Department of Correction. After a thorough review of the record, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/06/19
Precision Homes, Inc. v. The Metropolitan Government of Nashville and Davidson County
M2018-01322-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Claudia Bonnyman

The owner of three lots located in a water quality buffer zone along the Cumberland River filed a request for a variance to allow the owner to build a small house on each lot. The Metropolitan Stormwater Management Committee denied the request for a variance, and the chancery court affirmed the committee’s denial. We affirm the trial court’s judgment in all respects.

Davidson County Court of Appeals 06/06/19
In Re Conservatorship of John Martin Muldoon
E2018-02116-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Larry Michael Warner

This is an appeal from a final order entered in a conservatorship proceeding. There was no court reporter present for the final hearing in the case. The Trial Court concluded, following a hearing on the parties’ competing Statements of the Evidence, that it could not resolve the parties’ differences regarding what transpired at the final hearing for purposes of appeal and, therefore, granted a new trial. As a result, there is no longer a final judgment in the proceedings below and this Court no longer has jurisdiction to consider this appeal.

Cumberland County Court of Appeals 06/06/19
State of Tennessee v. Sterling Panchikal
W2018-00826-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The Defendant, Sterling Panchikal, caused a traffic accident which resulted in one death and several injuries. She entered guilty pleas to reckless homicide, three counts of reckless endangerment, and possession of marijuana. The Defendant sought but was denied judicial diversion for her offenses, and she was sentenced to six years of probation, with thirty days to be served incarcerated. On appeal, she argues that the trial court was mistaken about the nature of one of the offenses to which she was pleading guilty and that the trial court erred in denying diversion. Because the record reflects that the trial court believed that the Defendant was pleading guilty to vehicular homicide as a result of reckless conduct rather than reckless homicide, we vacate the judgments and the denial of diversion, and we remand the case to the trial court for further proceedings.

Shelby County Court of Criminal Appeals 06/05/19
State of Tennessee v. Darrell Partin and Chanda Partin
M2017-02381-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Gary McKenzie

The Defendants, Darrell Partin and Chanda Partin, were indicted for theft in connection with Mr. Partin’s employment at Tennessee Master Restoration (“TMR”), and the case proceeded to a bench trial. During trial, the Defendants discovered that the State had failed to produce documents in the possession of TMR which supported the Defendants’ theory of the case. After a continuance, the trial court concluded that the failure to produce the documents was a violation of Tennessee Rule of Criminal Procedure 16 and of the duty to disclose exculpatory material under Brady v. Maryland, 373 U.S. 83 (1963). The trial court then granted a mistrial and dismissed the charges with prejudice based on the Rule 16 violation. The State appeals. After a thorough review of the record, we conclude that the trial court abused its discretion in dismissing the charges, and we remand for further proceedings.

Putnam County Court of Criminal Appeals 06/05/19
In Re Makinna B.
M2018-00979-COA-R3-JV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Judge Kenneth R. Goble

This appeal involves a father’s petition to modify an existing parenting plan to change the designation of primary residential parent from the mother to the father. After a hearing, the trial court agreed with the parties’ stipulation that a material change in circumstances had occurred since the entry of the previous parenting plan due to various difficulties experienced by the parties and their lack of cooperation. The trial court concluded that it was in the best interest of the child to designate the father as primary residential parent. The trial court entered a modified parenting plan and child support worksheets. The mother appeals. We vacate and remand for further proceedings.

Montgomery County Court of Appeals 06/05/19
Marcus Ward Strong v. State of Tennessee
E2018-00286-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Alex E. Pearson

The Petitioner, Marcus Ward Strong, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of counsel and that his guilty pleas were unknowing and involuntary. We affirm the judgment of the post-conviction court.

Greene County Court of Criminal Appeals 06/05/19
State of Tennessee v. Troy Jones
M2018-00200-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Mark J. Fishburn

The Defendant-Appellant, Troy Jones, was convicted by a Davidson County jury of three counts of aggravated burglary and one count of sexual battery, for which he received an effective sentence of five years’ imprisonment. See Tenn. Code Ann. §§ 39-14-403, 39- 13-505. On appeal, the Defendant argues that (1) the trial court erred in allowing the State to introduce extrinsic evidence to impeach his statement to police, (2) the evidence is insufficient to support his convictions, and (3) the trial court improperly sentenced him. Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 06/05/19
In Re M.N.
E2018-01582-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Frank V. Williams, III

The trial court terminated the parental rights of T.N. (mother) with respect to her child M.N. The court also granted a petition for adoption by stepmother A.N. Because the court did not “make[] specific findings of fact and conclusions of law,” Tenn. Code Ann. § 36-1-113(k) (Supp. 2018), we remand the case to the trial court for the entry of an appropriate order.

Roane County Court of Appeals 06/05/19
Billy Eugene Atkins Et Al v. Rick Allen Saunders Et Al.
E2017-01077-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Lawrence Howard Puckett

This appeal arises from a dispute between owners of a purportedly landlocked parcel of real property and their neighbors. The landlocked owners sought condemnation of a right-of-way or easement in order to access a public road. After the trial court determined that the parcel of land had no access and a jury of view marked a road through the land of one of the neighbors, other neighbors granted a right-of-way through their properties to the landlocked parcel, which provided access to a public road. The grantors of the right-of-way then moved for summary judgment. Following a hearing at which proof was taken, the trial court determined that the granted right-of-way required revisions to be an adequate and convenient outlet. After the grantors agreed to the revisions and recorded an amended right-of-way agreement, the trial court granted the motion for summary judgment and dismissed the case. We affirm.

Monroe County Court of Appeals 06/05/19
Cary Melton, et al. v. City of Lakeland, Tennessee, et al.
W2018-01237-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This appeal involves the dismissal of a case based on mootness. The City of Lakeland and its Industrial Development Board passed various resolutions for the purpose of funding the construction of a new high school. Plaintiffs—a group of citizens of Lakeland—sued, arguing that the city lacked the statutory authority for the financing transaction. After Congress enacted the federal Tax Cuts and Jobs Act, the financing transaction increased in cost, and Lakeland and the Industrial Development Board repealed the resolutions. Thereafter, upon Lakeland’s motion to dismiss, the trial court dismissed Plaintiffs’ claims as moot. We affirm.

Shelby County Court of Appeals 06/05/19
Teddy Ogle v. State of Tennessee
E2018-01522-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Rex H. Ogle

Messrs. Teddy and Terry Ogle filed a “Petition for Rule 60(b)” relief. Mr. Ronnie Ray Ogle filed a “Petition for Writ of Habeas Corpus and/or Motion for Correction of [I]llegal Sentence and Amended Motion for Relief from Judgment.” The trial court treated the pleadings as petitions for post-conviction relief and dismissed the petitions because they were filed well after the statute of limitations. This court consolidated the three appeals. After a thorough review of the record and applicable law, we affirm the judgments of the trial court.

Jefferson County Court of Criminal Appeals 06/04/19
Sons Of Confederate Veterans, Nathan Bedford Forrest Camp #215 v. City of Memphis, ET Al.
M2018-01096-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is an action for injunctive relief filed by a historical-preservation society against the City of Memphis and a nonprofit corporation. Prior to filing its complaint, the society filed a petition for declaratory relief with the Tennessee Historical Commission that sought a declaration on the applicability of the Tennessee Heritage Protection Act of 2016 (“THPA”) to two parks and related monuments conveyed by the City to the nonprofit. In the present action, the historical-preservation society requested a temporary injunction under the THPA to preserve the parks and monuments pending the Commission’s final order. The trial court found the society could not prevail on the merits of its claim because the parks and monuments were no longer public property and, thus, were no longer subject to the THPA. Having determined that the historical-preservation society failed to assert a viable cause of action under the THPA, we affirm.

Davidson County Court of Appeals 06/04/19
State of Tennessee v. Gary Barnett
W2018-01027-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge John Wheeler Campbell

Following a trial, a Shelby County jury found Defendant, Gary Barnett, guilty of rape of a child and aggravated sexual battery, for which he received an effective sentence of thirty years’ incarceration in the Tennessee Department of Correction. On appeal, Defendant contends that: (1) the trial court erred in admitting into evidence the forensic interview of the victim; (2) the trial court erred in restricting defense counsel’s cross-examination of two witnesses; and (3) the evidence is insufficient to support his convictions. Following a thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/03/19
Acute Care Holdings, LLC v. Houston County, Tennessee
M2018-01534-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David D. Wolfe

This appeal arises from an action filed by a healthcare management company against a county for breach of contract and unjust enrichment. The dispute centered on a financially distressed hospital, which the county wanted to purchase and lease to the healthcare company to manage. Thus, the county, the hospital, and the healthcare management company entered into a Letter of Intent to accomplish this goal. The Letter of Intent provided that the healthcare management company would loan funds to the owner of the hospital to keep the hospital operating while the county negotiated the asset purchase agreement. If the purchase of the hospital closed by the agreed-upon deadline, the county agreed to repay the healthcare management company for the amount loaned; however, if the purchase of the hospital did not close by the deadline, the county was not obligated to repay the loans to the hospital. After the asset purchase agreement did not close by the deadline set in the Letter of Intent, the county purchased the hospital and awarded the contract to manage the hospital to a company owned by the county’s attorneys and refused to pay the healthcare management company the more than $1.2 million it loaned the hospital. Thereafter, the healthcare management company filed this action against the county for breach of contract and unjust enrichment. In its answer, the county denied breaching the contract because of the failure of the condition precedent, that the purchase of the hospital close by the agreed-upon deadline. Thereafter, the county filed a motion for summary judgment on the same ground and also moved to summarily dismiss the unjust enrichment claim because the Letter of Intent, which was an enforceable contract, precluded the claim. The healthcare management company responded by presenting evidence indicating that the county failed to act in good faith to close on the purchase of the hospital by the deadline in order to avoid its obligations to the healthcare management company. It also contended that its claim of unjust enrichment should not be dismissed unless the court determined that the Letter of Intent was an enforceable contract. The trial court summarily dismissed both claims on the finding the evidence was not sufficient to create a genuine dispute of material fact as to either claim. Having determined that the evidence was sufficient, we reverse and remand this case to the trial court for further proceedings.

Houston County Court of Appeals 06/03/19
State of Tennessee v. Gregory Scott Wilburn
E2018-01325-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Tammy M. Harrington

The Defendant, Gregory Scott Wilburn, appeals as of right from the Blount County Circuit Court’s revocation of his probation. The Defendant contends that the trial court abused its discretion in ordering the remainder of his sentence to be served in confinement. Discerning no error, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 06/03/19
Laurie Elizabeth Lee v. Bryan Mitchell Lee
E2019-00538-COA-T10B-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Clarence E. Pridemore, Jr.

This accelerated interlocutory appeal follows the denial of a motion to recuse. The party seeking recusal claimed that an in-limine motion was granted after an ex parte communication between the chancellor and the counsel moving in limine. Additionally, the party claimed that the court showed partiality by not granting a continuance of the hearing on the in-limine motion when her counsel was unable to attend due to illness. We affirm the denial of the recusal request.

Knox County Court of Appeals 05/31/19
In Re Estate of Gayle Franklin Cook
W2018-01766-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

This case involves an effort to admit a lost will to probate. In the proceedings below, the trial court held that the lost will should be accepted for probate. Having reviewed the record transmitted to us on appeal, we affirm the judgment of the trial court.

Dyer County Court of Appeals 05/31/19
State of Tennessee v. Jasper L. Vick
W2018-01616-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Paula L. Skahan

The pro se Appellant, Jasper L. Vick, appeals the Shelby County Criminal Court’s dismissal of his motion to correct an illegal sentence. The State has filed a motion requesting that this Court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the Appellant has failed to establish that his sentence is illegal, we conclude that the State’s motion is well-taken. Accordingly, we affirm the summary dismissal of the motion.

Shelby County Court of Criminal Appeals 05/31/19
John Patrick Konvalinka, Jr. v. Craig Fuller Et Al.
E2017-00493-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Robert E. Lee Davies, Senior Judge

In this retaliatory discharge action, the plaintiff filed suit against his former employer under both the common law and the Tennessee Public Protection Act. See Tenn. Code Ann. § 50-1-304 (2014). The plaintiff claimed that he was terminated for voicing his concerns about, or refusing to participate in, illegal activities. The former employer moved for summary judgment arguing, in part, that the plaintiff could not identify a specific illegal activity or a violation of a clearly established public policy. The trial court granted the summary judgment motion and dismissed the plaintiff’s claims. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 05/31/19
Todd Scot v. Erin Dawn Scot
M2018-00562-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Senior Judge Robert E. Lee Davies

This case involves competing petitions to modify a parenting plan and child support. The trial court denied the father’s request to be designated as the primary residential parent, granted the mother sole decision-making authority, and enjoined the father from certain activities. The trial court also refused to decrease the father’s child support obligation and awarded the mother $55,000 in attorney’s fees. With regard to the trial court’s modification of primary residential parent designation and the residential parenting schedule, we conclude that the trial court failed to make sufficient findings of fact and failed to conduct an appropriate best interest analysis. We also conclude that the trial court miscalculated the father’s child support obligation by allotting to him an incorrect number of parenting days and by relying on his anticipated income rather than his actual income in the child support worksheet. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Williamson County Court of Appeals 05/31/19
John Wesley Sullivan, Et Al. v. Brenda Kreiling
M2018-00885-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Stella L. Hargrove

This appeal arises from an unlawful detainer action initiated by the conservator of the owner of the property. After the general sessions court awarded the conservator possession of the property, the defendant appealed to circuit court. The defendant then filed a motion for summary judgment, alleging that the conservator had exceeded the scope of the conservatorship in filing the unlawful detainer action, and that unlawful detainer was not the proper cause of action. The circuit court denied summary judgment, and the case proceeded to a bench trial. Following trial, the circuit court awarded possession of the house to the conservator, and the defendant now appeals. We affirm.

Maury County Court of Appeals 05/30/19
James V. Holleman v. Barbara J. Holleman
E2018-00451-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

In this post-divorce action, the trial court denied the wife’s request for relief from a prior judgment and ordered the parties to comply with their written marital dissolution agreement regarding the sale of a parcel of marital real property. Following numerous motions filed by the parties, including several motions for recusal filed by the wife, the trial court eventually granted recusal. The newly assigned trial court judge held a hearing to consider pending motions and determine the status of the case, and the wife filed another motion to recuse shortly after that hearing. The trial court entered a subsequent order, wherein the court denied recusal and instructed the Clerk and Master to select a realtor and sell the parcel of property on the parties’ behalf. Wife subsequently filed a motion seeking “relief of void orders,” pursuant to Tennessee Rule of Civil Procedure 60, which was denied by the trial court. Wife filed a second but different Rule 60 motion thereafter, which was also denied by the trial court. Wife timely appealed. Discerning no error, we affirm the trial court’s judgment in this matter. We grant Husband’s request for attorney’s fees pursuant to the parties’ MDA and remand this issue to the trial court for a determination of a reasonable award of attorney’s fees in favor of Husband. We deny Wife’s motions seeking supplementation of the record and consideration of postjudgment facts.

Campbell County Court of Appeals 05/30/19