Court Opinions

Format: 06/14/2019
Format: 06/14/2019
George Franklin v. State of Tennessee
W2017-01174-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Chris Craft

The Petitioner, George Franklin, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions of one count of second degree murder and nine counts of attempted second degree murder and resulting effective sentence of 102 years in confinement. On appeal, the Petitioner contends that his trial counsel was ineffective at sentencing and that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a witness’s statement. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 04/30/19
Sandi Lynn Pack v. James Wade Pack
M2018-00491-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Deanna B. Johnson

This appeal arises from a divorce action in which the wife was granted a partial default judgment after the husband failed to enter an appearance or file a responsive pleading to the complaint, and failed to file a response or appear at the hearing on the wife’s motion for a default judgment. After receiving the order granting the partial default judgment, the husband retained counsel and filed a motion to set it aside pursuant to Tenn. R. Civ. P. 60.02(1) and (5), seeking relief for “excusable neglect” and for “any other reason justifying relief.” Following a hearing, the trial court denied the motion to set aside the partial default judgment upon a determination that the husband’s conduct precipitating the default was willful. The court also set a final hearing to try the remaining issues, including child support for the parties’ minor child and property division. After an evidentiary hearing, the trial court valued the marital estate at well over one million dollars; however, the total did not include the present value of the wife’s pension plan, which was classified as marital property and awarded to the wife. Excluding the unknown value of the wife’s pension, the court awarded 60% of the marital assets to the wife and 40% to the husband. This decision was based in part on the court’s finding that in addition to being the sole wage earner for the family, the wife was primarily responsible for the children and the home while the husband “dissipated marital assets” through stock trading. The husband appeals, contending the trial court erred by (1) failing to set aside the partial default judgment; (2) failing to make an equitable division of the marital estate by not determining the value of the wife’s pension plan, designating the husband’s stock trading losses as a dissipation of marital assets, and awarding the wife a greater share of the marital estate, despite the fact that the husband was the economically disadvantaged spouse; and (3) failing to award the husband his attorney’s fees. We affirm the trial court in all respects.

Williamson County Court of Appeals 04/30/19
Regions Commercial Equipment Finance, LLC v. Richards Aviation Inc., et al.
W2018-00033-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Walter L. Evans

In this appeal, the trial court granted summary judgment to a bank that financed the debtor’s purchase of an aircraft; the court also dismissed the debtor’s counterclaim based on fraudulent inducement, fraudulent misrepresentation, and negligent misrepresentation, and the debtor’s motion seeking damages from the Receiver that had been appointed by the court to manage and sell the aircraft. We vacate the order granting summary judgment to the bank and remand the case for further consideration and entry of an order that complies with Tennessee Rule of Civil Procedure 56.04; in all other respects we affirm the judgment.

Shelby County Court of Appeals 04/30/19
Crouch Railway Consulting , LLC v. LS Energy Fabrication, LLC
M2017-02540-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Joseph A. Woodruff

The sole issue on appeal is whether a Tennessee court may exercise specific personal jurisdiction over the nonresident defendant. A Tennessee civil engineering company filed an action for breach of contract and unjust enrichment against a Texas energy company in Williamson County Chancery Court, alleging that the Texas company breached its contract with the Tennessee company by failing to pay for engineering and planning services. The defendant filed a Tenn. R. Civ. P. 12.02(2) motion to dismiss for lack of personal jurisdiction. The trial court granted the motion, determining that the minimum contacts test had not been satisfied because the defendant did not target Tennessee. Additionally, the trial court determined that it would be unfair and unreasonable to require the defendant to litigate the dispute in Tennessee. This appeal followed. Relying primarily on the Tennessee Supreme Court’s reasoning in Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn. 1981), we have determined that the Texas company purposefully directed its activity toward Tennessee by engaging a Tennessee engineering company to provide customized services, which were performed primarily in Tennessee. We have also determined that it is fair and reasonable to require the Texas company to litigate the dispute in Tennessee. Therefore, we reverse the trial court’s decision to dismiss for lack of personal jurisdiction and remand for further proceedings.

Williamson County Court of Appeals 04/30/19
Leslie K. Jones v. Andy L. Allman
M2018-00899-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Senior Judge Robert E. Lee Davies

The trial court granted the defendant’s motion for summary judgment with regard to the plaintiff’s claim of legal malpractice. Upon the plaintiff’s motion to alter or amend the judgment, the trial court denied the motion. The plaintiff has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 04/30/19
Stacey Tyrone Green v. State of Tennessee
M2018-00765-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Thomas W. Graham

A Marion County jury convicted the Petitioner, Stacey Tyrone Green, of one count of aggravated robbery, one count of burglary, one count of aggravated assault, and three counts of facilitation to commit aggravated robbery, burglary, and aggravated assault. The trial court imposed an effective sentence of fourteen years and six months in the Tennessee Department of Correction, and this court affirmed the trial court’s judgment on appeal. State v. Stacey Tyrone Green, No. M2015-003230CCA-R3-CD, 2016 WL 381414, at *1 (Tenn. Crim. App., at Nashville, Feb. 1, 2016), no perm. app. filed. The Petitioner subsequently filed a petition for post-conviction relief alleging that he had received the ineffective assistance of counsel at trial, which was heard and denied by the post-conviction court. The Petitioner here appeals the ruling of the post-conviction court. After review, we affirm the post-conviction court’s judgment.

Marion County Court of Criminal Appeals 04/30/19
Duane Southerland, Et Al. v. Danny Howell
M2018-01427-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Larry B. Stanley

This appeal arises from a boundary line dispute. Duane and Jean Southerland (“Plaintiffs”) sued Danny M. Howell (“Defendant”) in the Chancery Court for Van Buren County (“the Trial Court”) seeking declaratory judgment as to a boundary line and damages for the removal of a fence. The Trial Court found that Plaintiffs successfully established their claim of adverse possession over the disputed area. Defendant timely appealed to this Court. Defendant argues, among other things, that Plaintiffs cannot prevail because they did not own or adversely possess the property for a period of 20 years. We, as did the Trial Court, hold that, in keeping with Tennessee law, the requisite time period may be established by successive possessions. The unrefuted proof at trial was that Plaintiffs and their predecessors in title maintained actual, continuous, and exclusive possession of the disputed area for over 20 years. We affirm the judgment of the Trial Court.

Van Buren County Court of Appeals 04/30/19
Steven Tyler Nabi v. State of Tennessee
M2018-01449-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge William R. Goodman, III

Following a reversal and remand of this case for the post-conviction court to make appropriate findings of fact and conclusions of law, Steven Tyler Nabi v. State, M2017-00041-CCA-R3-PC, 2018 WL 1721869, at *5-6 (Tenn. Crim. App. Apr. 9, 2018), the post-conviction court denied relief a second time. On appeal, the Petitioner, Steven Tyler Nabi, argues that his guilty pleas were not knowing, intelligent, or voluntary. We affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 04/30/19
State of Tennessee v. Cecil Bernard Skyles, Jr.
E2018-01376-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Barry A. Steelman

Defendant, Cecil Bernard Skyles, Jr., pled guilty in two separate cases and received a sentence to serve on supervised probation. After multiple probation violations, the trial court revoked Defendant’s probation and ordered his sentence into effect. Defendant appealed. After a review of the record, we determine that the trial court did not abuse its discretion. Consequently, the judgment of the trial court is affirmed.

Hamilton County Court of Criminal Appeals 04/30/19
Evangeline Webb, et al. v. Milton E. Magee, Jr., et al.
W2018-01305-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a re-filed health care liability action in which the plaintiffs challenged the constitutionality of the health care liability act. The trial court upheld the constitutionality of the statutes and granted summary judgment in this action because the initial suit was not filed within the applicable statute of limitations. We affirm.

Shelby County Court of Appeals 04/30/19
Randall Holt, et al. v. Billy Kirk, et al.
W2017-00847-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Jerry Stokes

Residential property owners sued their neighbors alleging multiple causes of action, including intentional infliction of emotional distress, false arrest, and assault. The jury rendered a verdict in favor of the plaintiffs, which was approved by the trial court. On appeal, the defendant contends that the trial court erred in denying pre-trial motions for summary judgment, excluding relevant evidence at trial, determining a potential witness was competent to testify, refusing to grant a directed verdict or a mistrial, failing to order a new trial when the verdict was against the weight of the evidence, and refusing to suggest a remittitur. After a careful review of the record, we find no reversible error. So we affirm.

Shelby County Court of Appeals 04/30/19
State of Tennessee v. Patrick Bumpus
W2018-01034-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge R. Lee Moore, Jr.

Defendant, Patrick Bumpus, appeals the trial court’s denial of his motion to withdraw his guilty plea, alleging that he received ineffective assistance of counsel and that his guilty plea was unknowing and involuntary. The State concedes that the trial court erred by summarily denying the motion. We reverse the judgment of the trial court and remand the case for an evidentiary hearing.

Dyer County Court of Criminal Appeals 04/29/19
State of Tennessee v. Derek Cunningham
W2018-02075-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Defendant, Derek Cunningham, appeals from the denial of his motion to correct an illegal sentence under Tennessee Rule of Criminal Procedure 36.1. Because Defendant has failed to state a colorable claim for relief, we affirm the trial court’s denial of the motion.

Shelby County Court of Criminal Appeals 04/29/19
James Kirby v. Memphis Light Gas & Water
W2017-02390-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

The driver of a delivery truck was injured when the delivery truck collided with a utility truck. The trial court determined that the utility company was 70% at fault and the delivery driver was 30% at fault. The court awarded the delivery driver $105,000 in damages. On appeal, the utility company argues that the trial court erred in including future medical expenses in its calculation of damages and that the delivery driver failed to mitigate his damages. We find no error in the trial court’s award of damages and affirm the trial court’s judgment.

Shelby County Court of Appeals 04/29/19
In Re Laura F.
M2017-01767-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Diana F. Monroe

A mother appeals the termination of her parental rights to her child. The juvenile court found by clear and convincing evidence three statutory grounds for termination of parental rights: abandonment by willful failure to support and by willful failure to visit and persistence of conditions. The court also found by clear and convincing evidence that termination of mother’s parental rights was in the child’s best interest. Upon our review of the record, we affirm.

Overton County Court of Appeals 04/29/19
Venture Holdings, LLC v. Metropolitan Government Of Nashville And Davidson County, Tennessee, by and through Metropolitan Board of Zoning Appeals
M2018-01838-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Anne C. Martin

This case involves an appeal to the Davidson County Chancery Court (“trial court”) of an administrative zoning decision denying an application for a special exception permit. In January 2018, the petitioner, Venture Holdings, LLC (“Venture”), filed an application with the respondent, the Metropolitan Government of Nashville and Davidson County, Tennessee, acting by and through the Metropolitan Board of Zoning Appeals (“the Board”), for a special exception permit to build a waste transfer station at a particular location. Following an administrative hearing, the Board denied Venture’s application upon finding that Venture had failed to meet the applicable requirements set forth by the Zoning Code for Metropolitan Nashville and Davidson County (“Metro Code”). Venture, through a petition for writ of certiorari, appealed the Board’s decision to the trial court, alleging that the Board’s decision was not supported by substantial or material evidence and was illegal, arbitrary, and capricious. Following a hearing, the trial court found substantial and material evidence to support the Board’s decision and affirmed the Board’s denial of Venture’s application. Venture timely appealed. Discerning no reversible error, we affirm.       

Davidson County Court of Appeals 04/29/19
Cannon and Associates, LLC v. Hillcrest Healthcare, LLC
M2018-00929-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

This case involves the enrollment of a foreign judgment in Tennessee. The trial court granted summary judgment in favor of the plaintiff, effectively enrolling the foreign judgment, rendered in Florida, pursuant to the Full Faith and Credit Clause of the United States Constitution and Tennessee’s Uniform Foreign Judgment Enforcement Act. On appeal, the defendant argues that the granting of summary judgment was improper because the Florida court lacked personal jurisdiction over defendant. Because we conclude that genuine issues of material fact remain unresolved, the trial court’s order granting summary judgment in favor of the plaintiff is vacated and remanded for further proceedings.

Davidson County Court of Appeals 04/29/19
Paige Diane Griffith v. Richard John Griffith
M2018-01245-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Deanna B. Johnson

This appeal arises from a divorce proceeding. The only issues raised on appeal relate to the trial court’s awards of alimony and child support. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

Lewis County Court of Appeals 04/29/19
In Re Antoine J., et al.
W2017-02456-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gina C. Higgins

The mother of a three-year-old child appeals the trial court’s ruling that she committed severe child abuse under Tennessee Code Annotated § 37-1-102(b)(27). The Department of Children’s Services (the “Department”) received a referral from a Memphis hospital after determining that the child had suffered a fractured femur along with other injuries that were not usually caused by normal childhood play. Following its initial investigation, the Department determined that the injuries were the result of abuse by the mother’s boyfriend. Subsequently, the Department filed a petition against the mother and her boyfriend to declare her children dependent and neglected and the victims of severe child abuse. A juvenile court magistrate and the juvenile court judge each found the children dependent and neglected and that the mother committed severe child abuse by failing to protect the child from her boyfriend’s abuse and failing to timely seek medical attention for the child. Following an appeal, the circuit court made the same findings. The mother appeals the determination that she committed severe child abuse. We affirm.

Shelby County Court of Appeals 04/26/19
State of Tennessee v. Shannon James Keener
M2018-00730-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve Dozier

The Appellant, Shannon James Keener, pled guilty in the Davidson County Criminal Court to rape and received a ten-year sentence to be served in confinement. On appeal, the Appellant claims that his sentence is excessive and that the trial court erred by refusing to grant his request for alternative sentencing. Based upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 04/26/19
Joseph Mark Whitmore v. State of Tennessee
M2018-01526-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Gary McKenzie

The Petitioner, Joseph Mark Whitmore, appeals from the Putnam County Criminal Court’s denial of post-conviction relief, arguing that the post-conviction court erred in failing to find that trial counsel was ineffective in advising him that he could withdraw his guilty plea within thirty days of his sentencing hearing and in failing to adequately represent him at sentencing. Upon our review, we affirm the judgment of the post-conviction court.

Putnam County Court of Criminal Appeals 04/26/19
In Re: O.M. Et Al.
E2018-01463-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Robert M. Estep

Department of Children’s Services filed a petition to terminate the parental rights of father, J.M., with respect to his children, O.M. and K.M. The court held clear and convincing evidence exists to terminate father’s parent rights on the ground of abandonment by an incarcerated parent, pursuant to Tenn. Code Ann. § 36-1-113(g)(1), and for failure to manifest an ability to parent, pursuant to Tenn. Code Ann. § 36-1- 113(g)(14). By the same quantum of proof, the court held that termination is in the children’s best interest. Father appeals. We affirm

Claiborne County Court of Appeals 04/26/19
U.S. Bank National Association, et al. v. Marce Harvey Ingram, et al.
W2018-01689-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Clayburn Peeples

This a declaratory judgment action in which the plaintiff sought to reform a deed that included an incorrect description of the property at issue. The plaintiff alleged that a mutual mistake had occurred and that the parties to the transaction intended to encumber a 2-acre tract of land, not a 0.7-acre tract of land as described in the deed. The plaintiff claimed that the land had also been improperly released. The trial court agreed and granted summary judgment in favor of the plaintiff. The defendants appeal. We affirm.

Gibson County Court of Appeals 04/26/19
Phillip Harris v. State of Tennessee
W2018-01091-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Chris Craft

Phillip Harris, Petitioner, was convicted of one count of attempted second degree murder, five counts of misdemeanor reckless endangerment, and one count of unlawful employment of a firearm during the attempt to commit a dangerous felony, for which he received a total effective sentence of fourteen years and six months to serve in the Tennessee Department of Correction. Petitioner sought post-conviction relief, but the post-conviction court denied relief following a hearing.  On appeal, Petitioner contends that he received ineffective assistance of counsel based on trial counsel’s failure to discuss trial strategy with Petitioner and inform Petitioner of the proof to be presented by the defense at trial. After a thorough review of the facts and applicable case law, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 04/25/19
State of Tennessee v. Bryan Keith Thomas
E2017-02247-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David R. Duggan

The Defendant, Ryan Kevin Thomas, was indicted for first degree premeditated murder; first degree felony murder; and theft of property valued at more than $500 but less than $1000; a Class E felony. See Tenn. Code Ann. §§ 39-13-202, -14-103, -14-105 (2010). Following a jury trial, the Defendant was convicted of the lesser-included offense of second degree murder, a Class A felony, and of the charged offenses of first degree felony murder and theft. See Tenn. Code Ann. § 39-13-210 (2010). The trial court later merged the second degree murder conviction into the first degree felony murder conviction and imposed a total effective sentence of life. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain the Defendant’s convictions for first degree felony murder and second degree murder; (2) the trial court erred in admitting an autopsy photograph; (3) the trial court erred in excluding hearsay testimony from a proposed witness for the defense; and (4) the trial court erred in approving the jury’s verdict as the thirteenth juror.1 Following our review, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 04/25/19