Court Opinions

Format: 05/22/2020
Format: 05/22/2020
Jessica Owens Et Al. v. Gary W. Stephens, D.O. Et Al.
E2018-01564-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Kristi M. Davis

This is a healthcare liability action resulting from the death of a child. The defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed with the defendants and dismissed the action without prejudice. The plaintiffs appeal the dismissal to this court. We affirm.

Knox County Court of Appeals 04/16/20
LaRonda Johnson v. Barry Dominick
M2018-01025-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ross H. Hicks

This is a case involving the propriety of retroactive child support. Following the death of the Respondent and notwithstanding the Petitioner’s stated efforts to have an administrator ad litem appointed and thereafter substituted in the Respondent’s stead, the trial court dismissed this case. For the reasons that follow, we conclude that the dismissal should be set aside.

Montgomery County Circuit, Criminal & Chancery Courts 04/16/20
State of Tennessee v. Nicholas Ryan Flood
M2019-00525-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David A. Patterson

A Putnam County grand jury indicted the defendant for possession of a Schedule II controlled substance with intent to sell or deliver, possession of a Schedule IV controlled substance with intent to sell or deliver, and simple possession of a Schedule II controlled substance. After trial, a jury convicted the defendant of all counts. On appeal, the defendant challenges the trial court’s denial of his motion to suppress evidence obtained from a warrantless search of his girlfriend’s vehicle. After a thorough review of the record and applicable law, we reverse the judgment of the trial court and dismiss the indictments against the defendant.

Putnam County Court of Criminal Appeals 04/16/20
State of Tennessee v. Elizabeth Lynn Schmitz
M2019-00624-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Larry J. Wallace

Defendant, Elizabeth Lynn Schmitz, appeals her convictions by a Dickson County jury of attempted theft of property over $500 and hindering a secured creditor. The trial court sentenced Defendant to two-years for hindering a secured creditor and a concurrent term of eleven months and twenty-nine day for the misdemeanor theft, suspended to probation. On appeal, Defendant argues the evidence was insufficient to support either conviction when the evidence demonstrated that the subject property of both offenses was her own car. Defendant also claims the trial court gave incomplete instructions to the jury. After a full review, we conclude that Defendant is entitled to relief as to the attempted theft of property conviction because Defendant cannot be convicted of attempted theft of something she owned, and we vacate the conviction as to that count. As to the remaining count of hindering a secured creditor, we confirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 04/16/20
Johnathon Cuddeford f/k/a Johnathon Boyer v. Adam M. Jackson
W2019-00539-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Donald E. Parish

This is an appeal from the judgment in a personal injury action in which the plaintiff sought to recover damages incurred in a motorcycle accident. Following the plaintiff’s failure to comply with the defendant’s discovery requests, the trial court sanctioned the plaintiff by prohibiting him from introducing a portion of the defendant’s deposition testimony at trial. The case was tried before a jury with the sanctions in place, and the jury returned a verdict in the defendant’s favor. This appeal followed. Discerning no reversible error, we affirm.

Henry County Court of Appeals 04/16/20
Jawaune Massey v. State of Tennessee
E2019-00616-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge William K. Rogers

The Petitioner, Jawaune Massey, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions of two counts of first degree premeditated murder, two counts of first degree felony murder, one count of especially aggravated robbery, one count of possessing twenty-six grams or more of cocaine for resale, one count of conspiracy to commit aggravated robbery, and one count of maintaining a dwelling where controlled substances are used or sold and his resulting effective sentence of two consecutive life terms.  On appeal, the Petitioner contends that trial counsel was ineffective for failing to object to the Petitioner’s wearing a stun vest at trial.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Sullivan County Court of Criminal Appeals 04/16/20
Susan Smith Rawls v. Daniel Wexler Rawls
E2019-00675-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from the divorce of Susan Smith Rawls (“Wife”) and Daniel Wexler Rawls (“Husband”). Wife sued Husband for divorce in the Circuit Court for Knox County (“the Trial Court”). After a trial, the Trial Court, inter alia, divided the marital estate and awarded Wife alimony and child support. Husband appeals to this Court raising a host of issues. However, Husband’s brief is non-compliant with the Rules of the Tennessee Court of Appeals and the Tennessee Rules of Appellate Procedure to such a degree that his issues are waived. Wife raises an additional issue of her own as to whether Husband is obligated, either by an oral contract he allegedly entered into or through promissory estoppel, to pay the college expenses of one of the parties’ adult children. The evidence does not preponderate against the Trial Court’s finding that Husband never committed to pay these college expenses. Wife also requests an award of attorney’s fees incurred on appeal. We decline to grant such an award. We affirm the Trial Court.

Knox County Court of Appeals 04/16/20
In Re Neveah A.
E2019-01628-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Janice Hope Snider

The trial court terminated a mother’s parental rights to her child on the grounds of abandonment by failure to support, abandonment by failure to provide a suitable home, and substantial noncompliance with the permanency plan. The trial court terminated a father’s parental rights to his child on the grounds of abandonment by failure to provide a suitable home and substantial noncompliance with the permanency plan. The trial court also found that termination of the mother’s and father’s parental rights was in the best interest of the child. Finding clear and convincing evidence in support of the trial court’s determinations, we affirm.

Hamblen County Court of Appeals 04/16/20
State of Tennessee v. Nathan G. Fleming
E2019-00078-CCA-R3-CD
Authoring Judge: Judge John Everett Williams, P.J.
Trial Court Judge: Judge Bobby R. McGee

A jury convicted the Defendant, Nathan G. Fleming, of two counts of aggravated robbery, two counts of attempted first degree murder, four counts of employing a firearm during the commission of a dangerous felony, two counts of carjacking, and two counts of especially aggravated robbery.  The trial court merged various convictions and imposed an effective sentence of sixty-eight years.  On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions and the trial court’s imposition of partial consecutive sentences.  We affirm the judgments of the trial court. 

Knox County Court of Criminal Appeals 04/15/20
David L. Snoddy v. Dwayne D. Maddox, III as Administrator Ad Litem of the Estate of Donald Evans Gilbreth
W2018-01412-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge C. Creed McGinley

The plaintiff sued the administrator of the estate of his deceased business partner seeking a declaratory judgment over ownership of reel-to-reel tape recordings. The plaintiff claimed joint ownership of the tapes with the decedent. The estate administrator moved to dismiss on res judicata grounds, arguing that a federal court had previously determined that the decedent was the sole owner of the tapes. After a combined motion hearing and bench trial, the circuit court initially granted the motion to dismiss. The plaintiff then moved to alter or amend the judgment, and the court set aside its original ruling and granted the requested declaratory relief. We agree that res judicata does not apply. So we affirm.

Benton County Court of Appeals 04/15/20
Christopher Brown v. State of Tennessee - Dissent
W2018-01705-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

I respectfully dissent from the majority’s opinion, concluding that post-conviction counsel had an actual conflict of interest and granting a new hearing, because I conclude that the issue is waived.

Shelby County Court of Criminal Appeals 04/15/20
Christopher Brown v. State of Tennessee
W2018-01705-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Christopher Brown, appeals the denial of his petition for post-conviction relief, in which he challenged his convictions for one count of first degree premeditated murder and three counts of aggravated assault and his effective sentence of life imprisonment plus ten years. On appeal, the Petitioner contends that: (1) post-conviction counsel had a conflict of interest that disqualified him from representing the Petitioner at the hearing; (2) trial counsel provided ineffective assistance; and (3) post-conviction counsel was ineffective at the post-conviction hearing. Upon reviewing the record and the applicable law, we conclude that the Petitioner is entitled to a new hearing based upon post-conviction counsel’s conflict of interest.

Shelby County Court of Criminal Appeals 04/15/20
State of Tennessee v. Bragg Lampkin
W2019-00885-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The Defendant entered a guilty plea to one count of sexual exploitation of a minor via electronic means pursuant to pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), with the sentence to be determined by the trial court. The trial court denied the Defendant’s request for judicial diversion and sentenced him to four years of supervised probation with thirty days to be served in confinement. On appeal, the Defendant asserts that the trial court erred in denying diversion because it considered an irrelevant factor and because its factual findings were against the weight of the evidence. He also argues he was entitled to full probation. After a thorough review of the record, we affirm the trial court’s sentencing decisions and remand for correction of the judgment form.

Shelby County Court of Criminal Appeals 04/15/20
Eddie H. Pittman v. Shawn Phillips, Warden
W2019-01474-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge R. Lee Moore, Jr.

The petitioner, Eddie H. Pittman, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged his 2015 Madison County Circuit Court jury conviction of reckless aggravated assault. Discerning no error, we affirm.

Lake County Court of Criminal Appeals 04/15/20
Charles A. Guess v. Shawn Phillips, Warden
W2019-01347-CCA-R3-HC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge R. Lee Moore, Jr.

The Petitioner appeals the summary denial of his petition for writ of habeas corpus in which he challenged his convictions for especially aggravated robbery and facilitation of first degree murder. After a review of the record and applicable law, we affirm the judgment of the habeas corpus court.

Lake County Court of Criminal Appeals 04/15/20
State of Tennessee v. Christopher Allen Smith
E2019-01345-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Don W. Poole

Defendant, Christopher Allen Smith, filed a Rule 35 Motion for Modification of Sentence. The trial court held a bifurcated hearing where it denied Defendant's Rule 35 motion and revoked Defendant's probation, ordering his two eight-year consecutive sentences into execution. Defendant now appeals the trial court's denial of his Rule 35 Motion for Modification of Sentence. After a thorough review of the record and applicable case law and discerning no error, the judgments of the trial court are affirmed.

Hamilton County Court of Criminal Appeals 04/15/20
In Re Conservatorship of Daniel Allen
M2019-00469-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Judge David Randy Kennedy

This appeal arises from a conservatorship action in which an attorney ad litem was appointed to represent the respondent. The dispositive issue is whether the trial court had the discretion to assess all or any portion of the fees of the attorney ad litem to a party other than the respondent when Tenn. Code. Ann. § 34-1-125(b) states “[t]he cost of the attorney ad litem shall be charged against the assets of the respondent.” The trial court ruled that it did not have the discretion to deviate from the clear mandate in the statute. We affirm.

Davidson County Circuit, Criminal & Chancery Courts 04/15/20
State of Tennessee v. Rhasean Lowry - Concur
E2019-00113-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Don W. Poole

I join the majority in all issues except the issue regarding the trial court’s denial of Defendant’s request for the trial court to charge facilitation as a lesser included offense of felony murder. As to that issue, I concur in results only.

Hamilton County Court of Criminal Appeals 04/15/20
State of Tennessee v. Rhasean Lowry
E2019-00113-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole

Aggrieved of his Hamilton County Criminal Court jury convictions of felony murder in the perpetration of aggravated child abuse and aggravated child abuse, the defendant, Rhasean Lowry, appeals. The defendant alleges that the trial court erred by denying his motion to disqualify the Hamilton County District Attorney General’s Office, by admitting into evidence photographs taken during the victim’s autopsy, by refusing to provide a jury instruction on facilitation as a lesser included offense of felony murder and aggravated child abuse, and by denying his motion for new trial based upon the admission of certain testimony. He also contends that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

Hamilton County Court of Criminal Appeals 04/15/20
Elizabeth Jones Et Al. v. Earth Fare, Inc. Et Al.
E2019-00450-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant grocery store for personal injuries and other damages resulting from the wife’s slip and fall in the parking lot. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to establish that the defendant owed a duty of care to maintain the parking lot, which was owned and operated by a third party. The plaintiffs appeal. We reverse the decision of the trial court.

Knox County Court of Appeals 04/15/20
State of Tennessee v. Kenneth Lloyd Hill
M2019-00032-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Angelita Blackshear Dalton

The Appellant, Kenneth Lloyd Hill, was convicted in the Davidson County Criminal Court of possessing a firearm while having a prior conviction for a felony involving the use or attempted use of force, violence, or a deadly weapon, a Class C felony, and the trial court sentenced him as a Range III, persistent offender to fifteen years in confinement. On appeal, the Appellant contends that the trial court erred by refusing to sever the offense from the remaining offenses for which he was on trial and that the trial court committed various sentencing errors. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 04/15/20
State of Tennessee v. Tremaine Wilbourn
W2019-00305-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Tremaine Wilbourn, appeals his convictions for first degree premeditated murder, carjacking, employing a firearm during the commission of a dangerous felony, and possession of a firearm while having a prior felony conviction involving the use or attempted use of violence, for which he received an effective sentence of life in prison without the possibility of parole plus thirty-eight years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for first degree premeditated murder; (2) the trial court erred in prohibiting defense counsel from referencing a prior shooting during opening statements; (3) the trial court erred in excluding evidence of the Defendant’s reason for turning himself in to the United States Marshals Service; and (4) the prosecutor improperly utilized a gun as a demonstrative aid and made improper comments during closing arguments. Upon reviewing the appellate record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/15/20
Ziberia Marico Carero v. State of Tennessee
E2019-01123-CCA-R3-PC
Authoring Judge: Judge John Everett Williams, P.J.
Trial Court Judge: Judge Steven Wayne Sword

A jury convicted the Petitioner, Ziberia Marico Carero, of possession of 0.5 grams or more of cocaine in a school zone with intent to sell, possession of 0.5 grams or more of cocaine in a school zone with intent to deliver, sale of 0.5 grams or more of cocaine, and delivery of over 0.5 grams or more of cocaine, and on appeal, his convictions were merged into a single conviction for possession of 0.5 grams or more cocaine in a school zone with intent to sell.  This court affirmed the convictions and sentence of twenty-three years in confinement.  The Petitioner filed a timely post-conviction petition asserting that he received ineffective assistance of counsel because trial counsel failed to: (1) move for a mistrial based upon the State’s presentation of “surprise” witnesses; (2) object to hearsay testimony; (3) object to a multiplicitous indictment; (4) adequately investigate; and (5) request a facilitation instruction.  Under a heading of “cumulative error,” the Petitioner also asserts that trial counsel failed to: (6) secure sequestration of the witnesses; (7) present witness testimony; and (8) protect the Petitioner’s right to testify.  The Petitioner also raises various trial errors and contends he is entitled to relief pursuant to cumulative error.  After a thorough review of the record, we conclude that the Petitioner’s claims fail to establish ineffective assistance of counsel or have been previously determined or waived, and we affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 04/14/20
William Floyd Cartwright v. State of Tennessee
M2018-01544-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, William Floyd Cartwright, challenges the denial of his petition for post-conviction relief attacking his jury conviction for first degree premeditated murder. On appeal, the Petitioner first raises a free-standing claim that the jury instruction requiring the jury to “accept the law as given by the [trial] court” was violative of the Tennessee Constitution and warrants post-conviction relief. The Petitioner then alleges that he received ineffective assistance at trial due to trial counsel’s (1) failure to move for a new preliminary hearing due to an incomplete recording of the first; (2) failure to fulfill a promise made during opening statement that the victim was on house arrest with supporting proof at trial; (3) failure to adequately cross-examine the medical examiner about the victim’s cause of death; (4) failure to seek to have the proof re-opened in order to call the co-defendant to the stand after the co-defendant had accepted a plea; and (5) failure to object to the aforementioned jury instruction. He also submits that the cumulative effect of trial counsel’s errors deprived him of a fair trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Putnam County Court of Criminal Appeals 04/14/20
In Re London B.
M2019-00714-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clara W. Byrd

Father appeals from the termination of his parental rights. We reverse the trial court’s finding that Father willfully failed to support the child in the four months prior to his incarceration, as well as the trial court’s decision regarding abandonment for willful failure to visit and support in the four months prior to the filing of the termination petition. We affirm the grounds of willful failure to visit in the four months prior to incarceration and failure to visit by a putative father. We also affirm the trial court’s finding that termination is in the child’s best interest.

Wilson County Circuit, Criminal & Chancery Courts 04/14/20