Court Opinions

Format: 07/23/2019
Format: 07/23/2019
State of Tennessee v. Cameron Neil Brown
M2018-00943-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Dee David Gay

The petitioner, Cameron Neil Brown, appeals the denial of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence. Discerning no error, we affirm.

Sumner County Court of Criminal Appeals 05/23/19
In Re Lennon R.
M2018-00541-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Donna Scott Davenport

This is an appeal from the trial court’s order that: (1) designated Father/Appellee as primary residential parent; (2) awarded him sole decision-making authority; and (3) set visitation. Mother/Appellant appeals: (1) the designation of Father as primary residential parent; (2) the award of sole decision-making authority to Father; and (3) her number of parenting days with the child. Because the trial court failed to make any findings regarding decision-making authority, we vacate the trial court’s award of sole decision-making authority to Father and remand for findings of facts and conclusions of law related to same. We also conclude that the trial court abused its discretion when it failed to maximize Mother’s parenting time with the child. Therefore, we reverse the trial court’s visitation award and remand for a more equal award of parenting time. Finally, we reverse the trial court’s order concerning child support and remand for a recalculation of support consistent with the new parenting schedule entered on remand. The trial court’s order is otherwise affirmed.

Rutherford County Court of Appeals 05/23/19
Rocky McElhaney Et Al. v. Hughes & Coleman PLLC Et Al.
M2019-00124-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Charles K. Smith

The defendants have appealed from the trial court’s rulings granting the plaintiffs a partial summary judgment and directing the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02. Because the order appealed was not properly entered under Tennessee Rule of Civil Procedure 58 and because the order is not appropriate for certification as final under Tennessee Rule of Civil Procedure 54.02, we dismiss the appeal

Wilson County Court of Appeals 05/23/19
Stacy Renee Carter v. Antonio Elmore Carter
E2019-00655-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Tammy M. Harrington

This is an appeal from a final order in the parties’ divorce proceeding entered on April 18, 2017. The Notice of Appeal, filed with the Appellate Court Clerk on April 16, 2019, was accompanied by a motion seeking leave to file it late, presumably pursuant to certain provisions in Rule 4(a) of the Tennessee Rules of Appellate Procedure. Because the Notice of Appeal was not timely filed, and because there is no authority in Rule 4(a) for a waiver of the timely filing of a Notice of Appeal in a civil case, we do not have jurisdiction to consider this appeal.

Blount County Court of Appeals 05/23/19
Robert Johnson v. Memphis Guitar Spa, LLC
W2018-00665-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

After losing in general sessions court, Plaintiff attempted to appeal the judgment to the circuit court. Defendant filed a motion to dismiss and a counterclaim in the circuit court. Plaintiff’s appeal was thereafter dismissed for lack of subject matter jurisdiction because it was not perfected in a timely manner. The circuit court then entered a default judgment against the Plaintiff based upon Plaintiff’s failure to respond to the counterclaim. Plaintiff appeals, arguing that the circuit court lost subject matter jurisdiction over the counterclaim upon the dismissal of the appeal. Discerning no error, we affirm.

Shelby County Court of Appeals 05/23/19
Michael White v. Russell Washburn, Warden
M2018-01815-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The petitioner, Michael White, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged his 2005 Marshall County Circuit Court jury convictions of rape. Discerning no error, we affirm.

Trousdale County Court of Criminal Appeals 05/22/19
State of Tennessee v. Anthony Jerome Miller
E2016-01779-SC-R11-CD
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge Alex E. Pearson

We granted permission to appeal in this case in order to determine whether Tennessee Code Annotated section 39-17-1007, which provides that “[n]o process, except as otherwise provided, shall be issued for the violation of [the statutes proscribing the offenses of sexual exploitation of a minor] unless it is issued upon the application of the district attorney general of the district,” applies to search warrants sought and obtained prior to the commencement of a prosecution for sexual exploitation of a minor. In this case, a police officer applied for and obtained the search warrant by which pornographic images of minors were recovered from the Defendant’s computer. The Defendant sought to suppress the evidence on the basis that the search warrant was not applied for by the district attorney general. The trial court denied the Defendant’s motion to suppress, and the Defendant subsequently pled guilty to one count of sexual exploitation of a minor, reserving as a certified question the efficacy of the search warrant. The Court of Criminal Appeals affirmed the trial court’s ruling and the Defendant’s conviction. We hold that Tennessee Code Annotated section 39-17-1007 does not require search warrants to be applied for by the office of the district attorney general. Accordingly, we affirm the judgment below.

Greene County Supreme Court 05/22/19
Patrick Masserano v. Alyse Masserano
W2018-01592-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Jerry Stokes

Husband and Wife both appeal the trial court’s ruling with regard to alimony. Based on Husband’s failure to adequately support his arguments with legal authority, his issues are waived. We affirm the trial court’s decision to exclude Wife’s affidavit of income and expenses. We vacate the trial court’s alimony award and remand for the entry of an order that contains specific findings of fact as to Wife’s need and Husband’s ability to pay.

Shelby County Court of Appeals 05/22/19
State of Tennessee v. Michael Rimmer
W2017-00504-CCA-R3-DD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Chris Craft

The Defendant, Michael Rimmer, was convicted by a Shelby County jury of first degree premeditated murder, first degree felony murder, and aggravated robbery. T.C.A. §39-13-202(1), (2) (Supp. 1998) (first degree murder), §39-13-402 (1997) (aggravated robbery). The trial court merged the felony murder conviction into the premeditated murder conviction. The jury sentenced the Defendant to death for the first degree murder conviction, and the trial court sentenced him to eighteen years for the aggravated robbery conviction and ordered it to be served consecutively to the sentence for the murder conviction. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his convictions for first degree murder and aggravated robbery; (2) the trial court erred in denying his motion to dismiss the felony murder charge; (3) the trial court erred in denying his motion to suppress DNA evidence; (4) the trial court erred in not striking the State’s opening statement or declaring a mistrial based on a comment made by the State; (5) the trial court erred in admitting evidence of the Defendant’s prior convictions; (6) the trial court erred in limiting the testimony of William Baldwin; (7) the trial court erred in admitting a drawing of the backseat of the Honda the Defendant was driving when he was arrested; (8) the trial court erred in finding James Allard was unavailable and allowing his testimony from the previous trial to be entered into evidence; (9) the trial court erred in admitting hearsay testimony through witness Rhonda Bell; (10) the trial court erred in allowing Chris Ellsworth to display his scars to the jury; (11) the trial court erred in allowing hearsay testimony through witness Tim Helldorfer; (12) the trial court erred in limiting the testimony of Tim Helldorfer regarding a photograph identification and the release of the Honda from police custody; (13) the trial court erred in allowing Joyce Carmichael to testify about Tommy Voyles; (14) the trial court erred in admitting previous testimony of deceased or otherwise unavailable witnesses; (15) the trial court erred in admitting Richard Rimmer’s prior statement and related exhibits as substantive evidence; (16) the trial court erred in limiting the testimony of Kenneth Falk; (17) the trial court erred in limiting the testimony of Marilyn Miller; (18) the trial court erred in excluding documents relating to a lawsuit involving the Shelby County Jail; and (19) the trial court erred in applying an aggravating factor and imposing a consecutive sentence for the aggravated robbery conviction. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/21/19
Terry Wallace v. City Of Lewisburg, Tennessee
M2018-01572-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge M. Wyatt Burk

Former employee of the City of Lewisburg brought an action pursuant to the Tennessee Human Rights Act challenging his termination. The trial court held a bench trial and, a year and a half later, entered a Memorandum Opinion and Order, finding in favor of defendant and dismissing the action. The judge who tried the case retired shortly thereafter. Five months later, the employee filed a motion under Tennessee Rule of Civil Procedure 60.02, seeking to have the order dismissing the complaint set aside on the grounds that his counsel did not receive the order dismissing the case and that, because the order did not comply with Rule 58, it was not a final order. The motion was heard by a new judge, who ruled that the order substantially complied with Rule 58 and was therefore an effective, final order. The employee appeals. Upon our review, we determine that the order dismissing the case did not comply with Rule 58 and was not a final order. Accordingly, we vacate the judgment and remand the case for entry of a final order that complies with Rule 58.

Marshall County Court of Appeals 05/21/19
Earl Gene Davis v. Civil Service Commission Of The Metropolitan Government Of Nashville And Davidson County, Et Al. - Concurring In Part
M2018-01130-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor William E. Young

The majority opinion concludes that the Commission’s finding that Officer Davis violated both MNPD Policy § 4.20.040(B) and MNPD Policy § 4.20.040(K) was neither arbitrary nor capricious and was supported by substantial and material evidence. In reaching its decision concerning MNPD Policy § 4.20.040(B), the majority essentially concludes that consideration of the public authority defense is irrelevant because the only question involved is whether Officer Davis committed the acts that constitute the offense outlined by Tennessee Code Annotated section 39-16-301(a), not whether Officer Davis would be able to assert any defense to criminal prosecution of that crime. 

Davidson County Court of Appeals 05/21/19
Earl Gene Davis v. Civil Service Commission Of The Metropolitan Government Of Nashville And Davidson County, Et Al.
M2018-01130-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor William E. Young

This appeal arises from the Metropolitan Government of Nashville Civil Service Commission’s decision to suspend and demote Appellant, a police officer with Metropolitan Nashville Police Department. The department’s decision to suspend Appellant was affirmed by the administrative law judge, but the administrative law judge reversed the demotion. The Commission then reviewed the administrative law judge’s order and upheld the suspension but reinstated the demotion. On appeal to the Davidson County Chancery Court, the Commission’s decision was affirmed. Finding no error, we affirm the decision of the Chancery Court.

Davidson County Court of Appeals 05/21/19
April R. Burchfield v. D. Ryan Burchfield
M2017-01326-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Amy V. Hollars

Mother filed a petition for modification of the residential parenting schedule in a permanent parenting plan. Father filed a
counter-petition for modification of the permanent parenting plan seeking designation as the primary residential parent of the parties’ two children. After a hearing, the trial court granted Mother’s petition and reduced Father’s parenting time by thirty-seven days based on conduct by Father that necessitated limiting his residential parenting time. Father appealed. We affirm the trial court’s judgment in all respects.

Overton County Court of Appeals 05/21/19
Adrian Wilkerson v. Michael A. Parris, Warden et al.
E2018-01440-CCA-R3-HC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jeffrey Hill Wicks

The Appellant, Adrian D. Wilkerson, appeals as of right from the Morgan County Criminal Court’s judgment summarily denying his petition for a writ of habeas corpus. The State has filed a motion to dismiss this appeal due to an untimely notice of appeal or, alternatively, affirm by memorandum opinion the judgment of the habeas corpus court. Following our review, we conclude that the interest of justice requires a waiver of the timely filing of the notice of appeal and, therefore, deny the State’s motion to dismiss. We further conclude, however, that an opinion in this case would have no precedential value and affirm the judgment of the habeas corpus court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Morgan County Court of Criminal Appeals 05/21/19
State of Tennessee v. Ronnie Walls
M2018-00903-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, Ronnie Walls, appeals from the Moore County Circuit Court’s denial of his pro se motion to correct an illegal sentence. In March 2013, the Petitioner entered guilty pleas to conspiracy to introduce contraband into a penal institution and attempt to introduce contraband into a penal institution and was sentenced as a Range II, multiple offender to concurrent terms of six years, with the balance to be served on community corrections after four months imprisonment. This sentence was ordered to be served consecutively to all unexpired sentences. In August 2014, a warrant was issued alleging the Petitioner violated his community corrections sentence. He later agreed that he had failed to comply with the terms of his community corrections sentence based upon a new arrest and other violations. On October 31, 2014, he entered a guilty plea to the community corrections violation and agreed to a two-year increase in his sentence. Nearly three years later, the Petitioner filed a pro se motion to correct an illegal sentence, claiming that he is entitled to relief pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure because the trial court that accepted his guilty plea for his community corrections violation failed to advise him during the plea colloquy that he was entitled to a new sentencing hearing. The trial court denied relief, finding that the Petitioner failed to state a cognizable claim. Following our review, we affirm the judgment of the trial court.

Moore County Court of Criminal Appeals 05/21/19
Ashley M. Cook v. State of Tennessee
M2018-01149-CCA-R3-ECN
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Forest Durard, Jr.

The petitioner, Ashley M. Cook, appeals the summary dismissal of her petition for writ of error coram nobis, which petition challenged her 2008 convictions of first degree murder and conspiracy to commit first degree murder. Discerning no error, we affirm.

Bedford County Court of Criminal Appeals 05/21/19
State of Tennessee v. Jonathan Cooper
E2018-00622-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, Jonathan Cooper, was indicted for two counts of aggravated sexual battery, a Class B felony; five counts of incest, a Class C felony; and five counts of rape of a child, a Class A felony. See Tenn. Code Ann. §§ 39-13-504, -13-522, -15-302. Following a jury trial, the Defendant was convicted of one count of aggravated sexual battery, three counts of incest, and three counts of rape of a child. The Defendant was acquitted of the remaining charges. The trial court later imposed a total effective sentence of fifty years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; and (2) the trial court erred in allowing a witness to testify that he observed the victim crying during a forensic interview. Following our review, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 05/21/19
Lisa Marie Paterson (Potter) v. Scott Paterson
E2018-00599-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John C. Rambo

This appeal involves a request for, inter alia, the modification of child support. Because the trial court failed to provide sufficient findings of fact and conclusions of law, we are unable to effectively review the issues raised on appeal. Therefore, we vacate the judgment of the trial court and remand for further proceedings.

Johnson County Court of Appeals 05/21/19
Jasmine Desiree Wightman v. Joshua Charles Wightman
E2018-01663-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Larry Michael Warner

In this appeal, the father challenges the trial court’s determination of the residential parenting schedule as it relates to visitation during the school term. Upon our review, we find that the trial court did not abuse its discretion.

Cumberland County Court of Appeals 05/21/19
Bendale Romero v. State of Tennessee
E2018-00404-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steven W. Sword

The petitioner, Bendale Romero, appeals the denial of his petition for post-conviction relief, which petition challenged his 2014 convictions of attempted first degree murder, employing a firearm during the commission of a dangerous felony, and aggravated assault on grounds that he was deprived of the effective assistance of counsel. Because the indictment was constitutionally deficient as to the charge of employing a firearm during the commission of a dangerous felony, we vacate that conviction but otherwise affirm the denial of post-conviction relief.

Knox County Court of Criminal Appeals 05/20/19
In Re Raeshad B. - Concurring
M2018-00238-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Louis W. Oliver III

I concur in the result reached in this very difficult case.

Our holding that the record does not clearly and convincingly establish the grounds for termination means that we do not reach the question of what is in Raeshad’s best interest. The dismissal of the termination proceeding means that Mother and Raeshad retain the parent-child relationship and does not compel his return to her custody. Neither does it necessarily lead to the lack of involvement by the Guardians in his life; it is clear that Raeshad and the Guardians, along with their other children, have formed familial bonds.

Sumner County Court of Appeals 05/20/19
In Re Raeshad B.
M2018-00238-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Louis W. Oliver

Nearly three years after a child was placed with them by an unlicensed child placing agency, the child’s guardians petitioned to terminate the parental rights of the child’s parents. The chancery court found two statutory grounds for termination: abandonment by willful failure to visit and abandonment by willful failure to support. The court also found that termination of parental rights was in the child’s best interest. Only the child’s mother appeals. We conclude that the evidence was less than clear and convincing as to each of the alleged statutory grounds. So we reverse the termination of mother’s parental rights.

Sumner County Court of Appeals 05/20/19
Josiah Manual Davis v. Akira Hayes
M2019-00243-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Justin C. Angel

The father has filed a notice of appeal from a final judgment entered on January 7, 2019. Because the father did not file his notice of appeal within thirty days after entry of the judgment as required by Tenn. R. App. P. 4(a), we dismiss the appeal.

Franklin County Court of Appeals 05/20/19
State of Tennessee v. Anthony Humberto Cuevas
E2018-01002-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Barry A. Steelman

The defendant, Anthony Humberto Cuevas, appeals the Hamilton County Criminal Court’s decision imposing consecutive sentences for his guilty-pleaded convictions of aggravated burglary and theft of property valued at $60,000 or more but less than $250,000. Discerning no error, we affirm.

Hamilton County Court of Criminal Appeals 05/20/19
Dialysis Clinic, Inc. Et Al. v. Kevin Medley, Et Al.
M2018-00399-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The owner of four contiguous properties filed unlawful detainer actions against the entities that were occupying the properties. The owner did not name as defendants the individual who signed the lease or his company. A year and a half after the cases were filed, the lessee moved to intervene, claiming that it was entitled to intervene pursuant to Tenn. Rs. Civ. P. 24.01 and/or 24.02 and that it was a necessary party pursuant to Tenn. R. Civ. P. 19.01. The trial court denied the lessee’s motion on the grounds of prior suit pending and timeliness. The lessee appealed. Because the court failed to address the lessee’s claim that it was a necessary party, we are unable to address that argument on appeal. We vacate the trial court’s judgment and remand the case for further proceedings. 

Davidson County Court of Appeals 05/20/19