Court Opinions

Format: 10/22/2018
Format: 10/22/2018
Ashley Elizabeth Sample v. Robert Shayne Sample
M2017-02409-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Ross H. Hicks

Husband, a member of the United States Army, and Wife divorced. The trial court awarded Wife a portion of Husband’s military retirement pay, including his VA disability pay. Husband took issue with the trial court’s method of calculating Wife’s share of his retirement pay, as well as its determinations as to the residential parenting schedule and child support obligations. For the reasons stated herein, we affirm in part, reverse in part, and vacate in part. 

Montgomery County Court of Appeals 09/04/18
State of Tennessee v. William Cole Nicholson
M2017-01761-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge William R. Goodman, III

The defendant, William Cole Nicholson, appeals his Montgomery County Circuit Court jury conviction of aggravated sexual battery. He challenges the sufficiency of the evidence supporting the element of unlawful sexual contact and the weight of the evidence supporting the guilty verdict. Discerning no error, we affirm.

Montgomery County Court of Criminal Appeals 09/04/18
State of Tennessee v. Aspyn Riner
M2017-01839-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stella L. Hargrove

A Maury County Circuit Court Jury convicted the Appellant, Aspyn Riner, of aggravated perjury, a Class D felony, and the trial court sentenced her as a Range I, standard offender to two years, six months to be served as six months in confinement and the remainder on supervised probation. On appeal, the Appellant claims that the trial court erred by denying her requests for judicial diversion and full probation and by ordering that she serve four calendar months in confinement before being eligible to earn good time credits. The State acknowledges that the trial court could not preclude the Appellant from earning good time credits but argues that the court properly sentenced her in all other respects. We agree with the State. Accordingly, the trial court’s denials of judicial diversion and full probation are affirmed, but the court’s ordering four months of confinement before becoming eligible for good time credits is reversed. The case is remanded to the trial court for correction of the judgment to so reflect.

Maury County Court of Criminal Appeals 09/04/18
Richard E. Mack, et al. v. Comcast Corporation, et al.
W2017-02326-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Felicia Corbin Johnson

An altercation between the residents of a home and alleged Comcast employees occurred when the alleged employees attempted to recover an unreturned modem from the residents after their service had been cancelled. The residents brought suit alleging several claims against multiple Comcast entities. Several of the entities were previously dismissed from the case. The trial court granted summary judgment to the remaining Comcast entity-defendants, having concluded that they had established that the alleged tortfeasors were independent contractors of a separate third party entity, and, as a result, the Comcast entities could not be liable. For the reasons discussed below, we affirm the judgment of the trial court and remand this case for such further proceedings as may be necessary and are consistent with this Opinion.

Shelby County Court of Appeals 08/31/18
Tina Y. Vaughn v. R.S. Lewis & Sons Funeral Home
W2017-01097-COA-R3-CV
Authoring Judge:
Trial Court Judge:

In the general sessions court, the plaintiff filed a civil warrant against the defendant funeral home for “compensation.” The warrant alleged that the funeral home violated the plaintiff’s right to dispose of her mother’s remains and claimed “libel & defamation of character.” The general sessions court dismissed the suit. After the plaintiff appealed, the circuit court dismissed the claim concerning the disposition of human remains for lack of subject matter jurisdiction. The court dismissed the claim of libel and defamation for failure to state the claim with particularity. We vacate the court’s judgment and remand for further proceedings.

Shelby County Court of Appeals 08/31/18
State of Tennessee v. Eric Battle
W2017-01234-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lee V. Coffee

A Shelby County jury convicted the Defendant, Eric Battle, of one count of attempted first degree premeditated murder, five counts of aggravated assault, one count of employment of a firearm during the commission of a dangerous felony, and one count of being a convicted felon in possession of a firearm. On appeal, the Defendant claims that: (1) the trial court erred when it ruled that a witness’s proposed testimony was inadmissible; (2) the evidence was insufficient to sustain his convictions; and (3) the trial court erred when it declined to instruct the jury on self-defense. After a thorough review of the record and applicable law, we affirm the trial court’s judgments, but we remand for entry of corrected judgments.

Shelby County Court of Criminal Appeals 08/31/18
Kelvin Reed v. State of Tennessee
W2017-02419-CCA-R3-ECN
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge W. Mark Ward

The pro se Appellant, Kelvin Reed, appeals the Shelby County Criminal Court’s summary dismissal of his “Petition for Writ of Error Coram Nobis and Motion to Vacate Illegal Sentence.” Although Reed acknowledges that his petition for coram nobis relief was untimely, he argues that due process concerns require tolling of the one-year statute of limitations. He also contends, with regard to his motion to vacate his illegal sentence, that the trial court’s order was not a final order because it failed to dismiss his motion under Rule 36.1 and failed to make the appropriate legal determinations, thereby divesting this court of jurisdiction to hear this appeal. We affirm the trial court’s summary dismissal of Reed’s petition and motion.

Shelby County Court of Criminal Appeals 08/31/18
Thomas D. Flatt v. West-Tenn Express Inc., ET AL.
W2017-01727-SC-R3-WC
Authoring Judge: Judge Don R. Ash
Trial Court Judge: Judge James F. Butler

Thomas D. Flatt (“Employee”) alleged he injured his neck and shoulder in the course and scope of his employment with West-Tenn Express, Inc. (“Employer”). The trial court found Employee suffered a compensable injury and awarded 44 percent permanent partial disability to the body as a whole. Employer’s 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. We reverse the trial court’s judgment.

Madison County Workers Compensation Panel 08/31/18
In Re: Hayden L.
E2018-00147-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jeffrey D. Rader

This is a termination of parental rights case. Mother/Appellant appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) abandonment by an incarcerated parent by willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (3) incarceration under a sentence of ten years or more imposed when the child was less than eight years old, Tenn. Code Ann. § 36-1-113(g)(6). Mother also appeals the trial court’s determination that termination of her parental rights is in the child’s best interest. On appeal, Appellee does not defend the ground of abandonment by willful failure to support. Because there is insufficient evidence concerning Mother/Appellant’s employment and earning potential, we reverse the trial court’s termination of Mother/Appellant’s parental rights on the ground of abandonment by willful failure to support. The order is otherwise affirmed.

Sevier County Court of Appeals 08/31/18
In Re Briana H., Et Al.
M2017-02296-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Amy Cook

Mother appeals from the trial court’s order terminating her parental rights. Discerning no error, we affirm. 

Hickman County Court of Appeals 08/31/18
In Re Romeo T. Et Al.
M2018-00269-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donna Scott Davenport

This is a termination of parental rights case. Mother/Appellant appeals the termination of her parental rights to two minor children on the grounds of: (1) abandonment by willful failure to visit; Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i); (2) substantial noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-113(g)(2); and (3) persistence of the conditions that led to the children’s removal from Mother’s home, Tenn. Code Ann. § 36-1-113(g)(3). The trial court also found that termination of Mother’s parental rights is in the children’s best interest. On appeal, Appellee, the Tennessee Department of Children’s Services, concedes that the persistence of conditions ground is not applicable to Appellant because the record does not contain a final adjudicatory order of dependency and neglect. We agree; accordingly, we reverse the trial court’s termination of Appellant’s parental right on that ground. The order is otherwise affirmed.

Rutherford County Court of Appeals 08/31/18
Lymus Levar Brown III v. State of Tennessee
W2017-01726-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Clayburn L. Peeples

A Haywood County jury convicted the Petitioner, Lymus Brown, of aggravated robbery, and the trial court sentenced him to thirty years in prison. State v. Lymus Brown, No. W2012-02298-CCA-R3-CD, 2013 WL 12181029, at *1 (Tenn. Crim. App., at Jackson, Nov. 26, 2013), perm. app. denied (Tenn. Apr. 8, 2014). This court affirmed his conviction on appeal. The Petitioner filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective in failing to interview a witness, failing to adequately cross-examine another witness, failing to allow him to testify, and failing to have the jury instructed on facilitation. The post-conviction court denied relief. After review, we affirm the post-conviction court’s judgment.

Haywood County Court of Criminal Appeals 08/31/18
State of Tennessee v. Tammy Tuttle
M2017-00788-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Stella L. Hargrove

Defendant, Tammy Tuttle, appeals her convictions of possession of not less than 14.175 grams (0.5 ounces) but not more than ten pounds of marijuana with the intent to sell and possession of 0.5 grams or more of cocaine with the intent to sell as well as the forfeiture of $1,098,050 in United States currency. The trial court sentenced Defendant to an effective eight year sentence to serve. On appeal, Defendant argues that the evidence is insufficient to sustain her convictions and that the trial court erred in ruling that the $1,098,050 was forfeited to the State. After a thorough review of the record, we hold that the evidence is sufficient for Defendant’s convictions and that we do not have jurisdiction to hear the forfeiture issue because the notice of appeal was untimely. Accordingly, we affirm the judgments of the trial court but remand for entry of corrected judgments in Counts Three and Four.

Maury County Court of Criminal Appeals 08/31/18
Safronia Rufsholm v. Jerry Rufsholm
M2016-02404-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

This is a divorce action in which the wife appeals the trial court’s classification of property and the type and amount of alimony awarded. We affirm.  

Montgomery County Court of Appeals 08/30/18
Amy Elizabeth Luker v. Terry Eugene Luker
M2018-00138-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Senior Judge Robert E. Lee Davies

Amy Elizabeth Luker (“Petitioner”), asserting she was raped, obtained an ex parte order of protection against her husband Terry Eugene Luker (“Respondent”) in the Chancery Court for Williamson County (“the Trial Court”). Respondent asked for time to conduct discovery before the hearing on whether to extend the order of protection. The Trial Court permitted Respondent to subpoena certain records but otherwise ruled he had no right to conduct discovery under the Tennessee Rules of Civil Procedure. After a hearing, the Trial Court ruled in favor of Petitioner and extended the order of protection. Respondent appeals, arguing principally that the Trial Court erred in blocking discovery and in excluding Respondent’s proposed witnesses. We affirm the Trial Court in its decision regarding the witnesses. However, we hold that the Trial Court erred in determining categorically that Respondent had no right to conduct discovery. We vacate and remand for a new hearing. On remand, the parties shall state specifically what discovery if any they want and the Trial Court is to exercise its discretion in deciding what limited discovery to allow and the time frame. The ex parte order of protection shall remain in effect in the interim. We affirm, in part, and vacate, in part, the judgment of the Trial Court.   

Williamson County Court of Appeals 08/30/18
In Re Brian G., Et Al.
M2017-01586-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge G. Andrew Brigham

Father appeals from an order of the juvenile court awarding permanent guardianship following an adjudication of dependency and neglect. Father filed his notice of appeal to this Court twenty-eight days following the trial court’s order. Because Father’s appeal was to circuit court and his notice of appeal was not filed within ten days of the trial court’s order, we dismiss this appeal.

Stewart County, Sullivan County Court of Appeals 08/30/18
Devin Rogers v. State of Tennessee
W2017-01991-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey

The petitioner, Devin Rogers, appeals the denial of his petition for post-conviction relief, which petition challenged his 2013 conviction of aggravated robbery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/30/18
Jereco Tynes v. State of Tennessee
W2018-00005-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The petitioner, Jereco Tynes, appeals the denial of his petition for post-conviction relief, which petition challenged his 2010 jury convictions of felony murder, aggravated robbery, and attempted aggravated robbery, alleging that he was deprived of the effective assistance of counsel at trial. Discerning no error, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 08/30/18
State of Tennessee v. Darrin Keith Ward, Jr.
W2017-01516-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge R. Lee Moore, Jr.

The Defendant, Darrin Keith Ward, Jr., appeals the trial court’s revocation of his community corrections sentence, arguing that the trial court abused its discretion by relying on stale information and insufficient evidence in deciding to revoke his sentence. After review, we affirm the revocation of the alternative sentence.

Dyer County Court of Criminal Appeals 08/30/18
Bruce M. Vann v. State of Tennessee
W2017-02194-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Bruce Marvin Vann, appeals from the Madison County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for failing to call “alibi” witnesses during trial. Following our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 08/30/18
State of Tennessee v. Houston Thomas Wilkes
W2017-00798-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald E. Parish

The Defendant, Houston Thomas Wilkes, appeals the trial court’s denial of his motion to withdraw his guilty plea, arguing that trial counsel coerced him into entering the guilty plea and that the State withheld potentially exculpatory evidence, such that his plea was not knowing and voluntary. He further argues that these circumstances led to manifest injustice, and the trial court therefore abused its discretion in refusing to allow the withdrawal of his guilty plea. After review, we affirm the denial of the motion to withdraw his guilty plea.

Carroll County Court of Criminal Appeals 08/30/18
State of Tennessee v. Gaines Richardson
W2017-01102-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Paula L. Skahan

Defendant, Gaines Richardson, was indicted for two counts of aggravated robbery. After a jury trial, Defendant was convicted as charged. He received a total effective sentence of nine years. On appeal, Defendant argues that the evidence was insufficient to support his convictions and that several plain errors were committed by the trial court. After a thorough review, we conclude that the evidence is sufficient and that Defendant is not entitled to plain error relief. Accordingly, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/30/18
In Re: Gabriel C.
E2017-02398-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert D. Philyaw

A mother appeals the termination of her parental rights to her son, who tested positive for illegal drugs at birth. In due course, the child was placed in the custody of the Department of Children’s Services and adjudicated dependent and neglected; Mother was later sentenced to a ten-year prison term. The Department thereafter filed a petition to terminate Mother’s parental rights and, following a trial, Mother’s rights were terminated on the grounds that Mother had been found guilty of severe child abuse of the child’s half-sister in another proceeding and abandonment by incarcerated parent and upon the finding that termination was in the child’s best interest. Mother appeals; upon a thorough review of the record, we affirm the judgment.

Hamilton County Court of Appeals 08/30/18
Shawn R. Bough v. Tennessee Department Of Correction Et Al.
E2017-02350-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jeffrey F. Stewart

Shawn Bough filed a petition for common law writ of certiorari seeking review of his prison disciplinary conviction. The petition named as respondents the Tennessee Department of Correction and various individuals involved in petitioner’s conviction. The trial court dismissed the petition on the ground that petitioner failed to timely comply with the court’s order to submit a partial payment of the filing fee as required by Tenn. Code Ann. § 41-21-807 (2014). Petitioner subsequently filed a “motion to reconsider,” which the trial court denied. This appeal follows. We affirm.

Bledsoe County Court of Appeals 08/30/18
Frederick Jerome Brown, Jr. v. Roxana Isabel Brown
E2017-01348-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge L. Marie Williams

In this divorce case, the trial court designated father, Frederick Jerome Brown, Jr., as the primary residential parent of the parties’ only child. Mother, Roxana Isabel Brown, appeals. She argues that the trial court abused its discretion when it (1) designated father as the primary residential parent and (2) when it established a parenting plan that was not in the best interest of the child. We reverse the trial court’s designation of father as the primary residential parent and remand the case for further proceedings.

Hamilton County Court of Appeals 08/30/18