Court Opinions

Format: 09/21/2017
Format: 09/21/2017
Marcus Johnsonv. Tennessee Department of Correction, et al.
E2016-02260-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey F. Stewart

An inmate in the custody of the Tennessee Department of Correction filed a petition for writ of certiorari challenging the revocation of his parole. Because the inmate failed to file his petition within the sixty-day period required by statute, the chancery court lacked jurisdiction. We, therefore, affirm the chancery court’s judgment dismissing the case.

Bledsoe County Court of Appeals 08/08/17
State of Tennessee v. Anthony Dowlen
M2016-01830-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge David M. Bragg

The Defendant, Anthony Dowlen, appeals the Rutherford County Circuit Court’s order revoking his community corrections sentence for his convictions for robbery, possession of a weapon, and evading arrest, and ordering him to serve the remainder of his effective twenty-five-year sentence in confinement. The Defendant contends that the trial court abused its discretion by revoking his community corrections sentence. We affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 08/08/17
Jason Baker v. Total Air Group LLC f/k/a Tunica Group LLC, ET AL.
W2016-00965-SC-R3-WC
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Jim Kyle

Jason Baker (“Employee”) was first employed by Total Air Group, LLC (“Employer”) on June 17, 2010. On February 11, 2011, Employee sustained an injury to his back while working for Employer in Memphis, Tennessee. Employee’s treating physician determined that Employee had achieved maximum medical improvement on June 13, 2011. Employer’s workers’ compensation insurer made its final voluntary payment of Employee’s medical expenses on December 31, 2012. Employee returned to work but was terminated by Employer on July 29, 2014. Employee alleged that he requested and received from Employer’s workers’ compensation insurer authorization for additional medical treatment in February 2015. Employee requested a benefit review conference, which was held on April 30, 2015. Employee filed this workers’ compensation case on May 1, 2015. Employer answered, asserting as an affirmative defense that Employee’s claim was barred by the one-year statute of limitations. Tenn. Code Ann.
§ 50-6-203(b)(2). The parties filed cross-motions for summary judgment, which the trial court denied. Following a trial, the trial court held that Employee’s claim was not barred by the statute of limitations. Based upon the agreement of the parties, the trial court thereafter entered a final judgment awarding Employee benefits. Employer has appealed the trial court’s determination with respect to the statute of limitations. The 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 affirm the judgment, albeit on different grounds.

Shelby County Workers Compensation Panel 08/07/17
Steven Bell v. Goodyear Tire & Rubber Company
W2015-01675-SC-R3-WC
Authoring Judge: Judge Paul G. Summers
Trial Court Judge: Judge W. Michael Maloan

Steven Bell (“Employee”) worked for Goodyear Tire & Rubber Company (“Employer”) for thirty-seven years. He retired when Employer’s plant closed in 2011. Shortly thereafter, he filed a request for benefit review conference, contending that he had sustained hearing loss as a result of noise exposure in the course of his work for Employer. He filed this civil action on May 4, 2012. Hearing screens taken by Employer from 1974 through 2010 showed that Employee had moderate to severe hearing loss when he was hired. Employer, therefore, denied the claim. The trial court awarded permanent partial disability benefits of 40% to the hearing of both ears. Employer has appealed. The 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 affirm the judgment of the trial court.

Obion County Workers Compensation Panel 08/07/17
Christopher A. Williams v. State of Tennessee
W2017-00137-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Paula Skahan

After three trials, the Petitioner was convicted of attempted aggravated robbery and felony first degree murder, and the trial court sentenced him to life in prison. The Petitioner appealed his convictions, filed a petition for post-conviction relief, and filed multiple petitions for writs of habeas corpus relief. No relief was granted. In 2015, the Petitioner filed a petition for a writ of error coram nobis, alleging an anonymous informant’s statement was newly discovered evidence. The Petitioner conceded that his petition was untimely but asked the coram nobis court to toll the statute of limitations because, he asserted, the State withheld the statement. The coram nobis court declined to toll the statute of limitations, and it dismissed the petition as time-barred. We affirm the coram nobis court’s judgment.

Shelby County Court of Criminal Appeals 08/07/17
State of Tennessee v. Lawrence A. Gray
W2016-02186-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Donald H. Allen

The Defendant, Lawrence A. Gray, entered a guilty plea to three counts of aggravated robbery and two counts of attempted aggravated robbery with the trial court to determine sentencing. After a sentencing hearing, the trial court imposed an effective sentence of twelve years. On appeal, the Defendant asserts that the trial court improperly imposed a twelve-year sentence. We affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 08/07/17
Kenneth Kirkwood v. State of Tennessee
W2016-00948-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The Petitioner, Kenneth Kirkwood, appeals the dismissal of his petition for post-conviction relief, arguing that the post-conviction court erred in denying him a full hearing and concluding that he waived all his ineffective assistance of counsel claims by raising an allegation of ineffective assistance of counsel in his motion for new trial and on direct appeal. Following our review, we affirm the dismissal of the petition on the basis that the Petitioner has already been afforded an opportunity to litigate his ineffective assistance of counsel claim.

Shelby County Court of Criminal Appeals 08/07/17
Tom Slagle, et al v. The Church Of The First Born Of Tennessee, et al
M2015-00297-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

A dispute among members of a church arose over control of the church. One group of church members incorporated, and then individual members of the church filed suit against the corporation and a second entity that operated a school on church property. On cross-motions for summary judgment, the trial court determined that the organizational structure of the church was “connectional” or “hierarchical” in nature and that all property of the church was under the control of the church’s board of deacons. Because we conclude that there are genuine issues of material fact that preclude entry of summary judgment, we affirm in part and reverse in part.

Robertson County Court of Appeals 08/07/17
State of Tennessee v. Bart Leo Tucker - Dissent
M2016-01960-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Woodruff

Because I believe the appellate record is incomplete for our review, I respectfully dissent. While I am certainly a proponent of records containing only what is essential for a meaningful review on appeal, when an appellant raises the issue of sufficiency of the evidence, as is the case here, all of the evidence presented at trial is needed. Here, Defendant has picked and chosen parts of only one of the State’s witnesses for inclusion in the record, leaving us to speculate whether other evidence or witness testimony may have fulfilled the State’s burden. Thus, the record does not convey a fair, accurate, and complete account of what transpired with respect to the issue of sufficiency of evidence. The record is not in keeping with Tennessee Rule of Appellate Procedure 24(b). I would grant Defendant’s “(Conditional) Motion To Supplement The Record” and then proceed with an unabridged record.

Williamson County Court of Criminal Appeals 08/07/17
State of Tennessee v. Bart Leo Tucker
M2016-01960-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph Woodruff

The Defendant, Bart Leo Tucker, was convicted by a Williamson County jury of one count of issuing a worthless check. See T.C.A. § 39-14-121. On appeal, the Defendant challenges the sufficiency of the evidence and contends that the trial court erred by denying his motion for judgment of acquittal. Following our review, we reverse the judgment of the trial court.

Williamson County Court of Criminal Appeals 08/07/17
Chayce Collier v. Periclis Roussis, M.D., Et Al.
E2016-01591-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge William T. Ailor

Chayce Collier, a minor, by and through his natural parent and next friend, Kendall Collier (“Plaintiff”) sued Periclis Roussis, M.D. and Fort Sanders Perinatal Center and Fort Sanders Regional Medical Center (“the Hospital”) for injuries allegedly suffered by Plaintiff when his mother had an allergic reaction during labor. After trial before a jury, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict that Dr. Roussis was not negligent and that the nurses employed by the Hospital were not negligent and dismissed the suit. Plaintiff appeals to this Court raising several issues including whether the Trial Court erred in allowing the admission of previously undisclosed testimony from the nurses and a defense expert witness, among other things. We find and hold that the Trial Court erred in allowing the previously undisclosed testimony of the nurses and the defense expert witness. We, therefore, vacate the Trial Court’s judgment and remand this case for a new trial.

Knox County Court of Appeals 08/07/17
Christopher M. Heath v. State of Tennessee
M2016-01906-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Woodruff

Petitioner, Christopher M. Heath, was convicted of driving under the influence (“DUI”), fifth offense, and second offense driving on a cancelled, suspended, or revoked driver’s license. He received an effective sentence of fifteen months. There was no direct appeal. Petitioner sought post-conviction relief. After a hearing at which Petitioner did not appear and did not present any proof, the post-conviction court dismissed the petition. Petitioner appeals from the denial of post-conviction relief. After a review, we affirm the judgment of the post-conviction court.

Williamson County Court of Criminal Appeals 08/07/17
Donnell V. Booker v. State of Tennessee
M2017-00251-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl A. Blackburn

Petitioner, Donnell V. Booker, appeals the denial of his second petition for habeas corpus relief in which he argues that his guilty plea to an “out of range” sentence was illegal. Because Petitioner’s claim has been previously determined and he fails to state a cognizable claim, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 08/07/17
Jenny Craig Operations, Inc. v. Lori Reel
M2016-01775-SC-R3-WC
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Chancellor Russell T. Perkins

Lori Reel (“Employee”) was employed by Jenny Craig Operations, Inc. (“Employer”) as a Jenny Craig consultant. On January 8, 2010, Employee fell while at work and struck her right knee on the floor. Suit was filed. Employee alleged that she sustained a work-related injury to her right knee that aggravated pre-existing arthritis in that knee and ultimately necessitated a total knee replacement. While conceding that Employee sustained a temporary injury to her knee from the fall, Employer denied liability for the total knee replacement and for any permanent impairment. The trial court found that Employee’s work-related fall caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement, that Employee’s January 8, 2010 injury was compensable, and that Employee retained a permanent partial disability of 46.5% to her right lower extremity. Employer has appealed. The 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 affirm the judgment of the trial court.

Davidson County Workers Compensation Panel 08/04/17
Shira Jean Stafford, et al. v. Jackson County, Tennessee, et al.
M2016-01833-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Clara W. Byrd
An arrestee sued the arresting sheriff’s deputy, the sheriff, and the county for assault and battery and intentional infliction of emotional distress. The trial court dismissed the case on summary judgment. We affirm as to the claim for intentional infliction of emotional distress but find that there are genuine issues of material fact precluding summary judgment on the claim for assault and battery.
 
Jackson County Court of Appeals 08/04/17
In Re: Paul Julius Walwyn, BPR #18263
M2016-01507-SC-BAR-BP
Authoring Judge: Justice Roger A. Page
Trial Court Judge:

The Board of Professional Responsibility (“Board”) initiated disciplinary proceedings against attorney Paul Julius Walwyn based on a client’s complaint of professional misconduct. A hearing panel (“Panel”) determined that Mr. Walwyn had violated the Rules of Professional Conduct (“RPC”) and ultimately entered “Findings of Fact, Conclusions of Law and Amended Judgment of the Hearing Panel” (“Amended Judgment”) imposing a public censure with a practice monitor for one year and six additional hours of continuing legal education (“CLE”) on subjects related to the management of a law practice and/or client communication. Mr. Walwyn did not appeal the Amended Judgment to the trial court. The Board petitioned this Court for an order enforcing the Panel’s Amended Judgment. Pursuant to Tennessee Supreme Court Rule 15.4(b) and (c), we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Walwyn subsequently requested oral argument, which we granted. We now consider whether the punishment imposed by the Panel is appropriate under the circumstances of this case and is in uniformity with prior disciplinary decisions in this state. Following a thorough review of the record and the law, we conclude that it is not. Therefore, we modify the Panel’s Amended Judgment to impose a one-year suspension from the practice of law, with six months to be served on active suspension and six months to be served on probation with a practice monitor. The duties and obligations in relation to the practice monitor shall be enforced in accordance with the Panel’s Amended Judgment. We also impose six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

Supreme Court 08/04/17
Phillip M. Mullins v. Cherry Lindamood, Warden
M2017-00139-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Robert L. Jones

The Petitioner, Phillip M. Mullins, appeals the Wayne County Circuit Court’s summary dismissal of his petition for a writ of habeas corpus from his 2001 convictions and his effective sentence of life without the possibility of parole plus twenty-five years. He contends that his convictions violate double jeopardy principles on several grounds. We affirm the judgment of the habeas corpus court.

Wayne County Court of Criminal Appeals 08/04/17
Charles Phillip Maxwell v. State of Tennessee
M2016-02380-CCA-R3-ECN
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Monte D. Watkins

The Petitioner, Charles Phillip Maxwell, appeals the Davidson County Criminal Court’s denial of his petition for a writ of error coram nobis from his driving with a suspended license conviction and his thirty-day sentence, which was suspended to probation after twenty-four hours in confinement. The Petitioner contends that the court erred by denying relief and improperly ordered him to pay court costs associated with his petition. We affirm the judgment of the coram nobis court.

Davidson County Court of Criminal Appeals 08/04/17
In Re Demarkus T., et al
M2016-01839-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Kenneth R. Goble, Jr.

This appeal arises from the termination of Mother’s and Father’s parental rights with respect to their two minor children. The children were removed from the parents’ custody by the Department of Children’s Services (“DCS”) in July 2013 after investigators responded to a call where the children’s sibling was found deceased at home. DCS filed a petition to terminate the parental rights of Mother and Father on the grounds of severe abuse and best interests. The trial court found clear and convincing evidence of grounds supporting termination and that termination of their parental rights was in the best interests of the children. Mother and Father separately appealed. After review, we affirm the trial court.

Montgomery County Court of Appeals 08/03/17
Joseph Kolby Willis v. All Staff, et al
M2016-01143-SC-R3-WC
Authoring Judge: Senior Judge Paul G. Summers
Trial Court Judge: Judge Joshua Baker

Joseph Kolby Willis (“Employee”) alleges that he sustained a compensable injury to his left knee while working for All Staff (“Employer”). After his petition for interlocutory relief was denied, discovery was taken, and a compensation hearing was held. The court of workers’ compensation claims (“trial court”) bifurcated the issues of compensability and relief. After the hearing, the trial court issued a compensation order finding the injury was compensable. Employer appealed to the Workers’ Compensation Appeals Board (“Board”) pursuant to Tennessee Code Annotated section 50-6-217 (2014). The Board reversed the trial court’s order, finding that Employee had failed to establish causation, and remanded the case to the trial court for entry of an order dismissing the claim. After the order was entered, Employee appealed to the Supreme Court. Employee’s appeal has been referred to this 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 affirm the judgment of dismissal.

Workers Compensation Panel 08/03/17
State of Tennessee v. Javonta Marquis Perkins
M2015-02423-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Javonta Marquis Perkins, was indicted by the Davidson County Grand Jury for aggravated robbery, carjacking, and possession of a weapon during the commission of a dangerous felony. Defendant was convicted as charged by a jury and sentenced by the trial court to ten years each for his aggravated robbery and carjacking convictions and six years for the possession of a weapon conviction. By operation of law, the trial court ordered Defendant’s six-year sentence consecutive to his concurrent ten-year sentences, for an effective sentence of 16 years. In this appeal as of right, Defendant contends that: 1) the trial court erred by denying his motion to suppress the victim’s pretrial identification; 2) the trial court erred by instructing the jury on criminal responsibility; 3) the evidence was insufficient to support his convictions; and 4) his sentences are excessive. Having reviewed the entire record and the briefs of the parties, we find no error and affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/03/17
David Dwight Hester v. State of Tennessee
M2016-01351-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Franklin L. Russell

Petitioner, David Dwight Hester, pleaded guilty to initiation of methamphetamine manufacture, and two counts of aggravated child neglect. He received an agreed effective sentence of twenty-five years at thirty percent as a Range I offender. Petitioner subsequently filed a post-conviction petition that was denied by the post-conviction court. On appeal, Petitioner argues that trial counsel was ineffective for failing to challenge the indictments charging him with aggravated child abuse or neglect because each indictment charged him with “two distinct offenses.” He also argues that trial counsel told him that he was required to receive the same sentence as his co-defendant and that Petitioner risked serving his sentence at one-hundred percent eligibility if the case went to trial. After thoroughly reviewing the record and applicable authorities, we affirm the post-conviction court’s judgment.

Bedford County Court of Criminal Appeals 08/03/17
State of Tennessee v. Latoya Britton
M2016-01139-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Dee David Gay

Defendant, Latoya Britton, appeals the trial court’s revocation of her community corrections sentence and the imposition of additional consecutive sentencing and confinement upon resentencing. Following our review of the record, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 08/03/17
Alexander R. Carino v. State of Tennessee
M2017-00345-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Alexander R. Carino, appeals the Trousdale County Circuit Court’s denial of his petition for habeas corpus relief from his 2010 convictions for two counts of second degree murder and his effective forty-three-year sentence. The Petitioner contends that the habeas corpus court erred by summarily denying relief. We affirm the judgment of the habeas corpus court.

Trousdale County Court of Criminal Appeals 08/03/17
Clifford Barker v. The Goodyear Tire & Rubber Company
W2015-01893-SC-R3-WC
Authoring Judge: Judge Paul G. Summers
Trial Court Judge: Judge W. Michael Maloan

Clifford Barker (“Employee”) worked for The Goodyear Tire & Rubber Company (“Employer”) from 1969 until 1999, when he retired. He filed this action seeking benefits for alleged work-related hearing loss on March 18, 2014. Employer disputed that Employee’s hearing loss was work-related. The trial court awarded benefits for 30% permanent partial disability to both ears. Employer has appealed from that award, contending the evidence preponderates against the trial court’s finding of causation. In the alternative, Employer argues that Employee sustained no vocational disability as a result of his hearing loss. The appeal has been referred to a 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 affirm the judgment in part, modify in part, and remand to the trial court for entry of a judgment consistent with this opinion.

Obion County Workers Compensation Panel 08/02/17