Court Opinions

Format: 06/28/2022
Format: 06/28/2022
State Of Tennessee v. Michael Shepard
M2021-01346-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt Jr.
Trial Court Judge: Judge Brody Kane

The defendant, Michael Shepard, appeals the summary dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence imposed for his 2017 Wilson County Criminal Court Jury convictions of statutory rape by an authority figure. Discerning no error, we affirm the ruling of the trial court.

Wilson County Court of Criminal Appeals 06/23/22
State of Tennessee v. Kevin Wayne Newson
M2021-00444-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Kevin Wayne Newson, was convicted by a Davidson County Criminal Court jury of first degree premeditated murder, first degree felony murder, attempted first degree premeditated murder, employing a firearm during the commission of a dangerous felony, and convicted felon in possession of a firearm.  The trial court merged the first degree murder convictions and sentenced the Defendant to an effective term of life plus sixty years in the Tennessee Department of Correction.  On appeal, the Defendant challenges the sufficiency of the evidence, the trial court’s sentencing determinations, the trial court’s denial of the Defendant’s request that the jury be instructed on aggravated assault resulting in death as a lesser-included offense of premeditated murder, the trial court’s grant of the State’s request that language regarding the Defendant’s duty to retreat be included in the jury instruction on self-defense, and various other rulings of the trial court.  With respect to the self-defense instruction, the Defendant argues that duty to retreat language was prejudicially erroneous because the only criminal activity in which the Defendant was involved at the time of the shooting, i.e, being a convicted felon in possession of a firearm, had no nexus to the events that gave rise to the shooting.  Based on our review, we affirm the judgments of the trial court. 

Davidson County Court of Criminal Appeals 06/23/22
In Re C.T.
E2021-01336-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Jeffrey D. Rader

This appeal involves termination of the parental rights of an incarcerated putative father. The trial court found by clear and convincing evidence that grounds for termination existed and that termination was in the best interest of the child. We affirm and remand for further proceedings.

Sevier County Court of Appeals 06/22/22
Barbara Cunningham v. Fresenius Medical Care, Inc. et al.
M2021-01087-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Thomas W. Brothers

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Davidson County Court of Appeals 06/22/22
State of Tennessee v. Otto Karl Appelt
E2020-01575-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Sandra Donaghy

The Appellant, Otto Karl Appelt, was convicted in the Bradley County Criminal Court of vandalism of property valued more than $1,000 but less than $2,500, a Class E felony. After a sentencing hearing, the trial court sentenced him as a Range I, standard offender to two years to be served as four months in confinement followed by supervised probation and ordered that he pay $2,000 in restitution. On appeal, the Appellant contends that he was denied his right to counsel because the trial court failed to consider whether his waiver of counsel was knowing and intelligent; that the evidence is insufficient to support his conviction; that the trial court erred by sentencing him to the maximum punishment in the range and by not granting his request for full probation; and that the trial court erred by setting his amount of restitution at $2,000 and by not considering his ability to pay. The State concedes error in the trial court’s restitution order. Based upon the oral arguments, the record, and the parties’ briefs, we reverse the trial court’s order that the Appellant pay $2,000 in restitution and remand the case for further proceedings consistent with this opinion. The judgment of the trial court is affirmed in all other respects.

Bradley County Court of Criminal Appeals 06/22/22
State of Tennessee v. Javier C. Perez
E2021-00475-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Stacy L. Street

A Washington County Criminal Court convicted the Appellant, Javier C. Perez, of possessing .5 grams or more of methamphetamine, a Schedule II controlled substance, with the intent to sell, a Class B felony. See Tenn. Code Ann. § 39-17-434. The trial court sentenced the Appellant to eight years of incarceration in the Tennessee Department of Correction. On appeal, the Appellant raises the following issues for review: (1) whether the evidence was sufficient to sustain his conviction; (2) whether the trial court erred by instructing the jury pursuant to Tennessee Code Annotated section 39-17-419 that they could infer the intent to sell based upon the amount of drugs possessed; (3) whether the trial court erred in denying the Appellant’s motion for mistrial after Officer Curtis testified regarding “drug mules”; (4) whether the trial court committed plain error by allowing the State to “vouch against the Appellant’s credibility in its closing arguments”; and (5) whether the trial court erred in denying the Appellant’s motion for new trial based on newly discovered evidence. Upon review, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 06/21/22
Anthony Lee Moosman v. State of Tennessee
E2021-00639-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt
Trial Court Judge: Judge William K. Rogers

The petitioner, Anthony Lee Moosman, appeals the denial of his petition for post conviction relief, which petition challenged his
guilty-pleaded convictions of first degree murder, attempted first degree murder, especially aggravated burglary, attempted aggravated robbery, aggravated assault, and unlawful carrying of a weapon, alleging that he was deprived of the effective assistance of counsel and that his guilty pleas were not entered knowingly and voluntarily. Discerning no error, we affirm the denial of postconviction relief.

Sullivan County Court of Criminal Appeals 06/21/22
In Re Jose A.
M2021-00828-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Donna Scott Davenport

A relative of an undocumented minor filed a guardianship petition in juvenile court.  The petition also requested that the court make special findings to enable the minor to apply for special immigrant juvenile status under federal law.  The juvenile court issued a guardianship order with special findings but only after the minor turned 18.  On appeal, the relative raises issues with the court’s special findings.  We conclude that the juvenile court lost subject matter jurisdiction to appoint a guardian once the minor turned 18.  So we do not reach the merits of this appeal.  We vacate the court’s decision with directions to dismiss the guardianship petition.

Rutherford County Court of Appeals 06/21/22
State of Tennessee v. Timothy M. Dawson
E2021-00313-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge Sandra N.C. Donaghy

The Defendant, Timothy M. Dawson, pled guilty to possession of drug paraphernalia before he was found guilty of simple possession of methamphetamine by a jury. The Defendant was also convicted of theft in two separate, unrelated cases. Following a consolidated sentencing hearing on all three cases, the trial court sentenced the Defendant to consecutive terms of eleven months and twenty-nine days for his two Class A misdemeanor convictions in this case, finding that the Defendant was a professional criminal and that he had an extensive criminal history. The Defendant appeals, challenging the trial court’s consecutive sentencing determination based upon aspects of the consolidated nature of the sentencing hearing. Following our review, we affirm.

McMinn County Court of Criminal Appeals 06/21/22
Amy Frogge et al. v. Shawn Joseph et al. - Concurring
M2020-01422-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

W. Neal McBrayer, J., concurring.

This is an appeal from the chancery court’s grant of summary judgment to the plaintiffs, elected officials who serve on the Metropolitan Nashville Board of Public Education (“the Board”).  In response to the motion for summary judgment, the defendants, the Board and Metro’s former director of schools, Dr. Shawn Joseph, relied on arguments they made in unsuccessful motions to dismiss.  Although the majority reviews and rejects the defendants’ arguments that the plaintiffs lacked standing and that their claims were not ripe, the court does not review the grant of summary judgment.  I agree with the court’s conclusions on both standing and ripeness.  But I write separately because the scope of the court’s review was too narrow.

Davidson County Court of Appeals 06/20/22
Amy Frogge et al. v. Shawn Joseph et al.
M2020-01422-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Three members of a school board filed this lawsuit after the school board passed a resolution approving a severance agreement with the director of schools that contained a non-disparagement clause preventing the individual school board members from expressing even truthful criticism of the director of schools.  The plaintiff board members named as defendants the school board and the director of schools.  They sought a declaratory judgment that the non-disparagement clause violated their free speech rights under the First and Fourteenth Amendments to the United States Constitution and Article I Section 19 of the Tennessee Constitution, was unconstitutionally overbroad, and was unenforceable as against the public policy of the State of Tennessee.  They also sought a permanent injunction preventing enforcement of the non-disparagement clause and an award of their attorney fees and costs pursuant to 42 U.S.C. § 1988(b).  The plaintiffs moved for summary judgment on numerous alternative grounds.  The defendants filed motions to dismiss for failure to state a claim, lack of standing, and lack of ripeness.  After a hearing, the trial court entered an order denying the defendants’ motions to dismiss and granting the plaintiffs’ motion for summary judgment.  The trial court found that the non-disparagement clause was unenforceable and unconstitutional on several grounds.  It permanently enjoined enforcement of the clause and awarded the plaintiffs their attorney fees.  The defendants appeal, arguing that the case should have been dismissed for lack of standing and ripeness.  We affirm and remand for further proceedings.

Davidson County Court of Appeals 06/20/22
Jamie Henderson, as Surviving Spouse of David Joe Turner v. Pee Dee Country Enterprises, Inc. et al.
M2021-00970-SC-R3-WC
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Chief Judge Kenneth Switzer

This appeal arises from an award of attorneys’ fees.  At issue is whether the trial court, when determining an award of fees in a workers’ compensation death case, must consider the reasonableness of the attorneys’ fees or whether the trial court must deem the fees reasonable if the fees do not exceed twenty percent of the award. Employer also takes issue with a lump sum award of attorneys’ fees.  We affirm the trial court’s award of $46,457.10 in lump sum.

Workers Compensation Panel 06/20/22
Western Express Inc. d/b/a Western Logistics v. State to State Transport Inc. et al.
M2022-00103-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kelvin D. Jones

An interstate motor carrier appeals a $35,777.00 judgment. Because the judgment does not resolve all of the claims between all of the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 06/20/22
In Re Estate of John Bruce Wilson
M2021-01549-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

This is an appeal from the dismissal of a petition for a declaratory judgment regarding a will and trust. Because the appellant did not file his notice of appeal within thirty days after entry of the final judgment as required by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Montgomery County Court of Appeals 06/20/22
State of Tennessee v. Jonathan Everett
W2021-00677-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Jonathan Everett, was convicted of second degree murder, attempted voluntary manslaughter, and reckless endangerment, and he received an effective sentence of twenty-nine years, eleven months, and twenty-nine days. He filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 alleging that his sentence was illegal because the trial court erred by misapplying enhancement factors, by imposing the maximum sentence within the sentencing range for second degree murder, and by imposing consecutive service. The trial court summarily dismissed the motion for the failure to state a colorable claim. On appeal, the Defendant contends that the trial court erred by summarily dismissing his motion. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/17/22
Adam J. Rothberg v. Fridrich & Associates Insurance Agency, Inc. et al.
M2022-00795-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Kelvin D. Jones

This is an expedited appeal pursuant to Tennessee Supreme Court Rule 10B.  Based on the Appellant’s failure to comply with the requirements of Rule 10B, we dismiss the appeal.

Davidson County Court of Appeals 06/17/22
Willie Nolan v. State of Tennessee
W2021-00587-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

The Petitioner, Willie Nolan, appeals the Shelby County Criminal Court’s denial of his petition seeking post-conviction relief from his convictions of attempted reckless endangerment, aggravated assault, reckless aggravated assault, felony reckless endangerment, and vandalism by a Shelby County jury, claiming he received ineffective assistance of counsel at trial. State v. Willie Nolan, No. W2014-00990-CCA-R3-CD, 2015 WL 5838739, at *1 (Tenn. Crim. App. Oct. 7, 2015), perm. app. denied (Tenn. Feb. 18, 2016). Upon review, we affirm.

Shelby County Court of Criminal Appeals 06/16/22
State of Tennessee v. Olajowon D. Smith
W2021-00730-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

The Defendant, Olajowon D. Smith, entered guilty pleas to one count of possession of 0.5 ounces or more of marijuana with the intent to deliver, a Class E felony, and one count of unlawful possession of a weapon, a Class C misdemeanor. Although the Tennessee Bureau of Investigation (“TBI”) provided a certification that the Defendant had no prior convictions disqualifying him from eligibility for diversion, the trial court found that he had previously served time in confinement for a Class A misdemeanor and that he was accordingly ineligible for diversion. The court sentenced the Defendant to an aggregate eighteen-month sentence, with sixty days to be served in confinement and the remainder on probation. The Defendant appeals, challenging the trial court’s determination that his prior conviction was a Class A rather than a Class C misdemeanor and its failure to weigh the appropriate diversionary factors. We conclude that the evidence does not preponderate against the trial court’s findings and that the trial court was not required to consider the diversionary factors once it determined the Defendant was ineligible for diversion, and we affirm the judgment.

Lauderdale County Court of Criminal Appeals 06/16/22
In Re Addisyn P. et al.
M2021-00871-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Lee Bussart

In this case involving termination of the father’s parental rights to his children, the Marshall County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence.  The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest.  The father has appealed.  Discerning no reversible error, we affirm.

Marshall County Court of Appeals 06/16/22
In Re Khloe O.
M2021-01125-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Larry B. Stanley, Jr.

This appeal involves a petition to terminate parental rights and for adoption.  The chancery court found by clear and convincing evidence that a ground for termination was proven and that termination was in the best interests of the child.  The mother appeals.  We vacate and remand.

Warren County Court of Appeals 06/16/22
Lauren Frontz v. Tristan J. Hall
E2021-00154-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Gregory S. McMillan

Lauren Frontz (“Petitioner”) filed a petition for an order of protection against her ex-boyfriend Tristan J. Hall (“Respondent”) on July 31, 2020. The trial court granted an ex parte order of protection and set a hearing for ten days later. Several bridging orders were subsequently entered by the trial court extending the length of time for the protective order. Petitioner alleged Respondent was guilty of criminal contempt by violating the order of protection. After a hearing, the trial court found Respondent guilty on five counts of criminal contempt and sentenced him to fifty days in jail. The trial court also awarded Petitioner her attorney’s fees in the amount of $77,525.75. Respondent appeals, arguing that the bridging orders were invalid and that the trial court erred in its award of attorney’s fees. We affirm.

Knox County Court of Appeals 06/15/22
James Scarlett v. AA Properties, GP
E2021-00615-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge E. Jerome Melson

In this appeal, the parties have stipulated that the trial court erred in awarding the appellee attorney’s fees incurred in an earlier appeal under Tennessee Code Annotated section 20- 12-119(c)(1). So we reverse.

Knox County Court of Appeals 06/14/22
George Campbell, Jr. v. Bert Boyd, Warden
W2021-00541-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, George Campbell, Jr., acting pro se, appeals the Shelby County Criminal Court’s summary dismissal of his second petition for habeas corpus relief. We affirm.

Shelby County Court of Criminal Appeals 06/13/22
State of Tennessee v. Kacy Rose
W2021-00995-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, Kacy Rose, appeals from the revocation of his probationary sentence. On appeal, Defendant argues that (1) the trial court abused its discretion in failing to consider a potential conflict of interest, (2) the trial court erred in denying his motion to correct a clerical error in the order revoking Defendant’s probation, and (3) his right to a speedy trial was violated. Following our review of the record and briefs, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 06/13/22
Steven Simmons v. Mayor Jim Strickland, et al.
W2020-01562-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Robert Samual Weiss

In this appeal from the trial court’s dismissal of a complaint pursuant to Tennessee Rule of Civil Procedure 12.02 on the defenses of lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, we affirm the trial court. We also conclude the appeal is frivolous and remand for an assessment of damages.

Shelby County Court of Appeals 06/13/22