Court Opinions

Format: 05/18/2022
Format: 05/18/2022
Metropolitan Government of Nashville and Davidson County et al. v. Tennessee Department of Education et al. - Concurring in Part & Dissenting in Part
M2020-00683-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor Anne C. Martin

SHARON G. LEE, J., with whom HOLLY KIRBY, J., joins, concurring in part and dissenting in part.
In this interlocutory appeal, the issues we address are whether the Plaintiffs,Metropolitan Government of Nashville and Davidson County (“Metro”) and Shelby County, have standing to challenge the constitutionality of the Tennessee Education Savings Account Pilot Program,2 (“the ESA Act”), and, if so, whether the ESA Act violates the Home Rule Amendment.
I agree with the Court that the Plaintiffs have standing to bring this action. The ESA Act causes a distinct and palpable injury to the Plaintiffs’ sovereignty—their right to control their local affairs—as guaranteed by the Home Rule Amendment. As we have held, the Home Rule Amendment was adopted “to strengthen local self-government” and “to fundamentally change” the relationship with the General Assembly. Civil Serv. Merit Bd.of Knoxville v. Burson, 816 S.W.2d 725, 728 (Tenn. 1991); S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d 706, 714 (Tenn. 2001). Based on the Home Rule Amendment, Tennessee’s counties and home-rule municipalities “derive their power from sources other than the prerogative of the legislature,” and they enjoy constitutional protection against local legislation enacted without their consent. S. Constructors, 58 S.W.3d at 714; Tenn. Const. art. XI, § 9, cl. 2. Thus, the Plaintiffs’ standing is based on the ESA Act’s impairment of their ability to self-govern regarding school funding.
I disagree with the Court that the ESA Act does not implicate the Home Rule Amendment. The Court’s decision ignores the acknowledged harm to the Plaintiffs’ sovereignty caused by the ESA Act.3 It is this established injury to the Plaintiffs’ ability to self-govern that the Home Rule Amendment was intended to protect. While the ESA Act facially refers only to a Local Education Agency (“LEA”),4 the Act substantially affects the Plaintiffs’ ability to decide issues of local concern. That is enough under our previous decisions to implicate the Home Rule Amendment. Without a provision of local approval as required by the Amendment, the ESA Act is unconstitutional.
 
Davidson County Supreme Court 05/18/22
State of Tennessee v. Devin Royce Knight
W2021-00159-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: J. Weber McCraw

A Fayette County jury convicted the Defendant, Devin Royce Knight, of attempt to commit first degree premeditated murder, aggravated domestic assault by strangulation, kidnapping, and vandalism under $1000, and the trial court imposed an effective twenty-two year sentence. On appeal, the Defendant asserts that the evidence is insufficient to sustain his convictions for attempt to commit first degree murder and kidnapping. After review, we affirm the trial court’s judgments.

Fayette County Court of Criminal Appeals 05/18/22
Metropolitan Government of Nashville and Davidson County et al. v. Tennessee Department of Education et al.
M2020-00683-SC-R11-CV
Authoring Judge: Chief Justice Roger A. Page
Trial Court Judge: Chancellor Anne C. Martin

This case is before us on an interlocutory appeal limited to a single claim: Plaintiffs’ constitutional challenge to the Tennessee Education Savings Account Pilot Program (the “ESA Act” or the “Act”), Tenn. Code Ann. §§ 49-6-2601 to -2612, under article XI, section 9 of the Tennessee Constitution (the “Home Rule Amendment” or the “Amendment”).  The trial court held that Plaintiffs had standing to pursue this claim and denied Defendants’ motions to dismiss on that basis.  The court held that the ESA Act is unconstitutional under the Home Rule Amendment and granted Plaintiffs’ motion for summary judgment on this claim.  The trial court then sua sponte granted Defendants an interlocutory appeal, and the Court of Appeals granted their application for an interlocutory appeal by permission pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.  The Court of Appeals affirmed the trial court’s judgment with respect to the issue of standing and the issue of the constitutionality of the ESA Act under the Home Rule Amendment.  We hold that Plaintiffs have standing to bring their Home Rule Amendment claim and affirm the judgment of the Court of Appeals with respect to that issue.  However, we hold that the ESA Act does not implicate the Home Rule Amendment such that the Act is not rendered unconstitutional by the Amendment, and we reverse the judgment of the Court of Appeals with respect to that issue.  Accordingly, the judgment of the trial court with respect to Plaintiffs’ claim under the Home Rule Amendment is vacated, and the case is remanded to the trial court for entry of a judgment dismissing that claim, for further proceedings consistent with this opinion, and for consideration of Plaintiffs’ remaining claims. 

Davidson County Supreme Court 05/18/22
State of Tennessee v. Timothy Mitchell Dawson
E2021-00913-CCA-R3-CD
Authoring Judge: Judge Curwood Witt, Jr.
Trial Court Judge: Judge Sandra Donaghy

The defendant, Timothy Mitchell Dawson, appeals his McMinn County Criminal Court Jury conviction of theft of property valued at more than $1,000 but less than $2,500, challenging the admission of evidence about an unrelated theft purportedly committed by the defendant and the sufficiency of the convicting evidence. Because the trial court erred by admitting evidence of the defendant’s uncharged conduct and because that error cannot be classified as harmless, we reverse the judgment of the trial court and remand the case for a new trial.

McMinn County Court of Criminal Appeals 05/18/22
Abraham A. Augustin v. Tennessee Department of Safety And Homeland Security
E2021-00635-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.

This case arises from the 2009 seizure of Appellant’s property and the subsequent forfeiture of same. Appellant petitioned for judicial review, and the trial court dismissed the petition for lack of subject matter jurisdiction. On appeal, we conclude that because Appellant’s petition was not filed within sixty days of receiving notice of the forfeiture, see Tenn. Code Ann. § 4-5-322(b)(1)(A)(iv), the trial court lacked subject matter jurisdiction to review the forfeiture. Accordingly, we affirm.

Knox County Court of Appeals 05/17/22
Nasser Luby Saleh v. Lystacha G. Pratt
E2021-00965-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises after the trial court found the defendant in contempt of an order of protection and sentenced him to 510 days of incarceration. We affirm the judgment holding the appellant in contempt in its entirety.

Knox County Court of Appeals 05/17/22
Jonathan Schelfe v. State of Tennessee
M2021-00501-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Christopher V. Sockwell

In 2013, the Petitioner, Jonathan Schelfe, pleaded guilty to ten counts of rape of a child, eight counts of aggravated sexual battery, four counts of rape, two counts of solicitation of a minor, and one count of sexual exploitation of a minor.  The trial court imposed an effective sentence of forty years of incarceration.  The Petitioner filed a motion to correct an illegal sentence with regard to four of his convictions, which the trial court denied.  This court affirmed the denial.  State v. Jonathan Schelfe, No. M2018-01604-CCA-R3-CD, 2019 WL 4071981, at *1 (Tenn. Crim. App., at Nashville, Aug. 29, 2019), no perm. app. filed.  Thereafter, the Petitioner filed a petition for writ of habeas corpus, alleging a violation of his constitutional rights, and the habeas court entered an order summarily dismissing the petition.  We affirm the habeas court’s judgment. 

Wayne County Court of Criminal Appeals 05/16/22
In Re Khalil J.
M2021-00908-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sheila Calloway

This appeal involves a petition to terminate parental rights.  The juvenile court found by clear and convincing evidence that three grounds for termination as to both mother and father were proven: (1) persistent conditions; (2) mental incompetence; and (3) failure to manifest an ability and willingness to assume custody or financial responsibility.  The juvenile court also found that termination was in the best interests of the child.  Both the mother and the father appeal.  We reverse the juvenile court’s finding of persistent conditions as to the mother and the father, but otherwise affirm the termination of parental rights.

Davidson County Court of Appeals 05/16/22
Tennessee Farmers Mutual Insurance Company v. David Payne, et al.
W2021-00376-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Yolanda Kight Brown

This appeal concerns a dispute over insurance coverage. Amy Higgs (“Higgs”) individually and on behalf of her deceased son, Cayson Emmit Turnmire (“Cayson”), sued David Payne (“Payne”) for the negligent maintenance of his property in relation to Cayson’s death by drowning in Payne’s swimming pool. Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”), Payne’s homeowners’ insurance carrier, filed a complaint for declaratory judgment in the Circuit Court for Shelby County (“the Trial Court”) against Payne and Higgs. Tennessee Farmers argued that, due to an exclusion in Payne’s homeowners’ insurance policy against claims “arising from or in connection with the swimming pool,” it is not obligated to defend or indemnify Payne. Tennessee Farmers and Higgs filed cross motions for summary judgment. The Trial Court granted Tennessee Farmers’ motion and denied Higgs’ motion. Higgs appeals. Citing the concurrent cause doctrine, Higgs argues that Tennessee Farmers must defend and indemnify Payne as, apart from the pool, certain non-excluded causes contributed to Cayson’s death—namely, Payne’s failure to fence or gate his property. We hold, inter alia, that each of Higgs’ alleged non-excluded concurrent causes are bound up inextricably with Cayson’s tragic drowning in Payne’s pool, an excluded cause under Payne’s insurance policy. We affirm.

Shelby County Court of Appeals 05/13/22
Larry Brown et al. v. Tennessee Department of Safety and Homeland and Security
M2021-00422-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ellen Hobbs Lyle

This case arises from the seizure of property owned by Appellants and the ensuing forfeiture action brought against them by Appellee Tennessee Department of Safety and Homeland Security.  After Appellee voluntarily dismissed the forfeiture action, the Administrative Law Judge awarded Appellants a portion of their requested attorney’s fees under Tennessee Code Annotated section 4-5-325(a).  The Chancery Court of Davidson County reversed the award of fees on its finding that Appellee did not issue a “citation” as required for recovery of attorney’s fees under section 4-5-325(a).  The trial court also held that Appellants were not entitled to recover attorney’s fees under 42 U.S.C. § 1988.  Discerning no error, we affirm.

Davidson County Court of Appeals 05/13/22
Ronald Wayne Gilbert v. State of Tennessee
E2021-00737-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge James L. Gass

Following a bench trial, Ronald Wayne Gilbert (“Petitioner”) was convicted of especially aggravated kidnapping and aggravated assault, for which he received an effective sentence of thirteen and one-half years’ incarceration. This court affirmed Petitioner’s convictions on direct appeal. State v. Ronald Wayne Gilbert, No. E2017-00396-CCA-R3-CD, 2018 WL 2411835, at *1 (Tenn. Crim. App. May 29, 2018), perm. app. denied (Tenn. Sept. 13, 2018). Petitioner filed a pro se post-conviction petition and an amended petition following the appointment of counsel. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that he was denied the effective assistance of counsel based on counsel’s failure to argue that the evidence was insufficient to sustain his conviction for especially aggravated kidnapping based on State v. White, 362 S.W.3d 559 (Tenn. 2012). Petitioner further argues that his conviction for especially aggravated kidnapping constitutes plain error. After a thorough review of the record and applicable case law, the judgment of the post-conviction court is affirmed.

Sevier County Court of Criminal Appeals 05/13/22
State of Tennessee v. Frank Barnett Palmer
M2021-00480-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

Defendant, Frank Barnett Palmer, entered a guilty plea as a Range II multiple offender, pursuant to Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), to one count of unlawful possession of a firearm by a convicted felon and one count of evading arrest in a motor vehicle, both Class E felonies.  As a part of the plea agreement, the State agreed to a sentence of two to four years on each count, to be determined by the trial court, with a forty-five percent release eligibility.  Following a hearing, the trial court sentenced Defendant to four years with a forty-five percent release eligibility on each count, with six months to serve in count one and the remainder of the sentences suspended to supervised probation, and ran the sentences consecutively.  On appeal, Defendant argues that his sentences are excessive and that the trial court erred in imposing split confinement.  After a thorough review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/13/22
Debra Jean Griffith-Ball v. Stanley Lauren Ball
M2020-00509-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kathryn Wall Olita

A husband and wife divorced after a long marriage.  They disputed whether certain assets were marital or separate property and whether the wife was entitled to alimony.  The trial court found that the disputed assets were the husband’s separate property.  And it awarded the wife alimony in futuro, as well as attorney’s fees as alimony in solido.  Upon our review, we find the evidence preponderates against the finding that the assets are separate property.  So, with those assets included in the marital estate, we remand for a new property division.  And, because the division of marital property is a factor in awarding alimony, we vacate the alimony awards.  On remand, the court should consider whether alimony is still appropriate under its new property division and, if so, the type, amount, and duration of the award. 

Montgomery County Court of Appeals 05/13/22
Christopher C. Solomon v. State of Tennessee
M2021-00739-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The Petitioner, Christopher C. Solomon, pleaded guilty to aggravated vehicular homicide, aggravated vehicular assault, and leaving the scene of an accident resulting in death, and he received an effective thirty-three-year sentence.  The Petitioner filed a petition for post-conviction relief, contending that he received ineffective assistance of counsel when trial counsel failed to seek the trial judge’s recusal at sentencing.  Following a hearing, the post-conviction court denied the petition, and the Petitioner appeals.  After review, we affirm the judgment of the post-conviction court.  

Sumner County Court of Criminal Appeals 05/13/22
State of Tennessee v. James Stanley Radzvilowicz
M2021-00671-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, James Stanley Radzvilowicz, pled guilty in the Moore County Circuit Court to aggravated assault and was sentenced by the trial court to four years, six months, with eight months in confinement before release on supervised probation.  On appeal, the Defendant argues that the trial court erred by denying his request for either judicial diversion or, in the alternative, full probation.  After review, we affirm the judgment of the trial court. 

Moore County Court of Criminal Appeals 05/12/22
State of Tennessee v. James Theodore Menard, Alias
E2021-00164-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Defendant, James Theodore Menard, alias, was convicted by a jury of rape of a child, exhibition of pictures depicting sexual conduct harmful to a minor, and two distinct counts of aggravated sexual battery, for which he received an effective forty-two-year sentence. On appeal, the Defendant argues that (1) the trial court committed plain error by allowing references to the victim’s forensic interview, as well as permitting remarks that the victim made allegations against the Defendant while at school; (2) the trial court committed reversible error by letting the State make improper comments during closing argument; and (3) the cumulative effect of these errors deprived him of a fair trial. Following our review, we affirm. However, we must remand for a clerical error in the judgment form for Count 3.

Knox County Court of Criminal Appeals 05/12/22
Vatisha Evans-Barken v. Madison County, Tennessee
W2020-01101-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor James F. Butler

Appellee, a Sergeant with the Madison County Sheriff’s Department, sought judicial review of the Civil Service Board’s affirmance of the Sheriff Department’s decision to terminate her employment. On its finding that the Board failed to consider all relevant evidence presented, the trial court exercised its discretion to remand the case to the Board for rehearing. Tenn. Code Ann. § 4-5-322(h). Appellant, Madison County, Tennessee, filed the instant appeal. We conclude that the trial court’s remand order is not a final, appealable order under Tennessee Rule of Appellate Procedure 3(a). As such, this Court does not have subject matter jurisdiction over the appeal. Appeal dismissed.

Madison County Court of Appeals 05/11/22
In Re Arianna B. et al.
M2021-00980-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Ronald Thurman

In this termination of parental rights case, Appellant Father appeals the trial court’s termination of his parental rights to the two minor children on the ground of abandonment by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv).  Appellant also appeals the trial court’s finding that termination of his parental rights is in the children’s best interest.  Discerning no error, we affirm.

Putnam County Court of Appeals 05/11/22
Darrell Wren v. State of Tennessee - Dissent
W2021-00485-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John Wheeler Campbell

I respectfully disagree that the interests of justice are best served by granting a waiver of Petitioner’s untimely notice of appeal in this case. The notice of appeal, although only tardy by seven days, was nonetheless untimely. Petitioner has not sought waiver and offers no reason for such a break. Even after having an opportunity to reply to the State’s argument that this Court should dismiss the Petitioner’s untimely appeal, the Petitioner did not. There is simply no basis upon which this Court may find that the “interests of justice” merit a waiver of the untimely filed notice of appeal. See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (“If this [C]ourt were to summarily grant a waiver whenever confronted with untimely notices, the thirty-day requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal fiction.”). Accordingly, I would find that the appeal should be dismissed.

Shelby County Court of Criminal Appeals 05/11/22
Darrell Wren v. State of Tennessee
W2021-00485-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

The Petitioner, Darrell Wren, appeals the summary dismissal of his petition for postconviction relief as time-barred. He asserts on appeal that his petition was timely filed or alternatively that due process considerations warranted the tolling of the one-year statute of limitations mandated by Tennessee Code Annotated section 40-30-102(a). He further asserts that post-conviction counsel’s violation of Tennessee Supreme Court Rule 28 section 6(C) requires remand. Following our review, we affirm the dismissal of the petition.

Shelby County Court of Criminal Appeals 05/11/22
State of Tennessee v. $133,429 In U.S. Currency Seized From Joni Assefa Kilenton, et al.
W2021-01005-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge J. Weber McCraw

In this seizure and forfeiture action, we do not reach the substantive issues because the order granting the forfeiture does not comply with the requirements of Tennessee Rule of Civil Procedure 58 for entry of judgments. Nonetheless, we exercise our discretion under Tennessee Rule of Appellate Procedure 2 to take jurisdiction of the appeal for the limited purpose of instructing the trial court to enter an order on remand that not only complies with Rule 58, but also makes sufficient findings to enable this Court to make a meaningful review as required under Tennessee Rule of Civil Procedure 52.01. Vacated and remanded.

Fayette County Court of Appeals 05/10/22
Leah Ward v. State of Tennessee
W2021-00952-CCA-R3-ECN
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Jennifer Mitchell

The petitioner, Leah Ward, appeals the dismissal of her petition for writ of error coram nobis, which petition challenged her 2005 Shelby County Criminal Court Jury conviction of first degree murder, arguing that the coram nobis court should have held a hearing on her petition. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 05/10/22
David Frazier v. State of Tennessee
W2021-01475-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Carolyn Wade Blackett

The petitioner, David Frazier, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged his Shelby County Criminal Court guilty-pleaded conviction of rape of a child, arguing that the trial court’s order denying habeas corpus relief does not contain sufficient factual and legal findings to facilitate appellate review. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 05/10/22
State of Tennessee v. Zachery Brandon
M2020-01092-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Zackery Brandon, was convicted by a Davidson County Criminal Court jury of attempted aggravated robbery, especially aggravated robbery, and aggravated robbery and was sentenced by the trial court as a Range I, standard offender to an effective term of twenty-five years in the Tennessee Department of Correction.  On appeal, the Defendant argues that the evidence was insufficient to sustain his convictions and that the trial court erred in admitting the unsworn recorded statement of one of his
co-defendants.  After review, we affirm the judgments of the trial court.  

Davidson County Court of Appeals 05/10/22
In Re Analesia Q.
E2021-00765-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brad Lewis Davidson

The Tennessee Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights of Cindy B. (“Mother”) and Francisco Q. (“Father”) to their minor daughter, Analesia Q. (the “Child”). Following a bench trial, both parents’ rights were terminated pursuant to several statutory grounds, and Father appeals. He challenges the statutory grounds for termination, the trial court’s finding that termination of his rights was in the Child’s best interests, and the trial court’s decision to admit hearsay testimony regarding potential abuse of the Child pursuant to Tenn. R. Evid. 803(25). We reverse the trial court’s decision to terminate Father’s parental rights for abandonment by failure to visit and severe abuse, and vacate the trial court’s decision to terminate Father’s parental rights for failure to manifest an ability and willingness to assume custody or financial responsibility of the Child. We affirm the termination of Father’s parental rights as to the remaining grounds, as well as the holding that termination of Father’s parental rights is in the Child’s best interests. The ultimate decision of the trial court is therefore affirmed.

Cocke County Court of Appeals 05/10/22