Court Opinions

Format: 03/19/2019
Format: 03/19/2019
Angela Charlene Iveson v. Jeffrey Wayne Iveson
M2018-01031-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Louis W. Oliver

This appeal concerns a post-divorce effort to modify a residential parenting schedule. Angela Charlene Iveson (“Mother”) filed a petition against ex-husband Jeffrey Wayne Iveson (“Father”) in the Chancery Court for Sumner County (“the Trial Court”) seeking to modify the permanent parenting plan applicable to their minor daughter (“the Child”). The petition proceeded to a bench trial. Afterward, the Trial Court entered an order reducing and restricting Father’s parenting time as well as increasing his child support obligation. Father appeals to this Court, arguing, among other things, that the restrictions placed upon his parenting time are unwarranted and that the Trial Court erred by using his income for the most recent one year rather than a three year average of his income for child support purposes. We find that the Trial Court’s decisions with respect to these discretionary issues have a sufficient evidentiary basis and are consistent with applicable law. Thus, the Trial Court did not abuse its discretion. We, therefore, affirm the judgment of the Trial Court.

Sumner County Court of Appeals 03/18/19
State of Tennessee v. Christopher Desmond Simpson
M2017-01734-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Stella L. Hargrove

The Defendant, Christopher Desmond Simpson, was convicted by a Lawrence County Circuit Court jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210 (2018). The Defendant was sentenced to twenty-five years’ incarceration. On appeal, he contends that (1) the trial court erred by denying his motion to suppress his pretrial statement, (2) the evidence is insufficient to support his conviction, (3) the trial court erred by denying his motion to sequester the jury, (4) the trial court erred by admitting autopsy photographs, (5) the trial court erred during jury instructions, and (6) the trial court erred during sentencing. We affirm the judgment of the trial court.

Lawrence County Court of Criminal Appeals 03/18/19
State of Tennessee v. Brandon Ramel Cole-Pugh
W2017-02402-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

A Madison County grand jury indicted the defendant, Brandon Ramel Cole-Pugh, with aggravated burglary and theft of property over $1,000. Following trial, a jury found the defendant guilty of aggravated criminal trespass, a lesser-included offense of aggravated burglary, and theft of property over $1,000, and the trial court imposed an effective sentence of eight years. On appeal, the defendant challenges the sufficiency of the evidence to support his theft of property conviction and requests plain error review of the prosecutor’s closing argument. After reviewing the record and considering the applicable law, we modify the defendant’s theft conviction from a Class D felony to a Class E felony based on the criminal savings statute and impose a sentence of four years’ confinement as a Range II offender. We affirm the judgments of the trial court in all other respects.

Madison County Court of Criminal Appeals 03/18/19
Fabian Claxton v. State of Tennessee
W2018-00618-CCA-R3-ECN
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

The petitioner, Fabian Claxton, appeals the denial of his petition for writ of error coram nobis by the Shelby County Criminal Court, arguing the trial court erred in dismissing the petition because newly discovered evidence exists in his case. After our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 03/18/19
State of Tennessee v. Gerardo Juarez aka Gerardo Juarez-Ortega
W2018-01054-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the defendant, Gerardo Juarez, of two counts of reckless endangerment, one count of attempted voluntary manslaughter, three counts of aggravated assault, and one count of employing a firearm during the commission of a dangerous felony. Following a sentencing hearing, the trial court imposed an effective sentence of eleven years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his aggravated assault and attempted voluntary manslaughter convictions. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. However, we remand the case for corrected judgment forms in Counts one, four, and five.

Shelby County Court of Criminal Appeals 03/18/19
Tiffany "Whitaker" Kramer v. Phillip John Kramer
E2018-00736-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Telford E. Forgerty, Jr.

In this appeal, the wife challenges the trial court’s division of the marital assets and liabilities. We find no error and affirm the judgment of the trial court.

Blount County Court of Appeals 03/18/19
Stephen Teague Et Al. v. Shane Bruce
E2018-02104-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge John D. McAfee

This is an appeal from a final order granting the petition, filed by the appellees, Stephen Teague, M.D., Mark Rasnake, M.D., University Infectious Disease, Lori Staudenmaier, D.O., and UT Family Physicians LaFollette, which sought a permanent restraining order against the appellant, Shane Bruce. The final order denying the pro se appellant’s motion to set aside the judgment, which the Trial Court treated as a motion for new trial, was entered on January 22, 2018. The appellant did not file his Notice of Appeal until November 21, 2018, more than thirty (30) days from the date of entry of the final order. The appellees filed a motion to dismiss this appeal arguing that the Notice of Appeal was not timely filed. We conclude that the appellees’ motion is well-taken and that we have no jurisdiction to consider this appeal.

Campbell County Court of Appeals 03/18/19
State of Tennessee v. Sharles Johnson
E2018-00810-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bobby R. McGee

The defendant, Sharles Johnson, appeals his Knox County Criminal Court jury conviction of theft. He challenges the sufficiency of the evidence as to the element of intent. We affirm the jury verdicts but remand the case for the entry of corrected judgments reflecting that the alternative counts of theft are merged.

Knox County Court of Criminal Appeals 03/15/19
State of Tennessee v. Daniel Earl Gentry
E2018-01010-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge David R. Duggan

The defendant, Daniel Earl Gentry, appeals the Blount County Circuit Court’s order revoking his probation and ordering him to serve the balance of his sentence in confinement. Discerning no error, we affirm.

Blount County Court of Criminal Appeals 03/15/19
Charles Montague v. State of Tennessee
E2018-01500-CCA-R3-HC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Stacy L. Street

The petitioner, Charles Montague, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged the judgments for his 1993 misdemeanor convictions of possession of drugs and drug paraphernalia. Discerning no error, we affirm.

Johnson County Court of Criminal Appeals 03/15/19
State of Tennessee v. Antonio Thomas
E2017-02378-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge G.Scott Green

Aggrieved of his Knox County Criminal Court jury conviction of possession of a firearm by a convicted felon, the defendant, Antonio Thomas appeals, challenging the sufficiency of the convicting evidence and arguing that the trial court erred by admitting into evidence certain Facebook messages in the absence of sufficient proof of the authenticity and reliability of the messages. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 03/15/19
Terry Johnson v. State of Tennessee
W2018-00693-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge John Wheeler Campbell

The petitioner, Terry Johnson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 03/14/19
Enhanceworks, Inc. v. Dropbox, Inc.
M2018-01227-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Joseph p. Binkley, Jr.

This appeal involves the issue of personal jurisdiction over Appellee, a Delaware corporation with its principal place of business in San Francisco, California. The trial court, on Appellee’s Tennessee Rule of Civil Procedure 12.02(2) motion to dismiss for lack of personal jurisdiction, decided it lacked personal jurisdiction and dismissed the case. Appellant appeals. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 03/14/19
State of Tennessee v. Harry Gilley
E2018-00691-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Thomas C. Greenholtz

The Defendant, Harry Gilley, pled guilty to one count of aggravated burglary, a Class C felony; four counts of burglary of a habitation under construction, Class D felonies; five counts of felony theft of property, Class E felonies; two counts of misdemeanor theft of property, Class A misdemeanors; and one count of vandalism of property, a Class A misdemeanor, stemming from charges in eight indictments. In exchange for his pleas, the Defendant received an effective Range III sentence of fifteen years with the manner of service to be determined by the trial court. After a hearing, the trial court ordered that the Defendant serve his sentence in confinement, which the Defendant appeals. After review, we affirm the sentencing decision of the trial court.

Hamilton County Court of Criminal Appeals 03/14/19
Timothy Clayton Thompson v. State of Tennessee
E2018-00403-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Bobby R. McGee

The Petitioner, Timothy Clayton Thompson, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends (1) that his guilty pleas were not knowingly and voluntarily entered because of the ineffective assistance of trial counsel; and (2) that trial counsel failed to adequately prepare for the Petitioner’s sentencing hearing. Discerning no error, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 03/14/19
Emil John Ford v. State of Tennessee
E2018-00702-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Steven W. Sword

The Petitioner, Emil John Ford, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that his guilty pleas were not knowingly and voluntarily entered because he was not informed “that he could be on the sex offender registry for life.” Discerning no error, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 03/14/19
Patrick Durkin v. MTown Construction, LLC
W2018-00953-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Rhynette N. Hurd

This is the second appeal from a trial court’s award in a case dealing with damage to real property. The plaintiff’s home had been damaged by a rainstorm while a construction company was in the middle of repairing the roof. The trial court entered an award in favor of the plaintiff for the reasonable costs of repair and remediation in the amount of $118,926.12 by totaling the damage estimate of the defendant’s insurance adjuster with the estimates provided by the plaintiff’s experts. While we affirm the trial court’s method of awarding damages based on the reasonable costs of repair, finding duplication in its award, we vacate the amount of the trial court’s judgment and remand the case for a new calculation of damages.

Shelby County Court of Appeals 03/13/19
Country Mile, LLC, Et Al. v. Cameron Properties
M2017-01771-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joseph A. Woodruff

Cameron Properties, LLC (“Landlord”) appeals the judgment of the Circuit Court for Williamson County (“the Trial Court”), which, inter alia, found Landlord in breach of a lease agreement with Country Mile, LLC (“Country Mile”) and awarded a judgment against Landlord of $18,037.75. Landlord raises issues, among others, regarding standing, whether Country Mile breached the lease agreement by failing to pay rent, and whether Landlord is entitled to an award of all of its attorney’s fees. We find and hold, that Country Mile, Well North, LLC, and Dean Pennington all had standing; that the Trial Court did not err in finding the tenants in breach but that Landlord had breached the lease agreement first; that the tenants proved $18,037.75 in damages from Landlord’s breach; and that pursuant to the lease agreement Landlord is entitled to an award of reasonable attorney’s fees due to the tenant’s breach. We affirm the Trial Court’s judgment.  

Williamson County Court of Appeals 03/13/19
State of Tennessee, Ex Rel. Herbert H. Slatery, III, Et Al. v. Volkswagen Aktiengesellschaft, Et Al.
M2018-00791-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

At issue in this appeal is the breadth of federal preemption under Title II of the federal Clean Air Act, 42 U.S.C. §§ 7521 to 7590, for claims that pertain to: (1) the initial manufacture and installation of “defeat device” software in emissions control systems in automobiles, and (2) post-sale software updates of emissions control systems during manufacturer recalls. The State of Tennessee brought this action against several automobile manufacturers for violating state anti-tampering laws by tampering with the emissions control systems in more than 8,000 of their “clean diesel” vehicles that were registered and operated in Tennessee from 2008 to 2015. The manufacturers responded by filing Tenn. R. Civ. P. 12.02(6) motions to dismiss arguing that all of the claims were preempted by the federal Clean Air Act. The trial court dismissed the claims that pertained to the initial manufacture and installation of emissions control systems for automobiles as expressly preempted by Section 209(a) of the act; however, the court denied the manufacturers’ motions to dismiss the claims that pertained to the post-sale software updates of emissions control systems during manufacturer recalls. We have determined that all of the State’s claims are preempted by the federal Clean Air Act. Therefore, we affirm the dismissal of the claims related to the initial manufacture and installation of emissions control systems, reverse the decision to deny the Rule 12 motions to dismiss the post-sale software updates and installations, and remand with instructions to dismiss all claims.

Davidson County Court of Appeals 03/13/19
Glenn R. Funk v. Scripps Media, Inc., Et Al.
M2017-00256-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Senior Judge William B. Acree

We granted review of this interlocutory appeal arising from a defamation action to address whether the Court of Appeals correctly determined that (1) a showing of malice cannot defeat the fair report privilege and (2) an assertion of the fair report privilege exempts the defendants from part of the protections of Tennessee Code Annotated section 24-1-208, Tennessee’s news media shield law. With respect to the first issue, we conclude that neither actual nor express malice defeats the privilege; the only limitations on the fair report privilege are that a report of an official action or proceeding must be fair and accurate. With respect to the second issue, we conclude that the fair report privilege is a defense based upon a source of information that renders the source of the statements the plaintiff alleges to be defamatory unprotected by Tennessee’s shield law. Accordingly, we affirm the judgment of the Court of Appeals on the separate grounds stated in this opinion and remand this case to the trial court. 

Davidson County Supreme Court 03/13/19
Sallie Lunn Tarver v. John Taylor Tarver, et al.
W2017-01556-COA-R3-CV
Authoring Judge: Senior Judge Robert E. Lee Davies
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a unique divorce proceeding. Throughout most of the parties’ 29-year marriage, the husband worked as vice president of his father’s railroad construction business. Numerous properties, assets, and accounts were jointly titled in the names of the husband and his father over the years. When the wife filed a complaint for divorce, she named as defendants not only the husband but also his father. Shortly thereafter, the husband’s father drastically reduced the amount of money the husband was receiving from the company. The divorce trial was conducted over the course of twelve days. The trial court classified some of the disputed assets as belonging solely to the husband’s father. It found that the husband had an ownership interest in other property and included it in the marital estate subject to equitable division. The trial court imputed income to both the husband and the wife and ordered the husband to pay alimony and child support. The parties raise various issues on appeal regarding the classification, valuation, and division of marital property, the imputation of income for purposes of alimony and child support, and the alimony award. The wife also seeks an award of attorney’s fees on appeal. For the following reasons, we affirm the trial court’s decision in all respects and deny the request for attorney’s fees on appeal.

Shelby County Court of Appeals 03/13/19
State of Tennessee v. Jerome Antonio McElrath
W2015-01794-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Jeff Parham


We granted the State’s permission to appeal in this case to determine whether to adopt, as a matter of state law, the good-faith exception to the exclusionary rule set forth by the United States Supreme Court in Herring v. United States, 555 U.S. 135 (2009), and if so, whether the Herring good-faith exception permits introduction of the evidence in this case. A Union City police officer arrested the defendant without a warrant because he was on a list of individuals who had been “barred” from housing authority property. The list in question was maintained by the Union City Police Department. Upon performing a search incident to arrest, the officer seized marijuana from the defendant. Nineteen days later, the same officer arrested the defendant on the same property based on the same list and again seized marijuana from the defendant. It was later discovered that the list was incorrect and that the defendant’s name should have been removed prior to the date of his arrests. The trial court suppressed the evidence in both cases, and the Court of Criminal Appeals affirmed. The trial court and the Court of Criminal Appeals based their decisions on Tennessee’s not having yet adopted Herring’s good-faith exception. Upon discretionary review, we adopt the good-faith exception as set forth by Herring but conclude that neither of the defendant’s arrests falls within the good-faith exception. Accordingly, the judgment of the Court of Criminal Appeals is affirmed
 

Obion County Supreme Court 03/12/19
State of Tennessee v. Joshua D. Johnson
E2018-00793-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James F. Goodwin, Jr.

The petitioner, Joshua D. Johnson, appeals the Sullivan County Criminal Court’s summary dismissal of his pro se petition for
post-conviction relief. Because the post-conviction court should have granted the petitioner an opportunity to amend his petition to comply with the statutory requirements, we reverse and remand.

Sullivan County Court of Criminal Appeals 03/12/19
In Re: Rilyn S.
E2018-00027-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael S. Pemberton

A putative father challenges the trial court’s decision to terminate his parental rights on five grounds. We find that the trial court erred in terminating the putative father’s rights for failure to support. In all other respects, we affirm the decision of the trial court.

Loudon County Court of Appeals 03/12/19
State of Tennessee v. Jerome Antonio McElrath - Concurring In the suppression of evidence; dissenting from the adoption of an exclusionary rule exception for constitutional violations caused by careless police recordkeeping
W2015-01794-SC-R11-CD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Jeff Parham

A Union City Police Department officer twice arrested and searched Jerome Antonio McElrath because of systemic and long-standing errors in the police department’s records. By stopping and searching McElrath without probable cause based on these errors, the police violated McElrath’s constitutional right to be free from unreasonable searches and seizures. I disagree with the majority’s adoption of an exception to the exclusionary rule to excuse negligent police recordkeeping. That said, I agree with the majority’s conclusion that the negligence exception does not apply here because of the police department’s systemically flawed recordkeeping process. The majority provides a good roadmap for trial courts to make the fact-intensive determination of whether isolated or systemic negligence caused the police error thus, whether the negligence exception applies. 

Obion County Supreme Court 03/12/19