James Eberle et al v. Lisa Parrott Elliott, et al.
This is a contested easement action regarding wooded mountain property in Monroe County. The Plaintiffs/Appellants, James and Edna Eberle, filed a complaint requesting that the Defendant/Appellee, Lisa Parrott Elliott, be enjoined from crossing the Eberles’ property from her adjoining thirty-acre tract without benefit of an easement. Following a bench trial, the Monroe County Chancery Court dismissed the Eberles’ complaint for injunctive relief and ruled that an easement exists for ingress and egress over the Eberles’ property, appurtenant to and serving Ms. Elliott’s property. The Eberles have appealed. At issue is whether the trial court erred by finding the existence of an easement, either express, prescriptive, or implied. The Eberles also assert that the trial court erred by failing to limit the easement to a use no greater than the use previously made over the servient property. Discerning no error, we affirm the trial court’s ruling that an easement exists for ingress and egress and the court’s dismissal of the complaint for injunctive relief. |
Monroe | Court of Appeals | |
State of Tennessee v. Albert C. Scott
A Davidson County jury convicted the Defendant, Albert C. Scott, of two counts of rape. The trial court merged the convictions and sentenced the Defendant to serve twelve months of incarceration, followed by nine years of probation. On appeal, the Defendant challenges the State’s evidence against him, asserting that the State failed to prove the Defendant possessed the requisite mens rea for the crime. After a thorough review of the record and applicable law, we conclude there exists no error. We, therefore, affirm the trial court’s judgment. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. Beau Clayton Epperson
Defendant, Beau Clayton Epperson, entered a “best interest” guilty plea in the Circuit Court of Sevier County to the offense of domestic assault, a Class A misdemeanor. There was no negotiated plea agreement as to the length or manner of service of the sentence. Following a sentencing hearing, the trial court announced the following sentence: eleven (11) months, twenty-nine (29) days in the county jail, specifying that under the “sentencing structure” the sentence was to be “one hundred percent of seventy-five percent of eleven months and twenty-nine days.” The trial court declined to grant a fully suspended sentence, but imposed a sentence of split confinement, with ninety (90) days to be served by incarceration, with the balance of the sentence suspended, to be served on supervised probation. Pursuant to Tennessee Code Annotated section 40-35-303(c)(2)(B), the trial court ordered the probationary period to be two (2) years. Defendant has raised two issues on appeal. First, he asserts that the trial court imposed an illegal sentence which exceeded the maximum statutory allowable sentence. Second, he argues the trial court erroneously ordered a two year probationary period when it failed to make mandatory findings of fact. After a thorough review we affirm the judgment of the trial court. |
Sevier | Court of Criminal Appeals | |
State of Tennessee v. Malcolm Witherow
A Hamilton County jury convicted the Defendant-Appellant, Malcolm Witherow, of first degree murder for which he received a sentence of life imprisonment. On appeal, Witherow argues the evidence was insufficient to support his conviction, the trial court erred in not allowing prior inconsistent recorded statements by a witness to be admitted as substantive evidence under Tennessee Rule of Evidence 803(26), and the trial court erred in denying his motion for mistrial based upon statements the prosecutor made in closing argument. Discerning no reversible error, we affirm the judgment of the trial court. |
Hamilton | Court of Criminal Appeals | |
State of Tennessee v. Rodney Dewayne Burton
Pursuant to a plea agreement, appellant, Rodney Dewayne Burton, entered a "no contest" plea for criminally negligent homicide, a Class E felony, with sentencing to be determined by the trial court. Following a sentencing hearing, the trial court sentenced appellant to two years, suspended the sentence, and placed appellant on probation. On appeal, appellant contends that the trial court misapplied an enhancement factor when determining his sentence and asks that this court reduce his sentence to a one-year suspended sentence. Following our review, we affirm the judgment of the trial court. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Lorenzoe Landell Wilson
The Defendant-Appellant, Lorenzoe Landell Wilson, appeals the Robertson County Circuit Court’s imposition of consecutive sentences of eleven months and twenty-nine days in confinement for his vandalism conviction in case number 117014 and eleven months and twenty-nine days, with 180 days to be served in confinement and the balance of the sentence to be served on probation, for his assault conviction in case number 118034. These sentences were imposed by the circuit court after it revoked Wilson’s probation in these cases. Wilson also appeals the Robertson County Circuit Court’s imposition of a suspended sentence of eleven months and twenty-nine days for his second assault conviction in case number 118603, which the court ordered to be served consecutively to the aforementioned sentences. On appeal, Wilson argues: (1) the circuit court wholly departed from the sentencing act when sentencing him for the second assault conviction, and (2) the circuit court, in revoking his probation, erred in failing to restart his probation anew, given his ability to comply with the terms of probation. Upon review, we affirm the judgment of the circuit court but remand the case for entry of a corrected judgment showing that the percentage of service for the sentences in case numbers 118034 and 118603 is zero percent. |
Robertson | Court of Criminal Appeals | |
State of Tennessee v. Charles Ewing Kennedy
Appellee, Charles Ewing Kennedy, was indicted by the Maury County Grand Jury for driving under the influence, second offense; speeding; and violation of the implied consent law. Appellee moved to suppress the evidence against him regarding the driving under the influence count. The trial court granted his motion to suppress. This court granted the State’s application for permission to appeal. On appeal, the State argues that the trial court incorrectly applied a sufficiency of the evidence standard when granting appellee’s motion to suppress rather than making a probable cause determination. The State urges this court to reverse the trial court’s ruling and to conclude that the police had probable cause to arrest appellee for driving under the influence. Following our review, we reverse the ruling of the trial court and remand for further proceedings consistent with this opinion. |
Maury | Court of Criminal Appeals | |
Oscar Thomas v. State of Tennessee
Oscar Thomas (“the Petitioner”) filed a petition for post-conviction relief from his guilty-pleaded convictions for carjacking and employing a firearm during the commission of a dangerous felony. After an evidentiary hearing, the post-conviction court denied relief, and this appeal followed. On appeal, the Petitioner contends that his plea was constitutionally invalid due to the ineffective assistance of counsel. He also contends that his employing a firearm during the commission of a dangerous felony conviction violates Tennessee Code Annotated section 39-17-1324(c). Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Raleigh Commons, Inc. v. SWH, LLC, et al.
This appeal arises from a prolonged dispute among business associates which they have come to refer to as a “business divorce.” The parties in this matter, each doctors, formed a limited liability company for the purpose of acquiring property and constructing a medical office building on the property. In order to acquire the property from the current owner, the doctors executed an assumption and modification agreement whereby the LLC and the doctors each individually agreed to be jointly and severally liable to the current owner for its obligations on a promissory note. Subsequently, one of the doctors, the Appellee, withdrew membership from the LLC and executed an indemnity agreement with the remaining LLC members whereby the Appellee would be held harmless from any liability of the LLC, including the note. Thereafter, the LLC and its remaining members defaulted on the note, and the holder of the note filed a complaint against the Appellee, the LLC, and the individual LLC members, seeking to collect the balance due under the note. In order to avoid having a judgment entered against him, the Appellee purchased the note and pursued a claim against the LLC and its individual members for indemnification and breach of the note. Ultimately, the trial court granted the Appellee’s motion for summary judgment on his indemnification claim, awarded him attorney’s fees, costs, and prejudgment interest, and dismissed the Appellant’s cross-claims against the Appellee. After thoroughly reviewing the record, we affirm in part, reverse in part, vacate in part, and remand for further proceedings. |
Shelby | Court of Appeals | |
State of Tennessee v. Malcolm J. Coble
The Defendant, Malcolm J. Coble, contends that his right to a speedy trial was violated when the trial court revoked his community corrections sentence on the basis of a 2010 violation warrant, later amended in 2012, because the warrants were not executed and an evidentiary hearing held until 2012. After a review of the record and the applicable authorities, we affirm the judgment of the trial court. |
Madison | Court of Criminal Appeals | |
Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals et al.
The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed. |
Shelby | Supreme Court | |
City of South Pittsburg, Tennessee v. James C. Hailey and Company, et al
In April 2008 the City of South Pittsburg hired a contractor to enlarge its sewage treatment plant. During construction of the project several sink holes developed, the last of which occurred in February of 2009 and caused the plant’s lagoon to collapse. The City made claim on the contractor’s builders’ risk insurance policy; the insurer denied the claim, contending that construction of the project was complete at the time of the collapse. The City, which had filed suit against the contractor, amended the complaint, adding the insurer as a party and asserting a claim for breach of contract against the company; the City also requested that the court issue a declaratory judgment that the losses sustained by the city were covered by the policy. The court subsequently granted the insurance company’s motion for summary judgment and denied the city’s motion for partial summary judgment. The city and the engineering firm engaged by the City to plan the project appeal the grant of summary judgment to the insurer and the denial of the city’s motion. We have determined that the court erred in granting the insurer’s motion and denying the City’s; consequently, we reverse both judgments. |
Court of Appeals | ||
Lisa Gail Hayes v. Mark C. Pierret
In these acrimonious post-divorce proceedings, the father of two minor children filed a petition seeking, inter alia, to be given sole decision-making authority over the children’s educations, non-emergency health care, religion, and extracurricular activities, and to be designated the primary residential parent or alternatively to receive more parenting time. The trial court found a material change of circumstances had occurred due to the parties’ total inability to cooperatively co-parent and that it was in the children’s best interest to spend more quality time with their father. However, the court found it was in the children’s best interest for the mother to remain the primary residential parent and to have final authority over the children’s non-emergency medical care after consultation with the father. The court found that the other major decisions concerning the children should be made jointly. Each party was ordered to pay his or her own attorney’s fees. We affirm the foregoing decisions; however, we have determined the father may be entitled to a modification of his child support obligation, which was not addressed in the trial court’s final order, and we remand this issue for further proceedings. |
Williamson | Court of Appeals | |
In Re: Estate of Jane Kathryn Ross
The trial court decreed a resulting trust in a house paid for by the decedent on property owned by her son. We have concluded that the trial court erred. |
Davidson | Court of Appeals | |
Don Mabee v. Gayle Mabee
The ex-husband of the defendant filed a petition to terminate alimony. The parties’ 2010 marital dissolution agreement provides that the petitioner shall pay alimony to his ex-wife for a specified period or upon her cohabitating with another man, and petitioner alleges that the defendant has been cohabitating with another man. The trial court made findings that, although the defendant had an intimate relationship with another man, she was not cohabitating as that term is defined; thus, the trial court denied the petition and awarded the defendant an arrearage judgment for alimony the petitioner failed to pay. Finding the trial court applied the correct legal standard and the evidence does not preponderate against the trial court’s findings, we affirm. |
Franklin | Court of Appeals | |
Kitty Fern (Darden) Sartain v. Mitchell Carl Sartain
This appeal arises from the second divorce between these parties. Husband and Wife were married for nineteen years, divorced in 1997, and then married again for thirteen additional years. In this second divorce, the trial court awarded Wife alimony in futuro and alimony in solido in addition to 45% of Husband’s military retirement pay. As part of the first divorce the trial court had awarded Wife 36% of Husband’s military retirement pay. Although Husband retired in 2006, Wife had not received any portion of his retirement pay. Wife requested the court in this second divorce award her the money she should have been paid from the date of Husband’s retirement to the date of the second divorce. The trial court declined to make that award. On appeal we affirm the trial court’s judgment awarding Wife alimony in futuro and alimony in solido. We reverse the court’s judgment denying Wife the portion of Husband’s retirement pay she had been awarded in the first divorce, and we remand the case for a hearing on the issues surrounding the Survivor Benefit Plan. |
Montgomery | Court of Appeals | |
Leonard Jasper Young v. State of Tennessee
The Petitioner, Leonard Jasper Young, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief as it relates to the guilt phase of his trial. The post-conviction court granted the Petitioner relief as to the sentencing phase, and the State did not appeal this ruling. A Shelby County jury convicted the Petitioner of premeditated first degree murder, especially aggravated kidnapping, and theft over $1,000. He received an effective sentence of death plus seventy-two years. On appeal, the Petitioner asserts that trial counsel were ineffective during the guilt phase of his trial. We affirm the judgment of the post-conviction court denying the Petitioner post-conviction relief. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Curtis Keller
After a trial by jury the defendant, Curtis Keller, was convicted of two counts of especially aggravated kidnapping (against Tamika Jones and M.B.), Class A felonies; one count of attempted especially aggravated robbery (against Andrew Morrow), a Class B felony; one count of especially aggravated burglary, a Class B felony; three counts of aggravated assault (against Andrew Morrow, Tamika Jones, and M.B.), Class C felonies; and one count of employing a firearm during the commission of a “dangerous felony,” a Class C felony. The trial court sentenced the defendant to a total effective sentence of two hundred and forty years. On appeal, the defendant claims that: (1) the jury instructions concerning the especially aggravated kidnapping charges were inadequate in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous, and (3) his eight separate convictions violate the Double Jeopardy Clause because his crime spree “was one continuous act.” After careful review, we conclude that: (1) the jury instructions were inadequate in light of White, but harmless beyond a reasonable doubt, and (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous because they did not foreclose the possibility that the jury used one of the especially aggravated kidnappings—which, as stated in the indictment, were based on the defendant’s use of a firearm—as predicate felonies. As the State concedes, the statute prohibiting an individual’s use of a firearm during the commission of a “dangerous felony” expressly forbids charging a defendant for a violation of that statute “if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.” T.C.A. § 39-17-1324(c). Accordingly, the defendant’s conviction for employing a firearm during the commission of a dangerous felony is reversed. In addition, it was plain error for the defendant to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to victim Andrew Morrow. The defendant’s conviction for especially aggravated burglary is reduced to a conviction of aggravated burglary, and a new sentence of fifteen years is imposed on this count. With respect to his other claims, the defendant has failed to establish any entitlement to relief, and his convictions of two counts of especially aggravated kidnapping, one count of attempted especially aggravated robbery, and three counts of aggravated assault are affirmed. |
Shelby | Court of Criminal Appeals | |
Raymond Hayden v. Wayne Carpenter, Warden
The petitioner, Raymond Hayden, appeals the Lake County Circuit Court’s dismissal of his 2012 petition for writ of habeas corpus in which he sought to challenge his 2009 Putnam County, guilty-pleaded conviction of the sale of cocaine. Following our review, we affirm the order of the circuit court. |
Lake | Court of Criminal Appeals | |
State of Tennessee v. Warren Hildred
The defendant, Warren Hildred, appeals his Shelby County Criminal Court jury conviction of second degree murder, challenging both the exclusion of certain evidence and the sufficiency of the convicting evidence. Discerning no error, we affirm. |
Shelby | Court of Criminal Appeals | |
Edward Thomas Kendrick, III v. State of Tennessee
Edward Thomas Kendrick, III (“the Petitioner”) was convicted by a jury of first degree premeditated murder. This Court affirmed the Petitioner’s conviction on direct appeal. The Petitioner filed for post-conviction relief, alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and this appeal followed. Upon our thorough review of the record and the applicable law, we are constrained to conclude that the Petitioner established that he received the ineffective assistance of counsel at trial, because it is reasonably likely that a jury would have convicted him of a lesser degree of homicide absent the deficiencies in his trial counsel’s performance. Accordingly, we must reverse the Petitioner’s conviction and remand this matter for further proceedings. |
Hamilton | Court of Criminal Appeals | |
Larry Keith Huddle v.State of Tennessee
In June 1998, petitioner, Larry Keith Huddle, entered a “no contest” plea to one count of attempted aggravated sexual battery. Pursuant to the plea agreement, he received an eight-year sentence, with thirty-five percent release eligibility, to be served in community corrections. His sentence expired in 2004, but he remained under community supervision for life. In 2011, petitioner filed a petition for post-conviction relief, arguing that he pleaded guilty without knowing that he would be subject to community supervision for life. Following a hearing, the post-conviction court dismissed the petition, finding that the petition was not timely. On appeal, petitioner contends that Ward v. State, 315 S.W.3d 461 (Tenn.2010), announced a new rule of constitutional law that should be applied retroactively, which would toll the statute of limitations and render his petition for post-conviction relief timely. He further argues that he received ineffective assistance of counsel and that the State now carries the burden of proving that the failure to advise him of the condition of community supervision for life was harmless beyond a reasonable doubt. Following our review of the record and the applicable law, we affirm the judgment of the post-conviction court. |
Sullivan | Court of Criminal Appeals | |
Samuel E. Foster et al v. Walter William Chiles, III et al
This is a health care liability case. Samuel E. Foster and his wife, Mary Foster, timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings. |
Knox | Court of Appeals | |
Edgar Bailey, Jr. v. State of Tennessee
Convicted of felony murder, three counts of aggravated assault, and setting fire to personal property, petitioner, Edgar Bailey, Jr., filed the instant petition for writ of error coram nobis, alleging that the indictment under which he was tried and convicted for felony murder was defective in that it did not bear a return date from the grand jury and that the State withheld it from him prior to trial. He further claims that the allegedly defective indictment constitutes newly discovered evidence for the purpose of error coram nobis proceedings. The coram nobis court summarily dismissed the petition. Following our review, we affirm the judgment of the coram nobis court. |
Hamilton | Court of Criminal Appeals | |
Amy Wheatley Sparkman v. Jason Aaron Sparkman
This appeal involves post-divorce proceedings arising out of numerous disputes between the parties. The only rulings that are challenged on appeal are the trial court’s conclusions that: (1) Father was required to pay uncovered medical expenses for the children’s counseling, pursuant to the divorce decree; and (2) Father must pay $14,000 of Mother’s attorney’s fees. For the following reasons, we affirm the trial court’s decision on both issues. |
Madison | Court of Appeals |