Opinions
Charles Pesce v. East Tennessee Construction Services, Inc.
Charles Pesce (“the Owner”) is a practicing dentist. He contracted with East Tennessee Construction Services, Inc. (“the Builder”) to build him a new office for his practice on a lot owned by him. The Builder constructed the building, but with numerous undisputed defects. The Owner filed this action which culminated in a bench trial that lasted several days. Based upon diminution in value, the trial court awarded the Owner $282,000 in damages. The trial court expressly found that the cost to repair the structure was an unacceptable measure of damages because it “is disproportionate . . . to the difference in the value of the structure actually constructed and the one contracted for.” The court awarded the Owner discretionary costs of over $10,000. The Owner appeals challenging the measure of damages as well as the amount awarded under the diminution in value measure. The Owner also challenges the trial court’s failure to order the Builder to reimburse him for fees charged by one of the Owner’s experts in connection with his discovery deposition taken by the Builder. The Builder challenges the award of discretionary costs and argues that the damages awarded are excessive. We reverse in part and affirm the remaining judgment as modified. |
McMinn | Court of Appeals | |
In Re Nirvanna S.
This is a dependent and neglected case concerning Nirvanna S. (“the Child”), the minor child of Heather S. (“Mother”) and Mark S. (“Father”). Following the death of the Child’s infant sister, the Department of Children’s Services (“DCS”) filed a petition in juvenile court alleging that, in the care of Mother and Father, the Child was dependent, neglected and severely abused. The juvenile court held an adjudicatory hearing and determined that the Child was dependent and neglected – but not severely abused – by her parents. The juvenile court awarded temporary custody of the Child to DCS and charged the department with undertaking reasonable efforts toward reunifying the Child with Mother and Father. DCS appealed the order to the trial court. Following a bench trial, the court found that both parents had committed severe abuse against the Child’s sister pursuant to Tenn. Code Ann. § 37-1-102(b)(23)(A) and that the Child was dependent and neglected and “severely abused” within the meaning of the law. The court ordered DCS to retain custody of the Child; it relieved DCS of its obligation to work toward reunifying the Child with Mother and Father. Mother appeals. Following our review, we modify that part of the trial court’s opinion finding that the Child was “severely abused.” In all other respects, the judgment is affirmed. |
Sullivan | Court of Appeals | |
In Re: Skyler J. H.
The father of a young child born out of wedlock petitioned the juvenile court to be awarded custody of the child. The mother responded by asking the court to award custody to her. After many delays, the juvenile court referee conducted a lengthy hearing and granted the father’s petition, holding that although it was a close question, it was in the child’s best interest for the father to exercise custody. The mother appealed to the Juvenile Court Judge, who reached the same conclusion after another hearing. The mother now appeals to this court, contending that custody should have been awarded to her for several reasons, including the operation of the tender years doctrine. We affirm the trial court. |
Davidson | Court of Appeals | |
Nancy Gates v. Katie Williams et al.
As this action was pleaded and tried, it was (1) a claim by Nancy Gates (“the plaintiff”) seeking to be declared the owner of a life estate in a tract of property; and, as a consequence of her estate, seeking the removal of Katie Williams (“the defendant”), the widow of the plaintiff’s son, Tony, from the property; and (2) a counterclaim by the defendant alleging that she had become the owner of an interest in the property by adverse possession due to her having lived on the property since the late 1960s or early 1970s. The trial court held that, as to these claims, neither party was entitled to relief against the other. The court found, however, that the plaintiff did, in fact, have a life estate in the subject property, and that the defendant had not proven adverse possession because her entry onto the property was with the plaintiff’s permission. The court then held, sua sponte, that the defendant had a license in the property coupled with an interest therein that had been acquired by building numerous structures on the property with the plaintiff’s knowledge and that it would not be equitable to require the defendant to move. The plaintiff appeals. We affirm the trial court’s judgment in part and reverse in part and remand for a hearing on the issue of what it would take to do equity given the facts of this case. |
Cocke | Court of Appeals | |
Paula Kay Franco v. Armando Oscar Franco
The trial court affirmed the Report of a special master interpreting the parties’ Marital Dissolution Agreement as granting Wife a proportionate share of Husband’s retirement based on the duration of the marriage and not based upon the thirty years he was in the military. We affirm. |
Montgomery | Court of Appeals | |
State of Tennessee v. Joann Williamson
The Defendant, Joann Williamson, pled guilty to facilitation of the manufacture of methamphetamine, a Class C felony, and two counts of child abuse and neglect, a Class D felony. See T.C.A. § 39-17-417 (2010); T.C.A. § 39-15-401 (Supp. 2008) (amended 2009). She was sentenced as a Range I, standard offender to six months’ incarceration and three years, six months’ probation for the facilitation conviction and four years’ probation for each of the child abuse convictions, to be served consecutively to the facilitation conviction for an effective twelve-year sentence. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the warrantless search of her home. The Defendant contends that the trial court erred in denying her motion to suppress evidence and that the State should not be allowed to rely on more than one exception to the warrant requirement. The State contends that the Defendant did not properly reserve the certified question. We hold that the Defendant’s certified question was not properly reserved. The appeal is dismissed. |
Campbell | Court of Criminal Appeals | |
Avie Aleane Harding et al. v. Donovan Enterprises, Inc. d/b/a Captain Video & Tanning
A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm. |
Sumner | Court of Appeals | |
Prianglam Brooks v. Correctional Medical Services
Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer’s insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry (“MIR”) process. That physician also stated that Employee had no permanent impairment. The trial court found that Employee rebutted the presumption of correctness of the MIR physician’s rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court. |
Shelby | Workers Compensation Panel | |
Timothy Ruskin v. Ledic Realty Services, Ltd.
In this workers’ compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin’s injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic’s favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court. |
Shelby | Workers Compensation Panel | |
In Re: Sarah E. L., et al.
The State of Tennessee, on behalf of Kenneth S. L. (“Father”), filed a petition for child support against Melissa G. M. (“Mother”). The hearing for child support was continued on three separate occasions. With each continuance, the trial court instructed Mother to bring medical documentation verifying her inability to work. At the fourth scheduled hearing, Mother failed to produce documentation from her medical providers. The trial court proceeded to set monthly child support payments and imputed a gross income of minimum wage to Mother. Mother appeals. We affirm. |
Sevier | Court of Appeals | |
State of Tennessee v. Karim El-Amin
The appellant, Karim El-Amin, pled guilty in the Washington County Criminal Court to two counts of fraudulent use of a credit card involving a value more than five hundred dollars but less than one thousand dollars, a Class E felony, and one count of fraudulent use of a credit card involving a value equal to or less than five hundred dollars, a Class A misdemeanor. Pursuant to the plea agreement, the appellant was to receive an effective four-year sentence with the manner of service to be determined by the trial court. On appeal, the appellant challenges the trial court’s denial of his request of alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court. |
Washington | Court of Criminal Appeals | |
Thomas E. Moorehead et al. v. Joy Vail Allman et al.
The sellers of a mobile home park appeal the trial court’s decision to rescind two real estate sales contracts and refund the purchasers their down payment. The purchasers asserted claims for fraudulent misrepresentation, fraud in the inducement, and breach of fiduciary duty, all of which arose from alleged misrepresentations by the sellers regarding the condition and income potential of the property at issue. Following a lengthy and convoluted procedural history, including a jury trial, the granting of a new trial, and several waves of amended pleadings, the parties filed competing motions for summary judgment. The sellers asserted various defenses including, inter alia, that the purchasers’ claims were time barred. Finding that the sellers fraudulently induced the purchasers into buying the property, and that the statute of limitations had been tolled due to the sellers’ concealment of material facts, the trial court denied the sellers’ motion, granted summary judgment to the purchasers. For relief, the trial court rescinded the sales contracts and awarded the purchasers a refund of their down payments. We affirm. |
Bedford | Court of Appeals | |
In Re: John Jay Hooker - Order
John Jay Hooker has filed a motion requesting this Court (1) to set aside its June 21, 2010 order directing the Clerk of the Appellate Courts to decline to accept any of his further filings in this case and (2) to rescind its January 7, 2010 order enforcing the October 20, 2008 order of the Chancery Court for Davidson County suspending his license to practice law for thirty days. Mr. Hooker has also requested that all the members of the Court recuse themselves from this proceeding because they “are prejudiced against him as a consequence of a contentious political dispute before the legislature . . . regarding the [c]onstitutionality of the [r]etention [e]lection [s]tatute.” In order to address Mr. Hooker’s first two requests, the Court must first address his renewed insistence that all the members of this Court are disqualified from any proceedings involving his law license. It is, therefore, ordered that the Clerk of the Appellate Courts is directed to accept and file the motion lodged by Mr. Hooker on January 14, 2011. It is further ordered that Mr. Hooker’s motion requesting all the members of this Court to recuse themselves from this proceeding is denied. |
Supreme Court | ||
Kimberly M. Henderson v. Gary N. Wilson
A divorced mother of two children filed a petition for child support, alleging that although the father had legal custody of the children and she had been under an order to pay child support to him, the children had actually resided with her for the past six years. The father did not deny that the children had been living with the mother during that entire period. After negotiation, the parties entered into an agreed order, whereby the father was to pay $35,000 in back child support to his former wife. Twenty-three months later, the father filed a Rule 60.02 motion for relief, contending that the agreed order was void as against public policy because it amounted to an impermissible retroactive modification of child support. The trial court denied the father’s motion on the ground that it was entitled to presume that parties who are represented by counsel and who submit a signed agreement to the court have taken every pertinent factor into consideration. We affirm. |
Robertson | Court of Appeals | |
Jason Lee White v. State of Tennessee
The Petitioner, Jason Lee White, appeals from the order of the trial court dismissing his “Motion to Correct Illegal Sentence.” The State has filed a motion requesting that this Court affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. We grant the State’s motion and affirm the judgment of the trial court. |
Montgomery | Court of Criminal Appeals | |
Joseph Brown v. State of Tennessee
The Petitioner, Joseph Brown, appeals as of right from the Shelby County Criminal Court’s denial of his petition for post-conviction relief challenging his guilty plea to one count of facilitation of first degree murder and two counts of especially aggravated kidnapping. The Petitioner contends that he received the ineffective assistance of trial counsel and that his guilty plea was not knowingly and voluntarily entered into. Following our review, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Conal Decker v. State of Tennessee
The Petitioner, Conal Decker, filed a pro se petition for writ of error coram nobis or writ of habeas corpus challenging judgments in cases from 1994 and 1998 which were used to enhance the federal sentence he is currently serving. He claims in the cases he is challenging that he was never provided counsel or that his waiver of counsel was improper. The coram nobis court dismissed the petition. The State filed a motion requesting that this court affirm the coram nobis court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State’s motion is granted and the judgment of the coram nobis court is affirmed. |
Hamilton | Court of Criminal Appeals | |
State of Tennessee, Ex Rel. Billie Jo Farris (Satterfield) v. Colin Bryant
This appeal involves child support in a Title IV-D proceeding. In the parents’ divorce trial, the father was not present, so income was imputed to him, and he was ordered to pay child support. In post-divorce proceedings, the State filed contempt petitions on behalf of the mother, alleging that the father was in arrears on his child support obligation. Orders were entered holding the father in contempt and ordering payments on the arrearage. The father filed a motion for modification of his child support obligation, asserting that his income was substantially less than the amount imputed to him, and that he had an additional minor dependent for whom he was required to pay child support. The trial judge denied the father’s motion to modify his child support and sentenced him to jail for contempt. The father appeals the criminal contempt conviction and asserts that the trial court erred in refusing to modify his child support obligation. We vacate the criminal contempt finding and reverse the denial of the father’s motion to reduce his child support obligation. |
Blount | Court of Appeals | |
The Metropolitan Government of Nashville and Davidson County v. Barry Construction Company, Inc., et al.
This matter is before the court for a second time. The Metropolitan Government of Nashville and Davidson County initiated suit to compel two developers to complete an unfinished portion of a road in a planned unit development or to recover damages equal to the cost of completing the road if it completed the road itself. The trial court dismissed the action, finding that the amended complaint did not provide a legal basis for requiring either developer to complete the road. On appeal this Court vacated the trial court’s order and remanded the case for the court to consider the appropriate allocation of responsibility for construction of the road between the two developers. While the appeal was pending, the Metropolitan Government acquired the land and subsequently completed the unfinished portion of the road. On remand, the trial court assessed costs of constructing the road to the developers equally, but assessed the land-acquisition costs entirely to one developer. The Metropolitan Government appeals. Finding no error in the trial court’s allocation of responsibility, we affirm. |
Davidson | Court of Appeals | |
State of Tennessee v. Amado Rubio Tavera
The Defendant-Appellant, Amado Rubio Tavera, has filed a petition for writ of certiorari seeking review of the Davidson County Criminal Court’s order denying his motion to expunge. The indictment charged Tavera with one count of vehicular assault and one count of aggravated assault. For the charge of vehicular assault, Tavera pled guilty to the lesser included offense of driving under the influence, a Class A misdemeanor. Pursuant to the plea agreement, the State entered a nolle prosequi for the charge of aggravated assault. Tavera subsequently filed a motion to expunge the charge of aggravated assault from all public records. He now appeals the denial of this motion. Upon review, we reverse the judgment of the trial court. |
Davidson | Court of Criminal Appeals | |
Fallon Lynn Tallent v. State of Tennessee
Petitioner, Fallon Lynn Tallent, was convicted in Wilson County of two counts of premeditated murder and sentenced to two, consecutive life terms. The convictions were affirmed on direct appeal, and the supreme court denied permission to appeal. State v. Fallon L. Tallent, No. M2005-00183-CCA-R3-CD, 2006 WL 47090 (Tenn. Crim. App., at Nashville, Jan. 10, 2006), perm. app. denied, (Tenn. May 1, 2006). Petitioner filed a pro se petition for post-conviction relief. It was denied without a hearing. Petitioner appealed to this Court. On appeal, this Court reversed the judgment of the post-conviction court and remanded the case for appointment of counsel. Fallon Lynn Tallent v. State, No. M2007-01336-CCA-R3-PC, 2008 WL 762486, at *5 (Tenn. Crim. App., at Nashville, Mar. 24, 2008). On remand, counsel was appointed, and an amended petition for post-conviction relief was filed. After a hearing on the petition, the post-conviction court denied relief and dismissed the petition. Petitioner has appealed the denial of post-conviction relief. After a thorough review of the record, we determine that Petitioner has failed to show that she received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed. |
Wilson | Court of Criminal Appeals | |
State of Tennessee v. Ashley Mai Cook
Defendant, Ashley Mai Cook, was convicted of conspiracy to commit first degree premeditated murder, a Class A felony, and first degree premeditated murder. She received consecutive sentences of twenty years as a Range I offender for conspiracy to commit first degree murder and life imprisonment for first degree murder. On appeal, she contends that the evidence is insufficient to support her convictions; that the trial court erred in denying her motion for expert services; that the trial court erred in not charging the jury that Megan Jones was an accomplice; and that her sentence was excessive. After a thorough review of the record, we affirm the judgments of the trial court. |
Bedford | Court of Criminal Appeals | |
State of Tennessee v. Jonathan Londono
Appellant, Jonathan Londono, was convicted by a Davidson County jury of conspiracy to commit aggravated robbery, facilitation of felony murder, facilitation of especially aggravated robbery and facilitation of aggravated robbery. He was sentenced to an effective sentence of forty-nine years. Appellant was resentenced after an unsuccessful appeal to this Court, an unsuccessful appeal to the Tennessee Supreme Court, a remand from the United States Supreme Court to the Tennessee Supreme Court, and a remand from the Tennessee Supreme Court to the trial court for resentencing. As a result, Appellant’s sentence was enhanced based upon one enhancing factor, that he had a previous history of criminal convictions and criminal behavior. The trial court sentenced Appellant to an effective sentence of forty-nine years. Appellant appeals his sentence arguing that the trial court erred in basing the application of the enhancing factor on convictions that occurred in the time between the commission of the offenses in question and the imposition of his sentence for the offenses in question. We determine that based upon prior case law in this State the trial court did not err. Therefore, we affirm the judgments of the trial court. |
Davidson | Court of Criminal Appeals | |
Arlie Ray Thomas v. State of Tennessee
Petitioner, Arlie Ray Thomas, appeals the dismissal of his petition for post-conviction relief in which he alleged that he received ineffective assistance of trial counsel because counsel failed to challenge the affidavits supporting the arrest and search warrants, and that counsel failed to properly interview a witness. After a thorough review of the record, we conclude that Petitioner has failed to show that his trial counsel rendered ineffective assistance of counsel and affirm the judgment of the post-conviction court. |
Putnam | Court of Criminal Appeals | |
State of Tennessee v. John Anthony Partin
The Sequatchie County Grand Jury indicted Appellant, John Anthony Partin, for one count of driving under the influence (“DUI”) and one count of violation of the implied consent law. Appellant filed a motion to suppress the evidence collected as a result of his interaction with the law enforcement officer. The trial court denied the motion to suppress. Subsequently, Appellant pled guilty to one count of DUI, first offense and reserved a certified question of law for appeal to this Court. After a review of the record on appeal, we conclude that Appellant did not properly reserve his certified question. Therefore, this Court has no jurisdiction to hear this appeal, and the appeal is dismissed. |
Sequatchie | Court of Criminal Appeals |