Dale Robert Scherzer v. Melissa Marie Scherzer
In this post-divorce action, the husband filed a petition to terminate or modify $2,000.00 in monthly transitional alimony that had been previously awarded to the wife as part of the marital dissolution agreement incorporated into the divorce decree. Following a bench trial, the trial court found that the wife was cohabiting with her fiancé and had failed to rebut the statutory presumption, pursuant to Tennessee Code Annotated § 36-5-121(g)(2)(C), that she was either providing support to or receiving support from a third person and no longer needed the amount of alimony previously awarded. The trial court suspended the husband’s transitional alimony obligation retroactive to October 2015, the month when he had begun to deposit payments into an escrow account at the court’s direction. The court also awarded to the husband attorney’s fees and expenses in the amount of $19,331.50. The wife has appealed. Having determined that the wife failed to rebut the statutory presumption, we affirm the suspension of the husband’s transitional alimony obligation. However, having also determined that the evidence does not support a finding that the wife had the ability to pay the husband’s attorney’s fees, we reverse the trial court’s award of attorney’s fees to the husband. We decline to award attorney’s fees incurred on appeal to either party. |
Williamson | Court of Appeals | |
Dale Robert Scherzer v. Melissa Marie Scherzer - Concurring
I concur in the result reached by the majority and with its analysis, except in one respect. In my view, Tennessee Code Annotated § 36-5-121 does not authorize an award of attorney fees in these circumstances. |
Williamson | Court of Appeals | |
In Re: Emersyn W.
This is an appeal from an order changing the Child’s surname from that of Mother alone to the double last name of Mother and Father, respectively. The juvenile court determined that the Child’s last name should be changed based on a standardized policy of the court because the parents could not reach an agreement. Mother appeals. We reverse. |
Montgomery | Court of Appeals | |
Sharon K. Yuhasz v. Joseph D. Yuhasz
Husband appeals the trial court’s decision regarding wife’s monthly need for spousal support and its division of the parties’ marital assets. Wife asserts that the trial court erred in failing to hold that husband dissipated marital assets. We affirm the decision of the trial court and conclude that wife is entitled to an award of her attorney fees on appeal. |
Williamson | Court of Appeals | |
State of Tennessee v. Peterpal T. Tutlam
A Davidson County Criminal Court Jury convicted the Appellant, Peterpal T. Tutlam, of two counts of especially aggravated robbery, two counts of especially aggravated kidnapping, and two counts of aggravated rape, Class A felonies. After a sentencing hearing, the trial court sentenced the Appellant to twenty-five years for each conviction and ordered that the sentences be served consecutively for a total effective sentence of one hundred fifty years. On appeal, the Appellant contends that his effective sentence is excessive. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. Bobby Ray Graves, Jr.
A Warren County Circuit Court Jury convicted the Appellant, Bobby Ray Graves, Jr., of failure to appear, a Class E felony, and the trial court sentenced him to six years in confinement. On appeal, the Appellant contends that the evidence is insufficient to support the conviction because the State failed to prove that he “went into hiding to avoid prosecution” and that the State committed prosecutorial misconduct during closing arguments. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the trial court. |
Warren | Court of Criminal Appeals | |
In Re: Neamiah R. Et Al.
In this action, the trial court terminated the respondent father’s parental rights to his children, following its finding that clear and convincing evidence existed to establish the statutory grounds of (1) severe child abuse, (2) substantial noncompliance with the reasonable requirements of a permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the children. The court also determined by clear and convincing evidence that termination was in the best interest of the children. The father has appealed solely the best interest determination. Discerning no error regarding the statutory grounds for termination found by the trial court or the court’s best interest analysis, we affirm. |
Knox | Court of Appeals | |
Ronald Miller v. Mark Gywn, Director Of The Tennessee Bureau Of Investigation
In 2001, Ronald Miller was convicted, in Maryland, of sexually molesting his eleven-year-old niece. When he moved to Tennessee in 2007, he registered with the sex offender registry (SOR). The Tennessee Bureau of Investigation subsequently reclassified him several times. In 2013, the TBI granted Miller’s request to be removed from the SOR. However, in 2014, the General Assembly amended Tenn. Code Ann. § 40-39-207 (2014 & Supp.2017), to require lifetime registration for an offender whose victim was twelve years old or younger. The TBI reinstated Miller on the SOR pursuant to this amendment. Miller appealed to the trial court under the Uniform Administrative Procedures Act, Tenn. Code Ann. § 4-5-322 (2015 & Supp.2017). The trial court reversed the TBI’s decision, holding that “TBI is bound by the face of the [Maryland] conviction offense, and since no provision of the offense involves a crime against a child ages twelve (12) years or less, the Petitioner does not have to comply with the lifetime registry requirements.” The Maryland statute at the time of the offense provided that “a person may not engage in . . . sexual contact with another without the consent of the other.” We hold that the TBI demonstrated that Miller was convicted of this offense, and that his victim was eleven years old at the time of the offense. Based on our review of the record, we hold that the TBI’s decision was neither arbitrary nor capricious or unsupported by substantial and material evidence. We reverse the trial court’s judgment and hold that Miller must be registered on the SOR for life. |
Sullivan | Court of Appeals | |
Hershel Sanders Et Al. v. First Tennessee Bank National Association Et Al.
The plaintiffs, Hershel Sanders and his wife, Alma Sanders, secured a construction loan from the defendant, First Tennessee Bank, N. A., for the purpose of building a home in Cumberland County. The first contractor hired by the plaintiffs did not complete the construction in a timely fashion. At the urging of First Tennessee Bank, the plaintiffs dismissed the original contractor and hired a new one, who finished the job. The bank refused to make the plaintiffs a permanent loan. Ultimately, the property went into foreclosure. The plaintiffs sued the bank and others, alleging various theories of recovery. The case proceeded, but only as to one defendant – First Tennessee Bank – and only as to one theory, i.e., breach of contract to make the plaintiffs a permanent loan. First Tennessee Bank filed a motion to dismiss and for judgment on the pleadings. The trial court held that, since there is no written agreement signed by First Tennessee Bank reflecting a promise by it to make the plaintiffs a permanent loan, the plaintiffs’ suit is barred by the Statute of Frauds, Tenn. Code Ann. § 29-2-101 (2012). The trial court also granted the bank’s motion on another ground. The plaintiffs appeal. We affirm |
Cumberland | Court of Appeals | |
State of Tennessee v. Jamie Crowell
The Defendant, Jamie Crowell, was convicted by a Chester County Circuit Court jury of aggravated kidnapping, a Class B felony; facilitation of aggravated assault, a Class D felony; possession of methamphetamine with intent to sell, a Class B felony; possession of methamphetamine with intent to deliver, a Class B felony; possession of a Schedule II controlled substance, oxymorphone, a Class A misdemeanor; and possession of drug paraphernalia, a Class A misdemeanor. The trial court merged the methamphetamine convictions into one conviction and sentenced the Defendant to a total effective term of seventeen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions; (2) the State’s questioning about the prior methamphetamine use of defense witnesses denied him a fair trial; and (3) the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court. |
Chester | Court of Criminal Appeals | |
Delvin Allison v. State of Tennessee
Petitioner, Delvin Allison, pled guilty to aggravated robbery with an agreed sentence of seven years and two months as a mitigated offender, which was ordered to be served in the Department of Correction. Petitioner now appeals the post-conviction court’s denial of his petition for post-conviction relief in which he contends: the post-conviction court improperly determined that he was not entitled to discovery of the audio recording of the juvenile court transfer hearing; trial counsel rendered ineffective assistance both prior to and during the guilty plea proceedings; and his guilty plea was not knowing and voluntary. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
William Boatwright v. State of Tennessee
The Petitioner, William Boatwright, appeals from the Knox County Criminal Court’s denial of his petition for post-conviction relief from his especially aggravated robbery, aggravated robbery, aggravated burglary, and two aggravated assault convictions, for which he is serving a forty-seven-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We reverse the judgment of the post-conviction court and remand the case for additional findings of fact and conclusions of law. |
Knox | Court of Criminal Appeals | |
Jana Lea Purvis v. Dennis Patrick Purvis, II
In this divorce case, Dennis Patrick Purvis, II (Father) appeals the trial court’s judgment allowing Jana Lea Purvis (Mother), the primary custodial parent, to relocate to California with the parties’ two children. The trial court found that Father had physically abused Mother and emotionally abused her and the children. Mother appeals, challenging, among other things, the trial court’s order expanding Father’s parenting time. She argues that he should be limited to the co-parenting time set forth in her proposed parenting plan. She states that his time should be so limited as mandated by Tenn. Code Ann. § 36-6- 406(a)(2) (2017). We find that the evidence does not preponderate against the trial court’s findings of abuse. Accordingly, we affirm the trial court’s decision allowing Mother to move to California. We modify the parenting plan to vacate the trial court’s decision allowing Father visitation in California for one weekend a month in seven months. We affirm the trial court’s judgment in all other respects. |
Bradley | Court of Appeals | |
John Kinder Et Al. v. Wendell Bryant Et Al.
The plaintiffs commenced this declaratory judgment action to establish that their claim to a forty-acre tract of real property is superior to that of the defendants. The plaintiffs claim to have purchased the disputed property in 1980; however, their deed was not recorded until 1995. The defendants’ predecessors in interest purchased the property at a tax sale in 1994, and their deed was duly recorded prior to the plaintiffs’ deed. The plaintiffs’ claims are based, inter alia, on adverse possession and the contention that the 1994 tax deed is void or voidable due to lack of notice of the sale. After hearing cross-motions for summary judgment, the trial court summarily dismissed the complaint finding that the plaintiffs were not entitled to notice of the tax sale because, at the time of the sale, the plaintiffs’ deed had not been recorded and the plaintiffs lacked standing to challenge the lack of notice to their predecessors in title who were the owners of record at the time of the tax sale. The trial court further found that the plaintiffs had not paid any taxes on the property and that the defendants paid the property taxes for more than twenty years, which raised the rebuttable presumption of ownership under Tenn. Code. Ann. § 28-2- 109. Based on these findings, the trial court held that Tenn. Code Ann. § 28-2-110 barred any affirmative action by the plaintiffs to claim an interest in the property and summarily dismissed the complaint. We affirm. |
Bradley | Court of Appeals | |
George Grant Et Al. v. Elaine Anderson, Clerk Of Williamson County, Et Al.
Plaintiffs filed suit seeking declaratory relief to determine the continuing validity of laws relating to the issuance of marriage licenses and to determine whether the issuance of marriage licenses violates the state constitution. Plaintiffs also asked the trial court to enjoin the issuance of all marriage licenses in Williamson County, Tennessee. Upon the county clerk’s motion to dismiss, the trial court concluded, among other things, that the plaintiffs lacked standing. We affirm the dismissal of the complaint. |
Williamson | Court of Appeals | |
State of Tennessee v. Ashley N. Menke
On July 14, 2016, Ashley N. Menke, the Defendant, entered an open guilty plea in Case No. 925-CR-2015 to five felonies and three misdemeanors, including one count of theft in the amount of $1,000 or more but less than $10,000 (Count 9), and to a violation of probation in Case No. 268-CR-2014. The value of the property taken in Count 9 was exactly $1,000, and the Defendant was released on bail for felony offenses in Counts 3, 4, 5, and 6 at the time she committed the theft in Count 9. Following the December 2, 2016 sentencing hearing, the trial court took the matter under advisement without sentencing the Defendant. On January 1, 2017, the Public Safety Act of 2016 became effective. Section 5 of the Public Safety Act “deleted and replaced” Tennessee Code Annotated section 39-14-105(a), the “grading of theft” statute. Theft in the amount of $1,000 or less committed after January 1, 2017, is now graded as a Class A misdemeanor. In its March 10, 2017 sentencing order, the trial court imposed an eleven month and twenty-nine day sentence in Count 9 based on the criminal savings statute, Tennessee Code Annotated section 39-11-112, and ordered the sentence to be served concurrently with the effective three-year sentence for the other seven counts. The judgment states that the conviction offense is a Class D felony. We hold that the criminal savings statute does not apply and that the trial court erred in sentencing the Defendant in Count 9 to a concurrent sentence of eleven months and twenty-nine days because of the following: (1) the General Assembly did not specifically indicate that Section 5 of the Public Safety Act operated retrospectively so the statute is presumed to operate prospectively; (2) “the value of the property or services obtained” is an essential element of the offense of theft; and (3) the legislature changed an essential element of, not the sentence for, Class A misdemeanor theft, Class E felony theft, and Class D felony theft. We affirm the judgment of conviction for the Class D felony theft in Count 9, vacate the sentence in Count 9, and remand the case to the trial court for resentencing within the applicable range for Class D felony theft and for consecutive alignment of the sentence pursuant to Tennessee Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C). |
Sumner | Court of Criminal Appeals | |
Robert Earl Borner v. State of Tennessee
The Petitioner, Robert Earl Borner, appeals the dismissal of his petition for writ of habeas corpus. He argues that the indictment is void because it failed to state the essential elements of the conviction offense. After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the habeas corpus court. |
Trousdale | Court of Criminal Appeals | |
State of Tennessee v. Morgan Nyle Janyja
The Defendant, Morgan Nyle Janyja, appeals the trial court’s revocation of his probation. On appeal, he argues that the evidence was insufficient to support the revocation. After a thorough review of the record and applicable law, we affirm the judgment of the trial court. |
Davidson | Court of Criminal Appeals | |
Nathan Chaleunsak v. State of Tennessee
The Petitioner, Nathan Chaleunsak, appeals the denial of post-conviction relief from his 2015 guilty-pleaded conviction of second degree murder, for which he received an agreed, out-of-range sentence of thirty years to be served at 100%. The Petitioner sought post-conviction relief, asserting that he received ineffective assistance of counsel and that his guilty plea was not voluntarily and knowingly entered. Following a hearing, the postconviction court denied relief. After review of the record and applicable law, we affirm the denial of post-conviction relief. |
Davidson | Court of Criminal Appeals | |
State of Tennessee Ex Rel. Nicole Lytle v. Seneca Webb
This appeal arose from a child support proceeding wherein the father sought modification of his child support obligation. After concluding that an incorrect arrearage amount had been established in a prior order, the trial court determined that the correct arrearage amount, including statutory interest, was $48,574.88. The trial court relied on an affidavit executed by the mother, which reflected the father’s child support payments. The mother’s affidavit, however, is not contained within the record on appeal. Furthermore, the trial court’s order contained no findings of fact demonstrating how the trial court calculated the arrearage or the statutory interest. Because the trial court failed to make adequate findings of fact, we vacate the trial court’s judgment and remand for entry of sufficient findings of fact regarding the method of calculation of the arrearage and interest. |
Davidson | Court of Appeals | |
Frederick Wendell Thomas v. State of Tennessee
The petitioner, Frederick Wendell Thomas, appeals the denial of post-conviction relief from his 2013 Shelby County Criminal Court jury conviction of first degree murder, for which he received a life sentence. In this appeal, the petitioner contends only that he was denied the effective assistance of counsel. Discerning no error, we affirm. |
Shelby | Court of Criminal Appeals | |
Willard P. Wagner, ET AL. v. Eric Martin Novelli
This appeal concerns a dispute over an agreement to install a heating and air conditioning system (“HVAC”) in a house. Eric Martin Novelli (“Novelli”) engaged Willard P. Wagner d/b/a Wagner Heating & Air (“Wagner”) to install an HVAC system at Novelli’s house. There was no written contract. Novelli grew dissatisfied with Wagner’s work and dismissed him from the project. Wagner sued Novelli in the Circuit Court for Hamilton County (“the Trial Court”) for payment on the project. Novelli filed an answer and counterclaim. Novelli alleged, among other things, that the units Wagner installed were too large which created problems. After a trial, the Trial Court found that it could not find any breach of contract with respect to installation. Instead, the Trial Court applied the Uniform Commercial Code (“UCC”) and awarded Wagner $11,400 for payment on the project. Novelli appeals to this Court. We find, as did the Trial Court, that Wagner in sizing the units relied on specifications Novelli gave him, installed the HVAC per their agreement using merchantable, fit for purpose units, and is entitled to judgment as awarded by the Trial Court. We affirm the judgment of the Trial Court. |
Hamilton | Court of Appeals | |
Dustin Lucio v. State of Tennessee
Petitioner, Dustin Lucio, appeals from the denial of his petition for post-conviction relief. Petitioner was convicted by a jury of aggravated rape and sentenced by the trial court to 23 years in confinement to be served at 100 percent release eligibility. Petitioner’s conviction and sentence were affirmed on direct appeal. State v. Dustin Matthew Lucio, No. E2014-00642-CCA-R3-CD, 2015 WL 1510830 (Tenn. Crim. App. Mar. 31, 2015), perm. app. denied (Tenn. Aug. 13, 2015). Petitioner contends that his appellate counsel was ineffective for failing to include in the record on appeal a transcript of the hearing on the State’s motion in limine. In that motion, the State sought to exclude from evidence the victim’s medical records showing that she received treatment for drug abuse after the offense occurred. Following a hearing, the post-conviction court denied relief. Finding no error, we affirm the judgment of the post-conviction court. |
Sevier | Court of Criminal Appeals | |
Paul Gray v. Wingfoot Commercial Tire Systems et al.
Paul Gray (“Employee”) was injured in the course of his employment with Wingfoot Commercial Tire Systems (“Employer”). Several physicians—authorized and unauthorized—examined and treated Employee. After a Benefit Review Conference was completed and suit filed, an unauthorized physician performed surgery. The trial court considered numerous issues including subject matter jurisdiction, payment of unauthorized medical expenses, impairment, and disability. It ruled in favor of Employee and awarded 50% permanent partial disability benefits. Employer appeals. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm in part, reverse in part, and remand to the trial court. |
Shelby | Workers Compensation Panel | |
Nasir Hakeem v. State of Tennessee
The Petitioner, Nasir Hakeem, appeals the Montgomery County Circuit Court’s denial of post-conviction relief, arguing that his attorneys were ineffective for failing to inform him of the deportation and other immigration consequences of a conviction at trial pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). The State contends that the petition is time-barred and that the post-conviction court erred in tolling the one-year statute of limitations based on the Petitioner’s ignorance of Padilla. Because the postconviction court erred in tolling the limitations period, this court is deprived of jurisdiction to hear this appeal. Accordingly, the appeal is dismissed. |
Montgomery | Court of Criminal Appeals |