State of Tennessee v. Antonio Sellers
A jury convicted Antonio Sellers (“the Defendant”) of second degree murder. The trial court subsequently sentenced the Defendant to twenty-three years of incarceration. In this appeal, the Defendant challenges (1) the trial court’s ruling on an evidentiary issue regarding leading questions on redirect examination and (2) the sufficiency of the evidence. Upon our thorough review of the record, we have determined that the Defendant is entitled to no relief on the issues raised. Accordingly, we affirm the judgment of the trial court. |
Shelby | Court of Criminal Appeals | |
Michael Andrew Carman v. Kristi Michelle Carman
This is a post-divorce parental relocation case. The mother seeks to relocate to Grand Prairie, Alberta, Canada, with the parties’ seven (7) minor children, in order to reside with her new husband, a Canadian citizen she met on the internet. The father opposes the relocation. The mother spends substantially more time with the children, thus Tenn. Code Ann. § 36-6108(d) applies. Finding there was no reasonable purpose for moving to Canada, that the move would pose a threat of specific and serious harm to the children, and that the move is not in the best interests of the children, the trial court denied the request to relocate. We affirm. |
Macon | Court of Appeals | |
Maria Amezcua v. Samuel Amezcua
In this post-divorce proceeding, Father appeals a judgment for child support arrearages and award of attorney’s fees to Mother. Finding that the court erred in its determination of the amount of arrearages, we reverse the judgment and remand for further proceedings. The award of attorney’s fees is affirmed. |
Davidson | Court of Appeals | |
James Edward Bassham v. Tennessee Department of Correction et al.
Petitioner, an inmate in the custody of the Tennessee Department of Correction, housed at Morgan County Correctional Complex in Wartburg, Tennessee, filed a petition for writ of certiorari in the Wayne County Chancery Court seeking review of the prison disciplinary proceedings for his conviction for the disciplinary offense of “violation of state law” while incarcerated at South Central Correctional Center in Clifton, Tennessee. Based upon the filing of an Inmate Affidavit filed pursuant to Tennessee Code Annotated § 41-21-801 et seq., a certified copy of his Inmate Trust Fund Account and a Uniform Civil Affidavit of Indigency, the trial court filed an Order allowing filing on pauper’s oath. Upon motion of respondents, the court was advised that Petitioner falsely stated that he had no income from anysource. Pursuant to Tennessee Code Annotated § 41-21-804, the trial court dismissed the petition upon the finding that the inmate’s affidavit of indigency was false. We affirm. |
Wayne | Court of Appeals | |
SNPCO, Inc. v. City of Jefferson City et al.
This appeal involves the question of whether a city’s ordinance banning the sale of fireworks within its city limits implicates Tenn. Code Ann. § 13-7-208(b) (Supp. 2008) which permits pre-existing nonconforming businesses to continue to operate despite a “zoning change.” After the Cityof Jefferson Cityannexed the propertyon which a fireworks retailer’s business was located, the retailer filed suit in the Circuit Court for Jefferson County seeking compensation for a regulatory taking or, in the alternative, for a declaration that Tenn. Code Ann. § 13-7-208(b) permitted it to continue to sell fireworks. The trial court dismissed the retailer’s complaint in accordance with Tenn. R. Civ. P. 12.02(6), and the Court of Appeals affirmed. SNPCO, Inc. v. City of Jefferson City, No. E2009-02355-COA-R3-CV, 2010 WL 4272744, at *11 (Tenn. Ct. App. Oct. 29, 2010). We granted the retailer’s Tenn. R. App. P. 11 application to clarify the application of the “substantial interference” test in Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004) to ordinances such as the one involved in this case. We have determined that our decision in Cherokee Country Club, Inc. v. City of Knoxville requires consideration of both the terms and effects of the challenged ordinance. Thus, the courts must first determine whether the challenged ordinance relates to the city’s “general plan of zoning.” If the courts determine that the challenged ordinance relates to the city’s general plan of zoning, then, and only then, may the courts ascertain whether the ordinance results in a “substantial interference” with the use of land. Based on this record, we have determined that Jefferson City’s challenged ordinance banning the sale of fireworks within its city limits is not related to the city’s general plan of zoning. Accordingly, we affirm the judgments of the courts below. |
Jefferson | Supreme Court | |
State of Tennessee v. Aaron Switzer
The appellant, Aaron Switzer, was convicted in the Blount County Circuit Court of aggravated burglary, aggravated assault, and domestic assault, and he was granted probation after service of nine months in confinement. Subsequently, the trial court revoked the appellant’s probation for failure to comply with the terms of release. After the revocation, the trial court imposed a sentence of split confinement, and the appellant appeals that ruling. Upon review, we affirm the judgment of the trial court. |
Blount | Court of Criminal Appeals | |
Erlanger Medical Center v. Angela Strong a/k/a Granger, Shoney's North Georgia, LLC, Garnishee
This appeal concerns a garnishment action. Erlanger Medical Center (“Erlanger”) obtained a judgment against Angela Strong (“Strong”), an employee, by the time of trial, of Shoney’s North Georgia, LLC (“the Garnishee”). Erlanger sought to garnish Strong’s wages. Erlanger argued that Strong’s tips should be included in the calculation of her disposable earnings for the purposes of garnishment. The Garnishee disagreed, arguing, among other things, that federal law and labor policy stood for the proposition that tips were not to be included as wages for garnishment purposes. The Circuit Court for Hamilton County (“the Trial Court”) held that tips were, in fact, to be treated as wages subject to the calculation for garnishment purposes. The Garnishee appeals. We hold that tips are not to be included in the calculation of disposable wages for the purposes of garnishment. We reverse the Trial Court’s judgment. |
Hamilton | Court of Appeals | |
Kenneth A. Ritchie v. Elizabeth Widmaier Pew Ritchie
After twenty-five years of marriage, Kenneth A. Ritchie (“Husband”) sued Elizabeth Widmaier Pew Ritchie (“Wife”) for divorce. After a trial, the Trial Court entered its Judgment for Divorce, which inter alia, awarded Wife a divorce, distributed the marital assets and debts, and awarded Wife alimony in solido. Husband appeals to this Court raising an issue about the alimony in solido. Wife raises an issue about the Trial Court’s refusal to award her attorney’s fees, and also requests an award of attorney’s fees on appeal. We affirm, and decline to award attorney’s fees on appeal. |
Knox | Court of Appeals | |
Allstate Insurance Company v. Diana Lynn Tarrant et al.
After an automobile accident between the insured’s van and a motorcycle, the insurer filed a declaratory judgment action to determine whether the van was covered under a commercial policy with a liability limit of $500,000 or a personal policy with liability limits of $100,000 per person and $300,000 per accident. The insurer alleged that before the accident the insured had instructed his insurance agent to transfer the van from the commercial policy to the personal policy. The insured denied this and alleged that he had instructed the agent to retain the van on the commercial policy. The trial court ruled that because the insurer had sent the insured a letter and premium bills showing the change in coverage and the insured had paid the bills without objection, he had ratified the transfer and the van was covered under the personal policy. The Court of Appeals reversed. We hold that the action of the insurance agent in transferring the van to the personal policy was not subject to ratification by the insured because the insurance agent was not acting in the insured’s stead or for his benefit when it made the transfer. We further hold that the insurer is estopped from denying coverage under the commercial policy. We affirm the judgment of the Court of Appeals, although on different grounds. |
Sevier | Supreme Court | |
Allstate Insurance Company v. Diana Lynn Tarrant et al. - Dissent
We granted the Tenn. R. App. P. 11 application in this case to determine whether an insured,who requested replacementinsurancecoverageonhispersonalandbusiness vehicles in order to reduce his premiums, is entitled to more coverage than that provided in his new personal policy when he failed to read the amended policy declarations and to notify the insurance company that he desired different coverage on one of his vehicles. Applying settled legal principles to the essentially undisputed facts of this case, I would hold that the insured accepted the new coverage by failing to review the amended policy declarations and to give the insurance company timely notice that the coverage was less than he desired. |
Sevier | Supreme Court | |
Steven Ray Thacker v. State of Tennessee
A Lake County jury convicted the Petitioner, Steven Ray Thacker, of first degree murder and sentenced him to death. On direct appeal, the Tennessee Supreme Court affirmed both the conviction and sentence. See State v. Thacker, 164 S.W.3d 208 (Tenn. 2005). The Petitioner filed a pro se petition for post-conviction relief, and the post-conviction court appointed counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that: (1) he received the ineffective assistance of counsel during his trial; (2) he received the ineffective assistance of counsel on appeal; (3) the sentence of death violates his constitutional rights; (4) the aggravating circumstances of his case do not preclude a finding that he was prejudiced by his trial counsel’s performance; and (5) he is entitled to post-conviction relief based upon the cumulative effect of counsel’s errors. After a thorough review of the record and applicable authorities, we affirm the post conviction court’s judgment. |
Dyer | Court of Criminal Appeals | |
Donna Leigh Pearson v. State of Tennessee
In two separate cases, the Petitioner, Donna Leigh Pearson, pled guilty to burglary and theft of over $1000. The trial court sentenced her to ten years on each count, to be served in the Tennessee Department of Correction at 45%, and, because the Petitioner committed one offense while released on bond for the other offense, the trial court ordered consecutive sentences. The Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition but granted the Petitioner the opportunity to seek a delayed appeal of her sentence. On appeal, the Petitioner contends that: (1) she received the ineffective assistance of counsel; (2) her guilty pleas were not knowingly and voluntarily entered; and (3) the trial court erred when it sentenced her. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of her petition and we affirm her sentence. |
Davidson | Court of Criminal Appeals | |
Donna Leigh Pearson v. State of Tennessee - Concur
I concur with the majority opinion in result only for the reason that the post-conviction trial court erred by granting Petitioner a delayed appeal as to her sentence. The post-conviction trial court filed a fifteen-page order of disposition of the post-conviction petition, setting forth in detail its findings of fact and conclusions of law. I have carefully reviewed this order and have found no findings of fact by the post-conviction trial court which support the granting of post-conviction relief to Petitioner to the extent of granting a delayed appeal of the sentence imposed upon her. In fact, I find the term “delayed appeal” mentioned only in the order’s introduction, (“The Court, however, shall grant Petitioner the opportunity to seek a delayed appeal as to her sentence.”) and in its conclusion (“The Court, however, shall grant Petitioner the opportunity to seek a delayed appeal as to her sentence.”). No reasons are provided for the granting of the delayed appeal. The proof at the post-conviction hearing was that trial counsel informed Petitioner that he would not be representing her on appeal of her sentence, but that he informed her she was entitled to an appeal of the sentence. Furthermore,the record reflects that trial counsel was retained to represent Petitioner in the trial court, but had not been retained to represent her on appeal. Petitioner filed a pro se “Notice of Appeal,” but on the advice of the inmate “law clerks” at the correctional facility, she voluntarily dismissed her appeal. There is nothing in the post-conviction trial court’s comments from the bench following the hearing, or in its order on the post-conviction petition, setting forth any deficiency by the trial counsel, or, obviously, any resulting prejudice to Petitioner as a result of deficient representation by trial counsel regarding appeal of the sentence. It appears from the record that the post-conviction court gratuitously granted Petitioner a delayed appeal with no constitutional basis found to grant such relief. Trial counsel may have provided deficient representation ;if so,Petitioner may have been prejudiced thereby. However,the post-conviction court made no factual findings to either support or reject these conclusions. Accordingly, I would reverse that portion of the order granting a “delayed appeal” and affirm the dismissal of the Petition for post-conviction relief. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. Sean Nauss, Alias
The Defendant, Sean Nauss, alias, appeals as of right from the trial court’s denial of judicial diversion following his guilty plea to three counts of statutory rape, a Class E felony. Following a sentencing hearing, the court imposed a sentence of three years’ probation. The Defendant contends that the trial court erred in denying his application for judicial diversion because the applicable factors weigh heavily in favor of diversion. After a review of the record, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. |
Knox | Court of Criminal Appeals | |
Metropolitan Government of Nashville and Davidson County, et al. v. BFI Waste Services, LLC, et al.
After Metro’s waste-to-energy facility was damaged/destroyed by fire, Metro and the facility’s insurer filed suit against Defendants. Prior to trial, Defendants’ expert was precluded from testifying regarding the facility’s value, its condition prior to the fire, and the alleged pre-fire plans to discontinue its operation. A jury returned a verdict in favor of Plaintiffs, and Defendants appeal. On appeal, Defendants challenge the exclusion of certain evidence, the jurycharge regarding damages, and an adverse inference juryinstruction given as a sanction against Defendants. Additionally, Plaintiffs challenge the denial of prejudgment interest. We affirm the trial court in all respects. |
Davidson | Court of Appeals | |
James Wesley Osborne v. State of Tennessee
James Wesley Osborne (“the Petitioner”) filed a “petition for delayed post-conviction relief” on August 12, 2008, regarding his October 1999 conviction of first degree murder. A hearing was held to determine if the Petitioner was entitled to have the applicable statute of limitations tolled. The post-conviction court determined that he was not and dismissed the petition as untimely. This appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court. |
Jefferson | Court of Criminal Appeals | |
In Re: Fridrich E.T.W.
George R.W., Jr. (“Father”) appeals the termination of his parental rights with respect to his minor son, Fridrich E.T.W. (DOB: Aug. 27, 2008) (“the Child”). The Department of Children’s Services (“DCS”) had filed a petition seeking to terminate both parents’ rights after the Child was taken into custody pursuant to an emergency protective order. He was subsequently adjudicated dependent and neglected as a result of being subjected to severe child abuse. As to Father, DCS pursued termination on the sole ground of severe child abuse. Father did not appear at trial. At the start of the trial, his counsel moved for a continuance based in part on counsel’s assertion that Father had advised her that he wished to effectuate a voluntary surrender of his parental rights. The trial court denied the motion and the hearing proceeded in Father’s absence. The court terminated Father’s rights based upon its finding that the sole ground for termination was established and that termination was in the best interest of the Child, both findings said by the court to be made by clear and convincing evidence. Father appeals. We affirm. |
Anderson | Court of Appeals | |
Amber Brazilian Export Resources, Inc., DBA Amber International V. Crown Laboratories, Inc. et al.
Amber Brazilian Export Resources, Inc., doing business as Amber International (“the Plaintiff”), filed this action against Crown Laboratories, Inc. and Jeffrey A. Bedard (collectively “the Defendants”) to collect a debt owed on an “open account.” The liability of Mr. Bedard is based upon a personal guaranty of Crown’s obligation. The Defendants admit that something is owed on the account but deny the amount and further deny that Mr. Bedard signed the guaranty in a personal capacity. The Plaintiff filed a motion for summary judgment supported by the affidavit of its president, which the Defendants opposed with the affidavit of Mr. Bedard in which he states that he signed the guaranty in a representative capacity. He also disputes the amount due as stated in the Plaintiff’s affidavit. The trial court granted the Plaintiff’s motion. The Defendants appeal. We affirm that part of the judgment holding Mr. Bedard liable on the guaranty and vacate that part of the judgment setting the amount owed because there is a genuine issue of material fact as to the amount. |
Washington | Court of Appeals | |
Farmers Mutual of Tennessee v. Jennifer Atkins
This is an interlocutory appeal from the denial of summary judgment. Appellant insurance company sought a declaratory judgment that Appellee was precluded from recovering under her home owner’s insurance policy due to her failure to submit to an examination under oath. The insurance company moved for summary judgment, arguing that the failure to submit to an examination under oath was the nonoccurrence of a condition precedent to recovery under the policy, as outlined in Spears v. Tennessee Farmers Mut. Ins. Co., 300 S.W.3d 671 (Tenn. Ct. App. 2009). Appellee responded that she had not failed to submit to an examination and argued that, under Talley v. State Farm Fire & Cas. Co., 223 F.3d 323 (6th Cir. 2000), the insurance company must prove prejudice in order to preclude recovery. The trial court denied summary judgment, citing material factual disputes and noting, without deciding, the divergence of opinion regarding the condition precedent issue. Accordingly, the trial court granted an interlocutory appeal for this Court to determine the applicable law. This Court granted the interlocutory appeal; however, upon further review, we have determined that this issue is not properly before us. Accordingly, we vacate the grant of the interlocutory appeal, remand to the trial court for further proceedings and dismiss the appeal. |
Monroe | Court of Appeals | |
Orlando Fields v. Corrections Corporation of America et al.
An inmate at the South Central Correctional Facility in Clifton, Wayne County, Tennessee, filed this Petition for Writ of Certiorari to challenge the decision of the prison grievance board and that of the Commissioner. All of the respondents filed motions to dismiss the petition on several grounds including that Petitioner failed to comply with Tenn. Code Ann. § 41-21-805, that decisions bya prison grievance boards are not reviewable under a common law writ of certiorari, and Petitioner failed to comply with Tenn. Code Ann. § 41-21-806(b). The trial court dismissed the petition as to all respondents. We affirm. |
Wayne | Court of Appeals | |
Robes P. Jean Philippe a/k/a Johnny Ralone et al. v. Jhuliana Lopez et al.
The appellants have filed notices of appeal from a final judgment purportedly entered on February 25, 2011. Because the appellants did not file their notices of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4(a), we dismiss the appeal. |
Davidson | Court of Appeals | |
Mary D. Cole v. Marvin Windows of Tennessee
An employee sustained a compensable injury to her hand and elbow. Employee’s authorized treating physician assigned an impairment rating of 1% to both her right and left arms. The employee’s evaluating physician assigned 16% impairment to her right arm and 15% to her left arm. Due to the disparity between the physician’s ratings, the parties selected a physician from the Medical Impairment Registry (“MIR”) who assigned 5% impairment to each of the employee’s arms. The trial court based its award of disability benefits on the MIR physician’s rating. The employee has appealed, contending that she successfully rebutted the statutory presumption of correctness given to the MIR physician’s rating. We affirm the trial court’s ruling. |
Lauderdale | Workers Compensation Panel | |
State of Tennessee v. Greta Cooper
Appellant, Greta Cooper, was indicted along with two codefendents for multiple counts of theft of property and forgery. After a jury trial, Appellant was convicted of eight counts of theft of property valued over $500, three counts of theft of property valued over $1,000, one count of theft of property valued over $10,000, and twelve counts of forgery. As a result of the convictions, Appellant was sentenced to an effect sentence of three years, to be served as six months in confinement followed by six years on probation. After the denial of a motion for new trial, Appellant appealed. On appeal, she asserts that the trial court improperly excluded a statement made by the victim to law enforcement that he gave Appellant the money which was the subject of her theft convictions. We determine that Appellant failed to properly raise the issue in a motion for new trial. Therefore, the issue is waived absent a showing of plain error. After a review of the record, we decline to review the issue for plain error because the trial court did not breach a clear and unequivocal rule of law. Specifically, we agree with the trial court’s determination that the statement made by Lonzia Taylor was not admissible as a statement against interest because it was made under circumstances which render it unreliable. Accordingly, the judgment is affirmed. |
Campbell | Court of Criminal Appeals | |
State of Tennessee v. Darius J. Hunt
Defendant-Appellant, Darius J. Hunt, appeals from the Knox County Criminal Court’s order revoking his probation. Hunt pled guilty to one count of possession of half a gram or more of cocaine with intent to sell. He received a suspended sentence of eight years following one year of confinement. On appeal, Hunt claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentence in confinement. Upon review, we affirm the judgment of the trial court. |
Knox | Court of Criminal Appeals | |
Johnny Wayne Beard v. State of Tennessee
The petitioner, Johnny Wayne Beard, appeals the denial of his petition for post-conviction relief from his rape of a child conviction, arguing he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. After review, we affirm the lower court’s denial of post-conviction relief. |
Tipton | Court of Criminal Appeals |