APPELLATE COURT OPINIONS

Citizens For Safety And Clean Air, et al v. City Of Clinton, et al

E2012-02435-COA-R3-CV

This appeal arises from a dispute over the zoning of a certain tract of land in Clinton, Tennessee. Clinton annexed property (“the Property”) belonging to Rogers Group, Inc., and assigned zoning classifications to the newly annexed tract. The group Citizens for Safety and Clean Air, and individual local residents Walt Warren, Patricia Warren, Charles Goins, and Judy Goins (“the Plaintiffs,”collectively) sued the City of Clinton, Tennessee, Clinton Municipal Planning Commission, and Rogers Group (“the Defendants,” collectively) in the Chancery Court for Anderson County (“the Trial Court”) seeking declaratory judgment. The Plaintiffs, opposed to the prospective development of a quarry and asphalt plant on the Property, challenged the heavy industrial zoning classification of a portion of the Property on the basis that it was arbitrary and capricious; constituted illegal contract zoning; and, constituted illegal spot zoning. Alternatively, the Plaintiffs sought to enforce the Master Settlement Agreement (“the MSA”), an agreement settling an annexation dispute entered into by Anderson County, Clinton, and Rogers Group. The Plaintiffs alleged they were third-party beneficiaries to the MSA. The Trial Court found in favor of the Defendants on all issues. We affirm the judgment of the Trial Court.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Chancellor William E. Lantrip
Anderson County Court of Appeals 10/11/13
Jarrell A. Campbell v. State of Tennessee

M2013-00990-CCA-R3-HC

This matter is before the Court upon the State’s motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Jarrell Antonio Campbell, has appealed the habeas corpus court’s order dismissing his petition for writ of habeas corpus in which Petitioner alleged that his conviction for possession of less than .5 grams of cocaine with intent to sell or deliver was void because it was not ordered to be served consecutively to a previous conviction for which he was on parole at the time he committed the offense. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is affirmed.

Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Jim T. Hamilton
Wayne County Court of Criminal Appeals 10/10/13
Penelope Lynne Allen v. Gordon Carmack Allen

M2012-02266-COa-R3-CV

Mother and Father were divorced in 2001 and the Final Decree required Father to pay a fixed amount to Mother each month as child support in addition to a percentage of his fluctuating income. Father was also ordered to provide Mother with proof of his income on a quarterly basis. In response to Mother’s motion to modify in 2003, the trial court averaged three years of Father’s gross income and increased Father’s monthly child support payments. Mother moved in 2011 to hold Father in contempt of court for failing to continue providing her with proof of his income and sought a child support arrearage based on Father’s failure to pay a percentage of his fluctuating income for the years 2003 through 2010. The trial court awarded Mother the arrearage she sought and found Father was in civil contempt for failing to continue providing Mother with proof of his income. The court awarded Mother her attorney’s fees based on Father’s civil contempt. Father appealed, and we reverse the trial court’s judgment. The governing statute requires child support payments to be for a definite amount, not an amount that fluctuates. The existing order did not include the requirement that Father provide proof of income. Therefore, we also reverse the trial court’s award to Mother of attorney’s fees incurred in the civil contempt proceedings.
 

Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Chancellor Tom E. Gray
Sumner County Court of Appeals 10/09/13
William J. Denning v. CSX Transportation, Inc.

M2012-01077-COA-R3-CV

This appeal arises from a jury verdict in favor of Plaintiff in an action filed pursuant to the Federal Employers’ Liability Act (“FELA”). Defendant appeals denial of its motion for judgment notwithstanding the verdict and the trial court’s determination that post-judgment interest is properly awarded in the amount provided by Tennessee Code Annotated § 47-14-121 and not federal law. On cross-appeal, Plaintiff appeals the trial court’s decision to exclude certain evidence and its determination that post-judgment interest is properly calculated from the date the trial court entered judgment on the jury verdict rather than the date the jury rendered its verdict as provided by Tennessee Code Annotated § 47-14-122. We affirm denial of Defendant’s motion for judgment notwithstanding the verdict and the trial court’s evidentiary decisions. We also affirm the trial court’s determination that post-judgment interest is properly awarded at the rate provided by Tennessee Code Annotated § 47-14-121. We reverse the trial court’s determination that post-judgment interest accrues from the date provided by federal law. We hold that state law controls the calculation of post-judgment interest to be awarded in FELA actions adjudicated in state court.

Authoring Judge: Judge David R. Farmer
Originating Judge:Judge C. L. Rogers
Sumner County Court of Appeals 10/09/13
Dale Roberts Crafton v. James Frederick Roberts

W2012-02603-COA-R3-CV

Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction.

Authoring Judge: Per Curiam
Originating Judge:Judge Kay S. Robilio
Shelby County Court of Appeals 10/09/13
State of Tennessee v. Norman G. Page

M2013-00282-CCA-R3-CD

The defendant, Norman G. Page, was convicted by a Williamson County Circuit Court jury of theft of property valued over $1,000 but less than $10,000, a Class D felony, and was sentenced to twelve years as a career offender in the Department of Correction.  On appeal, he challenges the sufficiency of the convicting evidence.  After review, we affirm the judgment of the trial court. 
 

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Robbie T. Beal
Williamson County Court of Criminal Appeals 10/08/13
State of Tennessee v. Kevin Anthony Dickson, Jr.

E2010-01781-SC-R11-CD

The defendant, angry about the quality of the cocaine that he had purchased, procured weapons and ammunition and enlisted the assistance of two other men to help him confront the drug dealers and obtain a refund. After forcing his way into a cabin where the drug dealers were located, one of his compatriots—-whom the defendant had armed with a .45 pistol—shot and seriously wounded two unarmed victims. Following a bench trial, the trial judge ruled that the defendant was criminally responsible for the actions of the shooter and found the defendant guilty of two counts of attempted first degree murder, and one count each of especially aggravated burglary, attempted aggravated robbery, and aggravated assault. The trial judge sentenced the defendant on these convictions, including consecutive twenty-five year sentences for each attempted first degree murder conviction. The Court of Criminal Appeals reduced one count of attempted first degree murder to attempted second degree murder, finding insufficient evidence of premeditation with respect to the shooting of one of the unarmed victims, and modified the conviction of especially aggravated burglary to aggravated burglary. The court affirmed the other convictions and remanded the case to the trial court for re-sentencing on attempted second degree murder and aggravated burglary. We accepted this case to review the sufficiency of the evidence supporting the convictions of attempted first degree murder and the propriety of the consecutive sentences for the attempted first degree murder convictions. We affirm both convictions for attempted first degree murder and the consecutive sentences.
 

Authoring Judge: Justice Sharon G. Lee
Originating Judge:Judge Richard R. Vance
Sevier County Supreme Court 10/08/13
State of Tennessee v. Corinio Pruitt

W209-01255-SC-DDT-DD

A jury convicted the defendant of first degree felony murder. The jury imposed a sentence of death based on three aggravating circumstances: (1) the defendant had previously been convicted of one or more felonies involving the use of violence; (2) the murder was knowingly committed while the defendant had a substantial role in committing a robbery; and (3) the victim was seventy years of age or older. See Tenn. Code Ann. § 39-13-204(i)(2), (7), (14) (2010). The Court of Criminal Appeals affirmed. On automatic appeal pursuant to Tennessee Code Annotated section 39-13-206(a)(1) (2010), we designated the following issues for oral argument: (1) whether the evidence was sufficient to support the jury’s finding of guilt of first degree felony murder beyond a reasonable doubt; (2) whether the trial court erred in determining that the defendant had failed to prove by a preponderance of the evidence that he was intellectually disabled and thereby ineligible for the death penalty; and (3) whether the sentence of death is disproportionate or invalid pursuant to the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1). On December 6, 2012, we ordered re-argument on the following issues: (1) whether the proportionality analysis adopted by the majority of the Court in State v. Bland, should be modified; (2) whether the absence of an intent to kill should render the death penalty disproportionate; and (3) whether the pool of cases considered in proportionality analysis should be broadened. Having carefully considered these issues and the other issues raised by the defendant, we find no merit to the defendant’s arguments. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

Authoring Judge: Justice Janice M. Holder
Originating Judge:Judge Chris B. Craft
Shelby County Supreme Court 10/08/13
State of Tennessee v. Corinio Pruitt - Concur and Dissent

W2009-01255-SC-DDT-DD

We concur fully with the Court’s decision to affirm Corinio Pruitt’s conviction for first-degree felony murder. However, we respectfully disagree with the manner in which the Court has carried out the proportionality analysis required by Tenn. Code Ann. § 39-13-206(c)(1)(D) (2010) because we believe that it is inconsistent with the plain requirements of the statute. After considering “both the nature of the crime and the defendant” in this case and in “similar cases” as required by Tenn. Code Ann. § 39-13-206(c)(1)(D), we conclude that Mr. Pruitt should be sentenced to life without the possibility of parole.

Authoring Judge: Justice William C. Koch, Jr. and Justice Sharon G. Lee
Originating Judge:Judge Chris B. Craft
Shelby County Supreme Court 10/08/13
Austin Wells, a disabled person, by and through his conservator and natural mother Carron C. Wells Baker v. State of Tennessee and Donald Estes and University of Memphis Foundation

W2012-00189-COA-R3-CV

A University of Memphis student fell down an elevator shaft while removing artwork following a required University function at property owned by Donald Estes. The student sued Donald Estes and Estes, LLC, the University, and The University of Memphis Foundation. Summary judgment was granted in favor of the Foundation. The jury returned a verdict of $4,103,720.00, and the fault was ultimately allocated as follows: the State 40%; the student 15%; Estes 45%. Based upon an indemnification agreement, the trial court found the State liable for Mr. Estes’ share of the jury verdict, or $1,436,215.20. We find that the trial court erred in concluding that the indemnification agreement indemnified Mr. Estes for his own negligence and in granting summary judgment in favor of the Foundation. However, we affirm the trial court’s admission of testimony regarding $410,000 in medical bills, its exclusion of evidence regarding the student’s alleged drug use, and its capping of the State’s liability at $300,000. The case is remanded for further proceedings consistent with this opinion.

Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Judge Jerry Stokes
Shelby County Court of Appeals 10/08/13
Jennifer E. Patterson v. Natalie D. Grant-Herms

M2013-00287-COA-R3-CV


Operations agent employed by Southwest Airlines brought an action against a passenger for posting allegedly false and defamatory statements on Twitter and Facebook regarding actions taken by agent when passenger attempted to board a flight. The trial court granted the passenger’s motion for summary judgment, holding that the statements did not rise to the level of defamation, that the language could not be construed to hold the agent up to public ridicule, and that the language was not highly offensive to a reasonable person. We affirm the grant of summary judgment on the defamation claim and reverse the grant of summary judgment on the claim for invasion of privacy; we remand the case for further proceedings.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Joseph P. Binkley, Jr.
Davidson County Court of Appeals 10/08/13
Jennifer E. Patterson v. Natalie D. Grant-Herms - Concurring in Part, Dissenting in Part

M2013-00287-COA-R3-CV


I concur in the majority’s holding affirming the trial court’s dismissal of Ms. Patterson’s claim for defamation. However, I dissent from the holding reversing the trial court’s dismissal of the claim based upon false light invasion of privacy.

Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Joseph P. Binkley
Davidson County Court of Appeals 10/08/13
Gayle Connelly v. Peter Napolitano

M2013-01385-COA-R3-CV

The trial court in this case entered two identical final judgments fifteen days apart. The appellant filed her notice of appeal within thirty days of the second judgment, but not the first. Because the thirty day time limit for filing a notice of appeal runs from the entry of the first judgment, the notice of appeal was not timely filed. Although the appellant may seek relief from the trial court pursuant to Tenn. R. Civ. P.60, the failure to file a timely notice of appeal deprives this court of jurisdiction, and the appeal must be dismissed.
 

Authoring Judge: Per Curiam
Originating Judge:Judge Thomas W. Brothers
Montgomery County Court of Appeals 10/08/13
Kathleen Baker and Rick Baker v. Deborah A. Snedegar

M2012-02348-COA-R9-CV

Plaintiff filed suit against a medical legal examiner alleging the medical legal examiner was negligent in failing to inform her of certain preventative medications. The medical legal examiner contended she was a government employee protected from liability by the Governmental Tort Liability Act and moved for summary judgment. The trial court denied the motion because the medical legal examiner could not prove she was paid by the payroll department of the governmental entity at issue, as required by Tenn. Code Ann. § 29-20107(a)(2). The medical legal examiner appealed, and we affirm the trial court’s judgment.

Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Joseph P. Binkley, Jr.
Davidson County Court of Appeals 10/08/13
City of Memphis v. Karen Lesley and City of Memphis Civil Service Commission

W2012-01962-COA-R3-CV

A Memphis police officer’s employment was terminated without a pre-termination hearing because the City of Memphis was of the opinion that she was a probationary employee and not entitled to a hearing. The officer sought review of her termination, and the Memphis Civil Service Commission agreed with the City’s position that the officer was a probationary employee and not entitled to a hearing. The officer filed a petition for review before the chancery court, and the chancery court reversed the Commission, finding that the officer had already completed her probationary period, and as a non-probationary employee, she was entitled to due process protections including a pre-termination hearing. This order was not appealed. On remand to the Commission, the City stipulated that the officer was not given a pre-termination hearing and sought to relitigate the issue of whether she was a probationary employee. The Commission declined to reconsider the issue and determined that the officer was denied procedural due process. The Commission reinstated the officer to her previous position of employment. The chancery court affirmed. Finding no error, we affirm.

Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Chancellor Arnold B.Goldin
Shelby County Court of Appeals 10/07/13
State of Tennessee v. Ronnie Joe Stokes

E2012-02153-CCA-R3-CD

The defendant, Ronnie Joe Stokes, was convicted by a Cumberland County Criminal Court jury of robbery, a Class C felony, and sentenced to twelve years as a persistent offender in the Department of Correction. On appeal, he argues that the trial court erred in overruling his motion for new trial because a juror was exposed to extraneous prejudicial information. After review, we affirm the judgment of the trial court.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge David A. Patterson
Cumberland County Court of Criminal Appeals 10/07/13
State of Tennessee v. Nora Hernandez

M2012-02383-CCA-R3-CD

Appellant, Nora Hernandez, was convicted by a jury of two counts of felony failure to appear.  The trial court merged the convictions and sentenced her to two years, suspended after service of twenty-five days.  On appeal, appellant argues that: (1) her action in failing to report to the jail to serve a delayed sentence did not constitute the criminal offense of failure to appear; (2) the trial court erred by failing to dismiss the indictment based on prosecutorial vindictiveness; (3) her conviction should be dismissed because the jury only found her guilty of the elements of misdemeanor failure to appear, an offense for which the statute of limitations had passed; and (4) the trial court erred in sentencing.  Following our review, we affirm appellant’s convictions, but we vacate the two failure to appear judgments and remand the case for entry of a single judgment reflecting the merger of these convictions

Authoring Judge: Judge Roger A. Page
Originating Judge:Judge Timothy L. Easter
Williamson County Court of Criminal Appeals 10/07/13
State of Tennessee v. Zachary Carlisle

W2012-00291-CCA-MR3-CD

The Defendant, Zachary Carlisle, was convicted by a Shelby County Criminal Court jury of voluntary manslaughter and employing a firearm during the commission of a dangerous felony, Class C felonies. See T.C.A. §§ 39-13-211, 39-17-1324 (2010). The trial court sentenced him as a Range III, persistent offender to fifteen years’ confinement for the voluntary manslaughter conviction and to a consecutive fifteen years’ confinement as a violent offender for the firearm conviction. On appeal, the Defendant contends that (1) the indictment for the firearm conviction failed to charge an offense, (2) the evidence is insufficient to support his convictions, (3) the trial court erred in failing to instruct the jury on self-defense, and (4) the trial court committed plain error by instructing the jury that the Defendant’s statements could qualify as a confession. We affirm the judgments of the trial court.

Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge James M. Lammey Jr.
Shelby County Court of Criminal Appeals 10/07/13
Michael Adcock, et al. v. Cheatham County Board of Education

M2013-00849-COA-R3-CV

This is an appeal from a summary judgment order awarding the plaintiffs an easement across the defendant’s property. Because the order does not dispose of the plaintiffs’ claim for attorney’s fees, we dismiss the appeal for lack of a final judgment.
 

Authoring Judge: Per Curiam
Originating Judge:Judge Larry J. Wallace
Cheatham County Court of Appeals 10/07/13
Martha Elaine Weaver Carter v. David Ray Carter

M2013-00193-COA-R3-CV

Mother appeals the trial court’s decision on her petition to modify parenting time. While we find no error in the trial court’s ruling on parenting time, we have concluded that the trial court erred in disqualifying mother’s attorney from representing her in future proceedings and in ordering mother to produce bank records.
 

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Amanda Jane McClendon
Davidson County Court of Appeals 10/07/13
In Re: Mary E. P. et al

M2013-00436-COA-R3-PT

The juvenile court terminated the parental rights of the mother and father on the grounds of substantial noncompliance with the permanency plans, persistence of conditions, and willful abandonment by failure to visit, and upon the determination that termination of their parental rights was in the best interests of the children. Both parents appeal. Finding the evidence clear and convincing, we affirm.
 

Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge George L. Lovell
Maury County Court of Appeals 10/04/13
In Re: Mark A. L.

M2013-00737-COA-R3-PT


The Coffee County Chancery Court terminated the parental rights of the father on two grounds: 1) abandonment by willful failure to support pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(i) and 2) abandonment by willful failure to visit the child pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(i); and upon the determination that termination of the father’s rights was in the best interest of the child. Father appeals. Finding the evidence clear and convincing, we affirm.

Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge Vanessa Jackson
Coffee County Court of Appeals 10/04/13
State of Tennessee v. Marco Blanch

W2012-01027-CCA-R3-CD

In 2011, the Shelby County Grand Jury indicted Appellant, Marco Blanch, for aggravated rape based upon bodily injury sustained by the victim. A jury convicted Appellant of the lesser included offense of rape. Appellant was sentenced as a Range I, violent offender to an eleven-year sentence at 100 percent. On appeal, Appellant argues that the evidence presented  by the State at trial was insufficient to support his conviction because the victim consented to sexual activity. After a thorough review of the record, we affirm the judgment of the trial court and conclude that the evidence was sufficient to support Appellant’s conviction.

Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge J. Robert Carter
Shelby County Court of Criminal Appeals 10/04/13
State of Tennessee v. Kenneth L. Anderson

W2012-01039-CCA-R3-CD

Following a jury trial, the Defendant, Kenneth L. Anderson, was convicted of one count of selling less than .5 grams of cocaine, a Class C felony. See Tenn. Code Ann. § 39-17-417 (2010). The trial court sentenced the Defendant to twelve years as a Range III, persistent offender. In this appeal as of right, the Defendant contends (1) that his right to confront one of the State’s witnesses was violated; (2) that his right to present witnesses in his defense was violated; (3) that one of the State’s witnesses, Penny Webber, was not competent to testify at trial; (4) that the trial court erred by denying his motion to suppress a recorded phone conversation between himself and Ms. Webber and video recordings of the drug buy; (5) that he was denied his right of access to the courts; (6) that the jury venire did not represent a fair cross-section of the community; (7) that the evidence was insufficient to sustain his conviction; (8) that he was entitled to a new trial on the basis of newly discovered evidence; and (9) that his sentence was excessive. Following our review, we affirm the judgment of the trial court.

Authoring Judge: Judge D. Kelly Thomas
Originating Judge:Judge R. Lee Moore Jr.
Dyer County Court of Criminal Appeals 10/04/13
State of Tennessee v. Malcolm McKoy

E2013-00492-CCA-R3-CD

The Defendant, Malcolm McKoy, pled guilty to theft of property valued over $500 and burglary. The trial court sentenced the Defendant to concurrent four-year and six-year terms, suspended to be served on unsupervised probation. These sentences were to run consecutively to another sentence unrelated to this appeal. After two subsequent probation violations based on new arrests, the Defendant was arrested for aggravated assault. A probation violation warrant was issued based upon this arrest, and, after a hearing, the trial court revoked the Defendant’s probation. On appeal, the Defendant contends that there was insufficient evidence to warrant a revocation of his probation. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Authoring Judge: Judge Robert Wedemeyer
Originating Judge:Judge Don W. Poole
Hamilton County Court of Criminal Appeals 10/04/13