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Today's Opinions

• TN Supreme Court (1)
• TN Court of Appeals (4)
• TN Court of Criminal Appeals (11)
• 6th Circuit Court (Published Opinions) (1)

PRATIK PANDHARIPANDE, M.D. v. FSD CORPORATION

Court: TN Supreme Court

Attorneys:

Benjamin M. Rose, Brentwood, Tennessee, for the appellant, Pratik Pandharipande, M.D.

Gerald C. Wigger and Emmie Kinnard, Nashville, Tennessee, for the appellee, FSD Corporation.

Judge(s): CAMPBELL

This case arises from a dispute between a property owner and his homeowners’ association. The property owner, Pratik Pandharipande, purchased a home in a vacation community on a Tennessee lake, intending to use it as a short-term rental. At the time of the purchase, the property was subject to covenants requiring that the home be used for “residential and no other purposes.” The covenants were amended several years later to allow leases with minimum lease terms of thirty days. Pandharipande contends that neither the original covenants nor the amendments prohibit him from leasing his property for short terms of two to twenty-eight days. His homeowners’ association disagrees on both scores. We agree with Pandharipande that the original covenants requiring residential use of the property do not bar his short-term rentals, but we agree with the homeowners’ association that the amendments do. The trial court granted summary judgment in favor of the homeowners’ association based on both the original covenants and the amendments. The Court of Appeals affirmed. We affirm the Court of Appeals in part, reverse in part, and remand for further proceedings consistent with this opinion.

pandharipandep_101723.pdf

RAYMOND D. BARNES, JR. v. MARION L. BARNES

Court: TN Court of Appeals

Attorneys:

Gregory D. Smith, Rebecca McKelvey Castañeda, Brenton H. Lankford, and Ann Ralls Brown, Nashville, Tennessee, for the appellant, Raymond D. Barnes.

Larry Hayes, Jr., and Rachel M. Thomas, Nashville, Tennessee, for the appellee, Marion L. Barnes.

Judge(s): USMAN

After a long-term marriage, the parties divorced. The trial court, which found the husband’s testimony not to be credible, set the value of the marital property, divided the marital property, and awarded alimony in futuro to the wife. The husband appeals, challenging the credibility finding, the trial court’s valuation of the marital property, the division of property, and the alimony award. We affirm the trial court’s valuation and distribution of the marital property, but we vacate the trial court’s alimony award, remanding for further proceedings consistent with this opinion.

barnesr_101723.pdf

JAMES PAUL BURKHART v. KATHRYN JEAN BURKHART

Court: TN Court of Appeals

Attorneys:

James Paul Burkhart, Portland, Tennessee, Pro se.

Sharon Linville, Hartsville, Tennessee, for the appellee, Kathryn Jean Burkhart.

Judge(s): STAFFORD

In this accelerated interlocutory appeal, Appellant seeks to appeal from the denial of three separate motions to recuse the trial judge. As to the first motion, we affirm the trial court’s denial of that motion on the basis of Appellant’s failure to comply with Rule 10B of the Rules of the Supreme Court of the State of Tennessee. As the second and third recusal motion, we dismiss this appeal, as no effective order denying those motions has yet been entered by the trial court.

burkhartj_101723.pdf

STATE OF TENNESSEE v. $133,429 IN U.S. CURRENCY SEIZED FROM JONI ASSEFA KILENTON, ET AL.

Court: TN Court of Appeals

Attorneys:

Coleman W. Garrett and Philip Logan Wyatt, Memphis, Tennessee, for the appellant, Joni Assefa Kilenton.

Jonathan Skrmetti, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, and Edwin Alan Groves, Jr., Assistant Attorney General, for the appellee, State of Tennessee.

Judge(s): MCGEE

This appeal arises from a forfeiture action regarding funds seized during a traffic stop. In a prior appeal, this Court vacated and remanded for entry of an order that complied with Rule 58 and Rule 52.01 of the Tennessee Rules of Civil Procedure. The trial court entered an additional order on remand, and the appellant has again appealed. Due to deficiencies in the appellant’s brief on appeal, we conclude that he waived consideration of his issue on appeal and hereby dismiss the appeal.

kilentonj_101723.pdf

JEFFREY SWINGHOLM, ET AL. v. THE FARM AT CLOVERCROFT HOMEOWNERS ASSOCIATION, INC., ET AL.

Court: TN Court of Appeals

Attorneys:

Benjamin E. Goldammer, Nashville, Tennessee, for the appellants, Jeffrey and Nikki Swingholm.

Wm. Ritchie Pigue and Matthew C. Pietsch, Nashville, Tennessee, for the appellee, The Farm at Clovercroft Homeowners Association, Inc.

Robert A. Peal and Evan S. Rothey, Nashville, Tennessee, for the appellees, Michael S. and Rebecca Lewis.

Judge(s): MCCLARTY

The plaintiffs filed this breach of contract action against their homeowners association for failure to rectify alleged violations of the neighborhood restrictions. The plaintiffs sought a declaratory judgment establishing that the issues complained of were actual violations of the restrictions. The trial court dismissed the action in favor of the homeowners association and the plaintiffs’ neighbors who joined as interested parties. We affirm.

swingholmj_101723.pdf

STATE OF TENNESSEE v. BRADLEY DWIGHT BOWEN

Court: TN Court of Criminal Appeals

Attorneys:

Gregory D. Smith (on motion for new trial and on appeal), Travis N. Meeks (elbow counsel at trial), and Chase T. Smith (at suppression hearing), Clarksville, Tennessee, for the appellant; and Bradley Dwight Bowen, Pro Se (at trial), Wartburg, Tennessee.

Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant Attorney General; Robert J. Nash, District Attorney General; and Michael T. Pugh and Helen O. Young, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): HIXSON

The Defendant, Bradley Dwight Bowen, appeals from his jury convictions for possession of one-half gram or more of methamphetamine with intent to manufacture, sell, or deliver; simple possession of cocaine; possession of drug paraphernalia; and possession of a firearm by a convicted felon; for which he received an effective ten-year sentence. On appeal, he challenges the trial court’s denial of (1) his motion to suppress the evidence seized as a result of his detention and (2) his motion to continue requesting additional time to prepare his pro se defense. Following our review, we affirm the judgments of the trial court.

bowenb_101723.pdf

MICAH JOSHUA FORD, ALIAS JOSEPH TOLBERT III v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr, Knoxville, Tennessee, for the appellant, Micah Joshua Ford, alias Joseph Tolbert, III.

Jonathan Skrmetti, Attorney General and Reporter; Mary Elizabeth King, Assistant Attorney General; Charme P. Allen, District Attorney General; and Rachel Lambert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): AYERS

Petitioner, Micah Joshua Ford, alias Joseph Tolbert, III, appeals the denial of his postconviction petition, arguing that the post-conviction court erred in finding that he received the effective assistance of counsel at trial and on direct appeal. He also argues that he is entitled to a new trial under the doctrine of cumulative error. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

fordm_101723.pdf

STATE OF TENNESSEE v. LORIE ANN GERBIS

Court: TN Court of Criminal Appeals

Attorneys:

Jay Umerley (on appeal), and Dave Kieley and Annie Berry (at bench trial), Nashville, Tennessee, for the appellant, Lorie Ann Gerbis.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): HIXSON

The Defendant, Lorie Ann Gerbis, was convicted following a bench trial of two counts of aggravated assault. On appeal, the Defendant argues that the evidence was insufficient to support her convictions. Specifically, she contends that the State’s evidence was inadequate to establish her identity as the perpetrator beyond a reasonable doubt. After review, we affirm the judgments of the trial court.

gerbisl_101723.pdf

VICTERICKA GILCHREASE v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

James Shae Atkinson, Memphis, Tennessee, for the appellant, Victericka Gilchrease.

Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant Attorney General; Steve Mulroy, District Attorney General; Carrie Shelton Bush, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): MONTGOMERY

The Pettioner, Victercika Gilchrease, appeals from the post-conviction court’s denial of her petition for post-conviction relief from her guilty plea convictions for second degree murder and two counts of aggravated assault, for which she is serving an agreed, effective twenty-one-year sentence. On appeal, she contends that the post-conviction court erred in denying relief on her ineffective assistance of counsel claims. We affirm the judgment of the post-conviction court.

gilchreasev_101723.pdf

STATE OF TENNESSEE v. CEDRIC D. MARSHALL, ALIAS EDWARD DEPRIEST

Court: TN Court of Criminal Appeals

Attorneys:

Barry Gearon (at hearings), and Jay Umerley (on appeal), Nashville, Tennessee, for the appellant, Cedric D. Marshall.

Jonathan Skrmetti, Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Jennifer Charles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Cedric D. Marshall, appeals the Davidson County Criminal Court’s order revoking his community corrections sentence and resentencing him to an effective sentence of seven years’ incarceration for his guilty-pleaded convictions of evading arrest, burglary, and theft of property. Because the defendant’s notice of appeal is untimely, we dismiss the appeal.

marshallc_101723.pdf

STATE OF TENNESSEE v. GREGORY L. NELSON

Court: TN Court of Criminal Appeals

Attorneys:

Matthew T. Mitchell, District Public Defender, for the appellant, Gregory L. Nelson.

Jonathan Skrmetti, Attorney General and Reporter; Brooke A. Huppenthal, Assistant Attorney General; and J. Lee Willoughby and Kayla McBride, District Attorneys General Pro Tempore, for the appellee, State of Tennessee.

Judge(s): HIXSON

The Defendant, Gregory L. Nelson, appeals the trial court’s revocation of his eight-year sentence for unlawful possession of a weapon by a convicted felon. On appeal, he argues that the trial court erred by fully revoking his probation and ordering him to serve the remainder of his sentence in confinement. Following our review, we affirm the judgment of the trial court.

nelsong_101723.pdf

STATE OF TENNESSEE v. MICHAEL NOTARO

Court: TN Court of Criminal Appeals

Attorneys:

Ilya Berenshteyn, Bristol, Tennessee, for the appellant, Michael Notaro.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Senior Assistant Attorney General; Barry Staubus, District Attorney General; and William Harper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): EASTER

Michael Notaro, Defendant, pled guilty to three counts of sexual exploitation of a minor with an agreed-upon sentence of 10 years for each conviction, to be served consecutively for a total effective sentence of 30 years at 100% in exchange for the State agreeing not to seek further prosecution for any other offenses under investigation. Defendant did not seek a direct appeal of his sentence. Instead, Defendant filed a motion pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure in which he argued that his sentence was illegal. The trial court dismissed the motion for failure to state a colorable claim. Defendant appeals. We affirm the judgment of the trial court.

notarom_101723.pdf

STATE OF TENNESSEE v. ARLIE OWENS

Court: TN Court of Criminal Appeals

Attorneys:

Jonathan Skrmetti, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; and Jimmy Dunn, District Attorney General, for the appellant, State of Tennessee.

Troy B. Jones, Knoxville, Tennessee (at trial court); and Brennan M. Wingerter, Assistant Public Defender (on appeal), for the appellee, Arlie Owens.

Judge(s): WITT

In this State appeal, the State argues that the Grainger County Circuit Court exceeded its jurisdiction when it granted the defendant’s motion to be removed from the sex offender registry and vacated his conviction for violation of the sex offender registry requirements. We conclude that the defendant’s motion is substantively a petition for post-conviction relief but that because the petition was untimely and because due process tolling of the statute of limitations is not warranted, the trial court erred by granting post-conviction relief. We also conclude that the trial court lacked jurisdiction to order the defendant removed from the sex offender registry. Accordingly, we reverse the trial court’s order and reinstate the defendant’s conviction for violation of the sex offender registry.

owensa_101723.pdf

STATE OF TENNESSEE v. CHRISTOPHER KIRK STACK

Court: TN Court of Criminal Appeals

Attorneys:

Julia Anna Trant, Knoxville, Tennessee, for the appellant, Christopher Kirk Stack.

Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): MONTGOMERY

The Defendant, Christopher Kirk Stack, appeals from the Knox County Criminal Court’s probation revocation of the six-year sentence he received for his guilty-pleaded conviction for attempted aggravated sexual battery. On appeal, the Defendant contends that the trial court abused its discretion by revoking his probation and ordering him to serve the remainder of his sentence in confinement. We affirm the judgment of the trial court.

stackc_101723.pdf

STATE OF TENNESSEE v. WILL VAUGHN

Court: TN Court of Criminal Appeals

Attorneys:

Larry James Peters, II (on appeal); and John Dolan and Shaun Schielke (at trial), Memphis, Tennessee, for the appellant, Will Vaughn.

Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Paige Munn and William Cranford, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge(s): WITT

The defendant, Will Vaughn, appeals his Shelby County Criminal Court jury conviction of first-degree murder, challenging the sufficiency of the convicting evidence. Discerning no error, we affirm.

vaughnw_101723.pdf

STATE OF TENNESSEE v. MARK L. WARD

Court: TN Court of Criminal Appeals

Attorneys:

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Mark L. Ward.

Jonathan Skrmetti, Attorney General and Reporter; Katherine C. Redding, Senior Assistant Attorney General; Charme P. Allen, District Attorney General; and Joanie Stewart, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge(s): MCMULLEN

The Appellant, Mark L. Ward, was convicted by a Knox County jury of aggravated kidnapping, attempted aggravated burglary, and two counts of aggravated rape, for which he received an effective sentence of sixty-eight years in confinement. The sole issue presented for our review is whether the evidence is sufficient to support the Appellant’s convictions. Upon our review, we affirm.

wardm_101723.pdf

UNITED STATES OF AMERICA v. STERLING H. ROBERTS

Court: 6th Circuit Court (Published Opinions)

Attorneys:

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant.

ARGUED: Kevin Koller, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.

ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant.

ON BRIEF: Kevin Koller, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.

Judge(s): MOORE, GIBBONS, and BUSH, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Southern District of Ohio at Dayton

JOHN K. BUSH, Circuit Judge. Sterling Roberts appeals his conviction for federal crimes relating to the death of Robert “Bob” Caldwell. Mr. Caldwell was in a child-custody dispute with his ex-wife, Tawnney Caldwell, who was Roberts’ girlfriend. Roberts tried to kill, or at least seriously harm, Mr. Caldwell by luring him through false guise to a remote location. Mr. Caldwell managed to escape. Later, he wasn’t so fortunate. Mr. Caldwell was murdered after a family-counseling session.

Roberts argues, based on the Confrontation Clause, federal evidentiary rules, and the attorney-client privilege, that the district court improperly admitted evidence related to the earlier attack and other incriminating proof. He also raises two constitutional challenges to the interstate stalking statute under which he was convicted, 18 U.S.C. § 2261A, claiming that it exceeded congressional power under the Commerce Clause and that the counts of his conviction are multiplicitous. Because none of Roberts’ arguments have merit, we AFFIRM the district court’s judgment of conviction.

robertss_101723.pdf