                                                                                                      10/24/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                           Assigned on Briefs September 4, 2018

                  CITY OF CHURCH HILL v. ROGER ELLIOTT

                      Appeal from the Circuit Court for Hawkins County
                        No. 2016CV124      Alex E. Pearson, Judge


                                 No. E2018-00095-COA-R3-CV


Roger Elliott (“Elliott”) appeals the January 23, 2018 order of the Circuit Court for
Hawkins County (“the Trial Court”) holding that Elliott had violated Church Hill
Municipal Ordinance No. 11-101 and assessing a civil penalty of $25.00 against Elliott
for the violation. We find and hold that the evidence in the record on appeal does not
preponderate against the Trial Court’s finding that Elliott violated Church Hill Municipal
Ordinance No. 11-101. We, therefore, affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
                                   Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.

Roger Elliott, Church Hill, Tennessee, pro se appellant.

William E. Phillips, II, Rogersville, Tennessee, for the appellee, City of Church Hill.

                                 MEMORANDUM OPINION1

                                            Background

      In December of 2015, Officer Kevin Grigsby of the Church Hill Police
Department issued a traffic citation to Elliott for “improper passing.” The case was heard

1
  Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated ‘MEMORANDUM OPINION,’ shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.”
by the Municipal Court of Church Hill, and Elliott was found guilty of “improper
passing” and fined $25.00.

       Elliott appealed to this Court. By Opinion issued in February of 2017, this Court
determined that it lacked subject matter jurisdiction as the underlying matter was criminal
in nature and transferred the case to the Court of Criminal Appeals. City of Church Hill
v. Elliott, No. E2016-01915-COA-R3-CV, 2017 WL 658264 (Tenn. Ct. App. Feb. 17,
2017), no appl. perm. appeal filed.

        The Court of Criminal Appeals considered the case and issued its Opinion in June
of 2017. City of Church Hill v. Elliott, No. E2016-01915-CCA-R3-CD, 2017 WL
2591371 (Tenn. Crim. App. June 15, 2017), no appl. perm. appeal filed. The Court of
Criminal Appeals held that the Municipal Court of Church Hill erred in finding Elliott
guilty of a violation of Tenn. Code Ann. § 55-8-118 and remanded the case for a new
trial to determine if Elliott had violated a municipal ordinance of the City of Church Hill.
Id. at *5.

      Upon remand, the Trial Court held a new trial. The Statement of the Evidence
approved by the Trial Court states, in pertinent part:

       Present in Court were Appellant, Roger Elliott; counsel for the City of
       Church Hill, William E. Phillips II; and Church Hill Officer Kevin Grigsby.
       [The City of Church Hill] gave a brief opening statement. [Elliott] declined
       to give an opening statement.

               The City of Church Hill first called Ms. Emily Wood. Ms. Wood
       identified herself as the City Recorder for Church Hill, and identified and
       authenticated Church Hill Municipal Ordinance No. 11-10. Ms. Wood read
       said Ordinance verbatim, and a copy of said Ordinance was made an exhibit
       to her testimony without objection from Appellant. Appellant did not
       cross-examine Ms. Wood or object to her testimony.

              Church Hill next called Church Hill Police Officer Kevin Grigsby.
       Officer Grigsby was the citing officer and testified to the events which led
       him to civilly cite Mr. Elliott. A compact disc containing a dash-cam video
       of the event as it occurred was introduced through Officer Grigsby and
       made an exhibit to his testimony without objection from [Elliott]. The
       video shows [Elliott’s] vehicle travelling along Main Street in the city
       limits of Church Hill. Main Street is a two lane road. [Elliott’s] vehicle
       approaches a vehicle stopped in the same lane of travel at a four-way
       intersection of Main Street and Central Avenue. The stopped vehicle is
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      operating its left turn signal. There is no left turning lane off of Main Street
      at said intersection. Said intersection has a traffic light, which was green
      for Main Street. [Elliott’s] vehicle leaves the main-traveled portion of the
      roadway with all four tires crossing the right fog line to pass the stopped
      vehicle on the right shoulder. In passing the vehicle stopped at the
      intersection in the main lane of travel, [Elliott’s] vehicle exits the right
      shoulder of Main Street into the right-of-way of Central Avenue before
      returning to the main-traveled portion of Main Street. Officer Grigsby
      testified that he cited [Elliott] because [Elliott’s] pass of the stopped vehicle
      via the shoulder at a busy intersection was unsafe. He testified to several
      reasons why the passing was unsafe. Specifically, if a vehicle travelling in
      the opposite direction on Main Street attempted to turn left onto Central
      Avenue during the green light, said vehicle would see the stopped vehicle
      with its left turn signal on in the lane of travel, and would likely not see a
      vehicle entering the right-of-way of Central Avenue from the shoulder. He
      testified that such an event could lead to a collision. Also, if the light had
      changed, a vehicle traveling along Central Avenue from [Elliott’s] left
      would be blocked from seeing [Elliott’s] vehicle entering the right-of-way
      of Central Avenue by the vehicle stopped in the proper lane of travel until it
      was too late to avoid a collision. [Elliott] did not cross-examine Officer
      Grigsby, and did not object to his testimony or to the entry of the video as
      an exhibit to his testimony.

            [Elliott] did not call any witnesses, did not testify, and did not
      otherwise introduce any proof. Mr. Elliott did not make any closing
      argument.

      After trial, the Trial Court entered its order on January 23, 2018 finding and
holding, inter alia:

      Present before the Court were Roger Elliott, pro se; William E. Phillips II,
      municipal attorney for the City of Church Hill; and the citing officer Kevin
      Grigsby. The parties were sworn, and the Court took the following proof:

              The City of Church Hill first called Church Hill City Recorder Emily
      Wood. Ms. Wood read verbatim Church Hill Municipal Ordinance No. 11-
      101, which incorporates by cross-reference the language of Tenn. Code
      Ann. § 55-8-118; a copy of which was made an exhibit to her testimony.
      Church Hill next called Church Hill Police Officer Kevin Grigsby. Officer
      Grigsby was the citing officer and testified to the events which led him to
      civilly cite Mr. Elliott. A compact disc containing a dash-cam video of the
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      event as it occurred was introduced through Officer Grigsby and made an
      exhibit to his testimony. The video shows Mr. Elliott’s vehicle travelling
      along Main Street in the city limits of Church Hill where he encounters a
      left turn signaling vehicle at the intersection of Main Street and Central
      Avenue. Said intersection has a traffic light. Mr. Elliott’s vehicle leaves
      the main-traveled portion of the roadway with all four tires crossing the
      right fog line to pass the stopped, left turn signaling vehicle on the right. In
      passing the left turn signaling vehicle, Mr. Elliott’s vehicle exits the right
      shoulder of Main Street, not the main-traveled portion of the roadway, into
      the right-of-way of Central Avenue before returning to the main-traveled
      portion of Main Street.

             Mr. Elliott did not ask Ms. Wood or Officer Grigsby any questions.
      Mr. Elliott did not call any witnesses, did not testify, and did not otherwise
      introduce any proof. Mr. Elliott did not make any argument.

             Based upon the testimony of the witnesses and the evidence
      submitted, the Court finds by a preponderance of the evidence that Mr.
      Elliott violated Church Hill Municipal Ordinance No. 11-101, which
      incorporates by cross-reference the language of Tenn. Code Ann. § 55-8-
      118, in that Mr. Elliott passed a stopped, left turn signaling vehicle on the
      right by driving his vehicle off the main-traveled portion of the roadway,
      and unsafely entered the right-of-way of Central Avenue from the shoulder
      of Main Street, and crossing Central Avenue before returning to the lane of
      travel on Main Street.

The Trial Court’s January 23, 2018 order assessed Elliott a civil penalty of $25.00.
Elliott appeals to this Court.

                                        Discussion

      Elliott raises one issue on appeal, which we quote:

             Whether this Court’s Ludwick v. Doe, 914 S.W.2d 522, 1995 ruling
      that Tennessee Code Annotated § 55-8-118 permits safely using any paved
      part of a street to pass right of a left-turning vehicle proves Roger Elliott
      was wrongly fined for driving entirely on East Main Boulevard’s paved
      shoulder to safely pass a left-turning vehicle.

       Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
                                             4
evidence is otherwise. Tenn. R. App. P. 13(d); Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014). A trial court’s conclusions of law are subject to a de novo review with no
presumption of correctness. Kelly v. Kelly, 445 S.W.3d at 692.

      The record before us on appeal reveals that Church Hill Municipal Ordinance No.
11-10 incorporates by reference the language of Tenn. Code Ann. § 55-8-118, which
provides, in pertinent part:

       (a) The driver of a vehicle may overtake and pass upon the right of another
       vehicle only under the following conditions:
          (1) When the vehicle overtaken is making or about to make a left turn;
          (2) Upon a street or highway with unobstructed pavement not occupied
          by parked vehicles of sufficient width for two (2) or more lines of
          moving vehicles in each direction; and
          (3) Upon a one-way street, or upon any roadway on which traffic is
          restricted to one (1) direction of movement, where the roadway is free
          from obstructions and of sufficient width for two (2) or more lines of
          moving vehicles.
       (b) The driver of a vehicle may overtake and pass another vehicle upon the
       right only under conditions permitting that movement in safety. In no event
       shall the movement be made by driving off the pavement or main-traveled
       portion of the roadway.

Tenn. Code Ann. § 55-8-118 (2017)2.

       In his brief on appeal, Elliott appears to argue that he safely used a paved portion
of Main Street when he passed the left-turning vehicle, and that pursuant to Ludwick v.
Doe he should not have received a citation. Elliott is mistaken. The case now before us
on appeal is distinguishable from Ludwick v. Doe, 914 S.W.2d 522 (Tenn. Ct. App.
1995), and the proof in the record on appeal shows that Elliott did not pass the left-
turning vehicle under conditions permitting the movement in safety.

       In Ludwick v. Doe, the plaintiff asserted that a John Doe driver traveling in front
of her vehicle who passed a left-turning vehicle violated Tenn. Code Ann. § 55-8-118 and
was responsible for plaintiff colliding with the rear-end of the left-turning vehicle. Id. at
524. The plaintiff was traveling behind the John Doe driver who “moved from the
eastbound traffic lane and proceeded to its right on the paved shoulder of the road,
passing, and fully exposing to the plaintiff’s view a Jeep that was stopped in the
eastbound traffic lane.” Id. Plaintiff was unable to stop and collided with the left-turning
2
  The portion of Tenn. Code Ann. § 55-8-118 quoted above was in effect when Elliott received the
citation. Other portions of the statute, not applicable to this case, have since been added.
                                                       5
Jeep. Id. The Ludwick Court interpreted Tenn. Code Ann. § 55-8-118 and held that the
“interpretation of the definitions of ‘street’ and ‘highway’ is consistent with the language
of T.C.A. § 55-8-118(a)(2) that clearly contemplates that a part of the ‘street or highway’
may include a part designated for parked vehicles.” Id. at 525. The Ludwick Court
further stated: “In passing to the right, the movement will satisfy the statute if it is on the
‘main-traveled portion of the roadway,’ or if it is accomplished on the pavement.” Id. at
525. The case now before us on appeal is distinguishable from Ludwick v. Doe because
the Ludwick Court found that “[t]here was no proof the defendant violated the statute,”
and the record in the case now before us on appeal reveals that there is proof that Elliott
violated the statute. Id.

       Officer Grigsby testified that Elliott’s passing the left-turning vehicle via the
shoulder at a busy intersection violated the statute and was unsafe. As contained in the
Statement of the Evidence, Officer Grigsby cited without contradiction several reasons
why it was unsafe. Furthermore, the video introduced depicting the traffic stop supports
Officer Grigsby’s testimony and shows that in passing the left-turning vehicle Elliot’s
vehicle left “the main-traveled portion of the roadway with all four tires crossing the right
fog line . . . .” Further, Officer Grigsby testified that Elliott’s vehicle exited the right
shoulder of Main Street into the right-of-way of Central Avenue before returning to the
main-traveled portion of Main Street.

        The evidence in the record on appeal does not preponderate against the Trial
Court’s finding that Elliott’s passing of the left-turning vehicle at the four-way
intersection was not made under conditions permitting the movement in safety. In fact,
there is no evidence in the record on appeal to the contrary. Elliott did not testify, did not
produce any witnesses of his own, did not cross-examine Officer Grigsby or Emily
Wood, did not object to Officer Grigsby’s or Ms. Wood’s testimony, did not object to the
introduction of the video depicting the traffic stop, and did not make any argument at
trial. The only evidence in the record on appeal supports the Trial Court’s finding that
Elliott violated Church Hill Municipal Ordinance No. 11-101. There simply is no
evidence whatsoever to the contrary. The evidence does not preponderate against the
Trial Court’s finding, and we, therefore, affirm the Trial Court’s January 23, 2018 order
assessing Elliott a civil penalty of $25.00 for violating Church Hill Municipal Ordinance
No. 11-101.

                                         Conclusion

       The judgment of the Trial Court is affirmed, and this cause is remanded to the




                                              6
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Roger Elliott.



                                          _____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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