Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 09/29/2016
Format: 09/29/2016
In Re Elizabeth D.
E2015-02097-COA-R3-PT

The custodians of a child filed a petition in Greene County Circuit Court to terminate the parental rights of the Father to the child, who had resided with the Custodians since birth; at the time of the hearing on the petition, the Father was incarcerated in Florida. Following a three-day hearing extending over one month, the court entered an order holding that Father failed to visit or support the child within the four months preceding his incarceration and terminating Father’s rights on the grounds of abandonment. Father appeals, asserting that the conduct of the hearing denied him his due process right to meaningfully participate in the termination proceeding and that the record does not support the determination that he willfully failed to visit or support his child. Finding no error, we affirm the judgment of the trial court.

Greene County Court of Appeals 09/23/16
Randall E. Pearson, M.D. et al. v. Paul Koczera et al.
E2015-02081-COA-R3-CV

This appeal arises from the trial court’s determination that it was without jurisdiction, following a prior appeal in the same matter, to act upon a motion seeking to alter or vacate an order entered after remand. The administrator ad litem for the third-party plaintiff has appealed from the trial court’s order determining that it lacked jurisdiction to act on her motion following remand. We determine that the trial court did possess jurisdiction to act on pending motions following the remand from the appellate courts. We therefore vacate the trial court’s order and remand this case for further proceedings. We also vacate the trial court’s order granting sanctions against the administrator ad litem for filing her motion to alter or vacate.

Anderson County Court of Appeals 09/23/16
James F. Logan, Jr. et al. v. The Estate of Mildred Cannon et al.
E2015-02254-COA-R3-CV
This case involves a one-quarter ownership interest in an unimproved 7.18-acre tract of real property located in Bradley County, Tennessee (“the Property”). The plaintiff, attorney James F. Logan, Jr., asserts that he purchased a one-quarter interest in the Property from Sam and Mildred Cannon in 1974. Sam and Mildred Cannon were divorced in 1979, and Mr. Cannon remarried. Upon Mr. Cannon’s death in 2002, he was survived by his second wife, Yvonne, and two adult children from his marriage to Mildred Cannon. Prior to commencement of this action, Yvonne Cannon conveyed any interest she had in the disputed property to Mr. Logan via quitclaim deed. Mr. Logan, together with co-plaintiffs, who are co-tenants of the Property not participating in this appeal, subsequently filed this action in February 2011, seeking declaration of ownership in Mr. Logan’s name and clear title concerning his claimed one-quarter interest in the Property. They named as defendants Mildred Cannon; her daughter, both individually and in her capacity as trustee for Sam and Mildred Cannon’s son; and a successor trustee. The plaintiffs acknowledged that no deed reflecting Sam and Mildred Cannon’s purported conveyance to Mr. Logan had been recorded or could be produced. In the alternative, the plaintiffs pled adverse possession. Mildred Cannon died in September 2011, and her estate was substituted as a party in this action. The parties subsequently filed competing motions for summary judgment, with the defendants alleging that Mr. Logan’s claim could not satisfy the requirements of the Statute of Frauds and the plaintiffs amending their complaint to add alternative equitable theories of constructive trust and/or resulting trust. Following hearings, the trial court granted summary judgment in favor of the defendants. Mr. Logan appeals. We affirm the trial court’s findings that the evidence cannot satisfy the requirements of the Statute of Frauds or give rise to a constructive or resulting trust. We determine, however, that genuine issues of material fact exist regarding Mr. Logan’s claim of adverse possession, and we remand for further proceedings concerning this claim. We also determine that the trial court improperly found statements in an affidavit presented by an employee of Mr. Logan’s law firm to be inadmissible. We affirm the trial court’s judgment in all other respects.
 
Bradley County Court of Appeals 09/23/16
Caney Fork Electric Cooperative, Inc., et al. v. Tennessee State Board of Equalization
M2016-00316-COA-R12-CV

The Tennessee Attorney General opined that a tax exemption in favor of electric cooperatives found at Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution. The Board of Equalization began proceedings to recalculate the taxes of the electric cooperatives. Several electric cooperatives objected and maintained that the exemption under Tenn. Code Ann. § 65-25-122(a) was valid. The Board recalculated their taxes anyway. The electric cooperatives appealed. Although the Board of Equalization cannot rule on the constitutionality of the statute, we can. We find that Tenn. Code Ann. § 65-25-122(a) violates Article II, Section 28 of the Tennessee Constitution.

Court of Appeals 09/23/16
In re: Beckwith Church Of Christ
M2015-00085-COA-R3-CV

In this case, two former members of a dissolved church filed a petition seeking permission to sell the improved real property formerly occupied by the church and donate the money to a nonprofit Bible school or, in the alternative, to convey the property directly to the school. The petitioners filed suit against unknown former members of the church and obtained permission to serve the unknown respondents by publication in a local newspaper. After publication of the action, no responsive pleadings were filed, and the petitioners obtained a default judgment. Before the default judgment became final, a descendant of the original owners of the real property filed a motion to set aside the default judgment and dismiss the petition based on insufficient service of process. The court granted the motion, set aside the default judgment, and dismissed the petition with regard to the descendant. On appeal, the petitioners argue: (1) the chancery court erred in finding constructive service insufficient; (2) that the descendant waived his objections to service of process by filing a notice of appearance; and (3) that the descendant should be estopped from setting aside the judgment because he delayed asserting his rights. Upon review of the record, we conclude that service of process on the descendant was insufficient and that the descendant’s conduct did not preclude him from setting aside the void judgment. Therefore, we affirm the decision of the chancery court.  

Wilson County Court of Appeals 09/23/16
In re: Jason S., et al.
M2016-00226-COA-R3-PT

This case involves termination of the parental rights of a mother and father to their three children. Following a report of drug exposure and environmental neglect, the Tennessee Department of Children’s Services (“DCS”) obtained emergency temporary custody of the children. Approximately nine months after the children were removed from the parents’ home, DCS filed a petition to terminate the parental rights of both parents on the grounds of substantial noncompliance with the permanency plan, persistence of conditions, and severe child abuse. The petition also sought to terminate the mother’s parental rights on the additional ground of abandonment by willful failure to visit, and it sought to terminate the father’s parental rights on the ground of abandonment by an incarcerated parent. The juvenile court found all grounds were established by clear and convincing evidence and that termination of both parents’ parental rights was in the children’s best interests. Although we conclude that DCS did not prove by clear and convincing evidence that the mother abandoned the children by willful failure to visit, we affirm the termination of parental rights. 

Macon County Court of Appeals 09/23/16
Anthony Dewight Washington v. State of Tennessee
M2015-02309-CCA-R3-PC

Anthony Dewight Washington (“the Petitioner”) appeals the post-conviction court’s denial of his petition for post-conviction relief.  The Petitioner argues that trial counsel’s performance was deficient in failing to file a motion asking for the recusal of the trial judge, failing to file a motion to suppress evidence from a search of the Petitioner’s home, and failing to communicate with the Petitioner, investigate witnesses, and develop a trial strategy or defense.  The Petitioner argues that counsel’s deficiency prejudiced him because, but for the deficiencies, he would have accepted the State’s plea offer instead of proceeding to trial.  Upon thorough review of the appellate record and the applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/22/16
In re C.C. et al.
E2016-00475-COA-R3-PT
The Department of Children’s Services filed a petition seeking, on the basis of four grounds, to terminate the parental rights of H.C. (Mother) to her four children, C.C., D.C., A.D., and S.D. (collectively the Children). In the same petition, DCS also sought to terminate, on three grounds, the parental rights of B.D., Mother’s long-time boyfriend and father of two of the Children, i.e., A.D. and S.D. (collectively the twins).The trial court found, by clear and convincing evidence, three grounds to terminate Mother’s parental rights and three grounds to terminate B.D.’s parental rights. By the same quantum of proof, the court found that termination is in the Children’s best interest. Mother and B.D. (collectively the parties) appeal. As modified, we affirm the judgment
of the trial court.
 
Jefferson County Court of Appeals 09/22/16
State of Tennessee v. Zachary David Strickland
M2015-02118-CCA-R3-CD

Defendant, Zachary David Strickland, was convicted of initiation of a process intended to result in the manufacture of methamphetamine and sentenced to ten years of incarceration.  After the denial of a motion for new trial, Defendant filed an untimely notice of appeal.  In the interests of justice, we waive the timely filing of the notice of appeal.  However, upon review of the evidence presented at trial, we determine that the evidence was sufficient to support the conviction.  Consequently, the judgment of the circuit court is affirmed.

Bedford County Court of Criminal Appeals 09/22/16
Tina Garrett v. State of Tennessee
M2015-01659-CCA-R3-PC

In June 2013, the Petitioner, Tina Garrett, entered a “best interests” guilty plea to first degree murder in exchange for a life sentence.  She subsequently filed a petition for post-conviction relief alleging, among other things, that she received ineffective assistance of counsel and that her plea was unknowing and involuntary.  Following a hearing on the petition, the post-conviction court denied relief.  After a thorough review, we affirm the judgment of the post-conviction court.

Fentress County Court of Criminal Appeals 09/22/16
State of Tennessee v. Timothy Lewayne Morton
M2015-02279-CCA-R3-CD

The trial court found that the Defendant, Timothy Lewayne Morton, violated the conditions of his two-year probation when he was arrested for disorderly conduct and public intoxication.  The Defendant pled guilty to the disorderly conduct charge prior to the revocation hearing.  The Defendant asserts that there was insufficient evidence to support the finding of a violation.  After a thorough review of the record, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 09/22/16
In re Envy J., et al.
W2015-01197-COA-R3-PT

Mother appeals the trial court's termination of her parental rights. The trial court terminated her parental rights on the grounds that the children were victims of severe abuse and that mother had failed to financially support the children. The trial court also concluded that termination of parental rights was in the children's best interest. After a thorough review of the record, we conclude that there was not clear and convincing evidence of abandonment by willful failure to support. But, we conclude that there was clear and convincing evidence of severe abuse and that termination was in the best interest of the children. Consequently, we affirm the termination of Mother's parental rights.

Shelby County Court of Appeals 09/22/16
State of Tennessee v. Antwion Dowdy
W2015-02342-CCA-R3-CD

The Defendant, Antwion Dowdy, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and four counts of aggravated assault, Class C felonies. See T.C.A. §§ 39-13-202 (2014), 39-13-102 (2014) (amended 2015). The trial court sentenced the Defendant to concurrent sentences of life imprisonment for first degree murder and five years for each aggravated assault. On appeal, he contends that the evidence is insufficient to support his convictions. We affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 09/21/16
State of Tennessee v. Zakkawanda Zawumba Moss a/k/a Face
M2014-00746-CCA-R3-CD

A Lincoln County Circuit Court Jury convicted the appellant, Zakkawanda Zawumba Moss, of six counts of first degree premeditated murder, and he received consecutive sentences of life in confinement.  On appeal, the appellant contends that the evidence is insufficient to support the convictions, that the trial court’s refusing to allow the jury to view a child witness’s video-recorded interview denied him of his right to due process, that the trial court improperly admitted the testimony of four witnesses into evidence, that the trial court should have granted his requests for a mistrial, that the trial court improperly admitted photographs into evidence that were overly prejudicial and cumulative, and that the trial court improperly instructed the jury.  Based upon the record and the parties’ briefs, we find no reversible error and affirm the judgments of the trial court.

Lincoln County Court of Criminal Appeals 09/21/16
State of Tennessee v. Rhonda Sowell
W2015-01093-CCA-R3-CD

The defendant, Rhonda Sowell, pled guilty in the Circuit Court for Madison County to driving under the influence (“DUI”) (Count 1), driving under the influence with a with a blood alcohol concentration of .08% or more (“DUI per se”) (Count 2), second offense DUI (Count 3), and violation of the light law pursuant to Tenn. Code Ann. § 55-9-402 (Count 4). Prior to pleading guilty, the defendant filed two suppression motions challenging the basis for the initial stop and the evidence collected subsequent to the stop. After the trial court denied both motions, the defendant pled guilty to all charges reserving two certified questions of law concerning the constitutionality of the traffic stop and the evidence obtained as a result. Upon review of the record, we hold that the traffic stop of the defendant was constitutional, supported by both reasonable suspicion and probable cause. Accordingly, we affirm the trial court's denial of the defendant's suppression motions. However, we remand the case to the trial court for entry of separate judgment forms for each conviction, including those that were merged, in light of our Supreme Court's order in State v. Marquize Berry, No. W2014-00785-SC-R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order granting Tenn. R. App. P. 11 application for appeal).

Madison County Court of Criminal Appeals 09/21/16
State of Tennessee v. Shiema Moniqueke Reid
M2015-00434-CCA-R3-CD

A Davidson County Criminal Court Jury convicted the appellant, Shiema Moniqueke Reid, of perjury, a Class A misdemeanor, and the trial court sentenced her to eleven months, twenty-nine days to be served on supervised probation.  On appeal, the appellant contends that the evidence is insufficient to support the conviction.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Connie Khonsabanh Vongphakdy
M2015-01296-CCA-R3-CD

The Appellant, Connie Kohnsabanh Vongphakdy, pled guilty in the Rutherford County Circuit Court to one count of theft $60,000 or more but less than $250,000; four counts of theft of $10,000 or more but less than $60,000; and two counts of theft of $1,000 or more but less than $10,000.  Pursuant to the plea agreement, the Appellant received a total effective sentence of eight years.  After a sentencing hearing, the trial court denied alternative sentencing and ordered the Appellant to pay restitution in the amount of $178,300.  On appeal, the Appellant challenges the trial court’s denial of alternative sentencing.  The State concedes that the trial court did not consider the specific factors in Tennessee Code Annotated section 40-35-103 but contends that the trial court implicitly found that confinement was necessary to avoid depreciating the seriousness of the offense and to serve as a deterrent.  Upon review, we reverse the judgments of the trial court and and remand for resentencing.

Rutherford County Court of Criminal Appeals 09/21/16
Lavonta Laver Churchwell v. State of Tennessee
M2015-01567-CCA-R3-PC

The Petitioner, Lavonta Laver Churchwell, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his convictions of two counts of first degree felony murder, two counts of especially aggravated robbery, and two counts of criminally negligent homicide and resulting effective sentence of life in confinement.  On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Devontavious Bryant
E2015-01187-CCA-R3-CD

The Defendant, Devontavious Bryant, along with co-defendant Deacon Williams, was indicted with one count of aggravated rape, one count of aggravated robbery, and one count of aggravated assault. Prior to trial, the State amended the aggravated robbery charge to robbery and dismissed the aggravated assault charge. The Defendant was tried separately from Mr. Williams and convicted of aggravated rape and robbery. On appeal, the Defendant argues that: (1) the evidence collected from a warrantless search of his bedroom should have been suppressed; (2) the video recording of the victim's statement given minutes after the offense should have been suppressed under Tennessee Rule of Evidence 403; and (3) there was insufficient evidence to support his conviction for aggravated rape because his DNA was not found at the scene. Discerning no error, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 09/21/16
State of Tennessee v. Lizandro Guevara
M2015-01719-CCA-R3-CD

Defendant, Lizandro Guevara, appeals his eight convictions for aggravated sexual battery and four convictions for rape of a child.  He argues that the evidence is insufficient to support the convictions.  Because the evidence within the record is sufficient for a rational jury to conclude beyond a reasonable doubt that Defendant committed the offenses for which he was convicted, the judgments of the trial court are affirmed.

Davidson County Court of Criminal Appeals 09/21/16
State of Tennessee v. Robert C. Clanton
M2015-02438-CCA-R3-CD

Defendant, Robert Carlyle Clanton, was convicted by a Bedford County jury of ten drug-related offenses for the sale of methamphetamine to a confidential informant.  The trial court imposed a total effective sentence of twenty-three years and six months.  On appeal, Defendant’s sole issue is that the trial court imposed an excessively lengthy sentence.  Upon our review of the record, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 09/21/16
Kenneth Lewis v. State of Tennessee
W2015-01249-CCA-R3-PC

The petitioner, Kenneth Lewis, appeals the denial of his petition for post-conviction relief. The petitioner is currently serving a thirty-five-year sentence for second degree murder. On appeal, the petitioner contends that he should have been granted relief because: (1) he was denied his rights to the effective assistance of counsel; (2) the trial court erred in failing to grant his request for a transcript of the jury selection or to allow introduction of notes detailing reasons certain jurors were struck from the panel; and (3) that the law should be changed to allow funding for expert witnesses in non-capital post-conviction cases. Following review of the record, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 09/21/16
State of Tennessee v. John Armstrong
W2016-00082-CCA-R3-CD

The petitioner, John Armstrong, appeals the denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. He contends that his effective eighteen-year sentence for attempted first degree murder and unlawful possession of a firearm during the commission of a dangerous felony is illegal because the use or employment of a firearm was an essential element of his conviction for attempted first degree murder. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/20/16
State of Tennessee v. Unjolee Tremone Moore
E2015-00942-CCA-R3-CD

A jury convicted the defendant, Unjolee Tremone Moore, of first degree felony murder; attempted especially aggravated robbery, a Class B felony; attempted second degree murder, a Class B felony; and the employment of a firearm during the commission of or attempt to commit a dangerous offense, a Class C felony. On appeal, the defendant challenges the sufficiency of the evidence, the trial court's refusal to dismiss based on the failure of police to collect a co-defendant's telephone, and the trial court's decision to admit the defendant's statement to police into evidence. After a thorough review of the record, we conclude that the defendant is not entitled to relief, and we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 09/20/16
Hitachi Capital America Corp v. Community Trust & Banking Company, et al.
E2015-02121-COA-R3-CV

This is a declaratory judgment action in which the intervening plaintiff sought to establish priority lien status over the original plaintiff as well as a Rule 19 defendant. We affirm the decision of the Chancery Court.

Hamilton County Court of Appeals 09/20/16