Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/26/2014
Format: 07/26/2014
Patricia Mulhaire-Breeden v. Nashville Midnight Oil, LLC et al.
M2014-00480-COA-R3-CV

This is an appeal from an order setting aside a default judgment. Because the order appealed does not resolve all the claims between the parties, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 07/08/14
Bradley M. Barkhurst, et al. v. Benchmark Capital, Inc., et al.
E2013-01911-COA-R3-CV

This appeal concerns a dispute over damages in a fraud case. Bradley M. Barkhurst and his wife Judith R. Barkhurst (“the Plaintiffs”), victims of a Ponzi scheme, filed a complaint against Amparo Goyes Jarosh, personal representative of the estate of Charles D. Candler (“Defendant”) , in the Chancery Court for Knox County (“the Trial Court”). 1 The Trial Court granted summary judgment in favor of the Plaintiffs. The Plaintiffs appeal, arguing, among other things, that they should have been granted enhanced damages under the Tennessee Consumer Protection Act (“the TCPA”). We hold that enhanced damages are not available in an action against an estate. We also modify the Trial Court’s judgment to include in the award to Plaintiffs certain taxes and interest that the Plaintiffs incurred in the Ponzi scheme.
We affirm the judgment of the Trial Court as modified.

Knox County Court of Appeals 07/07/14
Johnny L. Miller, et al. v. Miranda Moretz, et al.
E2013-01893-COA-R3-CV

This appeal results from an automobile accident. The plaintiffs filed a negligence action against the owner and driver of the vehicle that collided with them. The jury that heard the matter concluded that the defendant driver was only 10 percent at fault, with the rest of the fault assessed to the plaintiff driver. The trial court entered judgment on the jury verdict for the defendants. After a motion for a new trial was denied, the plaintiffs filed this appeal. We affirm the judgment of the trial court.

Knox County Court of Appeals 07/07/14
State of Tennessee v. Tarrants Chandler
M2013-00279-CCA-R3-CD

The defendant, Tarrants Chandler, was indicted by a grand jury for ten counts of rape by coercion, Class B felonies, and two counts of criminal exposure to HIV, Class C felonies.  After a trial, the jury convicted the defendant of nine counts of rape by coercion and one count of criminal exposure to HIV.  The trial court declared a mistrial as to Count 2, rape by coercion, and Count 12, criminal exposure to HIV.  The conviction in Count 1 was dismissed by the trial court after the motion for a new trial.  The defendant now appeals the remaining convictions, arguing that the evidence was not sufficient to find the defendant guilty of eight counts of rape by coercion, that the trial court erred by ruling that consent was not a defense to rape by coercion, that the trial court erred by failing to find prosecutorial misconduct based on aspects of the State’s closing argument, and that the trial court erred by imposing an effective fifty-year sentence on the defendant.  After a thorough review of the record, we affirm the judgments of the trial court but remand for: (1) entry of corrected judgments that reflect the dismissal of Count 1; and (2) to correct clerical errors in the judgments on both Count 6, because the judgment in Count 6 orders the sentence to be served concurrently  with the sentence from Count 2, which was declared a mistrial, and the judgment in Count 8, which states that the sentence is to be served concurrently, rather than consecutively to the sentence in Count 11.

Davidson County Court of Criminal Appeals 07/07/14
State of Tennessee v. Walter George Glenn
E2013-01852-CCA-R3-CD

A Hamilton County jury convicted the Defendant, Walter George Glenn, of second degree murder, and the trial court imposed a Range II sentence of thirty-five years of incarceration. On appeal, the Defendant contends that: (1) the evidence is insufficient to support his conviction; (2) the trial court erred in allowing a medical examiner to testify as to the cause of the death in violation of his right to confrontation; and (3) the trial court erred when it sentenced him by improperly applying enhancement factors and failing to apply mitigating factors. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 07/07/14
State of Tennessee v. Deon Lamont Cartmell
M2012-01925-CCA-R3-CD

The Defendant, Deon Lamont Cartmell, was convicted by a Davidson County Criminal Court jury of second degree murder, a Class A felony, and received an eighteen-year sentence.  See T.C.A. § 39-13-210 (2010).  On appeal, the Defendant contends that the trial court erred (1) in admitting the victim’s statements into evidence, (2) in admitting evidence that the victim’s wedding ring was missing, (3) in admitting evidence that Megan Prisco had a flirtatious relationship with him before the victim’s death, (4) in admitting evidence that he boasted about his treating his wife poorly to Metro Police Field Training Officer Mackovis Peebles, (5) in admitting evidence that he carelessly left weapons around his house and used profanity when Antoya Brandon confronted him about it, (6) in admitting evidence of his conversation with Metro Police Chaplain James Duke, (7) in admitting proof of his relationships with other women after the victim’s death, (8) in allowing the State to question him about his contact with Paige Merriweather, (9) in allowing the State to question him about an incident three years before the victim’s death when he confronted her about having sex with other men, (10) in ordering redaction of a portion of the defense expert’s report, and (11) in enhancing his sentence.  We affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 07/07/14
Stephanie D. Turner v. Kevin Turner
W2013-01833-COA-R3-CV

Father appeals the trial court’s order setting aside its prior judgment terminating Mother’s parental rights. After a hearing, the trial court ruled that Father’s failure to comply with the statutory notice requirements rendered the termination judgment void. Discerning no error, we affirm.

Fayette County Court of Appeals 07/07/14
Stephanie D. Turner v. Kevin Turner - Concurring Opinion
W2013-01833-COA-R3-CV

I concur with Judge Stafford’s thorough opinion. After several discussions and independent research, I believe that my colleagues are correct on the law.

Fayette County Court of Appeals 07/07/14
Kimberly A. Sparkman v. Burns Phillips, Commissioner, Tennessee Department of Labor And Workforce Development, and First Tennessee Bank, N. A.
M2013-01235-COA-R3-CV

This appeal involves the denial of unemployment compensation benefits. The petitioner was employed by the defendant bank. When the petitioner employee arrived for work, the employee’s supervisor smelled alcohol on her and asked her to take an alcohol test. The employee refused to take the alcohol test, and as a result her employment was terminated. The employee filed for unemployment benefits.  The defendant commissioner held that the employee was discharged for work-related misconduct and was disqualified from receiving unemployment benefits,and the denial of benefits was affirmed in the administrative appeals process. The employee then filed the instant lawsuit for judicial review of the administrative decision. The trial court affirmed the agency’s decision, and the petitioner now appeals. Discerning no error, we affirm.

Maury County Court of Appeals 07/07/14
In Re Justin A. H.
M2013-00292-COA-R3-CV

This is a petition for dependency and neglect, child support, and breach of contract arising out of an international adoption.  The respondent adopted the subject child from Russia.  A few months later, after experiencing difficulties with the child, she placed the child on a oneway flight to Russia and sought to annul the adoption. The adoption agency that brokered the adoption filed this lawsuit against the respondent in juvenile court, seeking child support and alleging that the child was dependent and neglected. The juvenile court dismissed the case, and the case was appealed to the circuit court below. On appeal to circuit court, the petition was amended to add the child as a petitioner and to seek child support and damages arising out of the adoption contract. After protracted proceedings, the trial court granted the petitioners’ motion for default judgment against the respondent for failing to file an answer to the petition and failing to cooperate in discovery. The trial court later conducted a hearing on damages, at which the respondent did not appear. The trial court awarded damages to the petitioners and ordered the respondent to pay child support. It later denied the respondent’s motions for post-judgment relief. The respondent now appeals. Discerning no error, we affirm.

Bedford County Court of Appeals 07/07/14
State of Tennessee v. Kenneth Hamm
W2013-01125-CCA-R3-CD

The Defendant, Kenneth Hamm, was convicted by a Shelby County Criminal Court jury of attempt to commit rape of a child, a Class B felony. See T.C.A. §§ 39-13-522 (2010) (rape of a child), 39-12-101 (criminal attempt), 39-12-107 (criminal attempt classification). The trial court sentenced him as a Range I, standard offender to ten years and one month in confinement. On appeal, he contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in admitting into evidence his uncorroborated statements to Officer Diffee; (3) the court erred in excluding evidence of the victim’s previous allegations of sexual abuse by others; and (4) the court erred by applying insufficient weight to the mitigating factors during sentencing. We affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 07/07/14
Billy McIllwain v. State of Tennessee
W2013-02306-CCA-R3-PC

The Petitioner, Billy McIllwain, appeals the Gibson County Circuit Court’s denial of his petition for post-conviction relief from his 2009 convictions for first degree murder, two counts of aggravated assault, and possession of a deadly weapon with the intent to employ it in the commission of the offense and his effective sentence of life plus six years. The Petitioner contends that the trial court erred by denying him relief because he received the ineffective assistance of counsel. We affirm the judgment of the trial court.

Gibson County Court of Criminal Appeals 07/07/14
State of Tennessee v. Randy Sherrill
W2013-01306-CCA-R3-CD

A Lake County jury convicted the Defendant, Randy Sherrill, of sale of a Schedule II controlled substance in a drug-free zone. The trial court sentenced the Defendant to serve eight years as a multiple offender. On appeal, the Defendant contends that: (1) “Markham Park” is not listed as a “park” by the State of Tennessee, the City of Tiptonville, or the Federal Government; (2) the State committed a Brady violation by not informing defense counsel of its confidential informant’s drug use during the time period of his transactions with the Defendant; (3) the State failed to prove chain of custody; and (4) the trial court, Tiptonville Police Chief England, and the State, engaged in improper conversations with the jury after jury deliberations had begun. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgment.

Lake County Court of Criminal Appeals 07/07/14
Gary Carr v. State of Tennessee
W2014-00579-CCA-R3-HC

The Petitioner, Gary Carr, appeals the Circuit Court for Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.

Lauderdale County Court of Criminal Appeals 07/03/14
Raines Brothers, Inc. v. H. Michael Chitwood et al.
E2013-02232-COA-R3-CV

This contract action stems from the defendant’s, H. Michael Chitwood’s, failure to pay for construction work that was performed by the plaintiff, Raines Brothers, Inc. (“Raines”). The work was performed on a home that was occupied by Mr. Chitwood but owned by a trustee, James Dreaden, who was also named as a defendant. Following a bench trial, the trial court awarded Raines a judgment against Mr. Chitwood and Mr. Dreaden (collectively “Defendants”) in the amount of $66,762.71. The trial court also awarded pre-judgment interest at the rate of eighteen percent per annum, beginning August 14, 2007. The trial court denied Raines’s claim for attorney’s fees. Defendants timely appealed the trial court’s ruling. Having determined that Raines adequately proved its entitlement to this amount pursuant to the parties’ contract, we affirm the trial court’s judgment of $66,762.71 against Mr. Chitwood. We reverse the trial court’s judgment against Mr. Dreaden. We modify the trial court’s award of the rate of interest from eighteen percent per annum to ten percent in accordance with relevant statutory and case law. We also reverse the trial court’s denial of Raines’s claim for attorney’s fees pursuant to the parties’ contract and remand for a determination of the proper amount of interest to be charged, as well as a reasonable award of attorney’s fees.

Hamilton County Court of Appeals 07/03/14
State of Tennessee v. Robert King Vaughn, Jr.
M2013-02099-CCA-R3-CD

Appellant, Robert King Vaughn, Jr., pled guilty to aggravated burglary and theft in case number F-64238 and aggravated burglary in case number F-68086 in Rutherford County Circuit Court.  As a result, in case number F-64238, Appellant was ordered to serve 90 days in incarceration and the remainder of a four-year sentence on probation.  In case number F-68086, Appellant was sentenced to thirteen years.  The sentence was suspended and Appellant was ordered to serve the term on Community Corrections.  A warrant was filed against Appellant for a violation of the terms of the Community Corrections sentence and probation.  After a hearing, the trial court ordered Appellant to serve the remainder of the four-year sentence and thirteen-year sentence in incarceration.  Appellant appeals.  After a review of the record and applicable authorities, we affirm the judgments of the trial court but remand the matter to the trial court for correction of the order revoking Appellant’s Community Corrections sentence in case number F-68086 to reflect a violation of Community Corrections rather than probation.

Rutherford County Court of Criminal Appeals 07/03/14
State of Tennessee v. Aaron Guilliams
E2013-01405-CCA-R3-CD

Aaron Guilliams (“the Defendant”) pleaded guilty to one count of attempted aggravated assault. Pursuant to a plea agreement, the Defendant was sentenced to two years, suspended to supervised probation, and reserved the right to have a hearing to determine his eligibility for judicial diversion. After a hearing, the trial court denied the Defendant’s request for judicial diversion. The Defendant timely appealed the trial court’s ruling. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Anderson County Court of Criminal Appeals 07/02/14
State of Tennessee v. Kenneth Moore
M2013-02022-CCA-R3-CD

The defendant, Kenneth Moore, appeals his DeKalb County Criminal Court jury conviction of aggravated sexual battery, claiming that the trial court erred by denying his motions to introduce certain evidence, including evidence offered pursuant to Tennessee Rule of Evidence 412, and that the evidence was insufficient to support his conviction.  Discerning no error, we affirm the judgment of the trial court.

DeKalb County Court of Criminal Appeals 07/02/14
Doyle S. Silliman, et al. v. City of Memphis
W2013-02858-COA-R3-CV

In this case, we are called upon to review the trial court’s decision to set aside a consent order regarding an annexation on the basis of the subsequent passage of legislation allegedly affecting the agreed-upon annexation. Because we conclude that Tennessee Code Annotated Section 6-51-122 does not apply to prohibit the annexation ordinance at issue, we reverse the trial court’s judgment and reinstate the consent order.

Shelby County Court of Appeals 07/02/14
Estate of Mary Lou Lamb v. D. Jimmy Brinias, et al.
E2013-01550-COA-R3-CV

The Estate of Mary Lou Lamb appeals a grant of summary judgment to defendant Ernest L. Joyner raising issues regarding whether the Chancery Court for Knox County (“the Trial Court”) erred in finding that the plaintiff’s response to the defendant’s motion for summary judgment was filed untimely and therefore was not considered by the Trial Court, and whether the Trial Court erred in granting summary judgment on the issue of adverse possession. We find and hold: (1) that the Trial Court did not err in finding that the plaintiff’s response was filed untimely; and (2) that Ernest L. Joyner failed to show that he was entitled to summary judgment as a matter of law. We vacate the grant of summary
judgment on the issue of adverse possession and remand this case to the Trial Court for further proceedings.

Knox County Court of Appeals 07/01/14
State of Tennessee v. Marvin Magay James Green
E2013-02425-CCA-R3-CD

Marvin Magay James Green (“the Defendant”) pleaded guilty to several offenses, including possession with intent to sell or deliver .5 grams or more of cocaine within 1000 feet of a school zone (“the cocaine conviction”). The trial court sentenced the Defendant to fifteen years of incarceration for the cocaine conviction, to be served at 100%. The Defendant subsequently filed motions, a petition for post-conviction relief, and a petition for writ of habeas corpus, all attacking the cocaine conviction and sentence. The trial court consistently denied relief, and the Defendant appealed. This Court consolidated the Defendant’s appeals. Upon our thorough review of the record and applicable law, we conclude that the Defendant is entitled to no relief. We also have determined that the judgment order entered on the cocaine conviction contains a clerical error. Therefore, we remand this matter for the correction of that error. In all other respects, we affirm the trial court’s rulings and judgments.

Sullivan County Court of Criminal Appeals 06/30/14
Bradley Wayne Adams v. State of Tennessee
E2013-01928-CCA-R3-PC

Bradley Wayne Adams (“the Petitioner”) pleaded guilty to one count each of second degree murder and aggravated assault. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. Following a hearing, the post-conviction court denied relief. The Petitioner now appeals. Upon our thorough review of the record and applicable law, we affirm the judgment of the post-conviction court.

McMinn County Court of Criminal Appeals 06/30/14
Robert Jason Burgess v. Stanton Heidle, Warden
M2012-02745-CCA-R3-HC

Petitioner, Robert Jason Burgess, pled guilty to two counts of the sale of a controlled substance and two counts of rape in Marshall County.  As a result, he was sentenced to an effective sentence of twenty-six years.  After the denial of post-conviction relief, Petitioner sought habeas corpus relief in which he argued that his guilty plea was unknowingly or involuntarily entered because he was not informed that his sentence carried a community supervision for life provision.  After a review of the record and applicable authorities, we affirm the judgment of the habeas corpus court which dismissed the petition for relief.

Marshall County Court of Criminal Appeals 06/30/14
Capital Bank v. Oscar Brock, et al.
E2013-01140-COA-R3-CV

Capital Bank filed a complaint seeking a deficiency judgment against Oscar Brock and Frank E. Cowden, III (“Defendants”) after they defaulted on a loan and following the sale at foreclosure of the property securing the debt. After settlement discussions were unsuccessful, Capital Bank moved for summary judgment. It asserted that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Defendants contested the motion but only as to the amount of the deficiency and the issue of whether Capital Bank is entitled to an award of attorney’s fees. As a defense to the deficiency claim, Defendants stated that the property was sold at foreclosure for an amount “materially less” than its fair market value and that Capital Bank’s knowledge of the alleged less-than- arketvalue sales price amounted to fraud, collusion or misconduct. The trial court granted Capital Bank’s motion. It was awarded a judgment of $168,798.98 which amount includes 70,628.85 in attorney’s fees. Defendants appeal.  We affirm.

Hamilton County Court of Appeals 06/30/14
Marvin Bobby Parker v. State of Tennessee
M2012-02740-CCA-R3-PC

The petitioner, Marvin Bobby Parker, was convicted of reckless aggravated assault, two counts of assault, and one count of reckless endangerment after a violent confrontation at a racetrack.  He appeals the denial of his petition for post-conviction relief.  On appeal, the petitioner asserts that the post-conviction court erred in rejecting his argument that he received the ineffective assistance of counsel when: (1) trial counsel did not allow him to testify at the grand jury proceedings; (2) trial counsel did not request an instruction on self-defense during trial; (3) trial counsel failed to call certain witnesses at trial and at the preliminary hearing; (4) trial counsel failed to prepare him to testify; (5) trial counsel failed to pursue or advise him regarding pretrial diversion; (6) trial counsel did not introduce a videotape into evidence; and (7) trial counsel’s cumulative errors deprived him of a fair trial.  After a review of the record, we conclude that the petition was properly dismissed, and we affirm the judgment of the post-conviction court.

Bedford County Court of Criminal Appeals 06/30/14