Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/22/2014
Format: 07/22/2014
National Door & Hardware Installers, Inc. v. Hassan Mirsaidi et al.
M2013-00386-COA-R3-CV

A subcontractor filed this breach of contract action to recover damages against a general contractor for two types of damages: work performed but unpaid and damages resulting from delays caused bythe general contractor.The plaintiff alleged the general contractor breached the contract by failing to make the appropriate progress payments and otherwise withholding payments without cause. It further alleged that the general contractor failed to properly supervise the project and failed to maintain proper working conditions on the job site which caused the construction to drag on for nine months beyond the agreed-upon completion date. While suit was pending, the general contractor was terminated by the owner and a different contractor was hired to complete the project; the new contractor hired the plaintiff to complete the job. The plaintiff completed its work for which it was paid more than the balance owing on the subcontract.Following a bench trial,the courtfound the former general contractor had breached the subcontract but the plaintiff had failed to prove damages flowing from these breaches. The trial court specifically determined that the subcontractor recouped its damages for work performed but unpaid through the completion subcontract, and that it did not prove damages flowing from the delay of construction. The plaintiff appeals. Having determined that the evidence does not preponderate against the trial court’s findings, we affirm the trial court in all respects.

Davidson County Court of Appeals 06/30/14
In Re Estate of Jane Kathryn Ross et al.
M2013-02218-COA-R3-CV

This is the second appeal of an action to recover, under either the theoryof unjust enrichment or a resulting trust, the value of improvements paid by the plaintiff for a house constructed on her son’s property. The plaintiff paid the construction costs to build a new home on her son’s land for both of them to reside. This action was commenced when the son refused to put his mother’s name on the deed after the house was constructed. Following the first trial, the trial court found that the plaintiff never intended to convey an inter vivos gift to her son, and, after considering the plaintiff’s alternative claims for relief, the court established a resulting trust in favor of the plaintiff in the amount of $417,000. In the first appeal, we ruled that a resulting trust was not an available remedy and remanded for further proceedings. On remand, the trial court awarded the estate a judgment against the son based on unjust enrichment. The son appeals again, this time contending the estate waived its unjust enrichment claim in the first appeal and that the estate did not prove the value of the improvements. We affirm.

Davidson County Court of Appeals 06/30/14
Susan Taylor Moore v. John Thomas Taylor
M2013-01590-COA-R3-CV

This is the second appeal in this divorce action. Husband appealed from the Final Decree of Divorce in 2012, and we affirmed the trial court in all respects in an opinion filed by this court on May 30, 2013. While the appeal was pending, the parties filed several motions in the trial court regarding a variety of financial obligations arising from the Final Decree of Divorce. Following one hearing, the trial court modified the division of the marital property; however, in our opinion which was filed a week earlier, we affirmed the division of the marital estate. Wife now appeals that ruling, and she raises several issues regarding, inter alia, the division of marital property, alimony, attorney’s fees, and civil contempt. Finding the trial court erred in modifying the division of the marital estate after we had affirmed that decision, we reverse that modification. As for all other issues raised, we affirm.

Montgomery County Court of Appeals 06/30/14
State of Tennessee v. Jermaine Davis
W2013-01123-CCA-R3-CD

A Shelby County jury convicted the Defendant, Jermaine Davis, of nine counts of aggravated rape, and the trial court ordered him to serve an effective sentence of seventy-five years in the Tennessee Department of Correction. On appeal, the Defendant contends that: (1) the trial court committed plain error when it included “recklessness” in the definition of aggravated rape in the jury instruction; (2) the trial court committed plain error by failing to instruct the jury on voluntary intoxication; (3) the trial court committed plain error by failing to compel the State to elect facts to support three of the counts charged; (4) the evidence is insufficient to sustain his convictions; (5) the trial court erred when it sentenced the Defendant by ordering him to serve twenty-five years for each of the convictions and by imposing partial consecutive sentencing. After a thorough review of the record and applicable authorities, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/27/14
George Hutsell v. Jeff Kenley D/B/A Trademark Investments
E2013-01837-COA-R3-CV

This case presents issues regarding the propriety of the trial court’s rulings on evidentiary issues as well as a motion for directed verdict. The plaintiff sustained damages when his personalty, which was stored in a warehouse owned by the defendant, was subjected to water damage after the roof of the warehouse collapsed. The plaintiff filed the instant action seeking compensatory damages for the value of his damaged property. Prior to trial, the trial court ruled that the plaintiff could present evidence that the defendant also filed a claim with respect to his own damaged property stored in the warehouse. The trial court ruled, however, that the defendant would not be allowed to present evidence regarding the profitability of the plaintiff’s business. During the three-day trial, the defendant made a motion for directed verdict that was denied by the trial court. Following deliberations, the jury returned a verdict, finding the defendant to be 100% liable for the plaintiff’s loss and awarding damages to the plaintiff of $325,000. The defendant filed a renewed motion for directed verdict, a motion for new trial, and a motion for remittitur. All of the post-trial motions were denied by the trial court. The defendant appeals. Having determined that the trial court committed reversible error by allowing the plaintiff to present prejudicial evidence regarding the defendant’s own claim for damages, we vacate the jury’s award and remand for a new trial.

Hamblen County Court of Appeals 06/27/14
State of Tennessee v. Jacob Aaron Ervin
M2013-01921-CCA-R3-CD

The defendant, Jacob Aaron Ervin, was convicted by a Marshall County jury of simple assault, a Class A misdemeanor, and was sentenced by the trial court to eleven months, twenty-nine days in jail at 75%.  On appeal, he challenges the sufficiency of the evidence and argues that the trial court imposed an excessive sentence.  Following our review, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 06/27/14
James E. Whalen, et al v. Quint Bourgeois
E2013-01703-COA-R3-CV

This action arose over the sale of improved real property (“the Property”), consisting of approximately twenty-five acres located in Morgan County, Tennessee. Co-plaintiffs, James E. and Karen M. Whalen, entered into an agreement to purchase the Property from the defendant, Quint Bourgeois. The Whalens subsequently entered into an agreement with coplaintiffs, Alan and Kathleen Bone, to borrow the purchase price of the Property in return for an executed promissory note, secured by a deed of trust. The parties closed the purchase and sale of the Property on January 19, 2012, at the Roane County office of US Title of Tennessee, Inc. (“US Title”). On January 20, 2012, Mr. Bourgeois, upset that he had not received $900.00 in rent he believed the Whalens owed him, returned to the US Title office and convinced staff there to accept his uncashed check from the sale and give him the unrecorded deed. The plaintiffs filed this action against Mr. Bourgeois, ultimately amending their complaint to allege breach of contract, breach of the duty of good faith and fair dealing, and intentional interference with contractual relations. Following a bench 1 trial, the trial court found that Mr. Bourgeois had committed the tort of intentional interference with the
contractual relationship between the Whalens and the Bones. The court further found that because the purchase and sales contract between the plaintiffs and Mr. Bourgeois had been completed at closing, Mr. Bourgeois did not breach that contract but did intentionally commit egregious acts by, inter alia, demanding the deed from the title company. The court awarded the Whalens $110,000.00 in compensatory damages, $14,736.99 in prejudgment interest, and $55,000.00 in punitive damages. The court awarded the Bones $76,733.50 in compensatory damages and $40,000.00 in punitive damages.

Morgan County Court of Appeals 06/27/14
State of Tennessee v. Charles Hampton and DeAnthony Perry
W2012-02191-CCA-R3-CD

The defendants, Charles Hampton and Deanthony Perry, were convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. In this consolidated appeal, Defendant Perry argues that the trial court committed plain error by failing to instruct the jury that Ladarrius Borrum was an accomplice as a matter of law and that the evidence presented at trial is insufficient to sustain his conviction for first degree murder. Defendant Hampton argues that the trial court erred in denying his right to compulsory process and excluding relevant evidence, as well as challenges the sufficiency of the evidence convicting him of first degree murder. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/27/14
In Re Harli B.
M2013-02141-COA-R3-JV

Father appeals the modification of the primary residential plan and specifically the designation of Mother as the primary residential parent of the parties’five-year-old daughter. In 2010, Father was designated as the primary residential parent of their two-year old child and the parents were awarded equal and shared parenting time based on an alternating weekly schedule. Over the next two years, the employment and marital status of each parent changed and Mother had three additional children. Based on these changes, Mother filed a petition in July 2012 to modify the primary residential plan requesting that she be designated as the primary residential parent. Finding, inter alia, that Mother was no longer employed, that she worked in the home caring for the parties’ child as well as her three younger children who were born after the initial plan went into effect, and that she had been acting as the de facto primary residential parent, the court granted Mother’s petition and designated her as the primary residential parent. We affirm.

Dickson County Court of Appeals 06/27/14
William H. Thomas, Jr. v. Tennessee Department of Transportation
M2013-01780-COA-R3-CV

This appeal arises from a petition for judicial review of the Tennessee Department of Transportation’s decision to deny the petitioner’s applications for billboard permits. Discerning no error, we affirm the chancery court’s decision upholding the Department’s denial.

Davidson County Court of Appeals 06/27/14
Steven Barrick and Janice Barrick v. State Farm Mutual Automobile Insurance Company and Thomas Harry Jones
M2013-01773-COA-R3-CV

This appeal arises from a trial court’s judgment granting State Farm Mutual Automobile Insurance Company (“State Farm”) and Agent Thomas Harry Jones’ motion for summary judgment and dismissing the Barricks’ action for negligence and violation of the Tennessee Consumer Protection Act. The Barricks held automobile insurance coverage through State Farm, with Thomas Jones as their agent, from 1985 until 2009, and their coverage limits remained the same throughout this period. The Barricks sued, claiming State Farm and Jones had a duty of care to advise the Barricks of their need for increased coverage. The Barricks now appeal, arguing the trial court erred in dismissing their claims. We affirm the trial court’s decision to grant summary judgment regarding the negligence claim. We reverse the trial court’s judgment based on the assumption of duty, which the trial court did not directly address, and the Tennessee Consumer Protection Act claims, since State Farm and Mr. Jones cannot meet their burden under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008), in these claims. We also reverse the trial court’s summary judgment in favor of State Farm for vicarious liability and failure to supervise in regard to the alleged assumption of duty by the agent.

Williamson County Court of Appeals 06/27/14
Marvin Green v. Jerry Lester, Warden
W2013-02525-CCA-R3-HC

Petitioner, Marvin Green, appeals the Lauderdale County Circuit Court's summary dismissal of his petition for habeas corpus relief in which he alleged that an insufficient indictment and an improper offense classification rendered his conviction void. 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 of the Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court is affirmed.

Lauderdale County Court of Criminal Appeals 06/26/14
Cortez Griffin v. State of Tennessee
W2013-01009-CCA-R3-PC

The Petitioner, Cortez Griffin, appeals as of right from the Shelby County Criminal Court’s denial of post-conviction relief following an evidentiary hearing. In his petition, the Petitioner attacked his convictions for felony murder, especially aggravated robbery, and criminally negligent homicide, arguing, among other things, that he received the ineffective assistance of counsel due to counsel’s failure to file a motion to sever the robbery and murder offenses or pursue the trial court’s joinder of those offenses on direct appeal. On appeal, he challenges the denial of relief on the aforementioned bases and whether adequate findings were made by the post-conviction court. However, following our review of the record, we conclude that the petition is untimely. Therefore, the appeal is dismissed.

Shelby County Court of Criminal Appeals 06/26/14
Avalon Sections, 4.6 and 7 Homeowners Association v. Dilip Chaudhuri, et al.
M2013-02346-COA-R3-CV

Homeowners association brought declaratory judgment action against homeowners to enforce the development’s restrictive covenants. The trial court determined that the homeowners association’s architectural review committee (“ARC”) acted within its discretion in ordering homeowners to remove improvements the ARC found to be inconsistent with other homes in the neighborhood. We affirm.

Williamson County Court of Appeals 06/26/14
Howard L. Boyd v. Amanda Mandy Wachtler, et al.
M2013-01545-COA-R3-CV

The jury found that Defendants were liable for damages arising from breach of contract and that Plaintiff was liable for damages arising from negligence. It also found that Defendants were entitled to treble damages under Tennessee Code Annotated § 62-2-503. Plaintiff appeals. Finding material evidence to support the jury verdict, we affirm.

Davidson County Court of Appeals 06/26/14
Federal National Mortgage Association v. Deanna R. Lambert
E2013-01876-COA-R3-CV

This is a detainer action in which Fannie Mae was awarded a judgment of possession of Defendant’s property in sessions court. Defendant refused to vacate the property and appealed to the circuit court. Fannie Mae filed a motion for summary judgment, while Defendant sought to void the judgment of possession. The trial court granted the motion for summary judgment and upheld the foreclosure sale. Defendant appeals. We affirm.

Bledsoe County Court of Appeals 06/26/14
Diana Roberts, et al. v. Sue Prill, M.D., et al.
E2013-02202-COA-R3-CV

This is a health care liability action arising from the death of Decedent. Defendants moved to dismiss the action for failure to comply with the notice requirements set out in Tennessee Code Annotated section 29-26-121(a)(2)(E). The trial court agreed and dismissed the action without prejudice. Plaintiff appeals the dismissal to this court. We affirm the trial court’s dismissal.

Sullivan County Court of Appeals 06/26/14
Dereck Cruz Legens v. Bobby Lecornu, et al.
W2013-01800-COA-R3-CV

This is an appeal from a bench trial in a suit over the sale of a used vehicle. The trial court originally ruled in favor of the seller-defendants, finding that the plaintiff-buyer failed to meet his burden of proving fraud or misrepresentation in the sale of the vehicle. The court found that defendant-sellers had violated one subsection of the Tennessee Consumer Protection Act, but that plaintiff-buyer had failed to prove any actual damages, so the trial court dismissed the complaint. Upon considering the plaintiff-buyer’s motion to alter or amend, the trial court changed its original decision and found that the defendant-sellers had engaged in fraud, and the court rescinded the sale of the vehicle. Upon considering plaintiffbuyer’s second motion to alter or amend, the trial court clarified its ruling and awarded attorney’s fees to the plaintiff-buyer. Both parties appeal. For the following reasons, we reverse the trial court’s decision, reinstate its original ruling, and remand for further proceedings consistent with this opinion.

Obion County Court of Appeals 06/26/14
Dereck Cruz Legens v. Bobby Lecornu, et al. - Concurring Opinion
W2013-01800-COA-R3-CV

I concur fully with the result reached in this case and agree with virtually all of the analysis. I write separately only to draw out and emphasize a couple of issues.

Obion County Court of Appeals 06/26/14
State of Tennessee v. Walter Lee Hicks, Jr.
M2013-01410-CCA-R3-CD

Appellant, Walter Lee Hicks Jr., was convicted by a Marshall County jury of numerous offenses  that arose from an encounter with an officer of the Tennessee Highway Patrol.  The sentences imposed included four years for reckless endangerment with a deadly weapon, eight years for evading arrest and creating a risk of death and injury, and five years for giving a false report.  The trial court ordered that the sentences be served consecutively, with all remaining sentences to be served concurrently, for a total effective sentence of seventeen years at thirty-five percent.  Appellant argues (1) that the evidence was insufficient to support his convictions for reckless endangerment and giving a false report, and (2) that the sentence imposed was excessive and contrary to law.  After thoroughly examining the record, we find no error in either the verdicts or the sentence, and we affirm the trial court.  However, we remand to the trial court for correction of the judgment to reflect that Appellant’s convictions for assault and felony reckless endangerment are merged.

Marshall County Court of Criminal Appeals 06/26/14
State of Tennessee v. Justin David Fife
M2013-02211-CCA-R3-CD

The Circuit Court of Montgomery County revoked the probation of Appellant, Justin David Fife, after he failed to report that he had been arrested for assault and was found to be in “constructive possession” of a handgun.  He argues on appeal that the gun was not his, that the discovery of the gun was the product of an illegal search, and that the trial court erred by denying his motion to suppress the evidence about the weapon.  After carefully examining the evidence, we affirm the Circuit Court’s judgment.

Montgomery County Court of Criminal Appeals 06/26/14
State of Tennessee v. Shira Jean Stafford
M2013-01319-CCA-R3-CD

Appellant, Shira Jean Stafford, was indicted by the Jackson County Grand Jury for preventing or obstructing a law enforcement officer from effecting a stop, frisk, halt, or arrest in violation of Tennessee Code Annotated section 39-16-602.  She was convicted by a jury and sentenced to six months, to be served on probation.  After the denial of a motion for new trial, she appealed.  Appellant challenges the sufficiency of the evidence; the trial court’s decision to allow evidence regarding a civil case during the criminal trial; and the trial court’s failure to issue a curative instruction to the jury.  After a review of the record and applicable authorities, we affirm the judgment of the trial court.

Jackson County Court of Criminal Appeals 06/26/14
Oscar T. Berry v. State of Tennessee
M2013-01927-CCA-R3-PC

Petitioner, Oscar Berry, was convicted of first degree murder in 1991 and was sentenced to life imprisonment.  He filed a direct appeal of his conviction, which was dismissed by this Court in 1992.  State v. Oscar Thomas Berry, No. 01-C01-9201-CR-00033, 1992 WL 275402 (Tenn. Crim. App., at Nashville, Oct. 8, 1992).  His petition for post-conviction relief, filed in 1997, was dismissed by the trial court as untimely.  In 2013, Petitioner filed a motion to reopen the post-conviction proceedings.  He contended that several recent decisions by the United States Supreme Court established constitutional rights in post-conviction proceedings that did not exist at the time of his conviction, thereby allowing his case to be re-opened under the authority of Tennessee Code Annotated §  40-30-117(a)(1).  The trial court rejected his theory and dismissed his motion.  After careful review of the controlling law, we affirm.

Davidson County Court of Criminal Appeals 06/26/14
State of Tennessee v. Kenneth Krasovic
M2013-00607-CCA-R3-CD

Appellant, Kenneth Krasovic, was charged with one count of vehicular homicide by reckless conduct and five counts of reckless endangerment with a deadly weapon stemming from an automobile crash that occurred in Grundy County.  The jury found Appellant guilty on all counts and the trial court sentenced Appellant to a total effective sentence of twelve years and six months.  Appellant filed a motion for a new trial which was denied after a hearing.  Appellant then filed this appeal, arguing (1) that the evidence was insufficient to support the convictions, and (2) that the trial court improperly limited counsel’s closing argument as to the defense of “sudden emergency.”  Upon review of the record, we find that the evidence presented at trial was sufficient to support the convictions and that there was no improper limitation of defense counsel’s closing argument.  We affirm the decision of the trial court.

Grundy County Court of Criminal Appeals 06/26/14
Michael Daniels v. State of Tennessee
E2013-01478-CCA-R3-PC

The Petitioner, Michael Daniels, appeals the Hamilton County Criminal Court’s denial of post-conviction relief from his convictions for first degree murder and conspiracy to commit first degree murder. On appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 06/26/14