Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 04/28/2015
Format: 04/28/2015
State of Tennessee v. Frederick Herron
W2012-01195-SC-R11-CD

The defendant was charged with and convicted of rape of a child, and he received a twentyfive-year sentence. The defendant appealed, raising seven issues. The Court of Criminal Appeals held that the trial court erred by(1) allowing the prosecution to introduce the child’s prior consistent statement, a recorded forensic interview, during its case-in-chief before the child’s credibility had been challenged; and (2) ruling that if the defendant chose to testify the prosecution would be permitted to ask him whether he had been previously arrested or convicted of an unnamed felony. Nevertheless, in a divided decision, two judges of the Court of Criminal Appeals concluded that these errors were neither individually nor cumulatively prejudicial. The dissenting judge opined that the second error alone was prejudicial and entitled the defendant to a new trial. We affirm the Court of Criminal Appeals’ conclusions that the evidence is sufficient to support the conviction and that the election is sufficiently specific and definite. We hold that the cumulative effect of the two conceded trial errors is prejudicial and entitles the defendant to a new trial. Because of the remand for a new trial, we do not address the defendant’s other allegations of evidentiary errors. Accordingly, the judgment of the Court of Criminal Appeals is reversed in part; the defendant’s conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

Shelby County Supreme Court 03/26/15
Hershel Sanders et al v. First Tennessee Bank, N.A. et al.
E2014-00812-COA-R3-CV

This appeal concerns a dispute over which statute of limitations applies. Hershel and Alma Sanders (“Plaintiffs”) filed suit against First Tennessee Bank, National Association (“the Bank”) in the Circuit Court for Cumberland County (“the Trial Court”).1 Plaintiffs alleged that the Bank breached its contractual obligations to them by failing to provide long-term financing toward the building of their home as promised. The Bank denied it made any such promise. The Bank filed a motion for summary judgment. After a hearing, the Trial Court granted the Bank’s motion for summary judgment on the basis that the three-year statute of limitations for injury to property or interest in property barred Plaintiffs’ claims. Plaintiffs appeal. We hold that the financial damages alleged by Plaintiffs are in the nature of breach of contract and, therefore, a six-year statute of limitations governs. We reverse the judgment of the Trial Court.

Cumberland County Court of Appeals 03/26/15
State of Tennessee v. Jeremy Danielle McWherter
M2014-00974-CCA-R3-CD

Defendant, Jeremy McWherter, pled guilty in the Montgomery County Criminal Court to the offense of especially aggravated burglary. Defendant received a sentence of eight years to serve one year in confinement followed by seven years of probation. On March 26, 2014, a probation violation warrant was issued. Following a hearing, the trial court revoked probation and ordered Defendant to serve the balance of his sentence by incarceration. Defendant appeals, and does not challenge the revocation of probation, but argues that the trial court erred by ordering the entire sentence to be served by incarceration and not granting him a furlough to enter an alcohol rehabilitation program. We affirm the judgment of the trial court.

Montgomery County Municipal Courts 03/26/15
State of Tennessee v. Maxwell Monroe Hodge
E2014-01059-CCA-R3-CD

Convicted of rape by a Sullivan County Criminal Court jury, the defendant, Maxwell Monroe Hodge, appeals and claims that the evidence is insufficient to support his conviction and that the definition of “sexual penetration” expressed in Tennessee Code Annotated section 39-13-501(7) is impermissibly vague relative to that subsection’s use of the terms “genital or anal openings.” Discerning no error, we affirm the judgment of the criminal court.

Sullivan County Court of Criminal Appeals 03/26/15
Karen Abrams Malkin v. Reed Lynn Malkin
W2014-00127-COA-R3-CV

This appeal involves an obligor’s petition to modify or terminate his alimony obligation due to his retirement. The trial court found that the obligor’s income had decreased to approximately one-third of his previous income level, so the trial court reduced the alimony payments by a corresponding percentage, to roughly one-third of the previous obligation. The recipient appeals. We hold that the trial court applied an incorrect legal standard when considering the petition to modify and also erred in its factual findings. Based on our review of the evidence, the obligor failed to demonstrate that modification of his alimony obligation was warranted. Consequently, we reverse the trial court’s decision, reinstate the previous alimony award, dismiss the petition for modification, and remand for further proceedings.

Shelby County Court of Appeals 03/26/15
Jessica Catherine Hayes v. Douglas Aaron Hayes
M2014-00237-COA-R3-CV

This appeal involves various financial issues related to a divorce. Father appeals the trial court’s determination of variable income for Father that he earns as an amateur bowler; the trial court’s award of transitional alimony to Mother; and the trial court’s order that Father pay half of the minor children=s private school tuition. We affirm the trial court’s rulings regarding child support and alimony. However, we vacate the trial court’s ruling on the payment of private school tuition due to the trial court’s failure to comply with the Tennessee Child Support Guidelines.

Montgomery County Court of Appeals 03/26/15
Nancy Hart Diehl Harvey, Executrix of The Estate of W. Joseph Diehl, Jr., et al v. Phillips Turner, Jr.
M2014-00368-COA-R3-CV

This is a lawsuit brought for damage to property. After partial summary judgment was denied to the defendant, and after the trial court ruled that the defendant’s request for a jury trial was waived, the parties proceeded to a bench trial. During a hiatus after three days of trial, the parties settled the case and announced the essential terms of the settlement to the court in open court. The parties failed to agree to a written settlement document, and the plaintiffs asked the trial court to enforce the settlement. The trial court found that the settlement was enforceable. The defendant appealed. We affirm.

DeKalb County Court of Appeals 03/26/15
In Re Kemauri H.
M2014-01357-COA-R3-PT

Mother appeals the termination of her parental rights. The trial court found that six grounds for termination of her parental rights had been established. Mother does not challenge three of the grounds for termination; thus, the trial court’s ruling regarding three of the grounds is final. Because the trial court may terminate parental rights on the basis of only one statutory ground, In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003), we need not examine the other grounds. See In re Alexis L., No. M2013-01814-COA-R3-PT, 2014 WL 1778261, at *1 (Tenn. Ct. App. Apr. 30, 2014). Mother also contends the trial court erred in finding that the requirements of the permanency plan were reasonably related to remedying the conditions that necessitated the child’s removal and that termination was in the child’s best interests. Finding no error, we affirm.

Rutherford County Court of Appeals 03/26/15
Kevin Bloomfield v. The Metropolitan Government of Nashville and Davidson County
M2014-00438-COA-R3-CV

Plaintiff, a firefighter, who sustained personal injuries while serving in the course and scope of his employment with the Nashville Fire Department, brought this action against the Metropolitan Government of Nashville and Davidson County (“Metro”) asserting that he sustained serious personal injuries due to the negligence of a paramedic who was employed by Metro. The injury occurred while Plaintiff and the paramedic were moving a patient in a wheelchair. Following discovery, Plaintiff filed a motion for partial summary judgment on the issue of liability. After determining that no material facts were in dispute, the trial court granted summary judgment on the issue of liability upon the findings that an established procedure existed for the lifting of patients in a wheelchair, that the paramedic violated the established procedure, that the violation caused Plaintiff’s injuries, and that Plaintiff was not comparatively at fault. Following an evidentiary hearing on the issue of damages, the trial court awarded Plaintiff a judgment of $300,000 in damages. On appeal, Metro contends that there is a genuine dispute of fact regarding the policy for moving patients in wheelchairs, whether the paramedic violated the procedure, and whether Plaintiff is comparatively at fault. We affirm the trial court’s findings that there was an established policy for moving patients in a wheelchair, that the paramedic violated the policy by lifting the foot of the wheelchair without communicating with Plaintiff prior to initiating the lift, and that the paramedic’s violation of the established policy was the sole and proximate cause of Plaintiff’s injuries. Accordingly, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 03/26/15
Garrett Rittenberry, et al. v. Kevin Pennell, et al.
M2013-02106-COA-R3-CV

This appeal concerns a contentious boundary dispute involving multiple parties. Plaintiffs Garrett and Alma Rittenberry (“the Rittenberrys”) initially filed suit seeking to have an easement set aside for their benefit through the property of Kevin and Lana Pennell (“the Pennells”) pursuant to Tennessee Code Annotated § 54-14-101 et seq. Later, the Rittenberrys filed an amended complaint that alternatively sought relief by way of an easement across the property of Appellants Chris Burke and Lesa Hall (“Burke/Hall”). The Pennells moved for summary judgment arguing that the Rittenberrys did not need to resort to the statutory remedy of an easement by necessity. Upon finding that the Rittenberrys’ property was not, in fact, landlocked, but that it abutted a public road, the trial court granted the Pennells’ motion and dismissed the Rittenberrys’ cause of action. We affirm the trial court’s judgment

Sumner County Court of Appeals 03/26/15
Billy L. Grooms v. State of Tennessee
E2014-01228-CCA-R3-HC

The petitioner, Billy L. Grooms, appeals the denial of his petition for writ of habeas corpus and/or motion to correct an illegal sentence. He argues that: (1) the indictment is void because it was returned without a juvenile petition for transfer, prior to transfer to the criminal court, and without the criminal court’s acceptance; (2) the indictment is void because it and the endorsements were not part of the record insofar as they were never spread upon the minutes of the trial court to become part of the record; (3) the indictment is void because it alleged only legal conclusions, did not provide adequate protections against double jeopardy, and did not enable the trial court to enter an appropriate judgment; and (4) his sentence is void in light of Miller v. Alabama, 132 S. Ct. 2455 (2012). After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the habeas corpus court.

Cocke County Court of Appeals 03/25/15
Gary Wayne Bush v. State of Tennessee
M2014-00759-CCA-R3-PC

The Petitioner, Gary Wayne Bush, appeals the Rutherford County Circuit Court’s denial of post-conviction relief.  He was convicted of first degree murder and sentenced to life imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel because trial counsel failed to call the Petitioner to testify in his own defense.  Upon review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 03/25/15
Corey Alan Bennett v. State of Tennessee
E2014-02097-CCA-R3-PC

The pro se appellant, Corey Alan Bennett, appeals as of right from the Knox County Criminal Court’s order summarily dismissing his petition for post-conviction relief. Because the record reflects that the appellant filed a subsequent petition for post-conviction relief, we affirm the order of the Knox County Criminal Court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Knox County Court of Criminal Appeals 03/25/15
Corey Alan Bennett v. State of Tennessee
E2015-00143-CCA-R3-PC

The pro se appellant, Corey Alan Bennett, appeals as of right from the Knox County Criminal Court’s order summarily dismissing his petition for post-conviction relief. Because the record reflects that the appellant filed a subsequent petition for post-conviction relief, we affirm the order of the Knox County Criminal Court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

Knox County Court of Criminal Appeals 03/25/15
Sharon M. Smith v. Read Hauck, et al.
M2014-01383-COA-R3-CV

The trial court granted Defendant/Appellee’s motion to dismiss based upon expiration of the applicable statute of limitations and made its judgment final pursuant to Tennessee Rule of Civil Procedure 54.02. Because we find that the trial court considered matters outside the pleadings in ruling on Defendant/Appellee’s motion to dismiss we converted it to a motion for summary judgment. We reverse the judgment of the trial court and remand for further proceedings.

Davidson County Court of Appeals 03/25/15
William C. Kerst, et al. v. Upper Cumberland Rental And Sales, LLC
M2014-00894-COA-R3-CV

This is a contract case arising from the sale of a business. Appellant orally agreed to sell his fastener business to the Appellee. After Appellant allegedly violated the terms of the sale agreement, Appellee stopped making payments. Appellant filed suit to recover the balance of the purchase price. The parties later agreed to rescission of the sale and to allow the trial court to decide the issue of rescissory damages. The trial court heard evidence regarding such damages and entered an order awarding Appellant $8,601.73 in damages, plus the remaining inventory of unused old fasteners. Appellant appeals. We affirm and remand.

Putnam County Court of Appeals 03/25/15
Donny O. Locklear v. Stacey L. Locklear
E2014-01465-COA-R3-CV
This is an appeal from a Final Decree of Divorce. Because a notice of appeal was not timely filed in this case, we have no jurisdiction to consider this appeal.
 
Sullivan County Court of Appeals 03/24/15
David Crump, Sr. v. Sherry Pike
E2014-02074-COA-R3-CV
The final order from which the appellant seeks to appeal was entered on October 14, 2014. The only notice of appeal “filed” by the appellant was submitted to the Trial Court Clerk via facsimile transmission in violation of Rule 5A.02(4)(e) of the Rules of Civil Procedure. Because the Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.
 
Cocke County Court of Appeals 03/24/15
In Re Brittany M.C.
E2014-01450-COA-R3-PT
This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Mother’s parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination of Mother’s parental rights on the statutory grounds of abandonment, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination of her rights was in the Child’s best interest. Mother appeals. We affirm the trial court’s termination of Mother’s parental rights. 
Sullivan County Court of Appeals 03/24/15
In Re Brookelyn W.
W2014-00850-COA-R3-PT

In this termination of parental rights case, mother and step-father appeal the trial court’s decision to set aside a decree of adoption entered by default, as well as the trial court’s subsequent finding that they failed to prove grounds for the termination of biological father’s parental rights. We affirm the trial court’s decision to set aside the adoption decree, but reverse the trial court’s determination that mother and step-father failed to prove grounds for termination. Instead, we conclude that clear and convincing evidence exists to show that biological father abandoned the child by willfully failing to visit and support the child. As such, we remand to the trial court for a determination of whether termination is in the child’s best interest.

Shelby County Court of Appeals 03/24/15
State of Tennessee v. Christopher Lee Cunningham and James Cleo Hardin
W2014-00230-CCA-R3-CD

The Defendant-Appellants, Christopher Lee Cunningham and James Cleo Hardin, were jointly convicted by a Madison County jury of one count of aggravated burglary and two counts of aggravated robbery. The trial court sentenced each defendant to an effective sentence of 22 years’ confinement. On appeal, the Defendants argue that (1) the evidence is insufficient to sustain their convictions for aggravated burglary and aggravated robbery, and (2) the trial court abused its discretion by imposing consecutive sentences. Upon review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 03/24/15
Jackie Ewing v. State of Tennessee
W2014-00273-CCA-R3-PC

The petitioner, Jackie Ewing, was convicted of theft of property valued over $1000 and sentenced as a career offender to twelve years. On direct appeal, this court affirmed the petitioner’s conviction, and our supreme court denied permission to appeal. State v. Jackie Ewing, No. W2012-00376-CCA-R3-CD, 2012 WL 6206123, at *1 (Tenn. Crim. App. Dec. 11, 2012), perm. app. denied (Tenn. Apr. 9, 2013). Subsequently, he filed a pro se petition for post-conviction relief, alleging he received the ineffective assistance of counsel at trial. Counsel was appointed and, following an evidentiary hearing, the post-conviction court denied the petition. Based upon our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 03/24/15
Deborah Ann Treadway v. Gregory Steven Treadway
M2014-00898-COA-R3-CV

The trial court awarded Wife a judgment in the amount of $28,000 for back alimony and ordered Husband to honor his obligations, under the parties’ marital dissolution agreement, with respect to life insurance and disability insurance. Husband appeals. We affirm and remand the case for further proceedings as are necessary and consistent with this Opinion.

Sumner County Court of Appeals 03/24/15
William Watters, Jr. v. Nissan North America, Inc., et al
M2014-00539-SC-R3-WC

In this workers’ compensation action, the employee alleged that he sustained bilateral thoracic outlet syndrome, bilateral shoulder injuries and a herniated disc in his neck as a result of his work and that he was permanently and totally disabled by those injuries. His employer denied that the neck injury was work-related and denied that he was totally disabled. The trial court found that the neck injury was not compensable and awarded 80% permanent partial disability for the other injuries. On appeal, the employee contends that the evidence preponderates against the trial court’s finding concerning the neck injury, and the employer contends that the award was excessive. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment.

Franklin County Supreme Court 03/24/15
Brannon Blake Black v. State of Tennessee
W2014-01264-CCA-R3-PC

The Petitioner, Brannon Blake Black, appeals the post-conviction court's denial of relief from his conviction for rape, a Class B felony. On appeal, he argues that he received ineffective assistance of counsel in connection with his guilty plea. Upon review, we affirm the judgment of the post-conviction court.

Obion County Court of Criminal Appeals 03/23/15