Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/29/2015
Format: 07/29/2015
State of Tennessee v. Scott Lee-Concurring
W2014-00986-CCA-R3-CD

I respectfully agree with the conclusion reached by the majority in this case. Certainly, the better practice in all convicted felon in possession of a handgun cases is to have a pre-trial written stipulation agreeing that at the time of the offense the defendant had been previously convicted of a crime punishable by a term of imprisonment exceeding one year. However, I write separately to emphasize that a formal stipulation to a defendant’s status as a convicted felon is not necessary to establish the predicate felony.

Shelby County Court of Criminal Appeals 06/25/15
Preston Rucker v. State of Tennessee
W2014-01573-CCA-R3-PC

The petitioner, Preston Rucker, seeking post-conviction relief, argued that trial/appellate counsel was ineffective because he failed to call a certain witness to contradict the victim's testimony and failed to request a jury instruction regarding the kidnapping charge against the petitioner. Following an evidentiary hearing, the post-conviction court concluded that the petitioner failed to show that counsel was ineffective. We have carefully reviewed the matter and affirm the order denying relief to the petitioner.

Shelby County Court of Criminal Appeals 06/25/15
State of Tennessee Ex Rel. Tennessee Department of Transportation v. William Ernest Jones, Sr., et al.
M2014-00151-COA-R3-CV

This appeal concerns the measure of incidental damages in a condemnation proceeding. The State appeals the trial court’s denial of its motions for directed verdict and remittitur of incidental damages. Taking the strongest legitimate view of the evidence offered by the landowners, we find that the award of incidental damages was properly supported, and therefore, we affirm.

Lawrence County Court of Appeals 06/25/15
Jennifer Parrott v. Lawrence County Animal Welfare League, Inc., et al
M2014-01241-COA-R3-CV


The owner of approximately forty dogs filed a complaint against an animal welfare league for improperly removing the dogs from her property. She later added Lawrence County as a defendant. Lawrence County filed a motion to dismiss the owner’s complaint on the basis of governmental immunity. The trial court granted the county’s motion, and the owner appealed. Tennessee law requires that pleadings alleging negligence by a governmental entity overtly state that the tort was committed by an employee or employees of the governmental entity within the scope of his/her or their employment. The dog owner failed to include this assertion in any of her pleadings. As a result, we affirm the trial court’s judgment granting the county’s motion to dismiss the dog owner’s claims against it.

Lawrence County Court of Appeals 06/25/15
Mousen Aden v. Brenda Jones Warden
W2014-01977-CCA-R3-HC

The petitioner, Mousen Aden, appeals the denial of his petition for the writ of habeas corpus. The habeas corpus court dismissed the petition without appointing counsel or holding a hearing after finding that the indictment was valid, the judgment was not facially void, and that the petitioner's sentence had not expired. On appeal, the petitioner contends that his indictment was invalid because it did not vest the trial court with jurisdiction to enter a proper judgment and failed to provide him with adequate protection from double jeopardy. Following our review, we affirm the judgment of the habeas corpus court.

Lauderdale County Court of Criminal Appeals 06/24/15
Charles E. Jones v. State of Tennessee
W2014-02306-CCA-R3-PC

Petitioner, Charles E. Jones, appeals the post-conviction court's denial of his petition for DNA testing pursuant to the Post-Conviction DNA Analysis Act of 2001, alleging that DNA testing of glass shards found at the crime scene would have resulted in a more favorable verdict or sentence. The post-conviction court summarily dismissed the petition. Perceiving no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/24/15
State of Tennessee v. Larry Lenz
W2014-01720-CCA-R3-CD

Appellant, Larry Lenz, pleaded guilty to five counts of theft: two counts of theft of property valued at $10,000 or more but less than $60,000, Class C felonies; two counts of theft of property valued at $1,000 or more but less than $10,000, Class D felonies; and one count of theft of property valued at $500 or more but less than $1,000, a Class E felony. He received the agreed-upon effective sentence of twelve years as a Range III, persistent offender, to be served at forty-five percent release eligibility. The trial court denied appellant’s request for alternative sentencing pursuant to the Community Corrections Act, and he appeals the denial. Upon our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/24/15
Dwight Miller v. State of Tennessee
W2014-02093-CCA-R3-PC

Petitioner, Dwight Miller, was convicted of first degree murder in 2001 and was sentenced to life in prison. Following an unsuccessful direct appeal, he now challenges his conviction and sentence, claiming ineffective assistance of counsel for failure to call three potential alibi witnesses at trial. Upon our review, we affirm the judgment of the post-conviction court.

Haywood County Court of Criminal Appeals 06/24/15
State of Tennessee v. Kevin Price
W2014-00402-CCA-R3-CD

Aggrieved of his Shelby County Criminal Court jury convictions of aggravated burglary and theft of property valued at $1,000 or more but less than $10,000, the defendant, Kevin Price, appeals, claiming that the evidence was insufficient to support his convictions. Discerning no error, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 06/24/15
The Cohn Law Firm, et al. v. YP Southeast Advertising & Publishing, LLC, et al.
W2014-01871-COA-R3-CV

Plaintiff law firm and lawyer brought suit against defendant advertising companies alleging, inter alia, breach of contract and misrepresentation. Defendants moved to dismiss the complaint because the parties' contracts included a forum selection clause that provided all litigation arising from the contracts would take place in the state of Georgia. The trial court found the forum selection clause enforceable and granted defendants' motion to dismiss. On appeal, plaintiffs argue that the trial court erred in enforcing the forum selection clause because the contracts are adhesion contracts and unconscionable. Discerning no error, we affirm.

Shelby County Court of Appeals 06/24/15
Hanna (John) Nazi, et al. v. Jerry's Oil Company, Inc.
W2014-02008-COA-R3-CV

The trial court determined that Appellant Hanna (John) Nazi executed the contractual documents between the parties as the owner/proprietor of the Handy Peddler and that he was liable for a judgment in favor of Appellee Jerry‘s Oil Company, Inc. We affirm.

Madison County Court of Appeals 06/24/15
Robert W. Mills v. Nita D. Mills, et al.
W2014-00855-COA-R3-CV

This case involves various causes of action related to the administration of an estate, specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted summary judgment on the grounds that no assets remained in the estate to fund the residuary trust, the expiration of the statute of limitations, and laches. Although we rely on different grounds, we affirm the trial court‘s order granting summary judgment and dismissing the complaint.

Shelby County Court of Appeals 06/24/15
Mary V. Williams v. Gibson County, Tennessee
W2014-01599-COA-R3-CV

Plaintiff filed suit against defendant county alleging, inter alia, racial discrimination and retaliatory discharge. Defendant filed a motion to dismiss plaintiff’s claims, which motion the trial court granted in part and denied in part. Defendant subsequently filed a motion for summary judgment as to plaintiff’s remaining claims. The trial court granted summary judgment in favor of defendant, disposing of the remainder of plaintiff’s claims. Plaintiff appeals. Due to significant procedural shortcomings in plaintiff’s appellate brief, we are unable to reach the merits of her appeal. We therefore affirm.

Gibson County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al.
M2014-01413-COA-R3-CV

The trial court ordered the Marshall County Sheriff’s Office to produce the public records requested by Appellant but declined to award Appellant any attorneys’ fees. On appeal, we conclude that the trial court abused its discretion in declining to award attorneys’ fees. Accordingly, we reverse and remand the case to the trial court for the entry of an order awarding Appellant reasonable attorneys’ fees and costs pursuant to Tennessee Code Annotated § 10-7-505(g).

Marshall County Court of Appeals 06/24/15
Alex Friedmann, et al. v. Marshall County, TN, et al. - Concurring
M2014-01413-COA-R3-CV

I concur with the majority Opinion’s ruling, but I write separately to address only the attorneys’ fee issue. Over the years, two schools of thought apparently developed regarding the “willfulness” standard under the Public Records Act attorneys’ fee provision. Tenn. Code Ann. § 10-7-505(g). One school of thought adopted the Black’s Law Dictionary definition of bad faith, which includes phrases like “the conscious doing of a wrong,” “dishonest purpose,” and “moral obliquity.” See Capital Case Res. Ctr. of Tenn., Inc. v. Woodall, No. 01-A01-9104-CH-00150, 1992 WL 12217, at *8 (Tenn. Ct. App. Jan. 29, 1992) (no. perm. app. filed) (holding that Section 10-7-505(g)’s “knowing and willful” standard is synonymous with “bad faith,” without defining “bad faith”); Contemporary Media v. City of Memphis, No. 02A01-9807-CH-00211, 1999 WL 292264, at *4-5 (Tenn. Ct. App. May 11, 1999) (citing Capital Case Res. Ctr. but defining “bad faith” by quoting the Black’s Law Dictionary definition of the term); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn. Ct. App. 1999).

Marshall County Court of Appeals 06/24/15
In re Gabriel V.
M2014-01500-COA-R3-JV

Mother and Father were married to other people when the Child was conceived. Mother divorced her husband, but Father returned to his wife and children after the Child was born. Father initiated court proceedings in an effort to be named the Child’s primary residential parent and to obtain parenting time. The court performed a best interest analysis and determined that Mother was better suited to be named the primary residential parent. By the time of trial, Mother was living in California, and Father was living in Tennessee. The court awarded Father parenting time during the majority of the summer and shorter periods throughout the year, for a total of about ninety-six days per year. Father appealed, contending the court erred in its best interest analysis and in failing to award him more parenting time with the Child. Father also challenged the court’s calculation of child support and credits to which he is entitled. We affirm the trial court’s judgment in all regards except for its calculation of child support and credits to which Father is entitled. The case is remanded for a recalculation of Father’s child support obligation and arrearage, as set forth herein.

Davidson County Court of Appeals 06/24/15
In re Destaney D. et al.
E2014-01651-COA-R3-PT

This is a termination of parental rights action involving two minor children, Destaney D. and Rebekah D. (―the Children‖). In April 2012, the Tennessee Department of Children’s Services (―DCS‖) removed the Children from their mother due to her drug use. The Children were allowed to remain in the care of Amy M. and Jeremy M., a married couple with whom the Children had been residing following their mother’s arrest. On February 21, 2014, Amy M. and Jeremy M. (―the Petitioners‖) filed a petition to terminate the parental rights of the Children’s parents. The petition alleged, as a statutory ground for termination, abandonment by willful failure to support. The Petitioners subsequently filed an amended petition alleging the additional statutory ground of persistence of the conditions leading to removal. Despite being properly served with process, the Children’s mother failed to answer the petition or otherwise make an appearance in this matter. The trial court accordingly terminated her parental rights by default judgment entered on July 21, 2014. She is not a party to this appeal. Following a bench trial on the merits, the trial court granted the petition as to the father upon finding that the Petitioners had proven by clear and convincing evidence the grounds of (1) abandonment by willful failure to support and (2) persistence of the conditions leading to removal. The court also found clear and convincing evidence that termination of the father’s parental rights was in the Children’s best interest. The father has appealed. Having determined that the statutory ground of persistence of conditions is inapplicable to the present action, we reverse the trial court’s determination as to this ground. We affirm the trial court’s judgment in all other respects, including the termination of the father’s parental rights.

Rhea County Court of Appeals 06/23/15
State of Tennessee v. Adam Wayne Robinson
M2013-02703-CCA-R3-CD

The Defendant, Adam Wayne Robinson, was convicted by a jury of three counts of aggravated sexual battery. The Defendant raises three issues on appeal: prosecutorial misconduct during closing argument, sufficiency of the evidence to sustain the convictions, and cumulative error. During closing argument, the prosecutor improperly commented upon the Defendant’s right not to testify and engaged in a persistent pattern of other improper prosecutorial argument. Following a thorough review, we conclude that the prosecutor’s comments on the Defendant’s right not to testify constitute reversible non-structural constitutional error. Moreover, the record establishes that the prosecutor engaged in a persistent pattern of other improper prosecutorial argument, the cumulative effect of which constitutes plain error. We, therefore, reverse the judgments of the trial court and remand the case for a new trial.

Davidson County Court of Criminal Appeals 06/23/15
S.A.M.D. v. J.P.D.
W2014-01015-COA-R3-CV

This is a post-divorce action. The trial court denied Wife's motion to continue, found that she breached the parties' marital dissolution agreement, and credited Husband for amounts he paid for necessaries when calculating Husband's child support arrearage. Wife appeals. We affirm.

Shelby County Court of Appeals 06/23/15
State of Tennessee v. Tyrone Leroy Watts
M2013-02750-CCA-R3-CD

The Defendant, Tyrone L. Watts, appeals his conviction for attempted terrorism.  He challenges the sufficiency of the evidence and the trial court’s failure to provide complete jury instructions defining what would constitute an “imminent threat of death or serious bodily injury.”  Following our review, we conclude that the evidence is insufficient to support the Defendant’s conviction for attempted terrorism.  Accordingly, we reverse the judgment of the trial court and remand for sentencing on the Defendant’s alternative conviction for disorderly conduct in count one.

Bedford County Court of Criminal Appeals 06/23/15
Michael White v. Bruce Westbrooks, Warden
M2014-02459-CCA-R3-HC

The Petitioner, Michael White, appeals the Davidson County Criminal Court’s dismissal of his petition for habeas corpus relief from his 2005 convictions for five counts of rape and his fifty-five-year sentence.  The Petitioner contends that the habeas corpus court erred by summarily denying relief.  He argues that his convictions are void because his constitutional right to a jury trial was violated by the trial court’s applying erroneous sentencing enhancement factors and that principles of double jeopardy were violated by the court’s merging his convictions.  We affirm the judgment of the habeas corpus court.

Davidson County Court of Criminal Appeals 06/23/15
State of Tennessee v. Stanley Bernard Gibson
M2014-00598-CCA-R3-CD

The defendant, Stanley Bernard Gibson, was charged with the possession of but convicted of facilitation of possession of .5 grams or more of cocaine with intent to deliver within 1000 feet of a drug-free school zone and sentenced, as a Range II, multiple offender, to twelve years at 100%.  On appeal, he argues that the evidence is insufficient to support the verdict and that the court erred in ordering that he serve his sentence at 100%.  Following our review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 06/23/15
Byron Becton v. State of Tennessee
W2014-00993-CCA-R3-PC

The petitioner, Byron Becton, appeals the denial of post-conviction relief from his 2011 Shelby County Criminal Court jury convictions of aggravated rape, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 06/23/15
In re Kayden H.
E2014-02360-COA-R3-PT

This is a termination of parental rights case, focusing on Kayden H., the minor child (“the Child”) of Kristy L. (“Mother”) and Johnathan H. (“Father”). On January 28, 2014, the Child’s paternal grandparents, Linda H. and Donald H. (“Grandparents”), filed a petition to terminate the parental rights of the parents and adopt the Child. Father joined as a co-petitioner in order to consent to the termination of his parental rights. Father is not a party to this appeal. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of Mother upon its finding by clear and convincing evidence that Mother had abandoned the Child by willfully failing to provide support and willfully failing to visit the Child in the four months preceding Mother’s September 2013 incarceration. The court also found by clear and convincing evidence that Mother had abandoned the Child by exhibiting wanton disregard for the Child’s welfare prior to Mother’s incarceration. The court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Child’s best interest. Mother has appealed. Discerning no reversible error, we affirm.

Blount County Court of Appeals 06/23/15
In re Jayden B.T.
E2014-00715-COA-R3-PT
This is a termination of parental rights case, focusing on Jayden B.T., the minor child (“the Child”) of Jayson T. (“Father”) and Britney B. (“Mother”). On July 2, 2013, the Child's maternal aunt and her husband, with whom the Child had been residing, filed a petition to terminate the parental rights of both parents. Following a bench trial, the trial court found that grounds existed to terminate the parental rights of both parents upon its finding, by clear and convincing evidence, that the parents had abandoned the Child by willfully failing to visit the Child, willfully failing to support the Child, and failing to provide a suitable home. The trial court also found clear and convincing evidence as to both parents of the statutory ground of persistence of the conditions that led to removal of the Child. The court further found, by clear and convincing evidence, that termination of Father's and Mother's parental rights was in the Child's best interest. Father has appealed. We conclude that the evidence was insufficient to support a finding that Father abandoned the Child through failing to visit him and therefore reverse the trial court's finding as to that ground. In addition, we determine that the statutory grounds of persistence of the conditions leading to removal and abandonment through failure to provide a suitable home are not applicable to Father, and we therefore reverse the trial court's findings regarding those two grounds. We affirm the trial court's judgment in all other respects, including the termination of Father's parental rights upon the ground of abandonment through willful failure to support the Child.
 
Roane County Court of Appeals 06/23/15