Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 06/02/2015
Format: 06/02/2015
State of Tennessee v. Travontay Tremont Berry
W2014-00808-CCA-R3-CD

A jury convicted the defendant, Travontay Tremont Berry, of tampering with evidence, a Class C felony, and carrying a firearm with the intent to go armed, a Class A misdemeanor. The defendant appeals the sufficiency of the evidence for his felony conviction, arguing that he did not know that an investigation was pending at the time of the offense. Having reviewed the record, we conclude that the evidence is sufficient to support the convictions, and we affirm the judgment of the trial court. We remand for correction of the judgment form to reflect the correct classification of the tampering with evidence offense and for reconsideration of the sentence in light of the correction.

Madison County Court of Criminal Appeals 04/30/15
State of Tennessee v. Melvin Brown
W2014-00162-CCA-R9-CD

The Defendant, Melvin Brown, was indicted by the Shelby County Grand Jury for driving under the influence (“DUI”); DUI with blood alcohol more than .20%; violation of the implied consent law; reckless driving; and driving with a license revoked, suspended, or cancelled. The Defendant refused law enforcement’s request to submit to a blood test to determine his blood alcohol content, and his blood was taken, without a warrant and over his objections, pursuant to Tennessee Code Annotated section 55-10-406(f)(1) (Supp. 2011). The trial court subsequently granted the Defendant’s motion to suppress evidence of his blood alcohol content. In this interlocutory appeal, the State challenges the trial court’s conclusion that the Code section 55-10-406(f)(1) is unconstitutional and that no exception to the warrant requirement existed to justify the warrantless blood draw. Upon review, we conclude that Code section 55-10-406(f)(1) does not dispense with the warrant requirement and reverse the portion of the trial court’s judgment declaring the statute unconstitutional. Because no exception to the warrant requirement existed, however, we affirm the order of the trial court suppressing the results of the Defendant’s blood alcohol content.

Shelby County Court of Criminal Appeals 04/30/15
State of Tennessee v. Claudale Renaldo Armstrong
M2014-01041-CCA-R3-CD

A Marshall County Circuit Court jury convicted the Defendant-Appellant, Claudale Renaldo Armstrong, of sale of .5 grams or more of cocaine base; delivery of .5 grams or more of cocaine base; sale of less than .5 grams of cocaine; and delivery of less than .5 grams of cocaine.  See T.C.A. § 39-17-417 (2011). The trial court merged the four alternative counts into two convictions and sentenced Armstrong as a Range II, multiple offender to a total effective sentence of twenty-six years in the Department of Correction.  The sole issue presented for our review is whether the evidence is sufficient to support the convictions.  Upon review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 04/30/15
Barbara McGinnis v. State of Tennessee
W2014-02272-COA-R9-CV

This is an interlocutory appeal of the Tennessee Claims Commission’s denial of Appellant State of Tennessee’s motion to dismiss the Appellees’ appeal of the denial of her tort claim by the Division of Claims Administration. Appellee filed her notice of appeal with the Commission 91 days after notice of the denial of her claim. Although Tennessee Code Annotated Section 9-8-402(c) allows only 90 days for a party to appeal the denial of his or her claim, the Commission applied Tennessee Rule of Civil Procedure 6.05 to enlarge the time by three days and, thus, held that Appellees’ notice of appeal was timely. We conclude that Tennessee Rule of Civil Procedure 6.05 is inapplicable to this case. Accordingly, we hold that Appellees’ appeal was not timely filed so as to confer jurisdiction over her claim to the Commission. Because the Commission lacked jurisdiction, the State was entitled to dismissal of the appeal. Reversed and remanded with instructions.

Court of Appeals 04/30/15
Barbara McGinnis v. State of Tennessee, Dissent
W2014-02272-COA-R9-CV

The majority concludes that Appellee’s failure to file her notice of appeal with the Claims Commission within ninety days of the date the Division of Claims Administration denied the claim is fatal to her appeal. See generally Tenn. Code Ann. § 9-8-402(c). Because I conclude that the issue of whether a notice of appeal to the Claims Commission is jurisdictional is a matter of some import that should first be decided by the Claims Commission, I must respectfully dissent from the majority Opinion.

Court of Appeals 04/30/15
Flat Iron Partners, LP, et al. v. The City of Covington, et al.
W2013-02235-COA-R3-CV

This is an appeal from the trial court’s grant of summary judgment to Appellees on their Open Meetings Act claim, and the grant of partial summary judgment to Appellees on their Fair Housing Act claims, i.e., disparate treatment and disparate impact. We conclude that the trial court erred in granting summary judgment on the Open Meetings Act claim. We further conclude that there are disputes of material fact that preclude the grant of partial summary judgment on the FHA claims. Accordingly, we reverse the trial court’s grant of summary judgment and vacate the trial court’s entry of judgment on a jury verdict on the issue of damages. Reversed in part, vacated in part, and remanded.

Tipton County Court of Appeals 04/30/15
Charles Allen Hanna v. Jeannettee Lynn Hanna
W2014-02051-COA-R3-CV

This is a post-divorce case. The parties executed a marital dissolution agreement, and the trial court incorporated the agreement into the divorce decree. Several years after the divorce, Appellee received a substantial social security disability payment that was deposited into a bank account held jointly with Appellant. Appellant later withdrew approximately one-half of the deposited amount. In response, Appellee took a vehicle that was awarded to Appellant under terms of the marital dissolution agreement. Appellee also filed a petition for contempt to enforce the marital dissolution agreement, asking that he retain ownership of the vehicle and that Appellant be disgorged of the $25,000 she withdrew from the parties’ joint account. In her answer and counterclaim for contempt, Appellant demanded the return of the vehicle, asserted that she was entitled to the funds withdrawn from the joint account, and requested her attorney’s fees. The trial court ordered the parties to return the funds and the vehicle to their original possessors and awarded Appellee attorney’s fees. We affirm in part and reverse in part.

Henderson County Court of Appeals 04/30/15
VFS Leasing Co. v. Warren Mills
W2014-01085-COA-R3-CV

This appeal arises from the grant of summary judgment in favor of Appellee on a breach of lease and guaranty agreements case. The trial court entered a judgment against Appellant for the deficiency owed under the lease agreement. Appellant argues that the guaranties executed to secure the lease were not signed by him in front of a notary public and, therefore, are invalid. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 04/30/15
Rutherford Wrestling Club, Inc. v. Robert Arnold, et al.
M2013-02348-COA-R3-CV

This appeal involves a dispute over the ownership of both real and personal property located at Blackman Middle School in Rutherford County, Tennessee between the appellant, Rutherford Wrestling Club, Inc., and the Appellees, consisting of Rutherford County, the Rutherford County Board of Education, and the Rutherford County Sheriff’s Department. The trial court rejected various theories raised by the appellant regarding its claim of ownership of the property. After conducting a trial, the trial court concluded that the property belonged to the appellees. On appeal, the appellant claims that the trial court erred in finding that the appellant was merely a booster club and had no ownership interest in either the real or personal property in question. We affirm the decision of the trial court.

Rutherford County Court of Appeals 04/30/15
Regina D. Wiser v. Cyrus W. Wiser, Jr.
M2013-02510-COA-R3-CV

Husband was ordered in an earlier proceeding to increase his alimony and child support payments to Wife. The following year, Husband filed a petition to reduce his alimony and child support payments due to a substantial and material change of circumstances. Husband alleged both that Wife was cohabitating with another person and that Husband’s income had significantly decreased. The trial court denied Husband’s petition and awarded Wife attorney’s fees. Husband appeals, and we affirm the trial court’s judgment in all respects.

Rutherford County Court of Appeals 04/30/15
Community First Bank And Trust v. The Velligan Family Trust, et al
M2014-00370-COA-R3-CV

The matters in dispute pertain to four promissory notes. After the Bank filed suit to collect on the notes, Defendants filed counterclaims against the Bank and cross-claims against one of its agents. Following discovery, the Bank and its agent moved for summary judgment on all claims; Defendants opposed summary judgment on several grounds. Finding that the unpaid balances on the notes and the resulting deficiencies were undisputed and that Defendants released all claims against the Bank and its agent when they executed forbearance agreements, the trial court granted summary judgment in favor of the Bank in the amount of $204,024.25, and summarily dismissed all claims asserted by Defendants. We affirm.

Maury County Court of Appeals 04/30/15
In re Mattie H.
M2014-01350-COA-R3-JV

The trial court entered an order establishing paternity and setting child support for a non-marital child. The trial court also granted J. W. B.’ s (hereinafter “Father”) oral motion to change the child’s surname from T. H.’ s (hereinafter “Mother”) to Father’s. Mother appeals only the order changing the child’s surname. We reverse.

Coffee County Court of Appeals 04/30/15
Robert W. Halliman et al v. Heritage Bank et al
M2014-00244-COA-R3-CV

After foreclosing on three lots securing three loans, the mortgagee, Heritage Bank, sought to satisfy the outstanding deficiency by foreclosing on the debtors’ family-owned property that additionally secured these obligations. To prevent the impending foreclosure, the debtors commenced this action contending they are not liable for the deficiency because the properties sold at foreclosure for an amount materially less than their fair market value. In its answer, the bank asserted a counterclaim seeking a deficiency judgment and attorneys’ fees. At the close of the debtors’ case-in-chief, the bank moved for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2). The trial court granted the motion, finding that the debtors failed to prove the fair market value of the three properties at the time of each foreclosure was materially less than the foreclosure sale prices; therefore, the debtors failed to overcome the presumption afforded by Tenn. Code Ann. § 35-5-118(b) that the foreclosure sale prices equaled the fair market value. The court then conducted a trial on the bank’s counterclaim for the deficiency and awarded the bank a judgment of $111,115.66. The trial court also awarded attorney’s fees in the amount of $55,000, which was substantially less than the bank requested. Both parties appeal. The debtors contend the trial court erred in dismissing their claim because they presented sufficient proof that the sale prices were materially less than fair market value; they also contend the bank was not entitled to recover its attorneys’ fees. The bank contends the trial court erred by reducing its fee application. We have determined the debtors failed to prove that the sales price for each of the foreclosed properties was materially less than their fair market value at the time of each sale, and we find no error with the award of attorneys’ fees. Accordingly, we affirm.

Montgomery County Court of Appeals 04/30/15
Pinnacle Roofs Plus v. William Murphy
M2014-01286-COA-R3-CV

Roofing company filed a civil warrant against homeowner for money owed on a written contract after completion of work and homeowner refused to pay. Homeowner countered by filing a civil warrant for breach of contract alleging that roofing company was not licensed as required by Tenn. Code Ann. § 62-6-603 prior to entering into contract. The circuit court found that roofing company was licensed at all material times and awarded a monetary judgment in favor of roofing company. Homeowner appealed. Finding no error, we affirm. 

Davidson County Court of Appeals 04/30/15
In re Destiny W.
M2014-01256-COA-R3-PT

This appeal involves the termination of Mother’s parental rights to her child. At ten and one-half weeks old, the Department of Children’s Services placed the child with guardians due to Mother’s drug use. About eighteen months after the child’s placement with the guardians, the Guardian ad Litem filed a petition for termination of parental rights. The juvenile court found statutory grounds for termination of Mother’s parental rights and that termination was in the child’s best interest. On appeal, Mother argues that the Guardian ad Litem did not have standing to file the petition to terminate parental rights and that clear and convincing evidence did not support the juvenile court’s conclusion that termination of Mother’s parental rights is in the child’s best interest. We affirm.

Wilson County Court of Appeals 04/30/15
State of Tennessee v. Gerald McEwen
W2013-02692-CCA-R3-CD

A Shelby County Criminal Court Jury convicted the appellant, Gerald McEwen, of first degree premeditated murder and attempted first degree murder. The trial court imposed a total effective sentence of life imprisonment in the Tennessee Department of Correction. On appeal, the appellant challenges the sufficiency of the evidence sustaining his convictions and contends that the trial court erred by denying his motion for a mistrial. Upon review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Anthony Draine aka Anthony Draine-Love
W2013-02436-CCA-R3-CD

A Shelby County Criminal Court Jury convicted the appellant, Anthony Draine a.k.a. Anthony Draine-Love, of aggravated burglary. He was sentenced as a Range II, multiple offender to nine years in the Tennessee Department of Correction. On appeal, the appellant challenges the trial court’s denial of his motion to suppress and contends that the evidence was insufficient to sustain his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
State of Tennessee v. Glen Sewell
W2014-00984-CCA-R3-CD

The defendant, Glen Sewell, was convicted of one count of Class D felony theft of property, two counts of Class D felony vandalism, one count of Class E felony vandalism, and one count of Class A misdemeanor vandalism. The trial court imposed an effective sentence of thirty-six years, with three twelve-year sentences for the Class D felonies to be served consecutively to each other and concurrently with a six-year sentence for the Class E felony conviction and an eleven month and twenty-nine day sentence for the Class A misdemeanor. On appeal, the defendant contends that: (1) the evidence is insufficient to support his convictions for Class E felony vandalism, Class D theft of property, and Class D felony vandalism; (2) the trial court erred when interrupting trial counsel during voir dire; (3) the trial court erred in imposing consecutive sentences. After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 04/29/15
Heather Walker Sellers v. Billy Joe Walker
E2014-00717-COA-R3-CV

This action involves the modification of a child support award. The trial court determined the self-employed obligor's income to be consistent with amounts deposited in his personal bank account, rather than the income reported on his federal tax returns, and calculated his child support obligation accordingly. The obligor has appealed the trial court's determination regarding his income and resultant child support obligation. We determine that the trial court properly based the obligor's income on the combined amount of his annual deposits. We also determine that the trial court properly set the obligee's income based on her testimony. We reverse the trial court's calculation regarding the amount of child support to be paid, however, due to a mathematical error in the trial court's income calculation and its failure to consider the obligor's self-employment taxes. We remand the case for a recalculation of child support utilizing the proper monthly income for the obligor and taking into consideration the amount of self-employment tax paid by him.

Bradley County Court of Appeals 04/29/15
Connie L. Watson v. Ruby Anne Pike
E2014-02057-COA-R3-CV
This is an appeal from an order granting a new trial in a Will contest proceeding initiated by the appellant, Connie Louise Watson (“Watson”), seeking to invalidate the Last Will and Testament executed by her father, Noah Richard Earls, Sr. (“Decedent”), in which the appellee, Ruby Anne Pike (“Pike”), was appointed the Decedent’s Personal Representative and Executrix of his estate. Because the order on appeal contemplates further proceedings in the Trial Court, it is not a final order and we have no jurisdiction to consider this appeal.
 
Bradley County Court of Appeals 04/29/15
State of Tennessee v. Loreto Espinosa, Jr.
M2013-02751-CCA-R3-CD

The Defendant, Loreto Espinosa, Jr., was convicted by a Bedford County Circuit Court jury of eighteen counts of aggravated rape of a child, Class A felonies. See T.C.A. § 39-13-531 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to sixty years for each conviction at 100% service and ordered partial consecutive sentences. The court ordered Counts 1 and 18 to run consecutively to each other and Counts 2 through 17 to run concurrently to each other but consecutively to Counts 1 and 18, for an effective 180-year sentence. On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State failed to make a proper election of the offenses for Counts 2 through 17, and (3) his sentence is excessive. We conclude that insufficient evidence exists relative to Counts 1 through 17, and we reverse the judgments of the trial court, vacate the convictions, and dismiss the charges relative to those counts. Although the trial court failed to require the State to make an election of the offense relative to Count 18, we conclude that the error was harmless beyond a reasonable doubt and affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 04/29/15
Ginger Ilene Hudson Stump v. State of Tennessee
M2014-01373-CCA-R3-PC

The petitioner, Ginger Ilene Hudson Stump, pled guilty to seven counts of forgery, of which six were Class E felonies and one was a Class D felony.  The trial court sentenced her as a career offender to twenty-four years in the Department of Correction.  On direct appeal, this court affirmed the petitioner’s convictions and sentence.  State v. Ginger Ilene Hudson Stump, No. M2012-02723-CCA-R3-CD, 2013 WL 5310526, at *1 (Tenn. Crim. App. Sept. 20, 2013).  Subsequently, she filed a pro se petition for post-conviction relief, alleging she received the ineffective assistance of counsel.  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.

Bedford County Court of Criminal Appeals 04/29/15
Legacy Auto Sales, LLC, et al. v. Bank of New York Mellon, et al.
W2014-00637-COA-R3-CV

This appeal arises from a suit by a borrower against a bank and its servicing agent. In its amended complaint, the borrower sought to enjoin a foreclosure sale and set aside the assignment of the deed of trust. Additionally, the borrower sought damages for several statutory violations, including alleged violations of the Tennessee Consumer Protection Act (“TCPA”). Though the trial court granted summary judgment in favor of the defendants on most of the claims, there is no final judgment with regard to the borrower’s TCPA claim. Because the order appealed is not a final judgment, we dismiss this appeal for lack of jurisdiction and remand the case to the trial court for further proceedings.

Shelby County Court of Appeals 04/29/15
Rogelynn Emory v. Memphis City Schools Board of Education, now known as Shelby County Board of Education
W2014-01293-COA-R3-CV

This is an appeal by a tenured teacher seeking relief for the school board’s failure to comply with the procedures set forth in the Tennessee Teacher Tenure Act for her termination. After receiving notice of charges pending against her, the teacher demanded a hearing before the school board. Pursuant to the Tenure Act, the school board was required to conduct a hearing on the charges within thirty days of the teacher’s demand. The school board failed to do so. The trial court held that because the delay did not affect the outcome of the hearing, the school board’s failure to comply with the Tenure Act was harmless and the teacher was not entitled to relief. On appeal, we conclude that Ms. Emory is entitled to an award of back pay for the number of days over thirty that she was suspended without pay and without a hearing following her demand for a hearing. We therefore reverse the judgment of the trial court and remand the case for a calculation of the proper amount of damages to which the teacher is entitled.

Shelby County Court of Appeals 04/29/15
Jennifer Broadrick v. Troy Broadrick
M2013-02628-COA-R3-CV

Father and Mother were divorced in Kentucky. As part of the divorce, they entered into an agreed custodial arrangement that granted them equal time with their child. Both parties subsequently relocated to Tennessee and now live within sixty miles of each other. Mother filed a petition to register the Kentucky plan and modify residential parenting time. Following a trial, the Tennessee court concluded that a material change in circumstance had occurred and modification of the parenting schedule was in the child’s best interest. In a new parenting plan, the court allocated Mother 246 days and Father 119 days of parenting time. Father appeals. We affirm.

Williamson County Court of Appeals 04/29/15