Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/03/2015
Format: 07/03/2015
Jeffrey Richard Palmer v. Bill Kees
E2014-00239-COA-R3-CV

The plaintiff tenant in this action rented an apartment from the defendant landlord. Attached to the apartment were a wooden deck and staircase leading to the ground below. The tenant filed suit against the landlord for injuries the tenant sustained when a board on the stairs collapsed, causing the tenant to fall. The trial court granted summary judgment in favor of the landlord because the tenant could not show that the landlord had knowledge of any dangerous condition on the leased premises. The tenant has appealed. Discerning no error, we affirm.

Anderson County Court of Appeals 06/01/15
Gene Earl Stanley v. State of Tennessee
M2014-01659-CCA-R3-PC

The petitioner, Gene Earl Stanley, appeals from the denial of his petition for post-conviction relief from his Sumner County Criminal Court jury convictions of one count of burglary, two counts of theft of property, felony evading arrest, reckless endangerment, driving under the influence of an intoxicant, and driving on a suspended license, claiming that he was denied the effective assistance of counsel.  Because the petitioner failed to establish by clear and convincing evidence facts that would support a conclusion that he was prejudiced by his counsel’s deficient performance, we affirm the judgment of the post-conviction court.

Sumner County Court of Criminal Appeals 06/01/15
Sylvia Laird v. State of Tennessee
M2014-02020-CCA-R3-PC

Petitioner, Sylvia Laird, appeals the denial of her petition for post-conviction relief.  She claims that she received ineffective assistance of counsel when she was erroneously informed that she could not file a motion to withdraw her guilty plea before sentencing.  Consequently, Petitioner argues that a subsequent guilty plea agreement that determined her sentence was unconstitutional because it was entered unknowingly, involuntarily, and unintelligently.  After a careful review of the record, the parties’ briefs, and the applicable law, we conclude that Petitioner has proven that she is entitled to post-conviction relief and, therefore, reverse the decision of the post-conviction court.

Davidson County Court of Criminal Appeals 06/01/15
David Edward Niles v. State of Tennessee
M2014-00147-CCA-R3-PC

Petitioner, David Edward Niles, was indicted for, and ultimately convicted of, first degree murder in Bedford County.  State v. David Edward Niles, No. M2011-01412-CCA-R3-CD, 2012 WL 1965438, at *1 (Tenn. Crim. App. Jun. 1, 2012), perm. app. denied (Tenn. Oct. 17, 2012).  His direct appeal was unsuccessful.  Id.  He subsequently sought post-conviction relief on the basis of ineffective assistance of counsel.  After a hearing, the petition was dismissed.  On appeal, Petitioner insists that the post-conviction court improperly dismissed the petition for relief and that he received ineffective assistance of post-conviction counsel.  After a review, we determine that Petitioner failed to establish that he received ineffective assistance of counsel at trial.  Further, we determine that Petitioner is not entitled to challenge the effectiveness of post-conviction counsel.  Consequently, the judgment of the post-conviction court is affirmed.

Bedford County Court of Criminal Appeals 06/01/15
State of Tennessee v. Joseph Cordell Brewer, III
W2014-01347-CCA-R3-CD

The defendant, Joseph Cordell Brewer, III, was convicted of theft of property of $10,000 or more but less than $60,000, a Class C felony; evading arrest, a Class D felony; and evading arrest, a Class A misdemeanor. The trial court sentenced the defendant as a Range III, persistent offender to serve twelve years for the theft of property conviction, twelve years as a Range IV, career offender for the felony evading arrest conviction, and eleven months and twenty-nine days for the misdemeanor evading arrest conviction. The trial court ordered the sentences to be served concurrently to each other but consecutively to a prior sentence because the offenses were committed while the defendant was on parole. On appeal, the defendant argues that the evidence is insufficient to sustain his convictions for theft of property and Class D felony evading arrest. He also argues that the trial court improperly classified him as a persistent and career offender. After our review of the briefs, the record, and the applicable law, we conclude that the evidence is sufficient to sustain the defendant's conviction for theft of property but that his conviction for Class D felony evading arrest should be reduced to Class E felony evading arrest. Further, we conclude that the trial court properly sentenced the defendant as a persistent and career offender, but we remand the case for resentencing on the Class E felony.

Obion County Court of Criminal Appeals 06/01/15
State of Tennessee v. Patricia Smith
W2014-02106-CCA-R3-CD

Appellant, Patricia Smith, was convicted of aggravated burglary, a Class C felony, and the trial court sentenced her to three years, suspended to probation after forty-five days in confinement. On appeal, appellant argues that there was insufficient evidence to support her conviction. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/01/15
State of Tennessee v. Torrie D. Carter
W2014-02081-CCA-R3-CD

The defendant, Torrie D. Carter, appeals the summary dismissal of his motion filed pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure to correct an illegal sentence. Discerning no error, we affirm the summary dismissal of his motion.

Carroll County Court of Criminal Appeals 06/01/15
State of Tennessee v. Anthen Lee Parker
W2014-01221-CCA-R3-CD

Pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure, the defendant, Anthen Lee Parker, who entered pleas of guilty in two separate cases to driving after having been declared a motor vehicle habitual offender, appeals a certified question of law related to the validity of an earlier judgment declaring him a motor vehicle habitual offender. Discerning no error, we affirm.

Henderson County Court of Criminal Appeals 06/01/15
Robert Boykin v. The George P. Morehead Living Trust
M2014-00575-COA-R3-CV

Appellant tripped and fell on a concrete landing in a parking lot. At the time, Appellant was attempting to return to his vehicle, which was located in the parking lot of a separate retail establishment. Appellant suffered injuries from his fall and sued the parking lot owner for negligence. The parking lot owner moved for summary judgment. The trial court granted summary judgment in the owner’s favor, finding that the owner did not owe a duty to Appellant. We affirm.   

Davidson County Court of Appeals 05/29/15
Mark Stephen Keown v. Alyson Savino Keown
M2014-00915-COA-R3-CV

The parties were married for less than two years, and they had one child together who was three years old at the time of the divorce. Shortly after the child’s birth, Mother moved with the child to New York to be near her family. The trial court named Mother the primary residential parent, ordered Father to pay $697 a month in child support, awarded Father one weekend a month of visitation, and ordered Mother responsible for the transportation costs of the child to visit Father, including the cost of an additional ticket for a parent or guardian to fly with the three-year-old child. In dividing the parties’ property, the trial court found that a 2006 Range Rover, purchased by Father’s business before the marriage, was not marital property. Mother appeals the trial court’s ruling that she pay all transportation costs to facilitate Father’s parenting time, and the classification of the Range Rover. We have determined that the annual cost to Mother to transport the child to Tennessee to facilitate Father’s parenting time will likely exceed the annual award of child support until the child reaches the required age to fly alone, creating an injustice to Mother; moreover, Father only requested that Mother be responsible for half of the cost of transportation, not all costs. Concluding that the trial court abused its discretion, we modify the trial court’s judgment to require both parties to equally share the costs of transportation concerning Father’s parenting time. We affirm the trial court in all other respects. 

Williamson County Court of Appeals 05/29/15
Vernon Lavone Roberts v. State of Tennessee
M2014-01371-CCA-R3-PC

Vernon Lavone Roberts (“the Petitioner”) appeals from the dismissal of his petition for post-conviction relief.  On appeal, the Petitioner argues that he received ineffective assistance of counsel.  Upon review, we conclude that the Petitioner’s claim was previously determined by this Court on direct appeal.  Consequently, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 05/29/15
Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et al.
W2013-02514-SC-R11-CV

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants’ motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff’s request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

Dyer County Supreme Court 05/29/15
State of Tennessee v. Deborah B. Bowes
E2014-01462-CCA-R3-CD
The appellant, Deborah B. Bowes, pled guilty in the Sullivan County Criminal Court to one count of filing a false report, for which she received a sentence of eight years. On appeal, the appellant challenges the trial court’s denial of alternative sentencing. Upon review, we affirm the judgment of the trial court.
 
Sullivan County Court of Criminal Appeals 05/29/15
Harry Joseph Chase v. State of Tennessee
E2014-01375-CCA-R3-PC

The Petitioner, Harry Joseph Chase, appeals as of right from the Greene County Criminal Court’s denial of his petition for post-conviction relief. In this appeal, the Petitioner asserts that he received ineffective assistance of counsel because lead trial counsel was not present when he pled guilty, did not review the Petitioner’s discovery with him, and did not fully discuss a possible self-defense claim with the Petitioner. Following our review, we conclude that the record supports the post-conviction court’s conclusion that the Petitioner received the effective assistance of counsel, and we therefore affirm the judgment of the post-conviction court.

Greene County Court of Criminal Appeals 05/29/15
Elizabeth Sanders, by and through her next of kin, Tonita Minter v. Harbor View Nursing and Rehabilitation Center, Inc., et al.
W2014-01407-COA-R3-CV

This is an appeal from the denial of a motion to compel arbitration in a healthcare liability case. The Decedent executed a power of attorney in favor of her daughter, the Appellee, granting Appellee broad powers, but exempting healthcare decisions. The Decedent was subsequently admitted to the Appellant nursing facility. The Appellee signed the Decedent's admission contract and a separate, voluntary arbitration agreement. After the Appellee filed this action against the nursing facility and its managing companies, the Appellants filed motions to compel arbitration pursuant to the arbitration agreement signed at the time of the Decedent's admission. The trial court denied the motions. We affirm.

Shelby County Court of Appeals 05/29/15
Christie Crews v. Gary Jack
W2014-01964-COA-R3-CV

Plaintiff filed suit against defendant in general sessions court. After the general sessions court entered judgment in favor of defendant, plaintiff appealed to the circuit court. The circuit court conducted a trial de novo, but the defendant failed to appear and defend. The circuit court entered a default judgment in favor of plaintiff after she presented her proof. Defendant filed a motion to set aside the default judgment alleging that he never received notice of the trial date in circuit court. The circuit court denied defendant's motion to set aside the default judgment. We reverse the circuit court's ruling and remand for further proceedings.

Madison County Court of Appeals 05/29/15
In re Adison P.
W2014-01901-COA-R3-CV

This case arises from a writ of mandamus issued by the Circuit Court for Henderson County. The writ of mandamus directed Appellant/Judge Robert Stevie Beal, of the Juvenile Court for Henderson County, to hold a hearing on Appellee’s motion for a show cause order in the underlying child custody case. Appellant appeals, arguing that the Circuit Court did not have authority to issue a writ of mandamus to the Juvenile Court because the Circuit Court and Juvenile Court have concurrent jurisdiction over custody matters. Before oral argument in the instant appeal, this Court entered judgment in Appellee’s separate, accelerated, interlocutory appeal under Tennessee Supreme Court Rule 10B. In re Adison P., No. W2015-00393-COA-T10B-CV, 2015 WL 1869456 (Tenn. Ct. App. April 21, 2015) (“Adison I”). In Adison I, this Court reversed Judge Beal’s order denying Appellee’s motion for recusal. Although not part of our appellate record in this appeal, we take judicial notice of our judgment in Adison I. Having removed Judge Beal from the underlying case, we conclude that the writ of mandamus, which is issued directly to “Judge Beal,” is rendered null by his removal from the case. Because no present ongoing controversy remains in this case, this appeal is dismissed as moot.

Henderson County Court of Appeals 05/29/15
In re Braydon C.
W2014-01641-COA-R3-PT

Petitioners Father and Stepmother filed a petition to terminate Mother’s parental rights on the ground of abandonment for failure to visit and failure to support. The trial court denied the petition upon determining that Petitioners failed to demonstrate willful abandonment by clear and convincing evidence. We affirm.

Madison County Court of Appeals 05/29/15
In re Wesley P.
W2014-02246-COA-R3-PT

The trial court terminated the parental rights of both mother and father on the ground of severe abuse. Because there is sufficient evidence to conclude that mother and father were engaged in methamphetamine manufacture in their home, we affirm the finding of severe abuse. However, because no clear and convincing evidence exists in the record that termination is in the child's best interest, we reverse the termination of both mother's and father's parental rights.

Weakley County Court of Appeals 05/29/15
In re: Justin H.
M2013-02517-COA-R3-JV

This appeal involves a child support order entered after an international adoption. The trial court found that the child's adoptive mother failed to pay child support as previously ordered by the court, and therefore, the mother was adjudged in contempt. On appeal, the mother argues that the trial court lacked subject matter jurisdiction to enter the previous order requiring her to pay child support and also lacked jurisdiction to hold her in contempt of that order. Alternatively, she argues that she did not willfully violate the court's order. Finally, the mother argues that a separate injunction entered by the trial court is also void for lack of subject matter jurisdiction and/or procedural irregularities. We affirm.

Bedford County Court of Appeals 05/29/15
In re Estate of Leonard Malugin
M2014-01535-COA-R3-CV

This is a will contest case.  The Decedent executed a will in 2006 and a codicil to the will in 2012.  The will specifically disinherited the Appellant, and the codicil removed one of the Decedent’s children as co-executor of the estate.  Appellant contested the will, arguing both that the Decedent lacked the testamentary capacity to execute either the will or the codicil and that the will was executed under undue influence.  The trial court found that the Decedent possessed the testamentary capacity necessary to execute both the will and the codicil and that the Decedent did not execute the will or codicil under undue influence.  On appeal, Appellant only challenges the trial court’s findings regarding the Decedent’s testamentary capacity.  Because the evidence does not preponderate against the trial court’s findings, we affirm.

Hickman County Court of Appeals 05/29/15
Spydell Davidson v. Nader Baydoun, et al.
M2014-01486-COA-R3-CV

This is Plaintiff’s second appeal of the dismissal of his legal malpractice claim. The first appeal arose from the grant of a motion to dismiss under Tenn. R. Civ. P. 12.02(6) wherein the trial court concluded that Plaintiff’s cause of action accrued more than one year before the complaint was filed and was time barred. Based solely on a review of the allegations in the complaint, we concluded that the action was not time barred. See Davidson v. Baydoun, No. M2008-02746-COA-R3-CV, 2009 WL 2365563 (Tenn. Ct. App. July 31, 2009). On remand, the parties engaged in discovery, which revealed that Plaintiff knew he had been injured by Defendants’ alleged negligence more than one year before the commencement of this action. Defendants then filed a Tenn. R. Civ. P. 56.02 motion for summary judgment, which was properly supported by a statement of undisputed facts, contending they were entitled to judgment as a matter of law because Plaintiff’s claim was barred by the statute of limitations. The trial court summarily dismissed the complaint finding it was undisputed that Plaintiff knew he had suffered an injury because of Defendants’ alleged negligence more than one year before the commencement of this action. The trial court also granted Defendants’ motion for discretionary costs. On appeal, Plaintiff argues that the trial court erred by granting Defendants’ motion for summary judgment and by awarding Defendants discretionary costs. We affirm.

Davidson County Court of Appeals 05/29/15
Kline Preston v. W. Stanford Bralock, et al.
M2014-01739-COA-R3-CV

This is a malicious prosecution case. In the underlying case, plaintiff was sued by defendants for abuse of process. That case was resolved on summary judgment in favor of plaintiff. Thereafter, plaintiff filed this case for malicious prosecution. The trial court granted summary judgment in favor of the defendants. Plaintiff appealed. We affirm.  

Davidson County Court of Appeals 05/29/15
In re Jamie G.
M2014-01310-COA-R3-PT

In this termination of parental rights case, Mother appeals the trial court’s findings of abandonment by willful failure to support and the persistence of conditions as grounds for termination. Mother also appeals the trial court’s conclusion that termination was in the child’s best interest. Pre-adoptive parents appeal the trial court’s decision declining to find the ground of willful failure to visit. We affirm the trial court’s findings of willful failure to support and persistent conditions. Further, albeit for different reasons, we affirm the trial court’s decision declining to terminate Mother’s parental rights on the ground of willful failure to visit. We also affirm the trial court’s finding that termination is in the child’s best interest, and therefore, affirm the termination of the Mother’s parental rights.

Davidson County Court of Appeals 05/29/15
David R. Smith v. The Tennessee National Guard
M2014-02375-COA-R3-CV

This is the second appeal from an action filed by Plaintiff against the Tennessee National Guard in which he contends Defendant violated the Uniformed Service Employment and Reemployment Rights Act of 1994 (“USERRA”) by refusing to rehire Plaintiff after he returned from active duty military service. In the first appeal, we affirmed the grant of Defendant’s Tenn. R. Civ. P. 12.02(6) motion to dismiss for lack of subject matter jurisdiction based upon sovereign immunity from USERRA claims, noting that only the Tennessee General Assembly could waive the state’s sovereign immunity. See Smith v. Tennessee Nat. Guard, 387 S.W.3d 570 (Tenn. Ct. App. 2012). Shortly after we issued that opinion, the Tennessee General Assembly enacted Tenn. Code Ann. § 29-20-208, which waives sovereign immunity for USERRA claims that accrue on or after July 1, 2014. Relying on the new statute, Plaintiff filed a Rule 60 motion seeking to have his original lawsuit reinstated. The trial court denied the motion, finding that Plaintiff’s claim was still barred by sovereign immunity because it accrued before July 1, 2014. We affirm.

Court of Appeals 05/29/15