Court Opinions

Format: 05/27/2020
Format: 05/27/2020
State of Tennessee v. Kenneth Lloyd Hill
M2019-00032-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Angelita Blackshear Dalton

The Appellant, Kenneth Lloyd Hill, was convicted in the Davidson County Criminal Court of possessing a firearm while having a prior conviction for a felony involving the use or attempted use of force, violence, or a deadly weapon, a Class C felony, and the trial court sentenced him as a Range III, persistent offender to fifteen years in confinement. On appeal, the Appellant contends that the trial court erred by refusing to sever the offense from the remaining offenses for which he was on trial and that the trial court committed various sentencing errors. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 04/15/20
State of Tennessee v. Tremaine Wilbourn
W2019-00305-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Tremaine Wilbourn, appeals his convictions for first degree premeditated murder, carjacking, employing a firearm during the commission of a dangerous felony, and possession of a firearm while having a prior felony conviction involving the use or attempted use of violence, for which he received an effective sentence of life in prison without the possibility of parole plus thirty-eight years. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for first degree premeditated murder; (2) the trial court erred in prohibiting defense counsel from referencing a prior shooting during opening statements; (3) the trial court erred in excluding evidence of the Defendant’s reason for turning himself in to the United States Marshals Service; and (4) the prosecutor improperly utilized a gun as a demonstrative aid and made improper comments during closing arguments. Upon reviewing the appellate record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/15/20
Ziberia Marico Carero v. State of Tennessee
E2019-01123-CCA-R3-PC
Authoring Judge: Judge John Everett Williams, P.J.
Trial Court Judge: Judge Steven Wayne Sword

A jury convicted the Petitioner, Ziberia Marico Carero, of possession of 0.5 grams or more of cocaine in a school zone with intent to sell, possession of 0.5 grams or more of cocaine in a school zone with intent to deliver, sale of 0.5 grams or more of cocaine, and delivery of over 0.5 grams or more of cocaine, and on appeal, his convictions were merged into a single conviction for possession of 0.5 grams or more cocaine in a school zone with intent to sell.  This court affirmed the convictions and sentence of twenty-three years in confinement.  The Petitioner filed a timely post-conviction petition asserting that he received ineffective assistance of counsel because trial counsel failed to: (1) move for a mistrial based upon the State’s presentation of “surprise” witnesses; (2) object to hearsay testimony; (3) object to a multiplicitous indictment; (4) adequately investigate; and (5) request a facilitation instruction.  Under a heading of “cumulative error,” the Petitioner also asserts that trial counsel failed to: (6) secure sequestration of the witnesses; (7) present witness testimony; and (8) protect the Petitioner’s right to testify.  The Petitioner also raises various trial errors and contends he is entitled to relief pursuant to cumulative error.  After a thorough review of the record, we conclude that the Petitioner’s claims fail to establish ineffective assistance of counsel or have been previously determined or waived, and we affirm the post-conviction court’s denial of relief.

Knox County Court of Criminal Appeals 04/14/20
William Floyd Cartwright v. State of Tennessee
M2018-01544-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, William Floyd Cartwright, challenges the denial of his petition for post-conviction relief attacking his jury conviction for first degree premeditated murder. On appeal, the Petitioner first raises a free-standing claim that the jury instruction requiring the jury to “accept the law as given by the [trial] court” was violative of the Tennessee Constitution and warrants post-conviction relief. The Petitioner then alleges that he received ineffective assistance at trial due to trial counsel’s (1) failure to move for a new preliminary hearing due to an incomplete recording of the first; (2) failure to fulfill a promise made during opening statement that the victim was on house arrest with supporting proof at trial; (3) failure to adequately cross-examine the medical examiner about the victim’s cause of death; (4) failure to seek to have the proof re-opened in order to call the co-defendant to the stand after the co-defendant had accepted a plea; and (5) failure to object to the aforementioned jury instruction. He also submits that the cumulative effect of trial counsel’s errors deprived him of a fair trial. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Putnam County Court of Criminal Appeals 04/14/20
In Re London B.
M2019-00714-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Clara W. Byrd

Father appeals from the termination of his parental rights. We reverse the trial court’s finding that Father willfully failed to support the child in the four months prior to his incarceration, as well as the trial court’s decision regarding abandonment for willful failure to visit and support in the four months prior to the filing of the termination petition. We affirm the grounds of willful failure to visit in the four months prior to incarceration and failure to visit by a putative father. We also affirm the trial court’s finding that termination is in the child’s best interest.

Wilson County Circuit, Criminal & Chancery Courts 04/14/20
Doyan Anderson v. State of Tennessee
W2019-00871-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

The petitioner, Doyan Anderson, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 04/14/20
Harold Oliver, et al. v. Todd Pulse, et al.
W2019-00750-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Samual Weiss

This appeal requires us to determine the scope of a real estate licensee’s duty under the Tennessee Residential Property Disclosures Act codified at Tennessee Code Annotated § § 66-5-201 et seq. to advise their client to disclose conditions of improved real property. We hold that a licensee’s duty under the Act encompasses a duty to advise his or her client/seller to disclose known material defects. We affirm denial of Plaintiff/Sellers’ motion for summary judgment on the issue of breach of statutory and contractual duties. In light of the undisputed facts of this case, we find Defendants are entitled to a judgment as a matter of law on the question of breach and remand for entry of a judgment consistent with this Opinion.

Hardeman County Court of Appeals 04/14/20
Charlene Lyon v. Castle Retail Group, LLC
W2019-00405-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Robert Samual Weiss

This appeal involves a trip and fall premises liability case filed against a supermarket by one of its customers. The trial court granted summary judgment to the defendant because the plaintiff’s evidence did not tend to show the defendant had either actual or constructive notice of a dangerous condition that would give rise to a duty to either warn the plaintiff of the condition or remove the condition. For the following reasons, we agree that the defendant lacked actual or constructive notice of a dangerous condition in its store, and affirm the trial court’s award of summary judgment.

Shelby County Court of Appeals 04/14/20
In Re Mattie L.
W2018-02287-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Walter L. Evans

Mother and Father had been divorced for less than two years when Mother and her new husband petitioned to terminate Father’s parental rights. A few weeks before trial, Father was arrested, and he did not appear for the trial. In Father’s absence, the chancery court concluded that two statutory grounds for termination had been proven by clear and convincing evidence: abandonment by willful failure to visit and abandonment by willful failure to support. The court also concluded that the evidence was clear and convincing that termination of Father’s parental rights was in the child’s best interest. As part of its analysis, the court applied the missing witness rule based on Father’s failure to testify at trial. And the court applied the doctrine of unclean hands to “repel[] [Father] at the courthouse steps from receiving any relief that he has requested in this cause.” We conclude that neither the missing witness rule nor the doctrine of unclean hands was applicable and that their application was fundamentally unfair to Father. We further conclude that the evidence of the two grounds for terminating Father’s parental rights was less than clear and convincing. So we reverse.

Shelby County Court of Appeals 04/14/20
Provectus Biopharmaceuticals, Inc. v. Peter R. Culpepper
M2019-00662-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

The dispositive issue in this appeal is whether an amended pleading that seeks to vacate an arbitration award that was delivered to the parties more than 90 days earlier relates back to the date of the original pleading pursuant to Rule 15.03 of the Tennessee Rules of Civil Procedure when the original pleading only sought to modify the arbitration award. A dispute arose when an employer terminated the employment contract of its chief financial officer. The parties submitted the dispute to arbitration pursuant to the Tennessee Uniform Arbitration Act (“the Act”), Tenn. Code Ann. § 29-5-301 to -320. After the arbitrator issued a monetary award in favor of the corporation, the employer filed a petition to confirm the award in chancery court. Within 90 days of the delivery of a copy of the award to the employee, which is the limitation period set forth in Tenn. Code Ann. § 29-5-314(a) of the Act, the employee timely filed an answer to the petition in which he sought modification of the award with respect to prejudgment interest only. Otherwise, the employee admitted all material allegations in the petition. Significantly, the employee did not seek to vacate the award. After waiving any claim to prejudgment interest, the employer filed a motion for judgment on the pleadings to confirm the arbitration award in all other respects. Before the hearing on the motion, but more than 90 days after a copy of the award was delivered to the employee, the employee filed a Rule 15 motion to amend his answer to assert a counterclaim to vacate the award on grounds not previously raised. The trial court denied the employee’s Rule 15 motion to amend the answer as futile on the ground that it was not a timely application to vacate the final award and awarded the employer judgment on the pleadings. The employee appeals, contending the court erred because an amended pleading relates back to the date of the original pleading pursuant to Rule 15.03. We have determined that strict adherence to the 90-day limitation furthers the primary objectives of the Act, which is to bring the arbitration process to a speedy and final resolution. Furthermore, the limitations provided by Tenn. Code Ann. §§ 29-5-312 and -313(b) are more specific than the general relation-back provision of Tenn. R. Civ. P. 15.03. Therefore, we affirm the trial court’s denial of the motion to amend the answer as futile on the ground that the employee did not file a timely application to vacate the final award, and we affirm the entry of judgment on the pleadings in favor of the employer.

Davidson County Circuit, Criminal & Chancery Courts 04/14/20
State of Tennessee v. Robert Michael Wolfenbarker
E2019-01386-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Lisa N. Rice

The Defendant, Robert Michael Wolfenbarker, pleaded guilty to one count of theft of property valued at more than $60,000 but less than $250,000, two counts of theft of property valued at more than $2,500 but less than $10,000, one count of theft of property valued at $1,000 or less, one count of attempted auto burglary, and one count of vandalism. The trial court sentenced the Defendant to nine years of confinement. On appeal, the Defendant contends that the trial court erred when it sentenced him. After review, we affirm the Defendant’s sentences.

Carter County Court of Criminal Appeals 04/14/20
In Re Hector G.
E2019-01594-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor M. Nichole Cantrell

Petitioners appeal from the transfer of their guardianship action from chancery court to juvenile court. Because Petitioners have appealed a non-final judgment, we dismiss this appeal for lack of subject matter jurisdiction.

Anderson County Court of Appeals 04/14/20
State of Tennessee v. William J. Wagner aka William Justin Wagner
W2019-00745-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Robert Carter, Jr.

The Appellant, William J. Wagner, pled guilty in the Shelby County Criminal Court to driving under the influence (DUI), third offense, and reserved a certified question of law concerning whether the State had jurisdiction to prosecute him for the offense because the offense was committed on federal property. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the certified question is not dispositive of the case. Therefore, this court is without jurisdiction to consider the appeal, and the appeal is dismissed.

Shelby County Court of Criminal Appeals 04/13/20
State of Tennessee v. Trendell Brady
E2019-00947-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Knox County Grand Jury indicted Defendant, Trendell Brady, on four counts rape of a child.  Following a trial, the jury acquitted Defendant of counts one and two and convicted Defendant as charged in counts three and four.  The trial court sentenced Defendant as a Range I standard offender to forty years on each count and ran the sentences consecutively.  Defendant filed a motion for a new trial, and, after a hearing, the trial court amended the judgments of conviction to reflect twenty-five-year sentences on each count, running consecutively.  On appeal, Defendant argues that the evidence was insufficient to support the verdict and that the trial court improperly sentenced Defendant to consecutive twenty-five-year sentences.  After a thorough review of the record and applicable case law, the judgments of the trial court are affirmed.

Knox County Court of Criminal Appeals 04/13/20
State of Tennessee v. Joshua Ryan Steele
M2019-00333-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Mark J. Fishburn

The Appellant, Joshua Ryan Steele, was convicted of domestic assault and was sentenced to eleven months and twenty-nine days to be served on probation. On appeal, the Appellant challenges the trial court’s denial of his motion for a judgment of acquittal made at the close of the State’s proof and the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 04/13/20
Jorrel Brown v. State of Tennessee
M2018-01405-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Curtis Smith

The Petitioner, Jorrel Brown, appeals the Franklin County Circuit Court’s denial of his petition for post-conviction relief from his three convictions of passing a forged check, Class E felonies, and resulting effective three-year sentence. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel and, therefore, that his guilty pleas were not knowing and voluntary. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Franklin County Court of Criminal Appeals 04/13/20
Jonathan Alajemba v. State of Tennessee
M2018-01470-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge David M. Bragg

The Petitioner, Jonathan Alajemba, filed a petition for post-conviction relief from his convictions of facilitation of conspiracy to commit especially aggravated robbery, attempted especially aggravated robbery, attempted voluntary manslaughter, aggravated assault, reckless aggravated assault, and aggravated burglary. The Petitioner alleged that his trial counsel was ineffective by persuading the Petitioner not to testify and failing to present proof of an insanity defense. He further alleged that newly discovered evidence in the form of recanted testimony established he did not intend to commit robbery. The post-conviction court denied the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the post-conviction court.

Rutherford County Court of Criminal Appeals 04/13/20
John Michael Singer v. Jessica Jo Singer
M2019-00924-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ted A. Crozier

In this divorce proceeding, the Father appeals the designation of Mother as the primary residential parent of the parties’ minor child. Finding no reversible error, we affirm the judgment.

Robertson County Circuit, Criminal & Chancery Courts 04/09/20
IN RE ELI S.
M2019-00974-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Charles L. Rich

In this termination of parental rights case, both parents appeal the trial court’s termination of their parental rights to their son upon numerous statutory grounds and upon its finding that termination was in the child’s best interest.  Upon our review, we conclude that the record contains clear and convincing evidence supporting the trial court’s determinations with respect to certain grounds though not others and that termination was in the best interest of the child.  Accordingly, we reverse portions of the court’s order finding that certain grounds for termination were established, affirm the remainder of the grounds and the best interest determination, and affirm the termination of Mother’s and Father’s parental rights.

Bedford County Court of Appeals 04/09/20
Shirley Collins et al. v. John D. Carter et al.
E2018-01365-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Alex Pearson

Four family members sued their former employer and eight individual defendants after their employment was terminated amid allegations of malfeasance. The complaint alleged nine causes of action. The court dismissed the plaintiffs’ claims against the former employer and six of the eight individual defendants on summary judgment. The plaintiffs and the remaining two defendants then became embroiled in an extended discovery battle. The battle ended with the trial court dismissing the remaining claims with prejudice based on the plaintiffs’ failure to cooperate in discovery. We conclude that the trial court erred in granting summary judgment on the contract claims because the contract at issue was not ultra vires. Because we reverse that portion of the trial court’s decision, we also reverse the award of attorney’s fees under Tennessee Code Annotated § 29-20-113(a). We affirm the trial court in all other respects.

Greene County Court of Appeals 04/09/20
Steven J. Strange Et Al. v. Hank E. Roberts, Et Al.
M2019-01060-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Christopher V. Sockwell

The owners of the dominant estate sued the owners of the servient estate of an easement to Tanner’s Bar, a piece of land near a river.  The trial court ruled that the easement was an easement appurtenant for ingress and egress only and did not entitle the dominant estate owners to engage in recreational activities at Tanner’s Bar.  The trial court further ruled that a member of the dominant estate family had to accompany all invitees to the easement.  Having concluded that the intent of the easement was for the dominant estate owners to have the right to enjoy the river at Tanner’s Bar, we reverse the decision of the trial court prohibiting recreational use.  We have further determined that the trial court erred in requiring that a dominant estate family member be present with invitees. 

Maury County Court of Appeals 04/09/20
In Re Zaylee W.
M2019-00342-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Barry R. Tidwell

A father appeals the trial court’s decision to terminate his parental rights based on the grounds of (1) abandonment by willful failure to support, (2) substantial noncompliance with the permanency plan, and (3) failure to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the child.  He further challenges the trial court’s finding by clear and convincing evidence that termination of his parental rights was in the best interest of the child.  We affirm the trial court’s termination of the father’s parental rights but vacate the court’s judgment regarding two of the grounds for termination.

Cannon County Court of Appeals 04/09/20
Samantha Beau Ballard v. Casey John Ballard
M2019-00990-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Ted A. Crozier

A father filed a petition to modify a parenting plan in which he sought to change the primary residential parent or modify the residential schedule. The trial court denied his petition, and he appealed. We hold that the father failed to establish a material change of circumstances to justify any change to the parties’ parenting plan and affirm the trial court’s judgment.
 

Montgomery County Court of Appeals 04/09/20
State of Tennessee v. Gary Strange
E2019-00016-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Defendant, Gary Strange, was convicted of three counts of rape of a child and one count of incest following a jury trial. The trial court sentenced Defendant to thirty years for each count of rape of a child and eight years for incest. The trial court ordered two of the thirty-year sentences to run consecutively with each other and concurrently to the remaining sentences for an effective sixty-year sentence as a Range II offender. On appeal, Defendant contends that: (1) the trial court erred by admitting the victim’s forensic interview; (2) the trial court erred by failing to require the State to make an election of offenses; (3) the evidence was insufficient to support his convictions; (4) there was a fatal variance between the indictment and the evidence; and (5) his sentence is excessive. After a thorough review of the briefs and the record, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 04/09/20
State of Tennessee v. Barenton Barnett
E2018-01735-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Andrew M. Freiberg

Defendant, Barenton Barnett, was indicted by the Polk County Grand Jury for theft of property valued at $60,000 or more, a Class B felony. Defendant pleaded no contest to vandalism of more than $2,500, a Class D felony, in exchange for a sentence of three years to be suspended on probation, and Defendant was ordered to pay $8,207 in restitution. Defendant sought to withdraw his plea. Following an evidentiary hearing, the trial court denied Defendant’s motion. Defendant appeals. Having reviewed the record and the briefs of the parties, we affirm the judgment of the trial court.

Polk County Court of Criminal Appeals 04/09/20