Court Opinions

Format: 08/23/2017
Format: 08/23/2017
In Re Homer D., et al. - Dissent
M2017-00298-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Daryl A. Colson

The majority opinion dismisses this appeal due to the failure of the appellant, Sarah R. P. B., the child’s mother, to sign the initial notice of appeal as required by Tenn. Code Ann. § 36-1-124(d) or to file an amended notice that included her signature within the thirty-day time period for perfecting appeals. The majority has concluded that although the amended notice of appeal “did contain Appellant’s signature, it was filed . . . more than thirty days after the entry of the trial court’s judgment. As such, it, too, is insufficient to confer subject-matter jurisdiction on this Court.” I recognize that the majority opinion is based on two recent Court of Appeals decisions, but I respectfully disagree with those decisions and with the notion that Tenn. Code Ann. § 36-1-124(d) is jurisdictional. I also disagree with the notion that the statute compels this court to dismiss appeals in parental termination cases without affording the parent the opportunity to cure the defect by subsequently signing an amended notice of appeal even if that occurs after the expiration of the thirty-day time period set out in Tenn. R. App. P. 4(a). 

Overton County Court of Appeals 08/22/17
In Re Homer D., et al.
M2017-00298-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Daryl A. Colson

This is a termination of parental rights case. Upon the trial court’s entry of an order terminating her parental rights, Appellant filed a timely notice of appeal. However, Appellant did not comply with Tennessee Code Annotated Section 36-1-124(d) (Supp. 2016) in that she failed to sign the notice of appeal. Although Appellant attempted to correct the error by filing an amended notice of appeal, the amended notice was filed after the thirty day time period for perfecting appeals had expired. As such, this Court lacks subject-matter jurisdiction to adjudicate the appeal, and it is dismissed with prejudice.

Overton County Court of Appeals 08/22/17
State of Tennessee v. Tarell D. Lewis
M2016-02513-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve Dozier
The defendant, Tarell D. Lewis, appeals his Davidson County Criminal Court guiltypleaded convictions of two counts of the sale of heroin, one count of the possession with intent to sell heroin, and one count of being a felon in possession of a firearm, claiming that the trial court erred by ordering a fully-incarcerative sentence. Discerning no error, we affirm.
 
Davidson County Court of Criminal Appeals 08/22/17
Henriette M. Fisher v. Chandranita Ankton
W2016-02089-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Robert Samual Weiss

The trial court dismissed this lawsuit because proper service of process was not effectuated on the defendant. Because the defendant waived the specific defense relied upon by the trial court to dismiss this case by failing to comply with Rule 8.03 of the Tennessee Rules of Civil Procedure, we reverse the decision of the trial court and remand for further proceedings.

Shelby County Court of Appeals 08/22/17
In Re: Dae'Jrien T.
E2017-00051-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Frank V. Williams, III

This is an appeal from a final decree of adoption following the entry of an order terminating the parental rights of the appellant to her minor child. The only notice of appeal filed by the appellant within the time provided by Tennessee Rule of Appellate Procedure 4(a) for the filing of a notice of appeal did not comply with Tennessee Code Annotated § 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this notice of appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Loudon County Court of Appeals 08/21/17
Roy Zumstein v. Roane County Executive/Mayor, Assessor Of Property, Trustee
E2016-02037-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin, Jr.
Trial Court Judge: Judge Frank V. Williams, III

This appeal arises from a taxpayer’s successful challenge of the appraisal value assigned to his real property by the Roane County Property Assessor. The taxpayer filed a petition for judicial review challenging an administrative decision that affirmed the assessor’s valuation. The trial court ruled in favor of the taxpayer, overturning the administrative decision and ordering Roane County to pay the taxpayer’s attorney’s fees. On appeal, Roane County argues that the trial court had no authority to assess attorney’s fees against it. We agree and reverse the trial court’s award of attorney’s fees.

Roane County Court of Appeals 08/21/17
Elza Evans, III v. State of Tennessee
M2016-02332-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Elza Evans III, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for aggravated burglary, aggravated robbery, and two counts of especially aggravated kidnapping and his effective sentence of two consecutive terms of life imprisonment without the possibility of parole. On appeal, the Petitioner contends that trial counsel rendered ineffective assistance at trial and on appeal. Upon reviewing the record and the applicable law, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 08/21/17
State of Tennessee v. Leon Denton and Devan Denton
W2016-00910-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James M. Lammey

After a jury trial, the defendants, Leon Denton and Devan Denton, were convicted of three counts of aggravated rape, one count of facilitation of aggravated rape, one count of facilitation of especially aggravated robbery, and two counts of facilitation of aggravated robbery. On appeal, the defendants assert the evidence was insufficient to support their convictions, arguing the State failed to overcome the defense of duress. The defendants also claim their right to a speedy trial was violated. Independently, Leon Denton argues his convictions violate double jeopardy. Following our review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/21/17
State of Tennessee v. Errol Johnson
W2016-00839-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

The defendant, Errol Johnson, was convicted of two counts of aggravated child neglect, a Class A felony, and two counts of criminally negligent homicide, a Class E felony. The trial court merged the two aggravated child neglect convictions and sentenced the defendant as a violent offender to twenty-two years in the Department of Correction. The trial court also merged the defendant’s convictions for criminally negligent homicide and sentenced him to two years. The defendant’s sentences were ordered to be served concurrently for an effective sentence of twenty-two years in the Department of Correction. On appeal, the defendant argues that the evidence is insufficient to support his convictions for aggravated child neglect and that the trial court imposed an excessive sentence. We conclude that the evidence is sufficient to sustain the jury’s verdict and affirm the judgments of the trial court. However, because aggravated child neglect is not an enumerated offense included in Tennessee Code Annotated § 40-35-501(i)(2), the trial court erred in its applying the statute and sentencing the defendant as a violent offender at 100% release eligibility. Therefore, we remand the matter for a new sentencing hearing.

Shelby County Court of Criminal Appeals 08/21/17
Tony Britton v. State of Tennessee
W2016-01298-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge James M. Lammey, Jr.

The petitioner, Tony Britton, appeals pro se from the summary dismissal of his 2015 petition for post-conviction relief, which challenged his 2011 guilty-pleaded conviction of second degree murder. Because the petition was filed well beyond the applicable statute of limitations and because the petitioner failed to prove a statutory exception to the timely filing or a due process tolling of the statute of limitations, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 08/21/17
Carlisa Elmi v. Cheatham County Board of Education, et al.
M2016-02024-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor David D. Wolfe

This is an appeal of the termination of a tenured teacher’s employment pursuant to the Tenure Act, Tenn. Code Ann. §§ 49-5-501
and -515. The Cheatham County Director of Schools initiated these proceedings by filing a notice of charges recommending the termination of the tenured teacher on the grounds of insubordination and inefficiency. Following an administrative hearing, the hearing officer recommended dismissal. When the Cheatham County Board of Education voted to sustain the hearing officer’s decision and to dismiss the tenured teacher, the teacher sought review of the decision in the chancery court. The chancery court affirmed her dismissal, and this appeal followed. We have determined that the evidence preponderates against the chancery court’s factual findings and its conclusion that the teacher was insubordinate and inefficient as those terms are defined in the Tenure Act. We have also determined that the record fails to establish any basis for the dismissal of a tenured teacher. Therefore, we reverse the judgment of the chancery court and remand with instructions for the chancery court to determine the relief to which the tenured teacher is entitled for being dismissed without justification. This includes whether the teacher is entitled to back pay pursuant to Tenn. Code Ann. § 49-5-511(a)(3) and, if so, in what amount. 

Cheatham County Court of Appeals 08/18/17
Franklin-Murray Development Company, L.P. v. Shumacker Thompson, PC, Et Al.
M2015-01968-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is a legal malpractice action in which the trial court granted partial summary judgment to the defendants, a law firm and its owners, on the plaintiff’s claim for lost profits and, in due course, granted summary judgment to the defendants on the remaining claims. The underlying suit arose from a failed real estate transaction in which a judgment for $200,000 for failure to perform a contract to purchase land for development was entered against the plaintiff in this action. The plaintiff appeals, contending that the court erred in various respects in granting the motions for summary judgment. Upon a thorough review of the record, we affirm the judgment of the trial court in all respects.

Williamson County Court of Appeals 08/18/17
Marvin D. Kinsey v. Jacob P. Schwarz, et al
M2016-02028-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joseph P. Binkley, Jr.

A prison inmate filed a health care liability action against two physicians and a medical center without providing the defendants with pre-suit notice, as required by Tenn. Code Ann. § 29-26-121(a), and without attaching a certificate of good faith to the complaint, as required by Tenn. Code Ann. § 29-26-122. The defendants filed motions to dismiss, which the trial court granted. The inmate appealed, and we affirm the trial court’s judgment.

Davidson County Court of Appeals 08/18/17
State of Tennessee v. William Harold Smith, Alias
E2016-02137-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

William Harold Smith, alias (“the Defendant”), was convicted of failure to appear after a jury trial. The trial court sentenced him to serve three years with a thirty-five percent release eligibility in the Tennessee Department of Correction. On appeal, the Defendant argues that the evidence introduced at trial was insufficient to support his conviction. After a thorough review of the record and applicable law, we reverse the Defendant’s conviction and dismiss the charge.

Knox County Court of Criminal Appeals 08/18/17
Holly Rader, Et Al. v. Ruby Tuesday, Inc.
E2016-01677-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kristi M. Davis

Holly Rader (“Plaintiff”) appeals the August 4, 2016 order of the Circuit Court for Knox County (“the Trial Court”) granting summary judgment to Ruby Tuesday, Inc. (“Ruby Tuesday”) in this slip and fall action after finding that Ruby Tuesday did not have superior, actual, or constructive knowledge of the condition that caused Plaintiff’s slip and fall. We find and hold that Ruby Tuesday did have superior, actual, or constructive knowledge of the condition that caused the slip and fall and owed a duty to Plaintiff. We, therefore, vacate the grant of summary judgment and remand this case for further proceedings.

Knox County Court of Appeals 08/18/17
Larry A. Pullum v. State of Tennessee
M2017-00171-CCA-R3-HC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Robert L. Jones

The Petitioner, Larry A. Pullum, appeals from the Wayne County Circuit Court’s denial of his petition for a writ of habeas corpus. The habeas corpus court dismissed the petition because it failed to state a cognizable claim. We affirm its judgment.

Wayne County Court of Criminal Appeals 08/18/17
Edward Keith Morelock v. Ruth Ellen Mick Morelock
E2016-00543-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge John C. Rambo

In this divorce case, Edward Keith Morelock (Husband) appeals the trial court’s decisions regarding (1) co-parenting time with the parties’ child; (2) division of marital property, (3) valuation of one of the marital assets, and (4) refusal of the court to award him spousal support. Husband argues that the trial court should have designated him primary residential parent and granted him more residential time with the child. He also asserts that the trial court overvalued the business owned by the parties, and that the court should have equally divided the assets and liabilities of that business rather than awarding and assigning all of them to him. Finally, he argues that the trial court should have ordered Ruth Ellen Mick Morelock (Wife) to pay him alimony. Finding no abuse of discretion, we affirm the trial court’s judgment.

Washington County Court of Appeals 08/18/17
State of Tennessee v. Jabriel Linzy, Alias
E2016-01052-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Jabriel Linzy, alias, appeals as of right from his convictions for first degree murder, attempted first degree murder, and employment of a firearm during the commission of a dangerous felony. The Defendant argues (1) that there was insufficient evidence to support his convictions, and (2) that evidence from social media posts was improperly admitted. Following our review, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 08/18/17
Mardoche Olivier v. City of Clarksville, et al.
M2016-02473-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. Hicks

This action arises out of an alleged violation of the plaintiff’s civil rights by the City of Clarksville (“the City”) and a group of police officers employed by the City (“the Officers”) (collectively, “Defendants”). The plaintiff was arrested on June 1, 2015, for driving on a revoked or suspended license, see Tenn. Code Ann. § 55-50-504 (2012), and making a 911 telephone call in a nonemergency situation, see Tenn. Code Ann. § 7-86-316 (2015). The plaintiff filed a complaint on August 11, 2016, alleging that as a result of his arrest, the Officers caused him to suffer damages from false imprisonment, malicious prosecution, malicious harassment, outrageous conduct, intentional infliction of emotional distress, conversion, and inverse condemnation. The plaintiff also alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Defendants filed a motion to dismiss on October 5, 2016, asserting, inter alia, that the plaintiff’s claims were statutorily barred due to the immunity granted to Defendants by the Tennessee Governmental Tort Liability Act (“GTLA”). See Tenn. Code Ann. § 29-20-205 (2012). The trial court entered a final order regarding Defendants’ motion to dismiss on November 17, 2016, granting the motion and dismissing all claims. The plaintiff has appealed. Discerning no error, we affirm the trial court’s dismissal of the plaintiff’s claims.

Montgomery County Court of Appeals 08/17/17
Sonja Broyles Williams v. Stewart Ashley Williams
W2016-01602-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Larry McKenzie

This is an appeal from a divorce case dissolving a long-term marriage with two minor children. Following a four and one-half day trial, the court awarded Wife a divorce, designated Husband as the primary residential parent of the parties’ children, distributed the marital property, awarded Wife rehabilitative alimony, and denied Wife’s request for attorney’s fees. Wife appeals the designation of Husband as primary residential parent, the value and division of certain items within the marital estate, the court’s decision to award her rehabilitative alimony rather than alimony in futuro, and the denial of her request for attorney’s fees. We vacate the trial court’s order regarding retroactive child support and remand the issue for further proceedings consistent with this opinion. We affirm the remainder of the judgment of the trial court. We deny Wife’s request for attorney’s fees incurred on appeal.

Hardin County Court of Appeals 08/17/17
State of Tennessee v. Calvin Banks
W2016-01085-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carolyn W. Blackett

A Shelby County jury convicted the Defendant, Calvin Banks, of first degree premeditated murder and the trial court imposed a sentence of life. On appeal, the Defendant asserts that the evidence supporting his conviction is insufficient because the State failed to establish premeditation. After review, we affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 08/17/17
Sebastian Pegues v. State of Tennessee
W2016-02489-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge J. Robert Carter, Jr.

A Shelby County jury convicted the Petitioner, Sebastian Pegues, of two counts of first degree felony murder, one count of aggravated child abuse, and one count of aggravated child neglect, and the trial court sentenced him to life plus twenty years of incarceration. This court affirmed the Petitioner’s convictions and sentence on appeal. State v. Sebastian Pegues, No. W2014-00854-CCA-R3-CD, 2015 WL 3404736, at *1 (Tenn. Crim. App., at Jackson, May 27, 2015), no Tenn. R. App. P. 11 application filed. The Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel because his trial counsel ineffectively cross-examined the medical examiner. After a hearing, the post-conviction court denied relief. We affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 08/17/17
In Re David P. Et Al.
E2017-00245-COA-R3-PT
Authoring Judge: Per Curiam
Trial Court Judge: Judge Robert M. Estep

This is an appeal from an order terminating the parental rights of the appellant to his minor children. The only Notice of Appeal filed by the appellant within the time provided in Rule 4(a) of the Tennessee Rules of Appellate Procedure for the filing of a notice of appeal, did not comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” Because this Notice of Appeal was insufficient to invoke the jurisdiction of this Court, this appeal is dismissed.

Claiborne County Court of Appeals 08/17/17
State of Tennessee v. Donald Ragland
W2017-00464-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The Defendant, Donald Ragland, appeals the trial court’s summary dismissal of his motion to correct a clerical error pursuant to Tennessee Rule of Criminal Procedure 36. The Defendant has failed to present an appropriate argument under Rule 36; therefore, we affirm the summary dismissal pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Shelby County Court of Criminal Appeals 08/17/17
State of Tennessee v. Mark L. Watson
M2016-02392-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge David D. Wolfe

A Stewart County jury convicted the Defendant, Mark L. Watson, of vandalism of property valued at $1,000 or more but less than $10,000. The trial court sentenced the Defendant to two years on probation. On appeal, the Defendant asserts that the evidence is insufficient to support the conviction. After a thorough review of the record, we affirm the judgment of the trial court.

Stewart County Court of Criminal Appeals 08/17/17