Court Opinions

Format: 12/14/2018
Format: 12/14/2018
In Re Billy F.
E2018-01639-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Brad Lewis Davidson

Father appeals the trial court’s finding that termination of his parental rights to his son is in the child’s best interest. Because we conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest finding, we affirm.

Cocke County Court of Appeals 12/14/18
In Re: Mason C. Et Al.
E2018-01378-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Larry M. Warner

This is a termination of parental rights case involving the parental rights of Allison T. (“Mother”) to the children, Mason C. and Nathan C. (“the Children”), and the parental rights of Jeffrey M. (“Father”) to Nathan C. On November 14, 2016, the maternal grandparents, Patricia T. and Robert T. (“Grandparents”), filed a petition to terminate the parental rights of Mother and Father to their respective Children. Following a bench trial, the trial court terminated Mother’s parental rights to the Children and Father’s parental rights to Nathan upon its determination that the parents had abandoned the Children by willfully failing to support them and that termination of their parental rights was in the best interest of the Children. Because the trial court failed to enter sufficient findings of fact and conclusions of law, we vacate the trial court’s judgment and remand for entry of sufficient findings of facts and conclusions of law in compliance with Tennessee Code Annotated § 36-1-113(k) (2017).

Cumberland County Court of Appeals 12/14/18
Travis Daniel Freeman v. Wendy Y. Freeman
E2017-02110-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Casey Mark Stokes

This appeal concerns the proper method of invoking a trial court’s subject matter jurisdiction in a proceeding to modify a permanent parenting plan. About one year after the parties’ divorce, Travis Freeman (father) filed a petition to modify the court-ordered custody arrangement and attached a proposed permanent parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a) (2017). Wendy Freeman (mother) opposed the requested modification. The trial court subsequently entered two orders gradually expanding father’s co-parenting time. Later, father filed another motion seeking greater expansion of his co-parenting time and/or designation as the primary residential parent. Father did not attach a new proposed parenting plan to this motion. Ultimately, the trial court ordered a new permanent parenting plan that retained mother as the primary residential parent but granted father additional co-parenting time. Mother appeals. She argues that father did not properly invoke the trial court’s subject matter jurisdiction because father did not attach a new proposed parenting plan to his most recent motion to modify the custody arrangement. We agree with mother that father was statutorily required to submit a new proposed parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a); nevertheless, we hold that father’s petition to modify the parenting plan was sufficient to invoke the trial court’s jurisdiction. Accordingly, we affirm

Meigs County Court of Appeals 12/14/18
State of Tennessee v. Lance Loveless
M2017-02048-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Larry J. Wallace

A Humphreys County grand jury charged the defendant, Lance Loveless, with theft of property between $1000.00 and $10,000.00. Following trial, a jury found the defendant guilty of the lesser-included offense of attempted theft of property between $1000.00 and $10,000.00. On appeal, the defendant contends: the State failed to prove attempt, so the proof was insufficient to support the guilty verdict, and the trial court erred when denying his request for judicial diversion. Discerning no error, we affirm the judgment of the trial court.

Humphreys County Court of Criminal Appeals 12/14/18
Brandon Washington v. State of Tennessee
W2017-02126-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

The petitioner, Brandon Washington, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel upon the entry of his guilty plea which he argues was entered involuntarily and unknowingly. Following our review, we affirm the denial of the petition and conclude the petitioner has waived any challenge to the entrance of his plea.

Shelby County Court of Criminal Appeals 12/14/18
State of Tennessee v. Ricky Dee May
W2018-00224-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Donald H. Allen

The defendant, Ricky Dee May, pled guilty to the manufacture of marijuana and felony possession of drug paraphernalia and received an effective sentence of two years. On appeal, the defendant contends the trial court erred in imposing the maximum sentence for each offense. After our review, we affirm the trial court’s sentence pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Madison County Court of Criminal Appeals 12/14/18
State of Tennessee v. William Ingram
W2017-02343-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Lee V. Coffee

A Shelby County Criminal Court Jury convicted the Appellant, William Ingram, of aggravated assault, and the trial court sentenced him to six years in the Shelby County workhouse. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 12/14/18
Jermaine Reese v. The Estate of Stanley Cutshaw, Et Al. - concurring
E2017-01923-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

I concur in the majority’s discussion and decision regarding the inapplicability of the doctrine of exoneration. I am also of the opinion that if the statute of limitations had been timely raised as an affirmative defense, it would have barred Wife’s cause of action. However, I believe that our Fryer decision and Rules 8.03 and 12.08 of the Rules of Civil Procedure, mandate the conclusion that the trial court erred in ambushing Wife by applying an affirmative defense that was never pled nor tried. To the extent that the majority opinion could be read as holding that the trial court’s error was harmless because the statute of limitations had run, I disagree with that reasoning, because I believe it is circular in nature. The conclusion that the error was harmless can, however be supported by other reasoning of the majority. For example, I agree with the majority that the error was harmless, but I would support this conclusion simply on the trial court’s determination that the release executed by the parties was valid and enforceable and supports the conclusion that the property securing the debt should be deeded back to Wife. I write separately to emphasize my view that Fryer was correctly decided, that it is squarely on point and applicable to this case, and that this opinion should not be read as representing an exception to the general principle stated therein, namely that a trial court commits reversible error by sua sponte applying a statute of limitations defense at the end of trial that was never pled, raised by the parties, or tried by implied consent.

Greene County Court of Appeals 12/14/18
Jermaine Reese v. The Estate of Stanley Cutshaw, Et Al.
E2017-01923-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Douglas T. Jenkins

This appeal concerns a debt owed to the plaintiff by her deceased husband. The trial court awarded the plaintiff certain secured real property that she argues does not provide her the full value of her claim against the decedent. We affirm.

Greene County Court of Appeals 12/14/18
In Re Estate of Bernice Hill
W2017-02131-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Karen D. Webster

A claim was filed against an estate by the former employer of the decedent. The clerk of court did not send notice to the representative of the estate as required by Tennessee Code Annotated section 30-2-313(a). The estate did not file an exception to the claim until after the time for filing exceptions had run. The trial court accordingly ruled that the exception was time barred. The estate appeals. We reverse the judgment and remand for further proceedings.

Shelby County Court of Appeals 12/14/18
Paul Brent Baxter v. State of Tennessee
M2017-01230-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Franklin L. Russell

The petitioner, Paul Brent Baxter, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial. Within the context of his post-conviction claims, the petitioner argues trial counsel was ineffective for failing to object to the State asking the victim to compare her pain level as a result of the petitioner’s assault to the pain she experienced at other points in her life. Following our review, we affirm the denial of the petition.

Marshall County Court of Criminal Appeals 12/14/18
In re: Rader Bonding Company - dissenting
M2017-01687-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark J. Fishburn

I dissent from the majority’s holding that the trial court erred in denying Rader Bonding Company’s motion for exoneration and in denying the motion to alter or amend the judgment of forfeiture.

Davidson County Court of Criminal Appeals 12/14/18
Nedra B. Drayton v. Jacquelyn B. Scruggs
W2017-00760-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Valerie L. Smith

This appeal arises from an Order of Protection initially issued in the General Sessions Court for Shelby County, Tennessee based on the plaintiff’s allegation that the defendant, her mother, assaulted her “by hitting her with her car.” In the appeal to the Circuit Court, that court ordered that all provisions in the order of protection in the General Sessions Court remain in effect until further order of the Circuit Court. Following numerous filings and motions, one of which sought a psychological mental health assessment of the plaintiff, the Circuit Court denied all pending motions and dismissed the order of protection. This appeal followed. Finding no error, we affirm.

Shelby County Court of Appeals 12/14/18
In re: Rader Bonding Company
M2017-01687-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

In this appeal, we must determine whether the Appellant, Rader Bonding Company (“Rader”), remained obligated as surety for the $7,500 bond set for the Defendant, Saul Aldaba-Arriaga, for a charge of driving under the influence of an intoxicant (“DUI”), second offense, and his $2,500 bond for a charge of driving on a revoked license when the State later obtained an indictment that increased the severity of the Defendant’s misdemeanor charge of DUI second offense to a felony charge of DUI fourth offense and included additional charges. After the Defendant failed to appear in court on the indicted charges, the trial court initiated forfeiture proceedings and entered a final judgment of forfeiture against the Defendant and Rader following a hearing. We conclude that based on the specific and unique circumstances of this case, Rader’s obligation under the bonding agreement for the $7,500 bond on the Defendant’s DUI second offense charge in general sessions court did not extend to the indicted charge of DUI fourth offense and that as a result, the trial court erred in entering a judgment of final forfeiture against Rader on the $7,500 bond. We further conclude that Rader’s obligation for the $2,500 bond on the Defendant’s charge of driving on a revoked license in general sessions court continued when the Defendant was indicted for the same offense and that the trial court did not abuse its discretion in denying Rader’s request for exoneration. Accordingly, the trial court’s judgment is affirmed in part and reversed in part, and this case is remanded for further proceeding in accordance with this opinion.

Davidson County Court of Criminal Appeals 12/14/18
Raleigh Commons, Inc. v. SWH, LLC, et al.
W2017-01792-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Mary L. Wagner

This action, which involves payment of a promissory note, was previously appealed to this Court and subsequently remanded to the trial court due to the existence of a genuine issue of material fact precluding summary judgment. Following remand, the trial court conducted a hearing regarding the disputed issue of the reasonableness of attorney’s fees paid. Determining that the amount of fees paid was reasonable, the trial court entered judgment in favor of Dr. Joseph Weinstein, the note holder and the appellee herein. Dr. Stevan Himmelstein, one of the parties found to be liable on the note, has appealed. Discerning no error, we affirm the trial court’s judgment.

Shelby County Court of Appeals 12/14/18
Deborah Hart v. Memphis Light, Gas, & Water Division
W2018-00254-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Valerie L. Smith

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15-902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.

Shelby County Court of Appeals 12/13/18
LaFarge North America v. Warren Mills, et al.
W2017-00431-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Mary L. Wagner

The trial court granted summary judgment in favor of Appellee, finding that the guaranty agreement Appellant executed was enforceable. At the time Appellant executed the guaranty, Choctaw II, LLC (“Choctaw”), a company of which Appellant was a member, owed approximately $275,000.00 to Appellee on an open credit line, which was guaranteed by William Carrier, another owner of Choctaw. Mr. Carrier filed bankruptcy, and Appellee closed the open credit line for lack of guaranty. In an effort to continue to purchase materials from Appellee, Appellant signed a guaranty. After Appellant signed the guaranty, Appellee sold an additional $75,000 worth of goods to Choctaw, and Choctaw paid Appellee approximately $79,000 after Appellant signed the guaranty. Appellee applied these payments to the $275,000 balance and then sought payment for the $75,000 in goods from Appellant. The trial court held that Appellee properly applied the payments to the older debt. We hold that the guaranty agreement is enforceable. However, as to the application of the payments, we hold that Appellee was required to apply the $79,000 to the debt guaranteed by Appellant. Because the payments were sufficient to pay off the $75,000 in goods, Appellant owes nothing to Appellee under the guaranty and is entitled to summary judgment. Reversed and remanded for entry of summary judgment in favor of Appellant.

Shelby County Court of Appeals 12/13/18
State of Tennessee v. Carl Allen aka Artie Perkins
W2017-01118-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Paula L. Skahan

The Appellant, Carl Allen, appeals the Shelby County Criminal Court’s granting a motion filed by the Tennessee Bureau of Investigation (TBI) to intervene in this case and the court’s vacating a portion of a previous order in which the court determined that the Appellant was required to register as a sexual offender as opposed to a violent sexual offender in the TBI’s sexual offender registry (SOR). Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the appeal must be dismissed.

Shelby County Court of Criminal Appeals 12/13/18
State of Tennessee v. Joseph Proffitt
W2017-01958-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Glenn Ivy Wright

The Defendant, Joseph Proffitt, was convicted of two counts of attempted second degree murder, three counts of aggravated assault, and two counts of employing a firearm during the attempted murders. He received an effective sentence of fourteen years. On appeal, the Defendant challenges only his convictions for attempted second degree murder, arguing that the evidence is insufficient to support the verdicts. Upon reviewing the record and applicable law, we affirm the Defendant’s convictions.

Shelby County Court of Criminal Appeals 12/13/18
State of Tennessee v. Arvester Brown
W2017-02547-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge John Wheeler Campbell

The Defendant, Arvester Brown, appeals his convictions for felony murder and especially aggravated robbery, for which he received an effective sentence of life imprisonment. On appeal, the Defendant contends that (1) the trial court erred in failing to declare a mistrial due to the behavior of one of the State’s witnesses; (2) the trial court erred in excluding evidence that the victim had agreed to carry out a “hit” on the Defendant; and (3) the State made improper statements during closing arguments. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/13/18
Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas, and Water
W2017-02551-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Rhynette N. Hurd

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Shelby County Court of Appeals 12/13/18
State of Tennessee v. Jacob Erwin Branch
M2017-01448-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Franklin L. Russell

The Defendant, Jacob Erwin Branch, was convicted by a Marshall County jury of two counts of rape of a child, a Class A felony, and contributing to the delinquency of a minor, a Class A misdemeanor, and was sentenced by the trial court to an effective term of twenty-eight years at 100% in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence in support of his child rape convictions. Following our review, we affirm the judgments of the trial court. However, we note the verdict forms indicate the jury found the Defendant not guilty on the charges of rape and aggravated sexual battery, but the judgment forms indicate those charges were dismissed. We therefore remand for entry of corrected judgment forms as to these charges.

Marshall County Court of Criminal Appeals 12/12/18
Bruce Elliott v. State of Tennessee
M2018-00808-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John D. Wootten, Jr.

The pro se Petitioner, Bruce Elliott, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

Trousdale County Court of Criminal Appeals 12/12/18
State of Tennessee v. Donald Lyndon Madewell
M2018-00183-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

The Defendant, Donald Lyndon Madewell, was convicted by a jury of promoting the manufacture of methamphetamine. On appeal, he challenges the denial of his motion to suppress, asserting that he lacked common authority over the hotel room and could not provide valid consent to search. He also alleges that evidence was insufficient to support his conviction. After our review, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 12/12/18
Domnick Doria v. State of Tennessee
M2017-02024-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge William R. Goodman, III

The Petitioner, Domnick Doria, appeals from the Montgomery County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel because (1) original counsel forced the Petitioner to participate in a television interview prior to trial that caused the State to “cut off” plea negotiations; and (2) trial counsel failed to call the Petitioner’s mother and his ex-wife to testify at trial. Discerning no error, we affirm the judgment of the post conviction court.

Montgomery County Court of Criminal Appeals 12/12/18