Court Opinions

Format: 10/20/2014
Format: 10/20/2014
Mike Cradic v. McCoy Motors, Inc., et al.
E2013-02857-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor E.G. Moody

This appeal arises from a dispute over payment on a note (“the Note”). McCoy Motors, Inc. borrowed $90,000.00 from A. D. Kinkead (“Kinkead”). The Note provided, among other things, that the loan could be renewed at the end of twelve month periods and that, if Kinkead died before the Note was fully paid, the principal of the unpaid balance would be paid to William L. McCoy, Jr. and Sue McCoy. Kinkead’s attorney-1 in-fact, Mike Cradic (“Cradic”), informed McCoy that Kinkead was demanding that the Note be paid in full. McCoy refused to pay in full but instead continued to make payments on the Note. Kinkead, through Cradic, sued the McCoys in the Law Court for Sullivan County (Kingsport) (“the Trial Court”) to compel full payment on the Note. Kinkead died and Cradic pursued the suit.
The Trial Court found that demand had been made on the Note, and that at the end of the twelve month period during which demand was made, the Note came due and payable. The Trial Court entered judgment against McCoy Motors, Inc., and the McCoys, individually. McCoy Motors, Inc. and the McCoys appeal. We affirm the Trial Court.

Sullivan County Court of Appeals 10/20/14
Herman Roland, Jr. , et al. v. Kelli Bridwell, et al.
E2014-00435-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor John C. Rambo

This case involves a dispute as to whether the defendants’ predecessors in title abandoned an easement to a shared driveway either through an express intention to abandon the easement or by inference. The defendants deny that there was an intention to abandon the right-of-way. After a bench trial, the trial court found that the plaintiffs failed to present evidence to support their claim that the predecessors in title abandoned the driveway easement. Accordingly, the trial court entered a judgment that the easement has not been abandoned by the defendants or their predecessors in title. The court further concluded that the easement was to be used for ingress and egress only, and prohibited the parties from parking on or obstructing the easement in any way. The parties were found equally responsible for the upkeep and maintenance of the shared driveway. The trial court also determined that the garage maintenance agreement had been terminated. Plaintiffs appeal. We affirm.

Carter County Court of Appeals 10/20/14
Pamela A. Moritz v. Michael P. Tulay
E2013-01528-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Michael W. Moyers

This is a post-divorce action involving issues of child custody, co-parenting time, and child support. The parties, Pamela Moritz (“Mother”) and Michael Tulay (“Father”), were divorced in Knox County in 2002. By agreement of the parties, custody of their children was vested in Mother, with Father being granted co-parenting time. Mother moved to Pennsylvania with the children in 2005 despite Father’s objection to such relocation. Father continued to enjoy co-parenting time with the children and pay child support to Mother. In 2007, Father filed a petition seeking to modify his child support obligation due to the oldest child’s reaching the age of majority. Thereafter, through a lengthy procedural history marked by Mother’s continuing failure to abide by the trial court’s orders, custody of the remaining minor child was granted to Father in 2009 while Mother was granted only supervised coparenting time. Mother did not appeal the 2009 order. Subsequently, in 2012, Mother filed petitions seeking to modify the custody award and invalidate the trial court’s prior orders. The trial court affirmed its earlier award of custody to Father as Mother presented no evidence of a material change of circumstance affecting the child’s best interest. The court also determined that Mother’s petitions to invalidate the earlier orders were untimely. Mother has appealed. Discerning no error, we affirm.

Knox County Court of Appeals 10/17/14
Gerald Freeburg ETC v. Phillip Turner
E2013-02688-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor Ronald Thurman

This appeal arises from a child support matter. Gerald Freeburg (“Freeburg”), continuing in place of his adult daughter who died during the pendency of these proceedings, pursued a child support claim of his daughter against Phillip Turner (“Turner”) in the Chancery Court for Cumberland County (“the Trial Court”). Freeburg submitted what purportedly was an order from an Oklahoma court reflecting Turner’s child support arrearage. The Trial Court held that the purported order from Oklahoma did not constitute a court order and dismissed the matter. Freeburg timely appealed. We affirm the judgment of the Trial Court.

Cumberland County Court of Appeals 10/17/14
State of Tennessee v. Antonio Lamont Freeman
M2013-01813-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Dee David Gay

The defendant, Antonio Lamont Freeman, was convicted of one count of possession of contraband in a penal facility, a Class C felony. On appeal, the defendant argues: (1) the trial court abused its discretion in removing the defendant from the courtroom during his trial; (2) the trial court abused its discretion by introducing evidence into the record during the motion for new trial; (3) the trial judge’s alleged continued acts of prejudice warrant a new trial; (4) the State committed prosecutorial misconduct when it assumed facts not in evidence; (5) the trial court abused its discretion by denying the motion for new trial based upon newly discovered evidence; and (6) numerous grounds of ineffective assistance of counsel.  After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 10/16/14
In Re: Estate of Linda A. Farmer
M2013-02506-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge David Randall Kennedy

This appeal arises from a civil action against the decedent’s brother who allegedly used his confidential relationship as his sister’s attorney-in-fact to unduly influence her to amend her revocable trust and name him the sole trustee and the sole beneficiary of the trust. It was also alleged that he breached his fiduciary duties by converting her assets. The claims were tried before a jury which returned a verdict in favor of the defendant; the jury found that the plaintiffs had not proven that the amendments to the decedent’s revocable living trust were brought about by undue influence. The jury also found that the defendant had proven, by clear and convincing evidence, that under the totality of circumstances the trust amendments were not the result of undue influence by the defendant and were fair to the decedent. The jury’s specific findings rendered all other claims moot; thus, the defendant prevailed on all issues. On appeal, the plaintiffs contend the trial court erred by, inter alia, not granting a directed verdict on the issue of breach of fiduciary duty and by failing to instruct the jury on certain issues; the plaintiffs also contend the jury verdict should be set aside because there is no material evidence to support the finding that the mostrecent amendment to the trust was fair to the decedent. We have determined there is material evidence to support the jury’s findings; thus, the most recent trust amendment is valid and the defendant is the sole residuary beneficiary of the trust. Because there are sufficient funds in the trust to satisfy the modest cash bequests to the remaining beneficiaries, we find that plaintiffs have no standing to pursue their remaining claims on appeal due to their inability to show a “distinct and palpable injury.” City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55 (Tenn. Ct. App. 2004). Accordingly, we affirm.

Davidson County Court of Appeals 10/15/14
Phyllis Williams v. Larry Stovesand Lincoln Mercury, Inc., et al.
M2014-00004-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Claudia C. Bonnyman

This is a dispute arising from the interpretation of a contract made during an asset sale of one automobile dealership to another. Seller filed a complaint seeking to collect payment pursuant to the contract on the ground that the contract was a promissory note upon which the buyer had defaulted. Buyer argued that the contract was actually for the payment of future rents to Seller, who remained the owner of the real estate upon which Buyer operated his automobile dealership. Seller filed a motion for summary judgment. The trial court determined that, because the contract was an unambiguous promissory note and Buyer admitted non-payment, Seller was entitled to judgment as a matter of law. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/15/14
State of Tennessee v. Daryll Shane Stanley
E2013-01739-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Bobby R. McGee

Defendant, Daryll Shane Stanley, was charged by presentment with four counts of aggravated rape, one count of attempted first degree murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. Defendant was tried in a bench trial. Defendant appeals from his convictions as charged on all counts except one count of especially aggravated kidnapping, in which he was acquitted. Defendant was sentenced to 25 years for each of his 7 convictions, and his sentences were ordered to be served consecutively for a total effective sentence of 175 years. In this appeal as of right, Defendant raises the following issues for our review: 1) whether the 16-year delay between the presentment of charges and Defendant’s trial violated his right to a speedy trial; 2) whether he was denied due process by the State’s failure to preserve evidence; 3) whether the evidence was sufficient to sustain Defendant’s convictions for four counts of aggravated rape; and 4) whether the trial court’s comments at the conclusion of the bench trial indicated that the trial court found Defendant guilty of the lesser-included offense of theft of property in count 8 charging especially aggravated robbery. Having carefully reviewed the record before us, we affirm the judgments of the trial court in counts one through six, but we conclude that Defendant’s conviction for especially aggravated robbery in count eight should be modified to a conviction for Class A misdemeanor theft and remand this case to the trial court for entry of a modified judgment.

Knox County Court of Criminal Appeals 10/15/14
State of Tennessee v. Jameson Delgizzi a/k/a Decharme
M2013-02864-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Timothy L. Easter

The defendant, Jameson Delgizzi, also known as Decharme, pled no-contest to attempted aggravated sexual battery, a Class C felony, and agreed to be sentenced outside his range, as a Range III offender, with the sentence and manner of service to be determined by the trial court.  Following a sentencing hearing, the defendant received a sentence of eleven years in the Department of Correction.  On appeal, he argues that an eleven-year term is excessive and that he should have been granted probation or split confinement.  After review, we affirm the sentencing decision of the trial court.

Hickman County Court of Criminal Appeals 10/15/14
In RE: A-Action Bonding Company
M2013-01526-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Robert L. Jones, Jude Stella L. Hargrove, Judge Jim T. Hamilton, Judge Robert L. Holloway

This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of the company, its principal, and one of its agents based on its finding that the agent solicited an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).  The appellant argues that the court improperly considered as evidence a cell phone recording of a videotaped conversation between the agent and the inmate when the original jail videotape had been destroyed and the cell phone recording was made by a competitor and contained an altered version of the original.  We agree.  We also agree that, without the improperly admitted recording, there was insufficient evidence that the agent solicited business in violation of the statute.  Accordingly, we reverse the judgment of the trial court and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its agent.

Maury County Court of Criminal Appeals 10/15/14
State of Tennessee v. John Robert Quinton Jackson
M2013-02172-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Michael R. Jones

The record in this matter is very sparse.  Much of our understanding of its history comes from the decision of this court in the defendant’s direct appeal, State v. John Robert Q. Jackson, No. M2012-00511-CCA-R3-CD, 2013 WL 791621 (Tenn. Crim. App. Mar. 4, 2013).  As best we can understand, the defendant, John Robert Quinton Jackson, pled guilty in February 2009 to five counts of aggravated burglary, two counts of automobile burglary, one count of theft over $10,000, and one count of theft over $1000, receiving an effective sentence of six years in community corrections.  In September 2009, he was served with a violation warrant and subsequently pled guilty to an additional count of aggravated burglary, receiving a four-year sentence in community corrections, to be served concurrently with the six-year community corrections sentence reinstated by the court.  Later, he was served with another violation warrant, based upon his participation in a home invasion and aggravated robbery.  Pursuant to Tennessee Rule of Criminal Procedure  36.1, he filed a motion for correction of an illegal sentence, which the trial court dismissed.  He appeals that dismissal.  Based upon our review, we affirm the trial court’s dismissal of his motion.

Montgomery County Court of Criminal Appeals 10/15/14
State of Tennessee v. Cary Arnaz Harbin, III
M2013-02742-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Dee David Gay

The Defendant, Cary Arnaz Harbin, III, was charged with violating the sexual offender registration act by establishing his primary residence within one thousand feet of a licensed day care facility.  See Tenn. Code Ann. § 40-39-211(a).  The trial court dismissed the charge, finding that the Defendant, convicted in Michigan in 2008 of criminal sexual conduct in the third degree, did not meet the statutory definition of “sexual offender.”  The State appeals the order of dismissal, arguing that the record was insufficient for the trial court to make this determination.  Following our review of the record and applicable authorities, we conclude that the Defendant, an out-of-state sexual offender required to register in Michigan, is subject to the requirements of Tennessee sexual offender registration act upon sufficient contact with this State.  Therefore, we reverse the order of the trial court dismissing the indicted charge and remand the case for further proceedings consistent with this opinion.

Sumner County Court of Criminal Appeals 10/15/14
State of Tennessee v. Brian Oneal Elliott
M2014-00083-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Jude Cheryl A. Blackburn

The appellant, Brian Oneal Elliott, challenges the length of the twenty-five-year maximum sentence the trial court imposed for his conviction of second degree murder.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/15/14
Rickey G. Young v. Tennessee Department of Labor and Workforce Development, et al.
W2013-02575-COA-R3-CV
Authoring Judge: Judge W. Michael Maloan
Trial Court Judge: Judge George R. Ellis

This case involves Employee’s right to unemployment compensation benefits. The Tennessee Department of Labor and Workforce Development denied Employee’s claim for benefits after finding that he was discharged for workplace misconduct. Employee sought judicial review of the decision in the trial court, alleging that the Department did not provide him a fair and impartial hearing. Employee requested that the trial court reverse the decision or remand the matter for a new hearing. The Department agreed and filed a motion to remand. The trial court remanded the matter for a new hearing. Employee appealed and now contends that the trial court erred in remanding the matter. We affirm the judgment of the trial court.

Gibson County Court of Appeals 10/14/14
State of Tennessee v. Lawrence Pierce
E2014-00262-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery
Trial Court Judge: Judge Carroll L. Ross

The Defendant, Lawrence Pierce, appeals the Bradley County Criminal Court’s order revoking his probation for his convictions for violating the sex offender registry law and flagrant nonsupport and ordering his effective eight-year sentence into execution. The Defendant contends that the trial court abused its discretion by revoking his probation on the sole ground that he failed to pay restitution. We reverse the judgment of the trial court and remand the case for the trial court to make additional findings of fact and conclusions of law.

Bradley County Court of Criminal Appeals 10/14/14
Jerry Lynn Driver v. State of Tennessee
M2014-00015-CCA-R3-CO
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Jerry Lynn Driver, appeals as of right from the Davidson County Criminal Court’s summary dismissal of his “motion to set aside guilty plea or in the alternative petition for a writ of error coram nobis or a petition for a writ of habeas corpus.”  The Petitioner contends that the Criminal Court erred in summarily dismissing his motion as being untimely filed.  Discerning no error, we affirm the judgment of the Criminal Court.

Davidson County Court of Criminal Appeals 10/14/14
Kenzo A. Quezergue v. State of Tennessee
M2014-00150-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Cheryl Blackburn

Petitioner, Kenzo A. Quezergue, was indicted in Davidson County for first degree felony murder and employing a firearm during the commission of a dangerous felony.  Petitioner pled guilty to the lesser included offense of second degree murder in exchange for a sentence of forty years, to be served at 100% as a violent offender.  Petitioner filed a timely petition for post-conviction relief alleging, inter alia, that he received ineffective assistance of counsel.  After a hearing, the post-conviction court denied relief, finding that Petitioner had not proven his claims by clear and convincing evidence.  Upon thorough review of the record, we agree.  The judgment of the post-conviction court is affirmed.

Davidson County Court of Criminal Appeals 10/14/14
The Metropolitan Government Of Nashville & Davidson County, TN, et al. v. The Board of Zoning Appeals of Nashville & Davidson County, TN, et al.
M2013-00970-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancerllor Claudia Bonnyman

Advertising company applied to the Metropolitan Government Department of Codes and Building Safety for a permit to convert its standard billboard to a digital billboard. The zoning administrator denied the request; the company appealed to the Metropolitan Board of ZoningAppeals,which reversed the administrator’sdecision and granted the permit. Days later, the permit was revoked on the ground that the proposed digital billboard violated a provision in the zoning code. The company again appealed to the Board of Zoning Appeals, which held that the permit had been revoked in error and reinstated the permit. The Metropolitan Government then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court reversed the decision granting the permit.  The advertising company appeals; finding no error, we affirm the judgment of the trial court.

Davidson County Court of Appeals 10/13/14
Connie Reguli, et al. v. Board of Professional Responsibility of The Supreme Court of Tennessee
M2014-00158-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Ellen H. Lyle

This is a declaratory judgment action in which Petitioners, who were respondents in an ongoing disciplinary proceeding, requested the trial court answer 15 questions concerning the applicable rules of procedure and evidence and the process and organization of the Board. The trial court dismissed the action, finding that Petitioners merely sought an advisory opinion and that it lacked subject matter jurisdiction to afford the relief desired. Petitioners appeal. We affirm.

Davidson County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither - separate concurring opinion
E2013-02681-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

I concur completely in the majority’s treatment of the piano issue. Under the proof before the trial court, I also concur in the majority’s decision to modify the trial court’s judgment as to the marital residence and the overall division of the marital estate. I write separately to express my view that it is sometimes appropriate to take into account the cost of selling an asset even though there is no present intent to sell. Since the proof in this case does not support the trial court’s “20%” decision, I agree that this particular part of the trial court’s judgment is not correct.

Hamilton County Court of Appeals 10/13/14
Loretta M. Gaither v. Michael Deleon Gaither
E2013-02681-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Jaqueline S. Bolton

This is a divorce action involving the proper classification and division of the parties’ assets. The trial court found one asset, a baby grand piano, to be the wife’s separate property as it had been a gift to her from the husband. All other assets were determined to be marital. The most valuable asset was the parties’ marital residence, which was appraised at a value of $475,000. Although the trial court awarded the marital residence to the wife rather than ordering it to be sold, the trial court deducted twenty percent from the home’s equity value for the associated costs had it been sold. The trial court subsequently fashioned a nearly equal percentage distribution of the marital assets and debts, which included an allocation of a portion of the equity in the home to the husband. The husband has appealed. We determine that the trial court correctly classified the piano as the wife’s separate property. We also determine that the trial court improperly deducted the costs associated with a hypothetical sale of the marital residence from its equity value. We therefore modify the trial court’s award of equity in the home to the husband to effectuate the trial court’s ostensible overall percentage distribution. We affirm that equitable distribution in all other respects. We decline to award the wife attorney’s fees on appeal.

Hamilton County Court of Appeals 10/13/14
Demario Thomas v. State of Tennessee
W2013-01818-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey Jr.

The petitioner, Demario Thomas, appeals the denial of his petition for post-conviction relief, arguing that his guilty plea was unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of post-conviction relief.

Shelby County Court of Criminal Appeals 10/10/14
Sam E. Stevenson v. State of Tennessee
W2013-02656-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan Jr.

The petitioner, Sam E. Stevenson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing he received ineffective assistance of counsel. After review, we affirm the denial of the petition.

Madison County Court of Criminal Appeals 10/10/14
Felton McNeal v. State of Tennessee
W2013-02014-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The petitioner, Felton McNeal, appeals the denial of his petition for post-conviction relief, arguing that his guilty pleas were unknowingly and involuntarily entered without the effective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/10/14
State of Tennessee v. Paul Edward Martin, Jr.
W2013-02311-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Nathan B. Pride

The defendant, Paul Edward Martin, Jr., was convicted by a Chester County Circuit Court jury of carjacking and aggravated robbery, Class B felonies, and sentenced to terms of twenty years on each conviction, to be served consecutively as a Range II offender in the Tennessee Department of Correction. On appeal, he argues that the trial court imposed an excessive sentence. After review, we affirm the judgments of the trial court.

Chester County Court of Criminal Appeals 10/10/14