Court Opinions

Format: 08/25/2016
Format: 08/25/2016
In re Devin B.
W2016-00121-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Dan H. Michael

This is an appeal of an order dismissing Father's petition to enroll judgment in Tennessee and motion to modify a parenting plan due to a lack of subject matter jurisdiction. The juvenile court found that Tennessee was not the Child's home state, pursuant to the Uniform Child Custody Enforcement Act, on the day of the proceeding or within the six months prior to Father's filing his petition. We affirm.

Shelby County Court of Appeals 08/25/16
State of Tennessee v. Obada D. Abujaber
W2015-00590-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Roy B. Morgan, Jr.

The defendant, Obada D. Abujaber, was indicted for two counts of aggravated assault, two counts of possession of a Schedule IV controlled substance, and one count of vandalism of property valued at $500 or more but less than $1000. Following trial, a jury found the defendant not guilty of one count of aggravated assault, guilty of one count of the lesser-included offense of attempted aggravated assault, guilty of two counts of the lesser-included offenses of attempted possession of a Schedule IV controlled substance, and guilty of one count of vandalism of property valued at less than $500. The trial court sentenced the defendant to an effective sentence of four years, eleven months, and twenty-nine days. On appeal, the defendant argues the evidence was insufficient to support his convictions. After review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 08/25/16
Cindy Hatfield, et al. v. Allenbrooke Nursing and Rehabilitation Center, LLC, et al.
W2016-01510-COA-T10B-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Donna M. Fields

This is an interlocutory appeal as of right from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal de novo as required by Tennessee Supreme Court Rule 10B, § 2.06, we affirm the denial of the motion.

Shelby County Court of Appeals 08/25/16
Tasha Dayhoff v. Joshua D. Cathey
W2016-00377-COA-R3-JV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Christy R. Little

This is the second appeal in this custody dispute between unmarried parents. After establishing parentage of the minor children, the juvenile court entered a permanent parenting plan without hearing sworn testimony. On appeal, this Court vacated the parenting plan and remanded for an evidentiary hearing. Before the hearing on remand, the mother relocated from West Tennessee to Middle Tennessee with the children. The trial court conducted an evidentiary hearing and determined that the parental relocation statute applied to the court’s decision. The trial court first found that the mother’s move had no reasonable purpose and was vindictive and then concluded that it is in the children’s best interest for the father to be designated primary residential parent. The mother appeals. We affirm.

Madison County Court of Appeals 08/25/16
State of Tennessee v. Richard Bryant Long
M2015-02093-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Stella Hargrove

A Lawrence County jury convicted the Defendant, Richard Bryant Long, of rape of a child, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Correction.  On appeal, the Defendant contends that the trial court erred when it allowed a video recording of the victim’s interview to be admitted without satisfying the requirements of Tennessee Code Annotated section 24-7-123.  After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Lawrence County Court of Criminal Appeals 08/25/16
State of Tennessee v. Brandon Ray Rust
M2015-02284-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Franklin Lee Russell

The appellant, Brandon Ray Rust, pled guilty in the Bedford County Circuit Court to burglary and was granted judicial diversion with the requirement that he complete three years on probation.  Subsequently, the trial court revoked probation and ordered that the appellant serve the balance of his sentence in confinement.  On appeal, the appellant acknowledges that he violated probation but contends that the trial court should have ordered a sentence that included an alternative to confinement.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 08/25/16
State of Tennessee v. Marcus Anthony Robey
M2015-00306-CCA-R3-CD
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge Mitchell Keith Siskin

Defendant, Marcus Anthony Robey, was convicted of aggravated robbery by a Rutherford County jury and was sentenced to thirty years.  On appeal, Defendant argues that the trial court erred by failing to provide a supplemental jury instruction following a jury question during deliberations and that the evidence was insufficient to support his conviction.  After a thorough review of the record, we determine that Defendant waived his right to appeal this conviction.  Therefore, the appeal is dismissed.

Rutherford County Court of Criminal Appeals 08/25/16
Melinda Duncan, et al. v. Cheryl L. Ledford MD, et al.
W2015-02370-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Kyle Atkins

This is a healthcare liability case. The trial court granted summary judgment in favor of Appellees, Appellant’s treating physician and her employer. Summary judgment was based on the trial court’s finding that Appellants had failed to meet their burden of proof to show that Appellee doctor deviated from the standard of care or that the treatment provided caused Appellant to sustain injuries that otherwise would not have occurred. Discerning no error, we affirm.

Madison County Court of Appeals 08/24/16
Mark A. Shempert, et al. v. Kim Wright Cox, Personal Representative ad litem for the Estate of Robert Davis
W2015-02161-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Donna M. Fields

This is an appeal of an order granting the unnamed defendant’s motion for summary judgment. After being involved in an accident with an uninsured motorist, the plaintiff brought suit against his uninsured motor vehicle insurance carrier seeking coverage under the policy. The insurance carrier moved for summary judgment, arguing that the plaintiff was operating a vehicle not insured under the policy but available for his regular use, and therefore, was not covered under the policy. We affirm.

Shelby County Court of Appeals 08/24/16
Ray Duffy, et al. v. Danny Elam
W2015-01456-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge J. Weber McCraw

This appeal involves an unauthorized sale of a trailer by a third party. The circuit court held that the original owner of the trailer, who holds the certificate of title, is entitled to possession of the trailer rather than the party claiming to be a bona fide purchaser. The purchaser appeals. We affirm.

McNairy County Court of Appeals 08/24/16
Adedamola O. Oni v. Tennessee Department of Health, et al.
M2015-01841-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

In an earlier proceeding, we determined that a physician violated three different provisions of the Medical Practice Act, Tenn. Code Ann. §§ 63-6-214(b)(1), (2), and (20). We remanded the case to the Tennessee Board of Medical Examiners (the “Board”) to determine the appropriate sanction. On remand, the physician argued the case had become moot because his medical license was not renewed and had become automatically revoked by operation of law. The Board disagreed and voted to revoke the physician’s license as punishment for his violations. The physician appealed, and the chancery court vacated the Board’s decision on the basis that the Board lacked subject matter jurisdiction over the physician’s license once it was automatically revoked. The State appealed, and we reverse the chancery court’s judgment. We conclude that the Board had subject matter jurisdiction to sanction the physician for his conduct while his license was active, even though the license was not active at the time the sanction was imposed.

Davidson County Court of Appeals 08/23/16
Steve Kirby Kucinski v. Magali Ortega
M2015-00481-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Laurence M. McMillan, Jr.

In this divorce action, the husband appeals the award of alimony in futuro, asserting that the award should be overturned because the wife was awarded substantial marital property or, alternatively, that due to changed circumstances, the award of alimony is inappropriate. Finding no error, we affirm the judgment of the trial court.

Montgomery County Court of Appeals 08/23/16
State of Tennessee v. Gary Hamilton
E2014-01585-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Bob R. McGee

This appeal is one of two similar appeals that were consolidated for oral argument because they involve related questions of law concerning Tennessee Code Annotated section 40-15-105 (2013) (“the pretrial diversion statute”), which allows a district attorney general to suspend prosecution of a qualified defendant for a period of up to two years. See State v. Stephens, No. M2014-01270-SC-R11-CD (Tenn. 2016). We granted review in this case to emphasize once again the process the district attorney general, trial court, and appellate courts must follow when reviewing a prosecutor’s denial of pretrial diversion. The defendant was indicted for assault after he allegedly attacked a student at the school where he worked as a teacher’s assistant, and the prosecutor denied his application for pretrial diversion. After the trial court refused to overturn the prosecutor’s decision, the Court of Criminal Appeals granted the defendant’s interlocutory appeal and held that the trial court failed to review properly the district attorney general’s decision. Conducting its own review, the intermediate court concluded that the record lacked substantial evidence supporting the denial of pretrial diversion and remanded with instructions that the defendant be granted pretrial diversion. We granted review and conclude that the district attorney general considered all relevant factors. Although the trial court improperly reviewed the district attorney general’s action, the trial court reached the correct result. Therefore, we vacate the Court of Criminal Appeals’ judgment and reinstate the trial court’s judgment affirming the denial of pretrial diversion.

Knox County Supreme Court 08/23/16
State of Tennessee v. Susan Gail Stephens
M2014-01270-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Vanessa Jackson

This appeal is one of two similar appeals that were consolidated for oral argument because they involve related questions of law involving Tennessee Code Annotated section 40-15-105 (2006) (“the pretrial diversion statute”), which allows a district attorney general to suspend prosecution of a qualified defendant for a period of up to two years. See State v. Hamilton, No. E2014-01585-SC-R11-CD (Tenn. 2016). We granted this appeal to emphasize once again the process the district attorney general, trial court, and appellate courts must follow when reviewing a prosecutor’s denial of pretrial diversion. The defendant was indicted for two counts of statutory rape and two counts of contributing to the delinquency of a minor. The defendant applied for pretrial diversion three times, and the district attorney general’s office denied her application each time. The trial court likewise denied each of the defendant’s three petitions for writ of certiorari. The defendant was granted permission to file an interlocutory appeal after each denial, and the Court of Criminal Appeals reversed the trial court’s decision in the first two appeals. After the district attorney general’s office denied the defendant’s application for a third time and the trial court denied the defendant’s petition, the Court of Criminal Appeals held that the record does not contain substantial evidence to support the denial of pretrial diversion and remanded with instructions that the district attorney general’s office grant the defendant pretrial diversion. We granted review. We reverse the Court of Criminal Appeals’ judgment, finding that the district attorney general acted properly and the trial court properly found no abuse of discretion, and we reinstate the trial court’s judgment affirming the denial of pretrial diversion.

Coffee County Supreme Court 08/23/16
State of Tennessee v. James Moore
W2015-01483-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge James C. Beasley, Jr.

The defendant, James Moore, was convicted of one count of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony, and sentenced in each case, as a Range II offender, to forty years confinement. The court merged the Class B aggravated sexual battery conviction into the Class A rape of a child conviction. On appeal, the defendant argues, as to each conviction, that the evidence was insufficient to sustain the conviction and the sentence was excessive. Following our review, we conclude that the arguments are without merit as to the conviction for rape of a child and affirm the judgment for that conviction. As for the conviction for aggravated sexual battery, we conclude that the evidence is sufficient to sustain the conviction but remand for an amended judgment because the sentence imposed for that offense exceeds the range available for a Range II offender.

Shelby County Court of Criminal Appeals 08/23/16
Carla Suzanne Jackson v. City of Cleveland
E2015-01279-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Lawrence H. Puckett

Plaintiff, who had served as a police officer for the City of Cleveland Police Department since 1990, was fired on September 12, 2011, eleven months after filing a charge of discrimination with the Equal Employment Opportunity Commission. Four months after her termination, Plaintiff filed suit in federal court asserting, inter alia, claims of sexual discrimination, hostile work environment, and retaliation against the City of Cleveland under the Tennessee Human Rights Act. She asserted that the discriminatory acts continued until January 18, 2012, when she was interviewed by the Tennessee Bureau of Investigation for allegedly filing false timesheets while employed by the Department. All claims in the federal court action were dismissed without prejudice on August 13, 2013. On August 12, 2014, Plaintiff commenced this action in the Circuit Court for Bradley County asserting the same state-law claims. After answering the complaint, the city filed a motion for summary judgment seeking the dismissal of all claims based on the one-year statute of limitations. Plaintiff opposed the motion contending the action was timely filed due to the combined effect of the continuing violation doctrine, see Booker v. The Boeing Co., 188 S.W.3d 639, 649 (Tenn. 2006), and 28 U.S.C. § 1367(d), which suspends the running of the state statute of limitations while a federal suit is pending and for 30 days after dismissal. The trial court dismissed all claims as time-barred upon the finding that they arose from the discrete act of terminating Plaintiff’s employment in September 2011. We affirm.

Bradley County Court of Appeals 08/22/16
State of Tennessee v. Ladon Antoine Doak
M2015-01454-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Ladon Antoine Doak, was convicted in the Davidson County Criminal Court of aggravated robbery, a Class B felony, and aggravated burglary, a Class C felony, and the trial court sentenced him to concurent sentences of fifteen and eight years, respectively. On appeal, the appellant contends that the evidence is insufficient to support the convictions. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/22/16
In Re Estate of Lana Hopson Reed
E2015-02372-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Douglas T. Jenkins

This case arises from an exception to a claim filed against decedent’s estate. Appellant/Administratrix filed an exception to a claim brought by the Appellees, who are the decedent’s parents. The trial court found that the Statute of Frauds, Tennessee Code Annotated Section 29-2-101, was not applicable to bar the claim. The trial court further held that the claimed amount was a loan to the decedent and not a gift as Appellant argued. Discerning no error, we affirm and remand.

Greene County Court of Appeals 08/22/16
Joe Billy Russell, Jr. v. State of Tennessee
M2015-02101-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mark J. Fishburn

The petitioner, Joe Billy Russell, Jr., appeals the post-conviction court’s denial of his petition for relief. On appeal, the petitioner asserts that his petition is timely because it falls within one year of certain federal opinions which establish a constitutional right requiring retrospective application. After a thorough review of the record, we affirm the dismissal of the petition.

Davidson County Court of Criminal Appeals 08/22/16
State of Tennessee v. Carlton Patrick Blanton
M2015-02311-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Franklin L. Russell

The defendant, Carlton Patrick Blanton, was convicted of four counts of rape, Class B felonies; two counts of aggravated assault, Class C felonies; one count of aggravated burglary, a Class C felony; one count of sexual battery, a Class E felony; and one count of simple assault, a Class A misdemeanor. The trial court merged the four rape convictions into two convictions and imposed an effective sentence of twenty-four years. On appeal, the defendant argues that the evidence was insufficient to sustain his convictions and that the trial court erred when it imposed a twenty-four-year sentence. Following our review, we affirm the judgments of the trial court.

Marshall County Municipal Courts 08/22/16
State of Tennessee v. Mervan Eyup Ibrahim
M2016-01360-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Following a jury trial, the Defendant, Mervan Eyup Ibrahim, was convicted of two counts of aggravated rape, a Class A felony. See Tenn. Code Ann. § 39-13-502. The trial court subsequently sentenced the Defendant to twenty-five years’ incarceration to be served at one hundred percent. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions because the State failed to prove that the victim suffered a bodily injury; (2) that the trial court erred in denying his motion to suppress his interview with the police; (3) that the trial court erred in admitting the audio recording of a 911 call; (4) that the trial court erred in allowing a witness to read, verbatim, portions of a report made during a forensic medical examination of the victim and in admitting that report into evidence; (5) that the trial court erred in denying his motion for a mistrial after one of the witnesses stated that the Defendant “had engaged in the illegal sale of marijuana and the illegal acquisition of Xanax pills” on the night of the offenses; and (6) that the State committed prosecutorial misconduct during its rebuttal closing argument. Following our review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 08/22/16
State of Tennessee v. Tony Meeks
M2015-01813-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge L. Craig Johnson

The appellant, Tony Meeks, filed a motion to correct an illegal sentence in the Coffee County Circuit Court pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court summarily dismissed the motion, and the appellant appeals the ruling. Based upon our review of the record and the parties’ briefs, we affirm the trial court’s dismissal of the motion.

Coffee County Court of Criminal Appeals 08/22/16
Anthony H. Dean v. Cherry Lindamood, Warden
M2016-00033-CCA-R3-HC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Russell Parkes

Petitioner was convicted of aggravated rape and sentenced to forty years as a Violent Offender for the rape of an eighty-nine-year-old woman. Petitioner’s conviction and sentence were affirmed on direct appeal. State v. Dean, 76 S.W.3d 352, 357-60 (Tenn. Crim. App. 2001). After unsuccessfully utilizing various avenues to receive relief from his conviction, Petitioner filed the petition for writ of habeas corpus at issue herein. The trial court denied relief, and Petitioner appeals. After a review of the record and appropriate authorities, we affirm the judgment of the trial court.

Wayne County Court of Criminal Appeals 08/22/16
State of Tennessee v. Dava Martin
E2015-01814-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Sandra Donaghy

The Defendant-Appellant, Dava Martin, was convicted by a Bradley County jury of one count of casual exchange of a controlled substance. See T.C.A. § 39-17-418. Martin received a sentence of eleven months and twenty-nine days, suspended to supervised probation after sixty days’ incarceration, and a $2,000 fine. She subsequently filed a motion to reconsider her sentence, which the trial court interpreted as a motion for a reduction of sentence pursuant Tennessee Rule of Criminal Procedure 35, and, following a hearing, the motion was denied. The sole issue raised on appeal is whether the trial court improperly denied Martin’s motion for sentence reduction. Upon review, the judgment of the trial court is affirmed.

Bradley County Court of Criminal Appeals 08/22/16
Jereme Dannuel Little v. State of Tennessee
E2015-01190-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Rebecca J. Stern

Following an evidentiary hearing, the Hamilton County Criminal Court granted the Petitioner, Jereme Dannuel Little, post-conviction relief and vacated his conviction for especially aggravated kidnapping. On appeal, the State contends that the post-conviction court erred by concluding that the Petitioner received ineffective assistance of counsel based on counsel's (1) failure to seek a severance of two counts of aggravated robbery from the especially aggravated kidnapping charge, either pre-trial or after judgments of acquittal were granted on the aggravated robbery charges; (2) failure to interview witnesses from the store where the victim was allegedly kidnapped; and (3) decision to call a witness to testify without first adequately interviewing that witness. Following our review, we reverse the judgment of the post-conviction court and reinstate the Petitioner‟s conviction for especially aggravated kidnapping.

Hamilton County Court of Criminal Appeals 08/19/16