Carolyn M. Stark ET AL. v. William S. McLean ET AL.
W2023-00145-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Tony Childress

In a prior appeal, we addressed multiple issues connected to a judgment that was entered
following a bench trial. Among other things, we affirmed the trial court’s determination
that one of the Defendants in this litigation should be held liable for breach of fiduciary
duty, but we also rejected multiple issues raised by the Plaintiffs in pursuit of additional
relief. As part of our disposition, we remanded the case for further proceedings with
respect to matters of costs and expenses under Tennessee Code Annotated section 35-15-
1004, as well as prejudgment interest. After the trial court entered orders on remand
addressing these issues, the Plaintiffs filed the present appeal, chiefly arguing (a) that they
are entitled to 100% of their costs and expenses and (b) that the trial court erred in the
amount of prejudgment interest it awarded them. Having reviewed the record transmitted
to us on appeal, we affirm the judgment of the trial court.

University Place S.E., LP v. R. Bosan a/k/a Rick Bosan
W2023-00790-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Yolanda Kight Brown

This case arises from a forcible entry and detainer proceeding. Because Appellant’s
principal brief fails to comply with Rule 27 of the Tennessee Rules of Appellate Procedure
and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appeal is dismissed.

Larry Kent et al. v. Global Vision Baptist, Inc. et al.
M2023-00267-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Caroline E. Knight

The Plaintiffs filed suit against a neighboring church and its pastor, alleging violations of local ordinances, as well as nuisance and trespass. The Defendants responded with a petition for dismissal under the Tennessee Public Participation Act (TPPA). After the trial court denied Plaintiffs’ attempt to voluntarily dismiss the pastor, the Defendants, in response to a statement by opposing counsel, filed a motion seeking an order of dismissal of the pastor with prejudice. The trial court denied that motion. Before the scheduled hearing on the TPPA petition could occur, the Defendants appealed the trial court’s denial of their motion for an order of dismissal as to the pastor, purportedly proceeding under Tennessee Code Annotated section 20-17-106, a provision of the TPPA that allows for an immediate appeal of a grant or denial of a TPPA petition. Because the order being appealed is not a dismissal or a refusal to dismiss a legal action pursuant to the Defendants’ TPPA petition, which is still pending before the trial court, we dismiss this appeal for lack of subject matter jurisdiction.

State of Tennessee v. Guillermo Zapata
W2023-00111-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Paula L. Skahan

The Defendant, Guillermo Zapata, was convicted in the Shelby County Criminal Court of
two counts of aggravated sexual battery, a Class B felony. After a sentencing hearing, the
trial court merged the convictions and sentenced him to seven years, two months, and
twelve days in confinement. On appeal, the Defendant contends that the evidence is
insufficient to support the convictions, that the trial court erred by denying his motion to
dismiss the indictment based on due process and speedy trial grounds, and that the trial
court erred by instructing the jury on flight. Based upon our review, we affirm the
judgments of the trial court.

Jennifer Lynn Morgan Esposito v. Joseph Diego Esposito
E2022-01784-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Elizabeth C. Asbury

In this divorce action, the trial court entered an order in December 2021, according to the parties’ announced agreement, granting the parties a divorce on stipulated grounds and directing, inter alia, that the marital residence would be sold at auction and that any “marital personal property” upon which the parties could not reach an agreement prior to the auction would be “sold by the court when the [marital residence was] auctioned.” The court also memorialized the parties’ agreement that each would keep the vehicles in his or her possession and be responsible for debts incurred in each of their respective names. In an order entered in April 2022, the court confirmed that the marital residence had been sold at auction to the husband. Following a bench trial, the court found that, with the exception of two personal items belonging to the wife, the marital residence and “the contents located at the property” were all marital property; that the proceeds from “marital property located at the home” were included in the auction sale proceeds; and that the proceeds from the auction should be divided equally between the parties. The wife has appealed. Upon careful consideration, we affirm the trial court’s findings that the marital personal property located at the marital residence had been sold with the marital residence and that the auction sale price reflected the total valuation of both the residence and personal property sold. We also affirm the trial court’s adoption of the parties’ agreement regarding vehicles and debts. However, we vacate the trial court’s classification of the marital residence as marital property and the court’s overall distribution of marital property. We remand for (1) further findings of fact and conclusions of law regarding classification of the marital residence and, if necessary, identification of any increase in value of the marital residence that resulted from the husband’s significant contributions during the marriage; (2) a limited evidentiary hearing to identify, classify, and value the parties’ bank accounts; and (3) reconsideration of the marital property distribution inclusive of the findings on remand and pursuant to the statutory factors provided in Tennessee Code Annotated § 36-4-121(c) (2021). Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part, Vacated in Part; Case Remanded.

State of Tennessee v. Dantis Lakka-Lako
M2023-00080-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jennifer L. Smith

A Davidson County jury convicted the Defendant, Dantis Lakka-Lako, of one count of especially aggravated robbery, two counts of aggravated rape, one count of especially aggravated burglary, and two counts of theft of property. The trial court sentenced the Defendant to an effective sentence of fifty years of incarceration. On appeal, the Defendant asserts that the trial court erred when it denied his motion to suppress his confession. He additionally contends that the evidence was insufficient to support his convictions for especially aggravated robbery and aggravated rape, and that the trial court erred when it sentenced him. After review, we affirm the trial court’s judgments.

Arthur A. Allen v. Heather S. Allen
E2023-01660-COA-T10B-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Suzanne S. Cook

This is an interlocutory appeal as of right, pursuant to Tenn. Sup. Ct. R. 10B, filed by
Arthur A. Allen (“Father”), seeking to recuse the trial judge in this case. Having reviewed
the petition for recusal appeal filed by Father, and finding no error, we affirm.
Tenn. Sup. Ct. R. 10B Interlocutory Appeal as of Right; Judgment of the
Chancery Court Affirmed; Case Remanded

Tracey Smith, et al. v. Oakwood Subdivision Homeowners Association, Inc.
W2022-00845-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Rhynette N. Hurd

This appeal involves premises liability and negligence claims asserted against a
homeowner’s association after a shooting outside its community clubhouse while it was
rented for a birthday party. The trial court granted summary judgment to the homeowner’s
association, dismissing all claims, on two grounds. First, the trial court found that there
was no foreseeability, and therefore, there was no duty. Second, the trial court concluded
that there was no nexus, or proximate cause, between the allegedly negligent acts or
omissions of the homeowner’s association and the harm that occurred. The plaintiffs filed
a motion to reconsider or clarify the ruling, which the trial court denied. For the following
reasons, we affirm the decision of the circuit court and remand for further proceedings.

Henry Moore v. State of Tennessee
W2023-00798-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Mark Hayes

The pro se petitioner, Henry Moore, appeals the denial of his petition for post-conviction
or habeas corpus relief, which petition challenged his guilty-pleaded conviction of evading
arrest, alleging that the stop and seizure of his vehicle was unlawful, that his guilty plea
was involuntary, that the evidence was insufficient to support his conviction, and that he
was deprived of the effective assistance of counsel. Because the petitioner’s claims are not
cognizable in a habeas corpus proceeding, the trial court properly denied habeas corpus
relief. Because, however, some of the petitioner’s claims are cognizable in post-conviction
proceedings and because the petition was not untimely, the trial court erred by summarily
dismissing the petition as one for post-conviction relief. We reverse the judgment of the
trial court and remand the case for further post-conviction proceedings.

Donald Gwin v. State of Tennessee
W2022-01704-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Petitioner, Donald Gwin, appeals from the Shelby County Criminal Court’s denial of
his petition for post-conviction relief from his jury-trial convictions for aggravated rape,
aggravated robbery, aggravated burglary, and aggravated assault, for which he is serving
an effective thirty-five-year sentence. On appeal, he contends that the post-conviction
court erred in denying relief on his ineffective assistance of counsel claims. We affirm the
judgment of the post-conviction court.

Marquica L. Beasley Et Al. v. Jae Nails Bar, LLC
M2022-01330-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is a premises liability action in which the plaintiff slipped and fell while she was walking to a pedicure station in a nail salon. Two principal issues are presented. First, the plaintiff contends that the trial court erred by denying her Tenn. R. Civ. P. 34A.02 motion for spoliation of evidence by finding that the defendant was not put on notice that a video recording from a surveillance camera in the nail salon was relevant to pending or reasonably foreseeable litigation. Second, the plaintiff contends that the trial court erred by summarily dismissing her complaint on the basis that there was no proof that the defendant had created the allegedly hazardous condition in the nail salon or that the defendant had actual or constructive notice of the condition. We affirm.

State of Tennessee v. Robert Leroy Littleton, III
E2022-00858-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lisa N. Rice

The defendant, Robert Leroy Littleton, III, appeals his Johnson County Criminal Court
convictions of first-degree murder, especially aggravated kidnapping, conspiracy to
commit especially aggravated kidnapping, extortion, and conspiracy to commit extortion,
arguing that the trial court erred by denying his motion to suppress his pretrial statements.
Because the defendant’s motion for new trial was untimely filed, we dismiss the appeal.

Aurora Loan Services, LLC, et al. v. Frederick J. Elam, et al.
W2023-00905-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Kasey Culbreath

The notice of appeal in this case was not timely filed. Therefore, this Court lacks
jurisdiction to consider this appeal.

State of Tennessee v. Jerry L. Dismukes
E2022-01517-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge G. Scott Green

A Knox County jury convicted Defendant, Jerry L. Dismukes, of possession of more than fifteen grams of heroin with intent to sell or deliver; possession of less than 200 grams of fentanyl with intent to sell or deliver; possession of more than twenty-six grams of a substance containing cocaine with intent to sell or deliver; and possession of drug paraphernalia. On appeal, Defendant argues that the trial court provided the improper remedy when it modified one of his convictions to a lesser offense after the jury’s verdict. Defendant also argues that there was insufficient evidence to prove an unbroken chain of custody. The State argues that Defendant waived his first argument, and that the evidence was sufficient to establish an unbroken chain of custody. We agree with the State.

State of Tennessee v. Darious Gory
W2023-00062-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Chris Craft

A Shelby County jury convicted the defendant of rape of a child for which he received a
sentence of 60 years’ confinement as a career offender. On appeal, the defendant claims
the trial court erred in allowing the State, over the defendant’s objection, to dismiss the
second count of the indictment, aggravated sexual battery, at the close of its proof.
Additionally, the defendant asserts that the demonstrative aid used by the prosecutor during
jury voir dire constituted misconduct. The State insists that “it is within the State’s
prerogative” to dismiss count two and that by failing to object, the defendant has waived
his claim relating to the State’s voir dire. Upon our review of the record, the applicable
law, and the parties’ briefs, we affirm the judgment of the trial court.

Darrell Tipton, Et Al. v. William J. Wolfenbarger, Et Al.
E2022-01407-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Michael Sharp

This case stems from a dispute over a parcel of real property located in Monroe County,
Tennessee. Following a partition action and sale of the property, the trial court entered an
order dividing the sale proceeds between several parties that the trial court determined had an interest in the property at the time of the sale. One of those parties appeals, arguing that it is entitled to a bigger portion of the sale proceeds. Discerning no error, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded

Hartwell D. Price v. State of Tennessee
M2022-01556-CCA-R3-HC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Chancellor Christopher V. Sockwell

The Appellant, Hartwell D. Price, appeals the trial court’s summary dismissal of his petition for habeas corpus relief. The State has filed a motion asking this Court to affirm pursuant to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Lee Ann Polster v. Russell Joseph Polster
M2022-01432-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Ted A. Crozier

In the prior appeal of this case, a husband’s argument regarding the division of assets/unconscionability of the marital dissolution agreement was deemed waived because it was not raised in the trial court. The case was remanded for a determination of attorney’s fees. The husband attempted to bring the issue up again on remand, and the trial court refused to consider them. We affirm based on waiver and the narrow scope of the remand.

State of Tennessee v. Hamid Houbbadi
M2022-01751-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Robert Bateman

The Defendant, Hamid Houbbadi, was convicted by a Montgomery County Circuit Court jury of first degree premediated murder, first degree felony murder, and especially aggravated burglary, for which he received an effective sentence of life plus twelve years. The Defendant raises three issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court erred by admitting orders of protection the victim obtained against the Defendant; and (3) whether the trial court erred in imposing a twelve-year sentence for his especially aggravated burglary conviction and ordering that it be served consecutively to his life sentence. Based on our review, we affirm the judgments of the trial court.

State of Tennessee v. Deirdre Marie Rich
M2022-00435-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Larry J. Wallace

Defendant, Deirdre Marie Rich, appeals from her conviction for first degree premediated murder, for which she received a sentence of life imprisonment. Defendant contends that: (1) the evidence is insufficient to support her conviction; (2) the trial court erred by failing to instruct the jury on self-defense; and (3) the trial court erred in admitting entries from the victim’s ex-wife’s journal in violation of Defendant’s right to confrontation. Following a thorough review, we affirm the judgment of the trial court.

The State Of Tennessee on behalf of Bledsoe County, Tennessee Et Al v. Whoriskey, Inc.
E2023-00505-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Melissa Thomas Willis

This appeal arises from an action to recover delinquent ad valorem real property taxes.
Whoriskey, Inc., which currently owns the property, raises numerous challenges to the
proposed delinquent tax sale. In principal part, it asserts that the property at issue was not
subject to taxation during the relevant tax period, 2017 and 2018, because it claims that,
during that time, the property was owned by the United States Government through a
federal forfeiture. Further, Whoriskey contends that Bledsoe County and the City of
Pikeville are barred from recovering back taxes because they failed to assert a claim in
federal court. The trial court found no factual or legal basis to support Whoriskey’s
contentions and determined that the County and City could proceed with the delinquent tax sale to recover ad valorem real property taxes on the subject real property for the tax years 2017 and 2018. This appeal followed. We affirm.

In Re Aubria H. et al.
M2023-00329-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Haylee Bradley-Maples

This appeal involves the termination of a mother’s parental rights to two minor children. The trial court concluded that several grounds for termination existed and that the termination of the mother’s parental rights was in the best interests of the children. Although we vacate two grounds for termination, we affirm the trial court’s reliance on the remaining grounds for termination and its best interests determination. The trial court’s termination of the mother’s parental rights is accordingly affirmed.

Corey Andrew Tate v. Andrea Nicole Jones
E2022-01524-COA-R3-JV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Timothy E. Irwin

This is an appeal by Father of a judgment rendered against him for child support. Because
the final judgment does not provide adequate findings of fact and conclusions of law for
this Court to conduct a proper review, we are unable to adequately address Father’s issues
on appeal. Therefore, we remand the case back to the trial court for the entry of a judgment
compliant with Rule 52.01 of the Tennessee Rules of Civil Procedure.

Elvin Pearson v. State of Tennessee
M2021-01560-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Monte Watkins

A Davidson County jury convicted the Petitioner, Elvin Pearson, of one count of felony murder and two counts of attempted first degree murder, for which he received an effective sentence of life imprisonment. He filed a timely petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, pro se, he contends that the post-conviction court erred when it denied him relief because: (1) the trial court committed plain error when it failed to give correct and complete jury instructions, denied his judgment of acquittal, and merged the offense of attempted voluntary manslaughter into felony murder; (2) he was deprived of his Sixth Amendment right to the effective assistance of counsel based on trial counsel’s failure to move to dismiss the indictment; and (3) the State violated Brady v. Maryland, 373 U.S. 83, 87 (1963), by failing to disclose a witness prior to trial. He further contends that: (4) his post-conviction counsel deprived him of a full and fair post-conviction hearing by not presenting the mother of his children, Diane Reid, as a witness, not asking trial counsel questions relevant to his issues, and failing to investigate the subject matter of his questions; and (5) the post-conviction court erred when it did not allow post-conviction counsel to withdraw from the case and denied the Petitioner the opportunity to address the court. Upon review, we affirm the post-conviction court’s judgment.

Elvin Pearson v. State of Tennessee (dissenting)
M2021-01560-CCA-R3-PC
Authoring Judge: Presiding Judge Camille R. McMullen
Trial Court Judge: Judge Monte Watkins

An attorney’s failure to fulfill a promise made in opening statements “may be justified when ‘unexpected developments warrant changes in previously announced trial strategies.’” United States ex rel. Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003) (quoting Ouber v. Guarino, 293 F.3d 19, 29 (1st Cir. 2002) (emphasis added)). Otherwise, “little is more damaging than to fail to produce important evidence that had been promised in an opening [statement].” Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988), aff’d sub nom. Commonwealth v. Anderson, 408 Mass. 803, 563 N.E.2d 1353 (1990). The reason being that the jury may infer that the testimony would have been adverse to the defendant and may also question the attorney’s credibility. Hampton, 347 F.3d at 259. Because the record in this case clearly shows that no unexpected developments occurred which justified trial counsel’s decision not to call Reid, the only alibi witness, as promised in the opening statement, I must part ways with the majority and respectfully dissent.