Court Opinions

Format: 05/23/2018
Format: 05/23/2018
Debbie H. Morrow v. Gault Financial, LLC
M2017-01602-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Thomas W. Brothers

This case was originally filed in general sessions court. The general sessions court entered a default judgment against Appellant in the amount of $8,066.04 on January 27, 2012. In September of 2015, Appellant filed a motion for relief from the general sessions judgment, alleging that the judgment was void because she was not properly served with the civil warrant. The general sessions court denied the motion, and Appellant appealed to the circuit court. The circuit court vacated the general sessions’ default judgment finding that Appellant was not properly served but remanded the case to general sessions for a trial on the merits. Because the general sessions court lacked personal jurisdiction over Appellant, we conclude that the default judgment entered in the general sessions court is void. Accordingly, we affirm the circuit court’s order vacating the default judgment, but reverse the circuit court’s remand of the case to general sessions court, and instead we remand to the circuit court with instructions to dismiss the case.

Davidson County Court of Appeals 05/17/18
In re Estate of John Tyler McKelvey
M2017-01298-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr., P.J., M.S.
Trial Court Judge: Senior Judge Don R. Ash

This appeal arises from a declaratory judgment action seeking to determine whether the decedent died intestate. The decedent executed a will in 2005 and executed another will in 2011, which expressly revoked all prior wills and codicils. Following the decedent’s death in 2016, the original of the 2011 will could not be located; however, the original of the 2005 will was found in the decedent’s personal filing cabinet. The decedent’s children then filed a Petition to Open Estate and [for] Declaratory Relief, seeking a declaration that the decedent died intestate. The decedent’s live-in companion of approximately 30 years, and a beneficiary under both wills, filed an answer, contending that the decedent died testate under either the 2005 or the 2011 will. At the trial, the decedent’s companion conceded that she did not have evidence to overcome the presumption that the decedent revoked the 2011 will; thus, the trial focused on whether the decedent intended to revive his 2005 will upon revoking the 2011 will. The trial court found “there is no proof Decedent revoked the 2011 Will with the intent to execute a later will,” and “[g]iven the preservation and nearby-safekeeping of the 2005 Will following revocation of the 2011 Will and the lack of evidence indicating a contrary intent, the Court concludes Decedent intended to revive his 2005 Will.” We affirm.

Franklin County Court of Appeals 05/17/18
State of Tennessee v. Trevor Wallace
M2017-01511-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge David D. Wolfe

The State of Tennessee appeals from the Houston County Circuit Court’s order granting the Defendant, Trevor Wallace’s, motion to dismiss the indictment charging him with driving under the influence. See T.C.A. § 55-10-401(a) (Supp. 2014) (amended 2015). The trial court granted the motion on the basis that the indictment failed to state an offense. The State contends that the trial court erred in granting the motion to dismiss. We reverse the judgment of the trial court and remand the case for further proceedings.

Houston County Court of Criminal Appeals 05/17/18
Michelle Kay (Clark) Love v. James Terrill Clark - Dissenting
E2017-01138-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Rex A. Dale

Originally, I was assigned the task of drafting an opinion in this case. I circulated my draft to the other panel judges, the Honorable W. Neal McBrayer and the Honorable Arnold B. Goldin. Judges McBrayer and Goldin do not agree with me “that the voluntary payment doctrine barred recovery.” I have read the majority opinion drafted by Judge McBrayer and concurred in by Judge Goldin. I now formally dissent from that majority opinion.

Loudon County Court of Appeals 05/17/18
Michelle Kay (Clark) Love v. James Terrill Clark
E2017-01138-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Rex A. Dale

A mother obtained a default judgment against her former spouse for child support arrearages and other amounts. At the mother’s request, the trial court entered orders of income assignment to the former spouse’s employers, each directing them to deduct a set amount from the former spouse’s salary to satisfy the default judgment. Nearly fourteen and one-half years later, the former spouse asked the court to terminate the wage assignment, claiming the culmulative amount deducted from his income exceeded the amount of judgment plus interest. The former spouse also sought a judgment against the mother to the extent she had received more than she was entitled to under the default judgment. The mother argued that the voluntary payment doctrine barred recovery. The trial court found that the former spouse’s “overpayments were made with full knowledge of the facts chargeable to him” but that they “were not voluntary payments.” Accordingly, the court entered judgment against mother plus statutory post-judgment interest.

Loudon County Court of Appeals 05/17/18
In re: Justin P., et al
M2017-01544-COA-R3-PT
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor J.B. Cox

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights on the ground of: abandonment by willful failure to visit. Appellant also appeals the trial court’s finding that termination of her parental rights is in the children’s best interests. Because Appellee/Father thwarted Appellant’s attempts to visit the children, we conclude that Appellees failed to meet their burden to show, by clear and convincing evidence, that Appellant abandoned the children. Accordingly, we reverse the order terminating Appellant’s parental rights.

Moore County Court of Criminal Appeals 05/17/18
Margaret Smith v. HSBC Mortgage Services, Inc., et al.
W2017-00526-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal arises out of protracted litigation following a foreclosure sale. The plaintiff asserted claims against the mortgage holder and the purchaser at the foreclosure sale for breach of contract, breach of the implied duty of good faith and fair dealing, improper foreclosure, and fraud. The trial court dismissed each of the claims, and the plaintiff appeals. Due to the deficiencies in the plaintiff’s brief on appeal, we conclude that she has waived consideration of any issues and hereby dismiss the appeal.

Shelby County Court of Appeals 05/17/18
State, ex rel., Jana Ruth Alford Nichols v. Randall Nelson Songstad
W2016-02011-COA-R3-JV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Special Judge Nancy Percer Kessler

Father unilaterally modified his child support obligation without submitting a petition to modify to the trial court because his oldest child emancipated. The trial court found that Father had impermissibly modified his child support obligation based, inter alia, on the fact that Father failed to follow the Child Support Guidelines. Discerning no error, we affirm the trial court’s judgment.

Shelby County Court of Appeals 05/17/18
In Re: The Estate of Louise J. Aslinger
E2017-01371-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge William T. Ailor

This action involves a will contest in which the decedent’s daughter alleged that the current will was void due to either undue influence or lack of mental capacity. The case proceeded to a jury trial, after which the jury invalidated the will. We affirm.

Knox County Court of Appeals 05/17/18
John Edwards v. Paula Renee Herman
E2017-01206-COA-R9-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge John D. McAfee

In this personal injury action arising from an automobile-motorcycle accident, the trial court granted the plaintiff’s motion to enlarge the time allowed to obtain service of process on the defendant upon finding that the plaintiff’s failure to timely obtain service of process had been due to excusable neglect. Consequently, the trial court in the same order denied the defendant’s motion to dismiss the plaintiff’s complaint for lack of service. Upon the defendant’s subsequent motion, the trial court granted permission for an interlocutory appeal, as did this Court. Upon review of the issues certified by the trial court, we affirm the trial court’s utilization of Tennessee Rule of Civil Procedure 6.02 as a method of enlarging the timeframe for issuance and service of process, pursuant to Tennessee Rule of Civil Procedure 3, when the complaint was timely filed and when excusable neglect can be demonstrated. However, having concluded that the trial court made insufficient findings and conclusions regarding excusable neglect in this matter, we vacate the trial court’s determination on that issue and remand this matter to the trial court for further proceedings consistent with this opinion. We also vacate the trial court’s determination that the defendant would be estopped from asserting a defense based on the statute of limitations because the parties had no express agreement waiving service of process in this matter.

Campbell County Court of Appeals 05/16/18
State of Tennessee v. Steven Davis
W2017-02125-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

The Petitioner, Steven Davis, appeals the post-conviction court’s dismissal of his petition as time-barred, arguing that he delivered his petition to the designated employee in the prison mail room in a timely manner. Following our review, we affirm the summary dismissal of the petition.

Shelby County Court of Criminal Appeals 05/16/18
Robert A. Hanks, et al v. First American Title Insurance Company
M2017-00560-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swinery
Trial Court Judge: Chancellor Louis W. Oliver, III

Robert A. Hanks and Lee E. Hanks (“Plaintiffs”) sued First American Title Insurance Co. (“First American”) for breach of contract with regard to an owner’s title insurance policy (“Title Policy”). First American filed a motion for summary judgment. After a hearing, the Chancery Court for Sumner County (“the Trial Court”) granted summary judgment to First American after finding and holding, inter alia, that the Title Policy excluded any claim pursuant to either federal bankruptcy code or Tennessee law for an alleged fraudulent conveyance, fraudulent transfer, or preferential transfer. Plaintiffs appeal the grant of summary judgment to this Court. We find and hold that First American made a properly supported motion for summary judgment demonstrating that Plaintiffs’ evidence is insufficient to establish an essential element of their claim and that Plaintiffs failed to demonstrate that there are genuine disputed issues of material fact with regard to the claims for fraudulent conveyance or fraudulent transfer. We further find and hold that the claim for post-petition transfer is not excluded from coverage pursuant to exclusion 4 of the Title Policy, and, therefore, summary judgment on the post-petition claim was improper. We, therefore, affirm the grant of summary judgment, in part, and reverse it, in part, and remand this case to the Trial Court for further proceedings consistent with this Opinion.

Sumner County Court of Appeals 05/16/18
Fredrick Sledge v. Tennessee Department of Corrections, et al
M2017-01510-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Claudia C. Bonnyman

Fredrick Sledge (“Petitioner”) appeals the June 16, 2017 order of the Chancery Court for Nashville and Davidson County (“the Trial Court”) dismissing Petitioner’s October 2016 petition for declaratory judgment (“2016 Petition”) based upon the prior suit pending doctrine. We find and hold that the prior suit pending doctrine applies as Petitioner had a prior suit pending involving the same parties and the same subject matter in a court that had both personal and subject matter jurisdiction. We, therefore, affirm the Trial Court’s June 16, 2017 order dismissing Petitioner’s petition.

Davidson County Court of Appeals 05/16/18
Dana Looper v. City of Algood
M2016-01880-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Larry B. Stanley, Jr.

Former police officer appeals the denial of her petition for a writ of certiorari and the denial of her motion for relief from a final judgment related to the termination of her employment. Here, the evidence was undisputed that the former police officer neglected her duties, failed to follow the directive of a “superior” and was repeatedly informed about various instances of misconduct. As such, the city administrator’s decision to uphold Appellant’s dismissal was supported by material evidence and was neither arbitrary, illegal, nor capricious.

Putnam County Court of Appeals 05/16/18
State of Tennessee v. Steven O. Summers, II
M2017-01030-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Deanna B. Johnson

A Lewis County jury convicted the Defendant, Steven O. Summers, II, of theft of more than $1,000, and the trial court sentenced him to four years on probation and ordered him to pay restitution to the victim. In this appeal, the Defendant contends that: (1) the trial court erred when it failed to excuse certain members of the jury pool for cause; (2) the evidence is insufficient to support his conviction; and (3) the trial court ordered the Defendant to pay an incorrect amount of restitution and failed to follow the proper procedure when it determined restitution. After review, we affirm the trial court’s judgment.

Lewis County Court of Criminal Appeals 05/16/18
State of Tennessee v. Andrew McMurray, Jr.
M2017-001139-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Steve Dozier

The Defendant, Andrew McMurray, Jr., appeals the revocation of his community corrections sentence and the trial court’s order that he serve the remainder of his sentence in prison. After a thorough review of the record and the applicable law, we discern no abuse of discretion, and we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 05/16/18
State of Tennessee v. Daniel Lee Mooneyhan
M2016-00476-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Franklin L. Russell

The Defendant, Daniel Lee Mooneyhan, appeals his Bedford County convictions for Count 1: aggravated burglary, and Counts 2 and 4: theft of property between the value of $1,000 and $10,000, for which he received an effective sentence of five years with a 30% release eligibility, to serve in the Department of Correction. The Defendant contends that the evidence presented at trial was insufficient to support his convictions in Counts 1, 2, and 4 because the State offered no independent evidence to corroborate an accomplice’s testimony about the Defendant’s involvement in the offenses. The Defendant does not appeal his conviction in Count 3, felon in possession of a handgun. Upon review, we affirm the judgments of the convictions, but remand for merger of Counts 2 and 4.

Bedford County Court of Criminal Appeals 05/16/18
Scott L. Bishop v. State of Tennessee
W2017-00709-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Petitioner, Scott L. Bishop, was convicted of four counts of aggravated sexual battery and sentenced to serve eleven years in prison. The Petitioner filed a postconviction petition asserting that his trial counsel did not provide effective assistance, and the post-conviction court denied the petition after a hearing. On appeal, the Petitioner asserts that trial counsel was deficient in failing to present character witnesses, failing to object to leading questions asked by the prosecutor, and preventing him from viewing the victim’s recorded forensic interview. After a thorough review of the record, we conclude that the Petitioner is not entitled to relief, and we affirm the post-conviction court’s judgment.

Madison County Court of Criminal Appeals 05/15/18
State of Tennessee v. Alando Deshaun Brown
W2017-01397-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Jeff Parham

On April 1, 2016, the Obion County Grand Jury indicted the Defendant, Alando Deshaun Brown, on two counts of rape. A jury convicted the Defendant of both counts at trial. At the sentencing hearing, the trial court merged Count 2 into Count 1 and sentenced the Defendant to eight years in the Department of Correction, with release eligibility after service of 100% of the sentence for Count 1. The Defendant filed a timely motion for a new trial, which the trial court denied. The Defendant filed a timely notice of appeal, claiming insufficient evidence to support the verdict. Based on the evidence in the record, we affirm the trial court’s judgments.

Obion County Court of Criminal Appeals 05/15/18
State of Tennessee v. Ronnie Bradfield
W2017-01328-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Glenn Wright

The petitioner, Ronnie Bradfield, appeals from the summary dismissal of his pro se pleading, in which pleading the petitioner asked for relief via the writ of error coram nobis, the writ of habeas corpus, and Tennessee Rule of Criminal Procedure 36.1. Because the record supports the dismissal, we affirm.

Shelby County Court of Criminal Appeals 05/15/18
Carlos Prather v. State of Tennessee
W2017-01591-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Chris Craft

The petitioner, Carlos Prather, appeals the denial of post-conviction relief from his 2015 Shelby County Criminal Court guilty-pleaded convictions of vandalism of property valued at $1,000 or more but less than $10,000, for which he received an effective sentence of 10 years. In this appeal, the petitioner contends that his guilty pleas were not knowingly and voluntarily entered and that he was denied the effective assistance of counsel. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 05/15/18
State of Tennessee v. Moses A. Ballard, Jr.
E2017-00587-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Stacy L. Street

The Defendant, Moses A. Ballard, Jr., was indicted for unlawful possession of a firearm and first degree premeditated murder. See Tenn. Code Ann. §§ 39-13-202, -17-1307. The unlawful possession of a firearm charge was ultimately dismissed upon the State’s request. Following a jury trial, the Defendant was convicted of the lesser-included offense of second degree murder, a Class A felony. See Tenn. Code Ann. § 39-13-210. The trial court subsequently imposed a sentence of thirty-eight years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction; (2) that the trial court erred in allowing an expert witness to testify beyond the scope of her expertise; (3) that the trial court erred by not allowing recorded jail phone calls between the Defendant and two of the State’s witnesses to be introduced at trial; (4) that the trial court erred by not allowing “evidence regarding the gang affiliation of various involved parties” to be introduced at trial; (5) that the State committed a discovery violation by withholding evidence; (6) that the withheld evidence “amount[ed] to newly discovered evidence” requiring a new trial; and (7) that the trial court was unable to perform its duty as the thirteenth juror “due to the withheld evidence.” Following our review, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 05/15/18
Sandra Buttram v. Kenneth Ramsey
E2017-00937-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge J.B. Bennett

Kenneth Ramsey (“Defendant”), pro se, appeals the April 18, 2017 order of the Circuit Court for Hamilton County (“the Circuit Court”) granting Plaintiff’s motion to dismiss Defendant’s appeal from General Sessions Court to the Circuit Court. Defendant’s brief on appeal severely fails to comply with Tenn. R. App. P. 27. We, therefore, find that Defendant has waived his issues on appeal. We affirm the Trial Court’s April 18, 2017 order.

Hamilton County Court of Appeals 05/15/18
In Re: Samuel R., et al.
W2017-01359-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Jim Kyle

This appeal involves the termination of a father’s parental rights to his two children. The father suffers from paranoid schizophrenia. The trial court terminated his parental rights on the grounds of mental incompetence and abandonment by willful failure to visit and/or support. We reverse the trial court’s findings regarding abandonment but otherwise affirm the termination of parental rights.

Shelby County Court of Appeals 05/14/18
Family Trust Services, LLC, Et Al. v REO Holdings, LLC, Et Al.
M2016-02524-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ellen H. Lyle

This appeal of a conviction for criminal contempt arises out of a civil suit brought by business owners against the owners and employees of a competing business for fraud in the use of the tax-sale and redemption process for real property. The trial court issued a temporary injunction, prohibiting defendants from, inter alia, recording deeds in real estate transactions without an authentic notary seal on the documents and requiring defendants to notify the court and opposing counsel of any documents they intended to record in the Register’s Office. Appellant, the owner of the business which was the subject of the injunction, subsequently formed a trust in which Appellant retained the right to direct the distribution of income and principal and to amend, revoke, or terminate the trust. The trustee of the trust was conveyed real property in trust and recorded the deed without the notice required by the injunction. The property was subsequently sold, and, at Appellant’s instruction, a portion of the proceeds of sale used to pay Appellant’s legal fees for a related proceeding; the trial court held that, in so doing, the Appellant willfully and for a bad purpose violated the injunction, and held him in contempt. On appeal, Appellant argues that the evidence is insufficient to support the conviction. We have reviewed the record and conclude that there is evidence to support the contempt conviction beyond a reasonable doubt and accordingly affirm the judgment.

Davidson County Court of Appeals 05/14/18