Court Opinions

Format: 07/23/2019
Format: 07/23/2019
Rex A. Ferguson v. Tennessee Board of Parole
M2018-01784-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Ellen H. Lyle

This is an appeal from the judgment of the trial court denying an inmate’s petition for writ of certiorari challenging the Tennessee Board of Parole’s denial of parole. The inmate contends the Board’s decision to deny parole based solely on the seriousness of the offense was arbitrary and capricious, and the trial court abused its discretion in denying his petition. More specifically, he contends that denying parole on the basis of one factor, the seriousness of the offenses, “in the face of so many positive factors, without an explanation of how these positive factors do not outweigh the seriousness of the offense, constitutes an arbitrary and capricious decision contrary to the weight of the evidence in the record.” Having determined that “‘seriousness of the offense’ is a proper, independent basis to deny parole release,” the trial court denied the petition for writ of certiorari. Because the seriousness of the offense is a proper, independent basis for denying parole under Tenn. Code Ann. § 40-35-503(b)(2), and the trial court did not abuse its discretion in denying the petition, we affirm.

Davidson County Court of Appeals 07/09/19
Larry Daniel Cantey v. Alyson Lindsay Cantey (Violette)
W2018-01331-COA-R3-CV
Authoring Judge: Judge Carma D. McGee
Trial Court Judge: Chancellor George R. Ellis

This appeal involves a petition to modify an agreed permanent parenting plan. The trial court denied the petition. We conclude that the trial court’s order does not contain sufficient findings of fact and conclusions of law. We vacate the order of the trial court and remand for entry of an appropriate order.

Gibson County Court of Appeals 07/09/19
State of Tennessee v. Daron Hall
E2018-00699-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

After a bifurcated jury trial, Defendant, Daron Hall, was found guilty of three counts of possession of a firearm by a felon, one count of aggravated assault, one count of attempted voluntary manslaughter, and two counts of employing a firearm during the commission of a dangerous felony. Defendant received an effective sentence of twentyfive years. After the denial of a motion for new trial, Defendant appeals to this Court arguing: (1) that the trial court erred by instructing the jury on attempted voluntary manslaughter; (2) the trial court erred by admitting the 911 tapes into evidence; and (3) the evidence was insufficient to support the conviction for attempted voluntary manslaughter. After a review, we determine the trial court did not abuse its discretion in admitting the 911 tapes into evidence, and the evidence was sufficient to support the conviction for attempted voluntary manslaughter. However, we remand the matter to the trial court for correction of the judgment forms to reflect the sentences as imposed by the trial court at the sentencing hearing.

Knox County Court of Criminal Appeals 07/08/19
State of Tennessee v. Kevin Todd Parton
E2018-01209-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

A jury convicted the Defendant, Kevin Todd Parton, of driving with a blood alcohol content of 0.08 percent or more (“DUI per se”) and driving under the influence of an intoxicant (“DUI”). The trial court merged the convictions and sentenced the Defendant to eleven months and twenty-nine days, with ten days to be served in confinement. The Defendant appeals, asserting that the trial court erred in denying a motion for a mistrial, that the trial court erred in admitting the results of the blood alcohol test, and that the arrest warrant was defective. After a thorough review of the record, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 07/08/19
In Re Joshua S.
E2018-01742-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Janice H. Snider

Daniel S. (“Father”) and Kimberly T. (“Mother”) appeal the August 27, 2018 order of the Hamblen County Juvenile Court (“Juvenile Court”) terminating their parental rights to the minor child, Joshua S. (“the Child”). Upon petition of the Tennessee Department of Children’s Services (“DCS”), the Juvenile Court terminated the parents’ rights on the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody or financial responsibility for the Child. The Juvenile Court also terminated Mother’s parental rights on the ground of persistent conditions and Father’s parental rights on the ground of abandonment by wanton disregard. Upon its determination that grounds existed to terminate the parents’ rights to the Child, the Juvenile Court determined that termination of both parents’ rights was in the best interest of the Child. Discerning no error, we affirm.

Hamblen County Court of Appeals 07/08/19
Christina Klepper Neely v. Brian Richard Neely
E2017-01807-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor E.G. Moody

Mother moved to hold Father in criminal contempt for his failure to pay child support in full each month. After finding a failure to pay child support as ordered, the court held father in criminal contempt. Because the order contains insufficient findings of fact, we vacate the judgment and remand for further proceedings.

Sullivan County Court of Appeals 07/08/19
Deanna Whitman v. State of Tennessee
M2018-01701-CCA-R3-CO
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Larry B. Stanley, Jr.

The defendant, Deanna Whitman, appeals the denial of her motion, filed pursuant to Tennessee Rule of Criminal Procedure 36, to correct a clerical error in her judgments. Specifically, the defendant asserts that the judgments fail to adequately reflect the number of pretrial jail credits awarded by the trial court. Discerning no error, we affirm.

Warren County Court of Criminal Appeals 07/08/19
State of Tennessee v. Jaime F. Zarate
E2017-02553-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Barry A. Steelman
Defendant, Jaime F. Zarate, was convicted of rape of a child by a Hamilton County jury. The trial court imposed a sentence of thirty years at one-hundred percent to be served in the Department of Correction. On appeal, Defendant argues that the evidence was insufficient to support his conviction, that the prosecutor improperly misstated evidence during closing arguments, that the trial court erred by admitting the victim’s statement to her mother and by admitting the 911 call, and that the trial court improperly sentenced him. After a thorough review of the record, we affirm the judgment of the trial court.
 
Hamilton County Court of Criminal Appeals 07/05/19
The Wolf Organization, Inc. v. TNG Contractors, LLC
M2018-00073-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Kelvin D. Jones

Judgment creditor petitioned to enforce Pennsylvania default judgment under the Uniform Enforcement of Foreign Judgments Act. See Tenn. Code Ann. §§ 26-6-101 to -108 (2017). Judgment debtor moved for summary judgment, claiming that the Pennsylvania judgment was void because the court lacked personal jurisdiction. The trial court denied the judgment debtor’s motion for summary judgment and later granted summary judgment to the judgment creditor. The trial court also denied the judgment creditor’s subsequent motion to supplement the balance of the judgment to include post-judgment attorney’s fees and expenses. Both parties raise issues on appeal. We conclude that the judgment debtor waived its personal jurisdiction defense in the Pennsylvania court. We further conclude that the judgment creditor could not seek an award of post-judgment attorney’s fees and expenses in this enforcement action. So we affirm

Davidson County Court of Appeals 07/03/19
State of Tennessee v. Kevin M. Thompson a/k/a Kevin M. Albert
E2018-91596-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Kevin M. Thompson, appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Defendant contends that the trial court erred when it ordered him to serve his sentences concurrently rather than consecutively. See State v. Kevin Montrell Thompson, No. E2016-01565-CCA-R3-CD, 2017 WL 262701, at *1 (Tenn. Crim. App., at Knoxville, Jan. 20, 2017), no Tenn. R. App. P. 11 application filed. He further contends that his charge for possession of cocaine should be dismissed because the term “crack” cocaine is not included in the relevant statute. He finally asserts that, even if his sentences have expired, he is entitled to contest his illegal sentence at any time. After review, we affirm the trial court’s judgment.

Hamilton County Court of Criminal Appeals 07/03/19
Hem Raj Singh v. Neeta Singh
W2017-02091-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge James F. Butler

Wife/Appellant appeals the trial court’s grant of a divorce to Husband/Appellee. Wife argues that the divorce should be set aside because the trial court lacked subject matter jurisdiction and/or lacked personal jurisdiction over Wife. Wife also asserts that she was not properly served with the complaint for divorce. Because Wife filed an answer and counter-complaint for divorce, without objecting to in personam jurisdiction, she submitted to the jurisdiction of the trial court; her filing of an answer also indicates that she was served with the complaint for divorce. Because Husband/Appellee had resided in Tennessee for more than six months before filing his complaint for divorce, Tennessee Code Annotated section 36-4-101(a) conferred subject matter jurisdiction to the trial
court. Affirmed and remanded.

Madison County Court of Appeals 07/03/19
Phillip Williams v. State of Tennessee
W2018-02074-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Donald H. Allen

Petitioner, Phillip Williams, appeals from the denial of his petition for post-conviction relief. Because Petitioner failed to establish that he received ineffective assistance of counsel and/or that his guilty plea was unknowing and involuntary, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 07/03/19
State of Tennessee v. Lawrence Dewayne Stoner
W2018-01230-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Charles C. McGinley

The Defendant was convicted by a jury of three counts of tampering with governmental records and three counts of official misconduct after improperly entering jail credits during his employment as lieutenant over corrections in the Benton County Sheriff’s Department. After the verdict, the trial court entered a written order granting the Defendant judgments of acquittal on the three counts of official misconduct and dismissing the counts on the basis that any benefit did not accrue to the Defendant. On appeal, the State argues that the trial court erred in granting the judgments of acquittal. The Defendant asserts that the notice of appeal was untimely and that the trial court properly granted judgments of acquittal. After due consideration, we waive the timely notice of appeal, and we conclude that the trial court erred in its interpretation of the statute. Accordingly, we reverse the granting of judgments of acquittal and remand for further proceedings.

Benton County Court of Criminal Appeals 07/03/19
Christopher Minor v. State of Tennessee
W2018-02073-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The petitioner, Christopher Minor, appeals the denial of his petition for post-conviction relief, which petition challenged his Madison County Circuit Court jury convictions of felony murder, aggravated robbery, aggravated burglary, aggravated assault, and employing a firearm during the commission of a dangerous felony. In this appeal, the petitioner reiterates his claim that he was deprived of the effective assistance of counsel. Because the petitioner has failed to establish that he is entitled to post-conviction relief, we affirm.

Madison County Court of Criminal Appeals 07/03/19
Andres Perez v. Tennessee Board of Medical Examiners
M2018-00960-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Ellen H. Lyle

This case arose out of the Petitioner/Appellant’s attempts to become a licensed physician in Tennessee. Appellant sent an application to the Tennessee Board of Medical Examiners but was ultimately rejected. After a contested hearing, the Board again determined that Appellant’s application should be rejected since Appellant had not engaged in direct patient care in many years. Thereafter, Appellant sought review of the Board’s decision in the Chancery Court of Davidson County pursuant to the Tennessee Uniform Administrative Procedures Act. The chancery court concluded that Appellant was not entitled to relief, and Appellant appealed to this Court. Discerning no error, we affirm. 

Davidson County Court of Appeals 07/03/19
Cynthia P. Lack v. Saint Thomas Rutherford Hospital
M2018-00879-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Senior Judge Robert E. Lee Davies

This appeal involves a visitor at a hospital who was injured when she slipped and fell in an icy parking lot. The visitor filed a claim against the hospital asserting that the hospital was negligent in failing to remedy the dangerous condition created by accumulated ice because the hospital did not take steps to prevent melted snow and ice from refreezing prior to the incident. The hospital filed a motion for summary judgment and, after determining that the hospital did not have a duty to prevent melted snow and ice from refreezing, the trial court granted the hospital’s motion. We affirm in part and reverse in part.

Rutherford County Court of Appeals 07/03/19
Mary Alice Akins v. Griff Elliott Akins
M2017-00594-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Charles K. Smith

In this appeal, the father sought to revise the permanent parenting plan in order to permit him greater participation in the life of his daughter. The trial court denied the requested revision, finding that the father had failed to prove by a preponderance of the evidence that there had been a material change in circumstances that affected the child’s best interest. The father appeals. We affirm the trial court’s ruling regarding the permanent parenting plan, but we vacate the award of attorney’s fees and costs.

Wilson County Court of Appeals 07/03/19
State of Tennessee v. Coy Jewel Mayberry
E2018-01597-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Carter S. Moore

A Cocke County jury found the Defendant, Coy Jewel Mayberry, guilty of rape of a child, and the trial court sentenced the Defendant to forty years of incarceration. The Defendant contends that the evidence is insufficient to sustain his conviction and that the trial court erred when it imposed the maximum allowable sentence. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Cocke County Court of Criminal Appeals 07/02/19
Joe Michael Turner v. State of Tennessee
E2018-01871-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Bobby R. McGee

A Knox County jury convicted the Petitioner, Joe Michael Turner, of two counts of aggravated rape, one count of especially aggravated kidnapping, three counts of aggravated kidnapping, and one count of aggravated assault, and the trial court imposed an effective sentence of 100 years. In 2017, the Petitioner filed a writ of error coram nobis, claiming newly discovered evidence in the form of a letter from the District Attorney’s office notifying him of a police officer’s misconduct. The trial court dismissed the petition finding the Petitioner had not presented a colorable claim. The Petitioner appeals, maintaining that he is entitled to relief. After review, we affirm the trial court.

Knox County Court of Criminal Appeals 07/02/19
Yasin Solomon Hawkins v. State of Tennessee
M2018-02155-CCA-R3-ECN
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

After a bench trial, a trial judge convicted the Petitioner, Yasin Solomon Hawkins, of aggravated robbery and sentenced him as a career offender to thirty years in the Tennessee Department of Correction. The Petitioner appealed his conviction presenting only the issue of whether the trial court erred when it denied his motion to suppress his statement to police. This Court affirmed the trial court’s judgment. State v. Yasin S. Hawkins, No. M2017-02439-CCA-R3-CD, 2018 WL 4520949 (Tenn. Crim. App., at Nashville, Sept. 20, 2018), perm. app. denied (Tenn. Jan. 16, 2019). The Petitioner then filed a timely petition for writ of error coram nobis alleging that his arrest warrants were newly discovered evidence and that they were procedurally flawed and invalid. The trial court summarily dismissed the petition finding that the arrest warrants were not newly discovered evidence and that, even if the warrants were flawed, any defect was cured by the indictments. After review, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 07/02/19
Marian Neamtu v. Iveta Neamtu
M2019-00409-COA-T10B-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Philip E. Smith

This is an accelerated interlocutory appeal from the trial court’s denial of Appellant’s motion for recusal. Because the record contains insufficient evidence of bias requiring recusal under Tennessee Supreme Court Rule 10B, we affirm.

Davidson County Administration 07/02/19
State of Tennessee v. Larry Charles Hefner, Jr.
E2018-01164-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Bobby R. McGee

Defendant, Larry Charles Hefner, Jr., was convicted following a jury trial of Class D felony burglary. The trial court sentenced Defendant as a career offender to twelve years to be served on community corrections. On appeal, Defendant claims that “burglary is applicable only to entry into buildings ‘not open to the public,’” that the trial court failed to instruct the jury on the lesser included offense of attempted theft, and that the trial court failed to properly instruct the jury as to the elements of burglary. After a thorough review of the record, the briefs, and applicable law, we affirm the judgment of conviction.

Knox County Court of Criminal Appeals 07/02/19
Board of Professional Responsibility of The Supreme Court of Tennessee v. Loring Edwin Justice
E2017-01334-SC-R3-BP
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Senior Judge Robert E. Lee Davies

This lawyer-disciplinary proceeding stems from a Knoxville attorney’s conduct in a federal personal injury lawsuit where the attorney represented the plaintiff. The federal district court imposed a discovery sanction against the corporate defendant and ordered it to pay the attorney’s fees and costs the plaintiff had incurred in locating and deposing a witness the corporate defendant failed to disclose. When the plaintiff’s lawyer submitted an itemization of fees and costs to the federal district court, the lawyer falsely claimed as his own work the work that a paralegal had performed. The lawyer also submitted a written declaration along with the itemization falsely claiming that he had kept contemporaneous records of his time in the case and attesting to the truth and accuracy of the itemization. The lawyer also requested in the itemization “grossly exaggerated and unreasonable” attorney’s fees of more than $103,000 for work beyond the scope of the federal district court’s order. Later, the lawyer testified falsely in a hearing before the federal district court by reaffirming the truth and accuracy of the itemization and the written declaration. A Hearing Panel of the Board of Professional Responsibility (“Hearing Panel”) determined that the lawyer had violated four provisions of the Tennessee Rules of Professional Conduct (“RPC”)—RPC 1.5(a) (Fees); RPC 3.3(a) (Candor Toward the Tribunal); RPC 3.4(b) (Fairness to Opposing Party and Counsel); and RPC 8.4(a) and (c) (Misconduct). The Hearing Panel found six aggravating and two mitigating factors and sanctioned the lawyer with a one-year active suspension and twelve additional hours of ethics continuing legal education. The Board of Professional Responsibility (“Board”) and the lawyer appealed to the Chancery Court for Knox County. Tenn. Sup. Ct. R. 9, § 1.3. The trial court affirmed the Hearing Panel’s findings of fact and conclusions of law but modified the sanction to disbarment. The trial court concluded that Standard 5.11 of the ABA Standards for Imposing Lawyer Sanctions (“ABA Standards”), which identifies disbarment as the presumptive sanction, applies and that the aggravating and mitigating factors do not warrant a lesser sanction than disbarment. The lawyer appealed, and after carefully reviewing the record and applicable authorities, we affirm the trial court’s judgment in all respects, including its modification of the sanction to disbarment. 

Knox County Supreme Court 07/02/19
State of Tennessee v. Jamar Laquinn Fraizer
E2018-00202-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge G. Scott Green

The Defendant, Jamar Laquinn Frazier, was convicted by a Knox County Criminal Court jury of first degree premeditated murder. See T.C.A. § 39-13-202 (2014). He received a life sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting evidence in violation of the Tennessee Rules of Evidence, and (3) the trial court erred by providing a jury instruction on flight. Although we conclude that the evidence is sufficient to support the Defendant’s conviction, we conclude that the trial court erred by admitting evidence related to the Defendant’s previous gun possession and to the Defendant’s possible involvement in the killing of a witness to the shooting in this case. We reverse the judgment of the trial court and remand the case for a new trial.

Knox County Court of Criminal Appeals 07/01/19
Andy Aylor v. Fred Carr, Et Al.
M2018-01836-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal arises from the trial court’s award of attorneys’ fees to three state employee defendants. The plaintiff, also a state employee, sued the defendants in their individual and official capacities related to the plaintiff’s termination from his employment. The defendants moved to dismiss the plaintiff’s claims for failure to state a claim upon which relief can be granted pursuant to Tenn. R. Civ. P. 12.02(6). The trial court granted the motions and dismissed the plaintiff’s claims with prejudice. The defendants then filed a joint motion for attorneys’ fees, relying on Tenn. Code Ann. § 29-20-113, which permits a state employee to recover attorneys’ fees when the employee is the “prevailing party” on claims filed against the employee in the employee’s individual capacity. The trial court granted this motion and awarded reasonable attorneys’ fees and costs to the defendants. This appeal followed. We affirm.

Davidson County Court of Appeals 07/01/19