Court Opinions

Format: 05/22/2020
Format: 05/22/2020
Tiffany C. Roby v. NationStar Mortgage, LLC, et al.
W2019-00730-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Mary L. Wagner

This appeal stems from a dispute involving real property that Plaintiff acquired online. The property was previously purchased in a foreclosure action by one of the defendants. The previous owners were holdover occupants of the property. After purchasing the property, Plaintiff signed a real estate purchase contract and closed approximately two and one-half months thereafter. Due to delays in litigation involving the holdover occupants, Plaintiff was unable to take possession of the property for nearly two years after purchasing it online. In this case, Plaintiff brought suit against NationStar Mortgage, LLC; U.S. Bank, N.A.; Auction.com, LLC; and WFG National Title Insurance Company on several contract-related claims and alleged violations of the Tennessee Consumer Protection Act. Auction.com and WFG were dismissed prior to trial. The remaining defendants moved for summary judgment on all of the claims, which the trial court granted in part and denied in part. A jury trial was held on the remaining claims. At the close of Plaintiff’s proof at trial, the defendants moved for a directed verdict, which the court again granted in part and denied in part. One claim under the Tennessee Consumer Protection Act went to the jury, which found in favor of Plaintiff and awarded a verdict of $250,000. The parties filed separate post-trial motions. The trial court granted the defendants’ motion for judgment notwithstanding the verdict and denied the other requests of the parties or found them to be moot. For the reasons stated herein, we affirm the decisions of the trial court and remand.

Shelby County Court of Appeals 05/11/20
Connie Ellis v. Mike K. Modi
M2019-01161-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Joseph P. Binkley, Jr.

Following a jury trial, the plaintiff was awarded a substantial verdict against the defendant for both compensatory and punitive damages. After the defendant’s motion for a new trial was denied, he appealed to this Court. The defendant now argues, among other things, that the trial court erroneously excluded his expert psychologist from testifying at trial and, further, that the trial court erroneously allowed certain prejudicial evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s verdict and the trial court’s judgment entered in this matter and remand the case for a new trial.

Davidson County Court of Appeals 05/11/20
Merle Aaron Degroat v. State of Tennessee
M2018-01490-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Gary McKenzie

Petitioner, Merle Aaron Degroat, appeals the denial of his post-conviction petition. Petitioner argues that he was denied effective assistance of counsel when his trial counsel failed to adequately consult with him prior to his guilty pleas to initiation of a process intended to result in the manufacture of methamphetamine and burglary of a motor vehicle. Following a review of the briefs of the parties and the record, we affirm the judgment of the post-conviction court.

Putnam County Court of Criminal Appeals 05/11/20
Freddie Lewis Osborne v. State of Tennessee
M2019-00284-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Jill B. Ayers

A jury convicted the Petitioner, Freddie Lewis Osborne, of sale of a controlled substance within 1000 feet of a Drug-Free School Zone (“DFSZ”), and the trial court sentenced him as a Range II, multiple offender to thirty-two and a half years of incarceration. The Petitioner contested his conviction by direct appeal, post-conviction petition, and by petition for habeas corpus relief. Subsequently, he filed a “Petition for Sentencing Relief,” which the trial court denied by written order. On appeal, the Petitioner contends that the trial court erred because the Petitioner had: (1) sufficiently stated a claim for re-opening his petition for post-conviction relief; (2) stated a claim that the application of the DFSZ Act violated his right to equal protection; and (3) sufficiently stated a claim for the correction of an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After review, we affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 05/11/20
Regions Bank v. Nathan I. Prager - Dissent
W2019-00782-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

I again find myself in disagreement from my learned colleagues as to the application of res judicata. Because I cannot conclude that Defendant met its burden to show all the elements of the defense, I respectfully dissent from the majority opinion.

Shelby County Court of Appeals 05/11/20
Regions Bank v. Nathan I. Prager
W2019-00782-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge James F. Russell

This appeal arose from a dispute involving an unpaid promissory note. In May 2014, Plaintiff filed its first suit for breach of contract. The trial court dismissed the case under Rule 41.02 for failure to prosecute. Opposing the dismissal, Plaintiff filed a Motion to Reconsider. The trial court denied Plaintiff’s motion and stated the dismissal was neither “with nor without prejudice” and that Plaintiff was “welcome to refile.” Relying on the trial court’s statements, Plaintiff declined to appeal and filed a second action. Defendant filed a Motion to Dismiss the second suit, arguing it is barred by res judicata. The trial court granted Defendant’s motion and denied Plaintiff’s subsequent Motion to Reconsider. We agree with the trial court’s dismissal of this suit and subsequent denial of Plaintiff’s Motion to Reconsider. We therefore affirm the circuit court’s decision and remand.

Shelby County Court of Appeals 05/11/20
Robert Simmons v. State of Tennessee
W2019-00580-CCA-R3-PC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Robert Simmons, appeals the Shelby County Criminal Court’s summary dismissal of his pro se petition for post-conviction relief. The Petitioner maintains that he timely filed his petition and is entitled to a hearing. After a review of the record and applicable law, we affirm the post-conviction court’s summary dismissal of the petition.

Shelby County Court of Criminal Appeals 05/08/20
State of Tennessee v. Chad Everette Henry
W2018-02084-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Charles C. McGinley

The Defendant, Chad Everette Henry, pleaded guilty to voluntary manslaughter and driving under the influence (“DUI”). Following a sentencing hearing, the trial court imposed consecutive sentences of twelve years for the voluntary manslaughter conviction and eleven months and twenty-nine days with forty-five days’ confinement for the conviction of DUI, second offense. The Defendant argues on appeal that the trial court imposed an improper sentence and that his plea to DUI was not knowingly and voluntarily entered. After a review of the record and applicable law, we affirm the judgments of the trial court.

Decatur County Court of Criminal Appeals 05/08/20
Torrance Johnson v. State of Tennessee
W2018-02260-CCA-R3-ECN
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James M. Lammey

Petitioner, Torrance Johnson, appeals the summary dismissal of his petition for writ of error coram nobis in which he challenged his 1997 conviction for first-degree felony murder in the perpetration of a robbery. After a review of the record and applicable law, we affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 05/08/20
State of Tennessee v. Deangelo Love
W2018-02095-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Chris Craft

The Defendant-Appellant, Deangelo Love, was convicted by a Shelby County jury of first degree felony murder and criminal attempt aggravated robbery, for which he received an effective sentence of life imprisonment. In this appeal as of right, the Defendant raises the following issues for our review: (1) whether the trial court erred in denying the Defendant’s challenge under Batson v. Kentucky, 476 U.S. 79 (1986); (2) whether the trial court erred in allowing the State to bolster a witness’s testimony with a prior consistent statement; (3) whether the trial court erred in denying the Defendant’s request for an alibi instruction; and (4) whether the Defendant is entitled to relief under the cumulative error doctrine. After a thorough review of the relevant facts and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/08/20
State of Tennessee v. Jamarian Cortez Jordan
W2019-01230-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Madison County Grand Jury indicted Defendant, Jamarian Cortez Jordan, for aggravated robbery, and a jury convicted Defendant as charged. The trial court sentenced Defendant to ten years’ incarceration with an eighty-five percent release eligibility. On appeal, Defendant argues (1) that the trial court erred by failing to suppress Defendant’s confession, (2) that the evidence was insufficient to support his conviction, (3) that Defendant did not have a fair and impartial jury, (4) that the trial court erred in refusing to allow Defendant’s mother to testify at trial as to Defendant’s disability, (5) that Defendant should have received the minimum sentence, and (6) that the trial court erred in denying Defendant’s motion for new trial. After a thorough review of the record and applicable case law, the judgment of the trial court is affirmed.

Madison County Court of Criminal Appeals 05/08/20
THOMAS K. BALLARD, III, M.D. ET AL v. TENNESSEE DEPARTMENT OF HEALTH
M2019-01101-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Patricia Head Moskal

Appellants, a doctor and a medical clinic, challenge a final order of the Tennessee Commissioner of Health imposing monetary fines and costs. The order followed the investigation and prosecution of numerous violations of state statutes and regulations governing pain management clinics. After review of an initial decision from an administrative law judge, the Commissioner’s Designee found three additional violations and increased the assessment of civil penalties and costs issued in the initial ruling. Appellants argue that the new violations were not supported by substantial and material evidence and were arbitrary and capricious under the Uniform Administrative Procedures Act. Further, they argue that the increase in penalties and costs was arbitrary and capricious. Because the decision appealed was supported by substantial and material evidence and neither arbitrary nor capricious, we affirm.

Davidson County Circuit, Criminal & Chancery Courts 05/08/20
Ronald Ledford, Et Al. v. John Ben Sneed, Et Al.
E2018-00904-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge J. Michael Sharp

This appeal concerns the trial court’s grant of a directed verdict in favor of the plaintiffs concerning their claim for surreptitious recording of their conversations, namely wiretapping. We affirm.

McMinn County Court of Appeals 05/08/20
In Re Eli H.
E2019-01028-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Elizabeth C. Asbury

The grandparents of a minor child filed a petition seeking to terminate the parental rights of the child’s biological mother. Following a bench trial, the trial court terminated the mother’s parental rights, determining that clear and convincing evidence existed to establish two statutory grounds for termination: (1) abandonment by failure to visit and (2) failure to manifest an ability and willingness to assume legal and physical custody of or financial responsibility for the child. The trial court also determined by clear and convincing evidence that termination was in the child’s best interest. The mother has appealed. Following our thorough review of the record, we modify the trial court’s judgment to include a determination of clear and convincing evidence of the additional statutory ground of persistence of the conditions leading to the child’s removal from the mother’s custody. We affirm the trial court’s judgment in all other respects, including the termination of the mother’s parental rights.

Claiborne County Court of Appeals 05/08/20
State of Tennessee v. Richard L. Jerger, Jr.
E2019-00429-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Sandra Donaghy

Defendant, Richard L. Jerger, Jr., appeals the order of the Bradley County Criminal Court revoking his probation and ordering him to serve the remainder of his six-year sentence in confinement. Upon review, we affirm the judgment of the trial court.

Bradley County Court of Criminal Appeals 05/07/20
STATE OF TENNESSEE v. JERRY A. THIGPEN
M2019-00047-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Brody N. Kane

A Trousdale County jury convicted the defendant, Jerry A. Thigpen, of assault, a Class A misdemeanor. Following a sentencing hearing, the trial court imposed a sentence of eleven months, twenty-nine days in confinement. On appeal, the defendant argues the trial court erred in denying the defendant’s motions to recuse; the State committed prosecutorial misconduct; trial counsel was ineffective; the imposed sentence was excessive; the court reporter should have disqualified herself; the indictment was fatally erred; the jury was biased; trial counsel colluded with the State and the trial court; and the evidence was insufficient to support his conviction. The defendant also argues he was denied the right to counsel on appeal. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Trousdale County Circuit, Criminal & Chancery Courts 05/07/20
Downey Oil Company, Inc., Et Al. v. Slyreal Properties, Inc., Et Al.
E2019-01169-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge John F. Weaver

This appeal concerns a dispute over an easement agreement (“the Agreement”). In 1995, Samir F. Mishu and Faud E. Mishu, d/b/a M&M Investments (“M&M”), conveyed the eastern parcel of certain land it owned to Excellent Properties, L.P. (“Excellent”). The parties also entered into the Agreement, which provided for a future easement that would connect their properties. The easement’s precise location and dimensions were undefined. Years passed, both properties put in curbing without cuts on their boundaries, and the easement went unutilized. In 2015, Downey Oil Company, Inc. (“Downey”), then lessee of the western parcel, sought for the first time to construct and use the easement. Slyreal Properties, Inc. (“Slyreal”), then owner of the eastern parcel, refused. Downey and M&M (“Plaintiffs,” collectively) brought suit against Slyreal, Pinnacle Bank and Hugh Queener, trustee (“Defendants,” collectively) in the Chancery Court for Knox County (“the Trial Court”). Defendants asserted adverse possession and abandonment. After a trial, the Trial Court ruled for Defendants. Plaintiffs appeal. We find and hold, inter alia, that Defendants failed to prove by clear and convincing evidence that the easement was extinguished by adverse possession or that it was abandoned by Plaintiffs. We reverse the judgment of the Trial Court, and remand for a determination of the easement’s location and dimensions.

Knox County Court of Appeals 05/07/20
STATE OF TENNESSEE v. JOSEPH R. PATTON
M2018-02035-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John D. Wootten

The Appellant, Joseph R. Patton, pled guilty in the Wilson County Criminal Court to three counts of soliciting sexual exploitation of a minor and three counts of sexual battery by an authority figure. Pursuant to the plea agreements, the trial court was to determine the length and manner of service of the sentences. After a sentencing hearing, the Appellant received a total effective sentence of fifteen years to be served in confinement. On appeal, he contends that his sentence is excessive and that the trial court erred by denying his request for alternative sentencing. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Wilson County Circuit, Criminal & Chancery Courts 05/07/20
Joel Diemoz, et al. v. Eric Huneycutt, et al.
M2018-0116-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ross H. Hicks

The plaintiffs in this construction defect action appeal the trial court’s dismissal of their case with prejudice for failure to comply with the court’s orders. They also allege error concerning the trial court’s refusal to recuse itself, the disqualification of counsel, and the decision to report counsel’s conduct to the Tennessee Board of Professional Responsibility. We vacate the order of dismissal with prejudice and direct entry of dismissal without prejudice. We affirm the court’s order in all other respects.

Montgomery County Court of Appeals 05/06/20
State of Tennessee v. Marty Lynn Ray
E2019-00362-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas
Trial Court Judge: Judge E. Shayne Sexton

The Defendant, Marty Lynn Ray, was convicted of four counts of rape of a child, a Class A felony, and sentenced to an effective ninety years in confinement. See Tenn. Code Ann. § 39-13-522. In this appeal as of right, the Defendant contends that the trial court erred by (1) denying his motion for a mistrial after the victim testified about a number of instances of sexual abuse exceeding the nine counts of the indictment; and (2) declining to dismiss a prospective juror for cause based upon her level of English proficiency. Following our review, we affirm the judgments of the trial court.

Campbell County Court of Criminal Appeals 05/06/20
Mario Hernandez Castillo v. State of Tennessee
E2018-00748-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge O. Duane Slone

Petitioner, Mario Hernandez Castillo, appeals the denial of his petition for postconviction relief in which he challenged his convictions for first degree premeditated murder, felony murder, especially aggravated robbery, and theft of property valued at less than $500, for which he received an effective sentence of life imprisonment. On appeal, Petitioner contends that he is entitled to a new post-conviction hearing based upon the unconstitutional delay in the post-conviction proceedings and the inadequacy of interpreter services. We affirm the judgment of the post-conviction court.

Grainger County Court of Criminal Appeals 05/06/20
State of Tennessee v. Juan Dewayne Hall
E2019-00024-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steven Wayne Sword

On December 3, 2018, the Defendant, Juan Dewayne Hall, entered an Alford plea to the offense of possession with intent to deliver over 26 grams of cocaine, a Schedule II controlled substance. As a condition of his plea, the Defendant expressly preserved two certified questions of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, stemming from his denied motion to suppress. After thorough review, we conclude that the certified questions do not meet the requirements of Rule 37(b)(2)(A) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988), and, as a result, this court is without jurisdiction to consider the appeal. Accordingly, the appeal is dismissed.

Knox County Court of Criminal Appeals 05/05/20
STATE OF TENNESSEE v. SHANE EVANS VINCENT
M2018-00034-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Russell Parkes

The Appellant, Shane Evans Vincent, pled guilty in the Giles County Circuit Court to facilitation of aggravated child abuse, a Class B felony, and the trial court sentenced him to twelve years to be served as six months in jail followed by supervised probation. Subsequently, the trial court revoked his probation and ordered that he serve the remainder of his twelve-year sentence in confinement. The Appellant filed a motion for new trial “on the violation of his probation,” the trial court denied the motion, and the Appellant filed a notice of appeal in this court. The State argues that we should dismiss the appeal because the Appellant’s motion for new trial and notice of appeal were untimely. The Appellant concedes that a probation revocation proceeding is not a “trial”; therefore, his motion for new trial did not toll the time for filing a notice of appeal. We conclude that the appeal should be dismissed.

Giles County Circuit, Criminal & Chancery Courts 05/05/20
STATE OF TENNESSEE v. KAVARIS LEQUAN KELSO
M2018-00494-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Kavaris Lequan Kelso, was indicted on one count each of aggravated burglary, premeditated first degree murder, and first degree felony murder. See Tenn. Code Ann. §§ 39-13-202, -14-403. The Defendant was convicted as charged after a jury trial, and the trial court imposed a total effective sentence of life plus six years. In this appeal as of right, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; and (2) the trial court erred by declining to instruct the jury on duress. Following our review, we affirm the judgments of the trial court.

Bedford County Circuit, Criminal & Chancery Courts 05/04/20
State of Tennessee v. Alfred Maron Williams, Eric Martel Abrams and Jamie Paul Click
E2018-00670-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steven Wayne Sword

A Knox County jury convicted the defendants, Alfred Maron Williams, Eric Martel Abrams, and Jamie Paul Click, of twelve counts of conspiracy to possess with the intent to sell heroin within 1000 feet of a drug-free school zone. The trial court merged these twelve convictions into one conviction for each defendant. The jury additionally convicted Defendant Williams of multiple other drug and firearms-related offenses. The trial court sentenced Defendant Williams and Defendant Click to effective sentences of twenty-five years of incarceration each, and it sentenced Defendant Abrams to twentyone years of incarceration. All three defendants appeal. Defendants Williams and Click contend that the trial court erred when it failed to hold a pretrial hearing to determine whether a conspiracy existed. All three defendants contend that the evidence is insufficient to sustain their convictions for conspiracy. Defendant Click additionally contends that the trial court erred when it allowed him to be convicted of the common law crime of conspiracy. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

Knox County Court of Criminal Appeals 05/04/20