Court Opinions

Format: 05/24/2018
Format: 05/24/2018
U.S. Bank National Association v. Letitia Robertson, et al.
W2017-01421-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an unlawful detainer case. U.S. Bank initiated an action against Letitia and Roderick Robertson in the general sessions court seeking possession of a residential property it had purchased at a foreclosure sale after the Robertsons defaulted on their home loan. The general sessions court issued U.S. Bank a writ of possession, and the Robertsons appealed to the circuit court. The circuit court granted U.S. Bank’s motion for summary judgment and writ of possession. The Robertsons appealed to this Court, arguing that the circuit court lacked subject matter jurisdiction over the unlawful detainer claim. Because we have concluded that the circuit court had subject matter jurisdiction, we affirm.

Shelby County Court of Appeals 05/11/18
Mayla C. Anders v. Jonah Paul Anders
W2017-00071-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Gina C. Higgins

This is an appeal from the entry of an order dismissing an order of protection, which had already expired by its own terms. Because the order of protection has expired, we affirm the decision of the trial court and dismiss the appeal as moot.

Shelby County Court of Appeals 05/11/18
James Edgar Yarbrough v. Cheryl Ann Pinegar Yarbrough
W2017-00152-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jerry Stokes

A wife filed a motion pursuant to Tennessee Rule of Civil Procedure 60.02(3) to set aside a final decree of divorce granted on the ground of irreconcilable differences. The trial court denied the motion, finding that she failed to prove by clear and convincing evidence that the judgment was void. We affirm the trial court’s decision.

Shelby County Court of Appeals 05/11/18
Tennessee Community Organizations, Et Al. v. Tennessee Department of Intellectual And Developmental Disabilities
M2017-00991-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Russell T. Perkins

Appellants, home and community based service providers and their professional trade organization, appeal the trial court’s grant of summary judgment in favor of Appellee Tennessee Department of Intellectual and Developmental Disabilities. The case, which was filed as a declaratory judgment action, involves financial sanctions levied against Appellant providers by Appellee for billing for day services in excess of the 243-day limit imposed by a federal waiver. Appellants assert, inter alia, that the imposition of these fines exceeded Appellee’s statutory and/or contractual authority. Discerning no error, we affirm the trial court’s grant of summary judgment against Appellants on all counts of their petition.

Davidson County Court of Appeals 05/11/18
State of Tennessee F/B/O City of Columbia v. 2013 Delinquent Taxpayers
M2017-01439-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David L. Allen

This case involves Appellant’s attempt to redeem property that was purchased by Appellee at a tax sale. Appellant executed a power of attorney in favor of his son, which vested his son with authority to file the motion to redeem the subject property. Appellee objected to the motion on the ground that son, who is not a licensed attorney, engaged in the unauthorized practice of law by filing the motion to redeem; thus, Appellee argued that the motion was void. In response to the motion, Appellant filed an amended motion to redeem with the assistance of an attorney. The amended motion, however, was filed after the one year redemption period had expired. The trial court denied the amended motion to redeem, finding that the original motion to redeem was void and that the amended motion to redeem did not relate back to the date son filed the original motion. Thus, the trial court held that the amended motion was untimely. We hold that Appellant’s son was authorized, under the power of attorney, to file the original motion to redeem and that the filing of the form motion provided by the clerk’s office was not an unauthorized practice of law. Accordingly, we reverse the trial court’s order and remand.  

Maury County Court of Appeals 05/11/18
State of Tennessee v. Martin Ellison Hughes
E2017-01953-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Thomas J. Wright

The Defendant, Martin Ellison Hughes, was found guilty by a Hawkins County Criminal Court jury of two counts of aggravated assault, a Class C felony. See T.C.A. § 39-13-102 (2014). The trial court sentenced the Defendant as a Range III, persistent offender to concurrent terms of fifteen and ten years, for an effective fifteen-year sentence at 45% service. On appeal, the Defendant contends that his sentence is excessive. We affirm the judgments of the trial court.

Hawkins County Court of Criminal Appeals 05/11/18
Demetrius Anderson v. State of Tennessee
W2017-01179-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James M. Lammey

The Petitioner, Demetrius Anderson, appeals from the denial of post-conviction relief, alleging he received ineffective assistance of counsel. Upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 05/10/18
Jerry Edward Lanier v. State of Tennessee
W2017-00920-CCA-R3-PC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Lee Moore, Jr.

The petitioner, Jerry Edward Lanier, appeals the denial of his post-conviction petition arguing he received ineffective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Dyer County Court of Criminal Appeals 05/10/18
State of Tennessee v. Gabriel Dotson
W2017-01099-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge W. Mark Ward

The defendant, Gabriel Dotson, was convicted of rape of a child, aggravated sexual battery, rape, and incest for which he received an effective sentence of thirty-five years. On appeal he challenges his convictions on the grounds there was insufficient evidence to support the jury’s verdicts, the State made improper statements throughout trial which prejudiced the defendant, the trial court erred in instructing the jury, the trial court erred in enhancing his sentence, and the cumulative effect of the errors at trial prejudiced the verdict. Upon our thorough review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/10/18
State of Tennessee v. Justus Onyiego
W2017-00217-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Glenn Ivy Wright

A Shelby County Criminal Court Jury convicted the Appellant, Justus Onyiego, of two counts of aggravated rape, a Class A felony. After a sentencing hearing, the trial court merged the convictions and sentenced him to seventeen years in confinement. On appeal, the Appellant contends that the trial court denied his right to due process by failing to dismiss the indictment due to the State’s ten-year preindictment delay, that the trial court erred by failing to strike the testimony of two police officers, that the trial court erred by refusing to admit evidence of the victim’s prior sexual behavior under Tennessee Rule of Evidence 412, and that a prosecutor’s failure to correct false statements during closing arguments violated Napue v. Illinois, 360 U.S. 264 (1959), and constituted prosecutorial misconduct. Based upon the record and the parties’ briefs, we find no reversible error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/10/18
In Re J.T.,Et Al.
M2017-01509-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Michael Meise

In this termination of parental rights case, the Department of Children’s Services filed a petition to terminate the parental rights of B.B. (mother) and J.T. (father) with respect to J.T., Jr. and H.T. (the children). The trial court determined that clear and convincing evidence supported two grounds for termination: (1) substantial noncompliance with a permanency plan; and (2) persistence of conditions. By the same quantum of proof, the court determined that termination is in the best interest of the children. We vacate the trial court’s judgment with respect to the ground of persistence of conditions. As modified, we affirm the trial court’s judgment terminating the parental rights of the parents because termination is supported by clear and convincing evidence of substantial noncompliance with a permanency plan and is in the best interest of the children. 

Dickson County Court of Appeals 05/10/18
State of Tennessee v. Terry Lamont Bowden
M2016-02525-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Deanna B. Johnson

The Defendant, Terry Lamont Bowden, appeals his jury conviction for possession of marijuana with the intent to sell or deliver. On appeal, the Defendant challenges the trial court’s denial of his motion to suppress the evidence obtained during the search of his vehicle, arguing that the drug-sniffing dog’s “body language changes,” as testified to by the officer handler, were insufficient to establish probable cause. He also argues that his absence at the initial suppression hearing violated Rule 43 of the Tennessee Rules of Criminal Procedure and his constitutional right to be present at trial. After a thorough review of the record and the applicable authorities, we conclude that the State failed to establish that the search of Defendant’s vehicle was supported by probable cause and that the case should, therefore, be reversed. Accordingly, the Defendant’s conviction is vacated, and the possession charge is dismissed.

Williamson County Court of Criminal Appeals 05/10/18
State of Tennessee v. Miguel Gomez
W2017-01457-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge John Wheeler Campbell

Defendant, Miguel Gomez, was convicted of three counts of aggravated assault. The trial court merged Counts Two and Three into Count One and sentenced Defendant to eleven years. On appeal, Defendant argues that the evidence at trial was insufficient to support his convictions and that his sentence was excessive. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 05/09/18
Edward Hood, II v. State of Tennessee
W2017-00934-CCA-R3-ECN
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Kyle Atkins

The pro se Petitioner, Edward Hood, II, appeals the summary dismissal of his petition for writ of error coram nobis, arguing that a letter that he received from his daughter, K.P., constitutes newly discovered evidence of his innocence and that the coram nobis court erred in dismissing his petition without the appointment of counsel or an evidentiary hearing. Following our review, we affirm the dismissal of the petition.

Henderson County Court of Criminal Appeals 05/09/18
State of Tennessee v. Michael Shane McCullough
W2017-01219-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Jeff Parham

Defendant, Michael Shane McCullough, was indicted in February of 2016 by an Obion County grand jury for disorderly conduct, criminal littering, initiation of a process to manufacture methamphetamine, and promotion of methamphetamine manufacture. After a jury trial, Defendant was found guilty of criminal littering, initiation of process to manufacture methamphetamine, and promotion of methamphetamine manufacture. Defendant appeals from his convictions, challenging the sufficiency of the evidence for the methamphetamine-related convictions. Because we determine that the evidence was sufficient to support the convictions, we affirm the judgments of the trial court.

Obion County Court of Criminal Appeals 05/09/18
State of Tennessee v. Tobias Johnson
W2017-01644-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Carolyn W. Blackett

The petitioner, Tobias Johnson, appeals from the Shelby County Criminal Court’s denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The petitioner contends his sentence for life with parole eligibility at thirty percent is illegal pursuant to Tennessee Code Annotated sections 40-35-501(i)(1), (i)(2)(A). The petitioner bargained for and received a life sentence pursuant to his plea agreement. The judgment of conviction contains a clerical error because “standard 30%” rather than “violent 100%” was checked for “release eligibility.” The petitioner’s concurrent sentences for rape and incest have expired. Discerning no error, we affirm the judgment of the trial court summarily dismissing the motion for failure to state a colorable claim, but remand for correction of the clerical error pursuant to Tennessee Rule of Criminal Procedure 36.

Shelby County Court of Criminal Appeals 05/09/18
DL Rummage v. Kimberly Rummage
M2016-02356-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip E. Smith

This is a divorce case in which the trial court designated the mother as the primary residential parent, awarded her child support and a portion of her attorney’s fees as alimony, and awarded her retroactive child support. The father appealed, arguing the trial court erred in numerous ways. We decline to address the father’s arguments, however, and affirm the trial court’s judgment because the father’s brief does not comply with the requirements of Tennessee Rule of Appellate Procedure 27(a) or Court of Appeals Rule 6. We grant the mother’s request for frivolous appeal damages pursuant to Tenn. Code Ann. § 27-1-122.  

Davidson County Court of Appeals 05/09/18
In Re Emily J. Et Al.
M2017-01959-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Sharon Guffee

Mother appeals the termination of her parental rights to two children on the grounds of abandonment by failure to support and persistence of conditions. Upon our review, we conclude that the record contains clear and convincing evidence that the conditions which led to the children’s removal from Mother’s home persisted and that termination of her rights is in the children’s best interest; however, the evidence of abandonment by failure to support is not clear and convincing. Accordingly, we reverse the judgment in part and affirm the termination of her rights.  

Williamson County Court of Appeals 05/09/18
State of Tennessee v. Charles Lee Warner
M2016-02075-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge David M. Bragg

The Defendant, Charles Lee Warner, appeals his jury conviction for first degree murder, for which he was sentenced to life imprisonment. In this direct appeal, the Defendant alleges the following errors: (1) that the evidence was insufficient to support his conviction, challenging the evidence establishing his identity and premeditation, and alleging that his jailhouse confession was not sufficiently corroborated; (2) that the trial court erred by declaring Robert Strange to be an unavailable witness and admitting his preliminary hearing testimony; and (3) relying on the rules of evidentiary relevance, that the trial court erred (a) by permitting a law enforcement officer to testify “regarding the [D]efendant’s propensity to carry weapons in the past”; (b) by allowing a former employer to testify about murderous threats made by the Defendant to the victim over a year prior to the victim’s death; and (c) by prohibiting defense counsel from eliciting testimony “regarding the potentially violent propensities of others known to the witness in the homeless community.” Following our review of the record and the applicable authorities, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 05/09/18
Tarrants Yvelt Chandler v. State of Tennessee
M2017-01539-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Petitioner, Tarrants Yvelt Chandler, appeals from the Davidson County Criminal Court’s denial of his petition for post-conviction relief. The Petitioner contends that he is entitled to post-conviction relief due to (1) numerous instances of ineffective assistance of his trial counsel; and (2) the State’s failure to disclose “exculpatory evidence prior to trial.” Discerning no error, we affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 05/09/18
Deon Lamont Cartmell v. State of Tennessee
M2017-00552-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge J. Randall Wyatt, Jr.

The Petitioner, Deon Lamont Cartmell, was convicted of second degree murder for the killing of his wife and sentenced to eighteen years. On direct appeal, his conviction and sentence were affirmed. State v. Deon Lamont Cartmell, No. M2012-01925-CCA-R3-CD, 2014 WL 3056164, at *1 (Tenn. Crim. App. July 7, 2014), perm. app. denied (Tenn. Nov. 20, 2014). He then filed a timely petition for post-conviction relief, followed by three amended petitions, alleging ineffective assistance of counsel, prosecutorial misconduct, and cumulative error. Following a bifurcated hearing, the post-conviction court found that the Petitioner’s claims were without merit, and we agree. Accordingly, we affirm the order of the post-conviction court denying relief.

Davidson County Court of Criminal Appeals 05/09/18
Terry Lea Bunch v. State of Tennessee
M2017-00246-CCA-R3-PC
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Jill Bartee Ayers

Petitioner, Terry Lea Bunch, appeals the summary dismissal of his petition for post-conviction relief for being filed untimely. Petitioner alleged in his petition that defects in the affidavit of complaint rendered his conviction void. Having reviewed the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Montgomery County Court of Criminal Appeals 05/08/18
Matthew Brock Hance v. Danielle Smith Hance
E2017-01419-COA-R3-CV
Authoring Judge: Judge Frank G. Clement Jr., P.J., M.S.
Trial Court Judge: Judge Douglas T. Jenkins

The issue on appeal is whether the commencement of a dependency and neglect action in the juvenile court deprived the chancery court of subject matter jurisdiction to rule on a pending motion to modify a parenting plan. Shortly after Father filed his petition to modify the parenting plan in the chancery court, the Department of Children’s Services filed a dependency and neglect petition in the juvenile court. After the juvenile court held a preliminary hearing on the dependency and neglect petition and assumed jurisdiction, the chancery court modified the parents’ child support obligations and awarded the father the federal income tax exemption for the child. Months later, the mother filed a motion to vacate the chancery court’s judgment on the basis it was void ab initio for lack of subject matter jurisdiction. The chancery court denied the motion, and this appeal followed. Tenn. Code Ann. § 37-1-103 vests juvenile courts with exclusive original jurisdiction over dependency and neglect proceedings and, once a juvenile court has exercised jurisdiction in a dependency and neglect proceeding, its exclusive jurisdiction continues until the case has been dismissed, the custody determination is transferred to another court exercising domestic relations jurisdiction, or a petition for adoption is filed. Because none of the jurisdiction exceptions had occurred prior to the chancery court modifying the parenting plan, the chancery court’s order was void ab initio for lack of subject matter jurisdiction. Accordingly, the chancery court’s order modifying the parenting plan is hereby vacated.

Hamblen County Court of Appeals 05/08/18
In Re: Isaiah B.
E2017-01699-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Klyne Lauderback

Mother appeals the termination of her parental rights on grounds of (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; (3) substantial noncompliance with permanency plans; and (4) failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s ruling with regard to substantial noncompliance with permanency plans, but affirm the remaining grounds, as well as the trial court’s determination that termination is in the child’s best interest. The termination of Mother’s parental rights is therefore affirmed.

Carter County Court of Appeals 05/08/18
Polly Spann Kershaw v. Jeffrey L. Levy
M2017-01129-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge William B. Acree

This is a legal malpractice case. Appellant filed suit against Appellee, who had previously served as Appellant’s attorney in a divorce matter. Appellant alleged that she suffered monetary damages and was convicted of criminal contempt as a result of the negligent legal representation she received from Appellee in her divorce case. Appellee filed a motion for summary judgment claiming that Appellant’s claims were, among other things, barred by the doctrine of judicial estoppel as a result of the sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment in favor of Appellee. We affirm.      

Davidson County Court of Appeals 05/08/18