Court Opinions

Format: 06/22/2018
Format: 06/22/2018
In Re Avery B.
W2016-02542-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge William A. Peeler

This appeal arises from a modification of a permanent parenting plan established in 2010 in which Mother was designated as the primary residential parent. In December of 2012, Father filed a petition to modify the parenting plan alleging that Mother’s mental health impeded her ability to properly care for their child. He also alleged that Mother alienated the child from Father due to numerous false allegations that Father abused the child, which resulted in temporary but substantial decreases in his parenting time. Although no evidence was produced indicating that Father abused the child, Mother continued to accuse Father of abuse and to take the child for repeated evaluations and physical exams. Following a three-day trial, the trial court designated Father as the primary residential parent, established a temporary parenting plan, and ordered Mother to attend counseling until the court was satisfied with her mental health so that it could issue a permanent parenting plan. Mother appealed that order; however, we dismissed the appeal for lack of subject matter jurisdiction because the order appealed from was not a final judgment. On remand, following an assessment of Mother’s compliance with the court-ordered intensive therapy, the trial court entered a final judgment that included a permanent parenting plan from which Mother appeals. Mother contends the trial court erred in holding, inter alia, that there was a substantial and material change in circumstances requiring a modification of the parties’ permanent parenting plan. She also contends the court erred in holding that it was in the child’s best interest to change the primary residential parent to Father due, in part, to the fact the court failed to consider factors added to Tenn. Code Ann. § 36-6-106 pursuant to the 2014 amendment that became law on July 1, 2014. Finding no error, we affirm.

Tipton County Court of Appeals 06/04/18
Danny Anderson v. State of Tennessee
E208-00191-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Justin C. Angel

The Petitioner, Danny Anderson, appeals the habeas corpus court’s dismissal of his petition for writ of habeas corpus. We conclude that the Petitioner’s notice of appeal was untimely filed, and the interest of justice does not support waiver of the timely filing requirement. Therefore, we dismiss the appeal.

Bledsoe County Court of Criminal Appeals 06/01/18
Charles D. Johnson v. State of Tennessee
E2018-00112-CCA-R3-HC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Justin C. Angel

The Petitioner, Charles D. Johnson, appeals the habeas corpus court’s dismissal of his petition for writ of habeas corpus in which the Petitioner argued that he was never indicted on his convicted offense. After a thorough review of the record and applicable law, we affirm the dismissal of his petition in accordance with Rule 20, Rules of the Court of Criminal Appeals.

Bledsoe County Court of Criminal Appeals 06/01/18
Quincy Moutry v. State of Tennessee
E2017-00353-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge G. Scott Green

The Petitioner, Quincy Moutry, appeals the post-conviction court’s denial of his petition for post-conviction relief in which he challenged his convictions for carjacking, aggravated robbery, and possession of a firearm with the intent to go armed during the commission of a dangerous felony and his effective twenty-seven-year sentence. On appeal, the Petitioner asserts that he received ineffective assistance of counsel at trial. Upon reviewing the record and the applicable law, we affirm the judgment of the postconviction court.

Knox County Court of Criminal Appeals 06/01/18
State of Tennessee v. Quintis McCaleb
E2017-01381-CCA-R9-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Barry A. Steelman

The State, pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, appeals the trial court’s grant of Defendant’s motion to suppress inculpatory statements made during his post-polygraph interview. The trial court found that the statements were voluntary but determined that they were inadmissible under Tennessee Rule of Evidence 403 because Defendant would be required to reference the polygraph examination to provide context for Defendant’s statements made during the post-polygraph interview. Concluding that the trial court abused its discretion by excluding the statements, we reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.

Hamilton County Court of Criminal Appeals 06/01/18
State of Tennessee v. Nelson Troglin
E2017-00701-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Thomas W. Graham

Defendant, Nelson Troglin, appeals the Bledsoe County Circuit Court’s summary dismissal of his pro se motion to correct an illegal sentence for his 2000 conviction for second degree murder, for which he received a sentence of 23 years. Defendant contends the trial court erred by summarily dismissing his motion. We affirm the judgment of the trial court.

Bledsoe County Court of Criminal Appeals 06/01/18
Leopold Mpawinayo v. State of Tennessee
M2017-01660-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark Fishburn

The Petitioner, Leopold Mpawinayo, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2015 convictions for two counts of violating the habitual motor vehicle offender (HMVO) law and his effective six-year sentence. The Petitioner contends that the court erred by denying relief because he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 06/01/18
James Odell Osborne v. State of Tennessee
M2016-02053-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Forest A. Durard, Jr.

The Petitioner, James Odell Osborne, appeals the Marshall County Circuit Court’s denial of his petition for post-conviction relief from his 2015 convictions for three counts of failure to appear, misdemeanor theft, and felony theft and his effective nine-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Marshall County Court of Criminal Appeals 06/01/18
State of Tennessee v. Thomas A. Ryan
M2017-01599-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

After entering guilty pleas to four counts of aggravated statutory rape, Defendant, Thomas A. Ryan, was sentenced to four years for each conviction. After a lengthy sentencing hearing, the trial court ordered the sentences to be served consecutively, for a total effective sentence of sixteen years and denied all forms of alternative sentencing. Defendant appeals his sentence to this Court. Because we determine that the trial court did not abuse its discretion in sentencing Defendant to an effective sentence of sixteen years, we affirm the judgments of the trial court.

Sumner County Court of Criminal Appeals 06/01/18
Stephanie Keller, et al v. Estate of Edward Stephen McRedmond, et al
M2013-02582-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Russell T. Perkins

Sibling shareholders, unable to agree on the management of the family business, brought their dispute to court. Eventually, the brothers and sisters agreed that the business should be dissolved and, under the court’s supervision, sold as a going concern. After soliciting bids from the siblings, the court approved the sale of the business’s assets to one brother and two of his sisters. Pending the closing, the court ordered the siblings to continue to operate the business as usual and to preserve the goodwill of the business, including the relationships with employees, suppliers, and customers. The day after the closing, the brother who was not part of the winning bidder group opened a competing business. The winning bidders sought damages from the competing sibling, claiming that he willfully violated court orders, breached his fiduciary duty, and intentionally interfered with business relations. After a bench trial, the court awarded the winning bidders compensatory damages in an aggregate amount for all claims. In the first appeal, this Court reversed, holding that the winning bidders’ claims were derivative, not direct, and thus they lacked standing. In Keller v. Estate of McRedmond, 495 S.W.3d 852, 877 (Tenn. 2016), our supreme court adopted a new standard for determining whether a shareholder claim is direct or derivative and, applying that standard, held that the winning bidders had standing to pursue their claim that the competing sibling violated the court’s orders. So our supreme court affirmed in part, reversed in part, and remanded the case to this Court to review the remaining issues that were properly raised but not addressed in the first appeal. Id. at 882-83. We affirm the trial court’s decision to hold the competing sibling in contempt, but we vacate the aggregate award of compensatory damages.  

Davidson County Court of Appeals 05/31/18
State of Tennessee v. Leonardo Williams
W2017-00702-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James C. Beasley, Jr.

The pro se Defendant, Leonardo Williams, appeals from the trial court’s denial of his “Motion to Vacate, Set Aside, or Correct an Illegal Sentence.” Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 05/31/18
State of Tennessee v. Jennifer Lynn Mosier
W2017-01125-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Donald H. Allen

The Defendant, Jennifer Lynn Mosier, entered a nolo contendere plea to DUI in the Madison County Circuit Court and was sentenced to 11 months, 29 days in the county jail, suspended after 48 hours. As a condition of her guilty plea, she attempted to reserve a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) regarding the validity of the arrest warrant. Because we agree with the State that the Defendant failed to comply with the strict requirements for properly certifying a question of law, we dismiss the appeal for lack of jurisdiction.

Madison County Court of Criminal Appeals 05/31/18
In Re Ayden S., Et Al.
M2017-01185-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ken Witcher

Parents appeal the termination of parental rights to their three children. The juvenile court found three statutory grounds for termination: substantial noncompliance with the requirements of the permanency plans, persistence of conditions, and failure to manifest an ability and willingness to assume custody or financial responsibility of the children. The court also found that termination of the parents’ parental rights was in the children’s best interest. We conclude the evidence of the statutory grounds for termination was less than clear and convincing. Thus, we reverse the termination of the parents’ parental rights.

Macon County Court of Appeals 05/31/18
In Re Ethan W., Et Al.
M2016-02313-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

The Department of Children Services initiated a proceeding to declare the three minor children of Mother and Father dependent and neglected following the discovery of a sexual relationship between two of the children. The Juvenile Court adjudicated the children dependent and neglected, as did the circuit court in a de novo hearing on appeal. Upon our review, we conclude the record contains clear and convincing evidence that the children were dependent and neglected; accordingly, we affirm the judgment.  

Wayne County Court of Appeals 05/31/18
Ray Brown v. Robert L. Bushnell
M2017-01124-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Franklin L. Russell

This is a malicious prosecution case. The trial court found that the Appellant committed the torts of malicious prosecution and abuse of process. Appellant argues that there was no material evidence to support the trial court’s inference of malice. Appellant also questions the trial court’s failure to address the mandatory element of probable cause. Discerning no error, we affirm.

Bedford County Court of Appeals 05/31/18
Deborah Lacy v. Vanderbilt University Medical Center, Et Al.
M2018-00832-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from an order granting summary judgment to one of several defendants. Because the order does not dispose of the plaintiff’s claims against all of the defendants, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 05/31/18
Jason C. Blosser v. Cyrus Johnson, IV d/b/a The River City Rides
W2017-00858-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor JoeDae L. Jenkins

This appeal deals only with the trial court’s award of treble damages pursuant to the Tennessee Consumer Protection Act. Finding no error, we affirm.

Shelby County Court of Appeals 05/31/18
State of Tennessee v. John Baskins
E2017-00795-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Bob R. McGee

The defendant, John Baskins, appeals his Knox County Criminal Court guilty-pleaded convictions of rape of a child and especially aggravated sexual exploitation of a minor, claiming that the trial court erred in the misapplication of an enhancement factor and that the 40-year sentence imposed was excessive. Discerning no error, we affirm.

Knox County Court of Criminal Appeals 05/31/18
In Re Ethan B.
M2017-00967-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Ronald Thurman

A mother appeals the termination of parental rights to her son on the grounds of abandonment by willful failure to visit and willful failure to support. Mother appeals, arguing that the termination of her rights is not supported by the record. After a thorough review, we conclude that the proof does not clearly and convincingly establish that Mother willfully failed to visit or support the child. We reverse the judgment of the trial court and dismiss the petition for termination. 

White County Court of Appeals 05/30/18
Sumner County, Tennessee v. Susan Small-Hammer
M2017-02328-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joe Thompson

The defendant appeals the imposition of a security interest in her home. The defendant’s home, which was destroyed by floods in May of 2010, was demolished and reconstructed with funds the defendant applied for through the HOME Program administered by Sumner County. In applying for the financing, the defendant agreed to “comply with the HOME Program rules and regulations if assistance is approved,” one of which was that she must sign a note and deed of trust to secure the repayment obligation. After the defendant repeatedly refused to sign a note and deed of trust, Sumner County filed this action. Sumner County subsequently filed a motion for summary judgment that was properly supported by a statement of undisputed facts pursuant to Tenn. R. Civ. P. 56. Because the defendant did not file a response to the motion or the statement of undisputed facts, and the undisputed facts established that Sumner County was entitled to judgment as a matter of law, the trial court granted Sumner County’s motion for summary judgment. This appeal followed. We affirm.

Sumner County Court of Appeals 05/30/18
Amy Brasfield Marlow v. Joseph Charles Marlow
E2017-01190-COA-R9-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Gregory S. McMillan

This appeal arises from three post-divorce petitions for criminal contempt against Father in which Mother asserts over 200 separate counts. The principal issues on appeal pertain to the Double Jeopardy Clause of the United States and Tennessee Constitutions. Following a three day trial on the first petition, Father was found to be in criminal contempt of 60 counts. After Mother filed her second petition in which she alleged 133 additional counts of contempt, the parties appeared in court to announce a settlement pursuant to which Father would plead guilty to 10 unspecified counts with the remaining counts to be dismissed. Without advising and questioning Father before accepting a plea as Tenn. R. Crim. P. 11(b) requires, the trial court approved the agreed order, finding Father in criminal contempt of 10 unspecified counts. After Mother filed her third petition for criminal contempt, Father filed a “Motion to Alter or Amend and/or Rule 60.02 Motion to Set Aside Most of the Criminal Contempt Findings and Holdings in this Cause,” contending all but two of the 60 initial convictions were constitutionally flawed. As for the first 58 convictions, Father argued the notice of criminal contempt failed to specifically state essential facts concerning each ground as required by Tenn. R. Crim. P. 42(b). With regard to Father’s guilty plea to 10 additional counts, Father contended the plea and sentence were fatally flawed because the trial court failed to ascertain whether Father’s guilty plea was knowingly and voluntarily entered as Tenn. R. Crim. P. 11(b) requires. The trial court vacated 55 of the 60 initial convictions, finding the notice of criminal contempt failed to state essential facts as required by Tenn. R. Crim. P. 42(b); however, the order that followed held Father in criminal contempt for sending a text to Mother at 10:11 a.m. on June 20 for which Father had been acquitted following trial. The court also set aside Father’s guilty plea to 10 of the 133 additional counts in the second petition because the court failed to advise and question Father before accepting a plea as required by Tenn. R. Crim. P. 11(b). The trial court also ruled, over Father’s objections, that Mother could prosecute Father on all 133 counts in the second petition. In this appeal, Father contends the trial court violated the constitutional prohibitions against double jeopardy by (1) finding Father guilty of a count of criminal contempt for which he had been acquitted following trial, and (2) allowing Mother to prosecute her second 05/29/2018 - 2 - petition. Because double jeopardy prohibits a prosecution after an acquittal on the same count, we vacate Father’s conviction for criminal contempt for sending a text to Mother at 10:11 a.m. on June 20. As for allowing Mother to prosecute all 133 counts in her second petition, the agreed order, in which Father pled guilty to 10 counts, failed to specifically identify any of the counts for which Father pled guilty or any of the counts for which he was acquitted; therefore, jeopardy did not attached to any of the 133 counts. Accordingly, we affirm the trial court’s decision allowing Mother to prosecute the 133 counts in her second petition.

Knox County Court of Appeals 05/29/18
State of Tennessee v. Ronald Wayne Gilbert
E2017-00396-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Robert E. Lee Davies

The defendant, Ronald Wayne Gilbert, appeals his Sevier County Criminal Court jury convictions of especially aggravated kidnapping and aggravated assault, challenging both the trial court’s denial of his motion to strike the victim’s testimony and his motion to dismiss based upon the failure to preserve certain evidence. We affirm the convictions and sentence but remand for correction of a clerical error in the judgment.

Sevier County Court of Criminal Appeals 05/29/18
In Re Kendall M.
E2017-01769-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Robert D. Philyaw

Kendall M. was born in January 2016; she tested positive for amphetamines at birth and was placed in the Neonatal Intensive Care Unit where she was diagnosed with Neonatal Abstinence Syndrome and suffered from withdrawal symptoms. Upon her release from the hospital, she was placed with foster parents, in whose care she has remained. A proceeding to have her declared dependent and neglected was initiated by the Department of Children’s Services and permanency plans developed in May and October of 2016. In March of 2017 the Department filed a petition to terminate the parental rights of Kendall’s Mother on the grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans; following a hearing, the court granted the petition and terminated Mother’s rights on both grounds. Mother appeals the termination of her rights on the ground of substantial noncompliance with the permanency plans and the holding that termination of her rights was in the best interest of Kendall. Upon our review, we conclude that there is clear and convincing evidence to support the termination of her rights on both grounds, and the finding that termination of Mother’s rights is in Kendall’s best interest; accordingly, we affirm the judgment of the trial court.

Hamilton County Court of Appeals 05/29/18
Jennifer Lee Miller v. David Mark Miller, II
M2017-01867-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Chancellor Joseph Woodruff

This appeal involves a parent’s obligation to pay college expenses for her son. After the parties’ divorce proceeding, various orders and parenting plans were entered reflecting the parties’ agreement to share equally their children’s college expenses at the University of Tennessee. The trial court found that the parties subsequently reached an agreement that resulted in the oldest child deferring his enrollment for one semester, but that the agreement did not terminate or excuse the parties’ existing obligation to share college expenses upon enrollment. The trial court found the mother in civil contempt for refusing to pay the college expenses and awarded a monetary judgment to the father for the unpaid expenses. We affirm.     

Williamson County Court of Appeals 05/29/18
National Parks Resorts Lodge Corporation v. Antonio Perfetto, Et Al.
E2017-01330-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Robert E. Lee Davies, Senior Judge

This appeal arises from a judicial determination of the fair value of dissenters’ shares in a corporation. In 2002, King Solomon’s Palace, Inc., (“KSP”) a corporation created in 1986 for the purpose of establishing a hotel in Pigeon Forge, announced its pending merger into another company, National Parks Resort Lodge Corporation (“Plaintiff”). Johnny Jess Davis (“Davis”) was the majority shareholder of KSP. Dissenters Antonio Perfetto and David L. Donohue (“Defendants”) each held 50 shares of KSP common stock. Plaintiff filed a complaint in the Chancery Court for Sevier County (“the Trial Court”) seeking a judicial determination of the fair value of Defendants’ shares. After a trial, the Trial Court awarded Defendants $186,913 for their shares and $122,876 in attorney’s fees and costs. The Trial Court found, in part, that Davis had manipulated and withheld financial information to Defendants’ detriment. Plaintiff appeals to this Court, arguing, among other things, that the evidence preponderates against the Trial Court’s findings regarding Davis’s conduct. Defendants raise an additional issue arguing that the Trial Court set the value of their shares lower than it should have under the evidence. We affirm the judgment of the Trial Court.

Sevier County Court of Appeals 05/29/18