Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 04/24/2015
Format: 04/24/2015
James G. Clayton et al. v. Davidson Contractors, LLC et al.
E2013-02296-COA-R3-CV

In connection with the purchase of a newly constructed home, buyers signed an application for a home warranty, providing for arbitration of warranty disputes. After the buyers experienced several problems with their home, they sued the builders for breach of the implied warranty of habitability and negligent construction, among other things. Over five years after answering the buyers' complaint, the builders moved to stay the litigation and compel arbitration based on the home warranty's arbitration provision. The trial court denied the motion because the arbitration provision did not comply with the Tennessee Uniform Arbitration Act. The trial court also found that the builders' delay in seeking to compel arbitration constituted a waiver of their right to arbitrate. The builders appeal. Because we conclude that the Federal Arbitration Act governs the arbitration provision and consideration of the waiver defense was premature, we vacate and remand.

Hamilton County Court of Appeals 04/24/15
State of Tennessee v. Gary Sulo Alto
M2014-01159-CCA-R3-CD

Gary Sulo Alto (“the Defendant”) pleaded guilty to theft of property valued at $10,000 but less than $60,000. After a sentencing hearing, the trial court denied alternative sentencing and ordered restitution in the amount of $60,000. On appeal, the Defendant argues that (1) the trial court erred when it denied alternative sentencing and (2) the trial court erred when it ordered restitution in the amount of $60,000 without considering the Defendant’s future ability to pay. Upon review, we affirm the trial court’s denial of alternative sentencing. However, because the trial court failed to make findings as to the Defendant’s future ability to pay restitution, and based on the record, we reduce the restitution from the ordered amount of $60,000 to $27,000 and affirm the judgment as to restitution as modified.

Marion County Court of Criminal Appeals 04/24/15
Rita McCartt Kordon et al v. Beulah Newport et al.
E2013-01980-COA-R3-CV
Rita McCartt Kordon and Rose McCartt Young appeal the decision of the Chancery Court for Scott County (“the Trial Court”) dismissing their claims for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02(1). We find no abuse of discretion in the Trial Court’s dismissal of Ms. Kordon’s and Ms. Young’s claims, and we affirm.
 
Scott County Court of Appeals 04/24/15
State of Tennessee v. Tracy Lynn Carman-Thacker
M2014-00757-CCA-R3-CD

A Coffee County jury found the Defendant, Tracy Lynn Carman-Thacker, guilty of willful abuse, neglect, or exploitation and false imprisonment. The Defendant appeals, asserting that the trial court erred when it: (1) failed to compel the State to make an election of offenses; (2) denied the Defendant’s motion for acquittal as to both charges; and (3) determined that the victim was competent to testify at trial. After a thorough review of the record and applicable law, we reverse and remand in part, and affirm in part.

Coffee County Court of Criminal Appeals 04/24/15
Andrew Soimis v. State of Tennessee
M2014-01700-CCA-R3-HC

Petitioner, Andrew Soimis, filed a petition for writ of habeas corpus alleging that his judgment was void because he was convicted without an indictment.  The habeas corpus court summarily dismissed the petition.  Upon our review, we affirm the judgment of the habeas corpus court.

Putnam County Court of Criminal Appeals 04/24/15
In re Amadi A., et al.
W2014-01281-COA-R3-JV

This case involves a dispute over legal maternity of twin children born as the result of a surrogacy agreement. The intended parents of the children filed a joint petition, along with the surrogate mother and her husband, asking the juvenile court to declare the intended parents as the legal parents of the children and to require the Tennessee Department of Health to list them as the parents on the children’s birth certificates. The trial court initially granted the requested relief, but upon consideration of a motion to alter or amend filed by the Department of Health, the trial court ruled that the surrogate mother was the legal mother of the children and the party to be listed on the birth certificates. The intended parents, the surrogate, and her husband appeal. We affirm in part, vacate in part, and remand for further proceedings.

Madison County Court of Appeals 04/24/15
Christopher Douglas v. Caruthers & Associates, Inc.
W2013-02676-COA-R3-CV

This case involves an employment contract. After the employee’s employment was allegedly constructively terminated, he sued the employer for damages. The parties proceeded to trial, and the trial court ruled that the employer breached its employment contract with the employee and that the employee was entitled to an award of damages. The trial court then ordered that all issues of damages would be referred to a Special Master. After trial, the Special Master issued a report calculating employee’s damages, to which the employee objected. Upon sustaining several of the employee’s objections, the trial court again referred the matter to the Special Master. The trial court subsequently concurred in the revised findings of the Special Master, and the employer appealed, raising several issues. We vacate the ruling of the trial court and remand for further proceedings.

Shelby County Court of Appeals 04/24/15
In re Jaiden W., et al
M2014-00953-COA-R3-JV

This is the third appeal of this case, involving the issue of child support and arrears. In the second appeal, this Court remanded the case to the trial court for a determination of Appellant Father and Appellee Mother’s respective incomes for the period of August 22, 2008 through September 28, 2009. Based upon Mother’s testimony at the hearing on remand, the trial court set Mother’s income for the relevant period at $300 per month. Father appeals, arguing that, based upon the trial court’s previous finding that Mother was voluntarily unemployed, the trial court should have imputed income to Mother at the statutory rate. Because the law of the case is that the trial court should determine the parties’ actual circumstances, we conclude that the court correctly set Mother’s income as the amount she actually earned. Affirmed and remanded.

Coffee County Court of Appeals 04/23/15
James C. Loden, M.D., P.C. d/b/a Loden Vision Centers, and James C. Loden, M. D., Individually v. Gerald Michael Schmidt
M2014-01284-COA-R3-CV

Doctor filed this lawsuit against a former patient, alleging malicious prosecution, tortious interference, defamation, and intentional infliction of emotional distress. After the patient refused to respond to discovery, the trial court eventually entered an order striking the patient‘s answer and entering a default judgment against the patient. The trial court later awarded the doctor nominal damages and a permanent injunction. Affirmed.

Davidson County Court of Appeals 04/23/15
Whitney Leigh Harmon, et al v. Gregg Ian Shore, et al
M2014-01339-COA-R3-CV

This is a Health Care Liability case. Appellees are the treating physician and hospital. The trial court granted Appellees' Tennessee Rule of Civil Procedure 12.02 motions to dismiss Appellant's lawsuit for failure to comply with the Tennessee Code Annotated Section 29-26-121(a)(2)(E) notice provision for health care liability claims. Specifically, the trial court determined that the required Health Insurance Portability and Accountability Act (HIPAA) medical authorization provided by Appellant was not substantially compliant with the statutory requirements in that the relevant medical records were released only to Appellant's lawyer. Discerning no error, we affirm and remand.

Maury County Court of Appeals 04/23/15
James R. Cranmer v. State of Tennessee
M2013-02866-CCA-R3-PC

In 2011, the Petitioner, James R. Cranmer, pleaded guilty to one count of second degree murder, one count of attempted second degree murder, and two counts of reckless aggravated assault. The trial court sentenced him to an effective sentence of fifteen years in the Tennessee Department of Correction. The Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel, and the post-conviction court held an evidentiary hearing after which it denied the petition. On appeal, the Petitioner contends that the post-conviction court erred when it denied his post-conviction petition because he received the ineffective assistance of counsel at trial, and he further contends that his guilty plea was not voluntary, knowing, or intelligent because the State committed a Brady violation. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment.

Montgomery County Court of Criminal Appeals 04/23/15
Larry Stephen Brumit v. State of Tennessee
M2014-01039-CCA-R3-ECN

Larry Stephen Brumit (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Error Coram Nobis. Upon review, we affirm the judgment of the coram nobis court.

Rutherford County Court of Criminal Appeals 04/23/15
Arnold Harris v. Mr. Bult's Inc.
E2014-00961-SC-R3-WC
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. Arnold Harris (“Employee”) injured his left shoulder in the course and scope of his employment with Mr. Bult’s, Inc. (“Employer”). The Chancery Court for Loudon County (“the Trial Court”) found that Employee did not have a meaningful return to work and awarded 40% permanent partial disability. Employer has appealed, arguing that the Trial Court erred in finding that Employee did not have a meaningful return to work. We affirm the Trial Court’s judgment.
 
Loudon County Workers Compensation Panel 04/23/15
In re Ayris R.
E2014-01950-COA-R3-PT
This is a termination of parental rights appeal brought by the putative father. The trial court found clear and convincing evidence to support termination of the putative father’s parental rights because he failed to establish paternity. The court also found that termination of the putative father’s parental rights was in the best interest of the child. The putative father appeals the best interest finding. We affirm.
 
Washington County Court of Appeals 04/23/15
Richard Harkleroad et al v. Frontier Building and Development, Inc.
E2013-00664-COA-R3-CV

This appeal concerns an alleged breach of contract. Richard and Shannon Harkleroad (“the Harkleroads”) sued Frontier Building and Development, Inc. (“Frontier”) alleging faulty construction of their residence. Frontier filed a counterclaim alleging non-payment. The Circuit Court for Knox County (“the Trial Court”) found that the Harkleroads were entitled to recovery in the amount of $10,000 for construction defects to their porches and driveway. Regarding Frontier’s counterclaim, the Trial Court found that Frontier had performed work in addition to that required in the original contract and awarded Frontier $4,103.75 for this work. The Trial Court awarded neither side attorney’s fees under their contract. The Harkleroads appeal. We reverse the Trial Court as to its award of damages to Frontier and remand this case for the Trial Court to award reasonable attorney’s fees under the contract to the Harkleroads. Otherwise, we affirm the judgment of the Trial Court.

Knox County Court of Appeals 04/23/15
State of Tennessee v. John J. Ortega, Jr.
M2014-01042-CCA-R3-CD

Defendant, John J. Ortega, Jr., was indicted by the Montgomery County Grand Jury for two counts of rape of a child.  After a jury trial, Defendant was found guilty of aggravated sexual battery which was charged as a lesser included offense in Count One.  He was found not guilty in Count 2.  As a result, he was sentenced to nine years of incarceration.  Defendant appeals, arguing that aggravated sexual battery is not a lesser included offense of rape of a child.  Defendant did not object to the jury instructions at trial.  However, we have determined that aggravated sexual battery is no longer a lesser included offense of rape of a child under Tennessee Code Annotated section 40-18-110 as amended.  Therefore, the trial court’s instructions were in error.  However, we determine that the evidence is sufficient to support a conviction of the lesser included offense of child abuse.  Consequently, we modify Defendant’s conviction for aggravated sexual battery to child abuse and remand the matter to the trial court for entry of a corrected judgment and a new sentencing hearing.

Montgomery County Court of Criminal Appeals 04/23/15
In re Dallas H.B. et al
E2014-00063-COA-R3-PT

This is a parental termination case that focuses on the minor children of J.D.B. (Father) and J.A.B. (Mother). After Father and Mother divorced, Father married J.M.B. (Stepmother). A year later, Father and Stepmother (collectively, Petitioners) filed a petition seeking (1) the termination of Mother's parental rights and (2) adoption of the children by Stepmother. After a trial, the court found, by clear and convincing evidence, (1) that Mother had abandoned the children by failing to pay child support, and (2) that termination is in the best interest of the children. Mother appeals. We affirm.

Rhea County Court of Appeals 04/23/15
Gregory D. Allen v. Debbie D. Albea
W2014-01414-COA-R3-CV

This appeal arises from a jury verdict in favor of Plaintiff in the amount of $11,513.78. On appeal, Plaintiff raises several evidentiary issues, contends that juror misconduct requires a new trial, and asserts that the verdict is not supported by the evidence. We affirm.

Madison County Court of Appeals 04/23/15
Najo Equipment Leasing, LLC v. Commssioner of Revenue
W2014-01096-COA-R3-CV

Taxpayer brought action against the Tennessee Department of Revenue (“Department”) to challenge its assessment of business taxes against taxpayer. Taxpayer asserted it was entitled to an exemption for its leasing trucks and trailers to a public utility. Taxpayer and the Department filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the Department finding that the exemption provision was unambiguous and did not apply to the taxpayer’s business activities. On appeal, we hold that the exemption provision is ambiguous, but also that the taxpayer failed to meet its burden in proving it was entitled to the exemption. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the Department.

Shelby County Court of Appeals 04/23/15
State of Tennessee v. Detrick Cole
W2013-02766-CCA-R3-CD

A Shelby County jury found the Defendant, Detrick Cole, guilty of first degree premeditated murder and imposed a sentence of death. The Defendant’s conviction and sentence were affirmed by this Court, State v. Detrick Cole, No. W2002-01254-CCA-R3-DD, 2003 WL 22848969 (Tenn. Crim. App., at Jackson, Nov. 24, 2003), and by our Supreme Court, State v. Cole, 155 S.W.3d 885 (Tenn. 2005). The Defendant filed a petition for post-conviction relief alleging ineffective assistance of counsel, which was denied after a hearing. On appeal, this Court agreed with the Defendant’s contention that he had received the ineffective assistance of counsel during the penalty phase of his trial and remanded the case to the trial court for a new penalty phase proceeding. Detrick Cole v. State, No. W2008-02681-CCAR3-PC, 2011 WL 1090152, at *56 (Tenn. Crim. App., at Jackson, March 8, 2011), perm. app. denied (Tenn. July 14, 2011). On remand and prior to the new penalty phase proceeding, the Defendant filed a motion challenging the State’s introduction of his 1997 convictions in support of the prior violent felony aggravating circumstance, arguing that the violence of these convictions was ambiguous. See T.C.A. § 39-13-204(i)(2). The trial court denied the Defendant’s motion, concluding that the issue had been previously litigated and decided in the Defendant’s prior appeal. The Defendant then filed an extraordinary appeal, pursuant to Tennessee Rule of Appellate Procedure 10, which this Court denied. Thereafter, the Defendant agreed to accept a sentence of life without the possibility of parole, and a hearing was held to enter that sentence and a judgment of conviction reflecting that sentence. The Defendant appeals this judgment, contending that his sentence is illegal and void and should be set aside. He again argues that he is ineligible to receive this sentence because his 1997 convictions were insufficient to support the prior violent felony aggravating circumstance. After a thorough review of the record and applicable law, we dismiss the appeal.

Shelby County Court of Criminal Appeals 04/22/15
State of Tennessee v. Cedric Robertson
W2014-01545-CCA-R3-CD

The Defendant, Cedric Robertson, was convicted by a Madison County Circuit Court jury of the sale and the delivery of more than one-half ounce of marijuana, a Class E felony. See T.C.A. §§ 39-17-417 (Supp. 2012) (amended 2014), 39-17-415 (2014). The trial court merged the convictions and sentenced the Defendant as a Range II, multiple offender to four years’ confinement. On appeal, the Defendant contends that the evidence is insufficient to support his conviction. We affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 04/22/15
State of Tennessee v. Anthony Dewayne Blaylock
W2014-01578-CCA-R3-CD

A Madison County jury convicted the Defendant, Anthony Dewayne Blaylock, of two counts of aggravated assault, one count of attempted aggravated assault, and one count of criminal trespass, and the trial court sentenced him to an effective sentence of eight years in confinement. On appeal, the Defendant contends that the evidence is insufficient to sustain his convictions. After a thorough review of the record and applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 04/22/15
Nicholas Short v. State of Tennessee
M2014-00614-CCA-R3-PC

Petitioner, Nicholas Short, was indicted by the Davidson County Grand Jury for one count of first degree premeditated murder and one count of felony murder in the perpetration of an especially aggravated robbery. Petitioner was convicted by a jury of first degree premeditated murder in count 1 and the lesser-included offense of second degree murder in count 2. The trial court merged the two offenses and sentenced Petitioner to a term of life imprisonment. Petitioner appealed his conviction, and this court affirmed. State v. Nicholas Short, No. M2010-01914-CCA-R3-CD, 2012 WL 1593174 (Tenn. Crim. App., May 7, 2012), perm. to app. denied (Tenn., Sept. 20, 2012). Petitioner filed a petition seeking post-conviction relief on the basis that his trial counsel provided ineffective assistance of counsel. Following an evidentiary hearing, the post-conviction court denied post-conviction relief. Petitioner appeals the post-conviction court’s denial of his post-conviction petition. Having carefully reviewed the record, we affirm the denial of post-conviction relief.

Davidson County Court of Criminal Appeals 04/22/15
Vanderbilt University v. Tennessee State Board of Equalization, et al
M2014-01386-COA-R3-CV

Vanderbilt University applied for a 100% property tax exemption for eleven of its fraternity houses pursuant to the educational exemption, Tenn. Code Ann. § 67-5-212(a)(1), or the dormitory exemption, Tenn. Code Ann. § 67-5-213(a). The State Board of Equalization (“SBOE”) denied Vanderbilt’s application, and Vanderbilt sought administrative review. An administrative law judge and the Assessment Appeals Commission both reached the same conclusion as the SBOE. Vanderbilt then sought judicial review, and the trial court determined that the fraternity houses were entitled to the 100% exemption because they satisfied the requirements for the educational exemption. The State appealed, and we reverse the trial court’s decision. The fraternity houses are not used “purely and exclusively” for educational purposes, as that provision has been interpreted and applied by the courts. We also decline to find the fraternity houses qualify for the dormitory exemption because they are not used primarily for dormitory purposes, as the statute requires.

Davidson County Court of Appeals 04/22/15
In re Dayton R., et al.
W2014-01904-COA-R3-JV

This case involves a petition for grandparent visitation filed by the great-grandparents of the children at issue. The trial court concluded that great-grandparents do not qualify as “grandparents” under Tennessee’s grandparent visitation statute, Tennessee Code Annotated section 36-6-306. Accordingly, the court concluded that the great-grandparents lacked standing to pursue their petition and dismissed the petition for lack of subject matter jurisdiction. We reverse and remand for further proceedings.

Henderson County Court of Appeals 04/21/15