Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 08/28/2016
Format: 08/28/2016
State of Tennessee v. James Ray Bartlett
M2016-00217-CCA-R3-CD

The defendant, James Ray Bartlett, appeals the dismissal of his motion, filed pursuant to Tennessee Rule of Criminal Procedure 36.1, to correct what he believes to be an illegal sentence. In this appeal, the defendant asserts that the trial court erred by denying his motion on the grounds that his sentence had expired.  Because Rule 36.1 cannot avail the defendant of meaningful relief, we affirm the judgment of the trial court.

Lincoln County Court of Criminal Appeals 08/26/16
David G. Skipper v. State of Tennessee
M2015-01518-CCA-R3-PC

The Petitioner, David G. Skipper, appeals the Putnam County Criminal Court’s dismissal of his second petition for post-conviction relief from his guilty pleas to two counts of rape of a child and one count of attempted aggravated sexual battery and resulting effective sentence of thirty-one years.  On appeal, the Petitioner contends that the post-conviction court erred by not treating his petition for post-conviction relief as a petition for writ of error coram nobis.  Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Putnam County Court of Criminal Appeals 08/26/16
Thomas E. Williams v. Debra Johnson, Warden
M2015-02244-CCA-R3-HC

The petitioner, Thomas E. Williams, appeals the summary dismissal of his petition for writ of habeas corpus, which petition challenged his 1989 conviction of escape.  Discerning no error, we affirm.

Hickman County Court of Criminal Appeals 08/26/16
State of Tennessee v. Douglas Curtis
M2015-01372-CCA-R3-CD

The defendant, Douglas Curtis, was convicted of four counts of rape of a child, a Class A felony.  On appeal, he contends that the evidence is insufficient to support his convictions and that a portion of the victim’s testimony violated his right to a fair trial.  Following our review, we affirm the judgments of the trial court.

Lewis County Court of Criminal Appeals 08/26/16
In Re Lillian D.
E2016-00111-COA-R3-PT

This is a termination of parental rights case involving a two-year-old child, Lillian D. (“the Child”). On October 7, 2013, the Knox County Juvenile Court granted temporary legal custody of the Child to the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where she has remained since that date. DCS subsequently filed a petition to terminate the parental rights of the Child’s biological mother, Penelope D. (“Mother”), in the Knox County Juvenile Court on January 26, 2015.1 Following a bench trial, the trial court terminated Mother’s parental rights to the Child after determining by clear and convincing evidence that Mother was mentally incompetent to care for the Child and that the conditions that led to the removal of the Child from Mother’s custody still persisted. The trial court further found by clear and convincing evidence that terminating Mother’s parental rights was in the best interest of the Child. Mother has appealed. Discerning no error, we affirm.

Knox County Court of Appeals 08/26/16
Suntrust Bank v. Angela Christina Best a/k/a Christina Best
E2015-02122-COA-R3-CV

Angela Christina Best (“Best”) appeals the decision of the Circuit Court for Knox County (“the Trial Court”) granting summary judgment to SunTrust Bank (“SunTrust”) and awarding SunTrust a judgment against Best in the amount of $379.60 plus post-judgment interest and attorney fees. Best raises issues regarding whether the Trial Court erred in exercising jurisdiction after finding that the contract at issue in this case contained an arbitration clause, whether the Trial Court erred in granting summary judgment both on SunTrust’s complaint and on Best’s counterclaim, and whether the Trial Court erred in granting SunTrust’s attorney’s fees allegedly in excess of those allowed under the contract. We find and hold that the arbitration clause in the contract never was triggered, that SunTrust made a properly supported motion for summary judgment, that Best failed to show any genuine disputed issues of material fact, and that SunTrust was entitled to summary judgment both on the complaint and on Best’s counterclaim. We further find and hold that the attorney’s fees awarded were in excess of those allowed under the contract. We, therefore, affirm the grant of summary judgment and modify the award of attorney’s fees to comply with the contract.

Knox County Court of Appeals 08/26/16
Arron Wesley Frazier v. Lee Anne Frazier
E2016-01476-COA-T10B-CV

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion for recusal filed by Lee Anne Frazier (Wife) in the parties' divorce proceedings. Having reviewed the petition for recusal appeal filed by Wife, as well as the answer in opposition filed by Arron Wesley Frazier (Husband), we conclude that the Trial Court should have granted the motion because the unique circumstances of this case create an appearance of bias on the part of the Trial Court Judge that required his recusal. We therefore reverse the order of the Trial Court and remand the case for reassignment to a different judge.

Rhea County Court of Appeals 08/26/16
Tasha Dayhoff v. Joshua D. Cathey
W2016-00377-COA-R3-JV

This is the second appeal in this custody dispute between unmarried parents. After establishing parentage of the minor children, the juvenile court entered a permanent parenting plan without hearing sworn testimony. On appeal, this Court vacated the parenting plan and remanded for an evidentiary hearing. Before the hearing on remand, the mother relocated from West Tennessee to Middle Tennessee with the children. The trial court conducted an evidentiary hearing and determined that the parental relocation statute applied to the court’s decision. The trial court first found that the mother’s move had no reasonable purpose and was vindictive and then concluded that it is in the children’s best interest for the father to be designated primary residential parent. The mother appeals. We affirm.

Madison County Court of Appeals 08/25/16
State of Tennessee v. Marcus Anthony Robey
M2015-00306-CCA-R3-CD

Defendant, Marcus Anthony Robey, was convicted of aggravated robbery by a Rutherford County jury and was sentenced to thirty years.  On appeal, Defendant argues that the trial court erred by failing to provide a supplemental jury instruction following a jury question during deliberations and that the evidence was insufficient to support his conviction.  After a thorough review of the record, we determine that Defendant waived his right to appeal this conviction.  Therefore, the appeal is dismissed.

Rutherford County Court of Criminal Appeals 08/25/16
State of Tennessee v. Brandon Ray Rust
M2015-02284-CCA-R3-CD

The appellant, Brandon Ray Rust, pled guilty in the Bedford County Circuit Court to burglary and was granted judicial diversion with the requirement that he complete three years on probation.  Subsequently, the trial court revoked probation and ordered that the appellant serve the balance of his sentence in confinement.  On appeal, the appellant acknowledges that he violated probation but contends that the trial court should have ordered a sentence that included an alternative to confinement.  Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Bedford County Court of Criminal Appeals 08/25/16
State of Tennessee v. Richard Bryant Long
M2015-02093-CCA-R3-CD

A Lawrence County jury convicted the Defendant, Richard Bryant Long, of rape of a child, and the trial court sentenced him to serve twenty-five years in the Tennessee Department of Correction.  On appeal, the Defendant contends that the trial court erred when it allowed a video recording of the victim’s interview to be admitted without satisfying the requirements of Tennessee Code Annotated section 24-7-123.  After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.

Lawrence County Court of Criminal Appeals 08/25/16
Cindy Hatfield, et al. v. Allenbrooke Nursing and Rehabilitation Center, LLC, et al.
W2016-01510-COA-T10B-CV

This is an interlocutory appeal as of right from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal de novo as required by Tennessee Supreme Court Rule 10B, § 2.06, we affirm the denial of the motion.

Shelby County Court of Appeals 08/25/16
State of Tennessee v. Obada D. Abujaber
W2015-00590-CCA-R3-CD

The defendant, Obada D. Abujaber, was indicted for two counts of aggravated assault, two counts of possession of a Schedule IV controlled substance, and one count of vandalism of property valued at $500 or more but less than $1000. Following trial, a jury found the defendant not guilty of one count of aggravated assault, guilty of one count of the lesser-included offense of attempted aggravated assault, guilty of two counts of the lesser-included offenses of attempted possession of a Schedule IV controlled substance, and guilty of one count of vandalism of property valued at less than $500. The trial court sentenced the defendant to an effective sentence of four years, eleven months, and twenty-nine days. On appeal, the defendant argues the evidence was insufficient to support his convictions. After review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 08/25/16
In re Devin B.
W2016-00121-COA-R3-JV

This is an appeal of an order dismissing Father's petition to enroll judgment in Tennessee and motion to modify a parenting plan due to a lack of subject matter jurisdiction. The juvenile court found that Tennessee was not the Child's home state, pursuant to the Uniform Child Custody Enforcement Act, on the day of the proceeding or within the six months prior to Father's filing his petition. We affirm.

Shelby County Court of Appeals 08/25/16
State of Tennessee v. Guary L. Wallace
W2015-00708-CCA-R3-CD

Defendant, Guary L. Wallace, was convicted in the Crockett County Circuit Court of attempted first degree murder, especially aggravated robbery, two counts of aggravated robbery, and two counts of especially aggravated assault, all under a theory of criminal responsibility. Following a sentencing hearing, Defendant received the following sentences of incarceration: 40 years for attempted first degree murder; 40 years for especially aggravated robbery; 20 years for each aggravated robbery conviction; and ten years for each especially aggravated assault conviction. His 40-year sentences were ordered to run concurrently, and his remaining sentences were ordered to run consecutively, resulting in a total effective sentence of 100 years. Defendant appeals his convictions and sentences and argues: 1) that the evidence is insufficient to support his convictions on a theory of criminal responsibility; 2) that the trial court failed to fulfill its role as thirteenth juror; 3) that the trial court failed to properly instruct the jury on criminal responsibility; 4) that the prosecutor committed prosecutorial misconduct during closing argument; and 5) that his sentences amount to cruel and unusual punishment. After a thorough review of the record, we affirm the judgments of the trial court.

Crockett County Court of Criminal Appeals 08/25/16
State of Tennessee v. Michael Holmes
W2014-02437-CCA-R3-CD

Defendant, Michael Holmes, was indicted by the Shelby County Grand Jury for two counts of aggravated robbery, one count of especially aggravated robbery, three counts of first degree murder, one count of attempted first degree murder, and one count each of facilitation of a felony and employing a firearm during the commission of a dangerous felony. Following a trial, the jury convicted Defendant of two counts of aggravated robbery, three counts of first degree murder, one count of attempted first degree murder, and one count of employing a firearm during the commission of a dangerous felony. The trial court sentenced Defendant to ten years for each count of aggravated robbery, to be served concurrently. The trial court merged Defendant's three convictions for first degree murder into one conviction and imposed a sentence of life, to be served consecutively to the sentences in Defendant's other convictions. In addition to the sentence for the aggravated robberies, the trial court sentenced Defendant to fifteen years for attempted first degree murder and six years for employing a firearm during the commission of a dangerous felony. In this appeal as of right, Defendant contends that the evidence was insufficient to sustain his convictions, and that the trial court erred by not ruling that Devin Herndon was an accomplice whose testimony required independent corroboration. Following a careful review of the record, we find no error and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/25/16
Deborah Lacy v. HCA Tristar Hendersonville Hospital, et al
M2015-02217-COA-R3-CV

This appeal arises from an involuntary dismissal after the close of plaintiff’s proof under Rule 41.02(2) of the Tennessee Rules of Civil Procedure. The pro se plaintiff submitted a statement of the evidence, and the defendants objected, requesting that the statement of the evidence be excluded from the record. The trial court sustained the objection and excluded the statement of the evidence from the record. We vacate the order of dismissal and remand for the trial court to make findings of fact. Because the trial court was required by the Tennessee Rules of Appellate Procedure to approve a statement of the evidence, we also remand for supplementation of the record.    

Sumner County Court of Appeals 08/25/16
Ray Duffy, et al. v. Danny Elam
W2015-01456-COA-R3-CV

This appeal involves an unauthorized sale of a trailer by a third party. The circuit court held that the original owner of the trailer, who holds the certificate of title, is entitled to possession of the trailer rather than the party claiming to be a bona fide purchaser. The purchaser appeals. We affirm.

McNairy County Court of Appeals 08/24/16
Mark A. Shempert, et al. v. Kim Wright Cox, Personal Representative ad litem for the Estate of Robert Davis
W2015-02161-COA-R3-CV

This is an appeal of an order granting the unnamed defendant’s motion for summary judgment. After being involved in an accident with an uninsured motorist, the plaintiff brought suit against his uninsured motor vehicle insurance carrier seeking coverage under the policy. The insurance carrier moved for summary judgment, arguing that the plaintiff was operating a vehicle not insured under the policy but available for his regular use, and therefore, was not covered under the policy. We affirm.

Shelby County Court of Appeals 08/24/16
Melinda Duncan, et al. v. Cheryl L. Ledford MD, et al.
W2015-02370-COA-R3-CV

This is a healthcare liability case. The trial court granted summary judgment in favor of Appellees, Appellant’s treating physician and her employer. Summary judgment was based on the trial court’s finding that Appellants had failed to meet their burden of proof to show that Appellee doctor deviated from the standard of care or that the treatment provided caused Appellant to sustain injuries that otherwise would not have occurred. Discerning no error, we affirm.

Madison County Court of Appeals 08/24/16
State of Tennessee v. James Moore
W2015-01483-CCA-R3-CD

The defendant, James Moore, was convicted of one count of rape of a child, a Class A felony, and one count of aggravated sexual battery, a Class B felony, and sentenced in each case, as a Range II offender, to forty years confinement. The court merged the Class B aggravated sexual battery conviction into the Class A rape of a child conviction. On appeal, the defendant argues, as to each conviction, that the evidence was insufficient to sustain the conviction and the sentence was excessive. Following our review, we conclude that the arguments are without merit as to the conviction for rape of a child and affirm the judgment for that conviction. As for the conviction for aggravated sexual battery, we conclude that the evidence is sufficient to sustain the conviction but remand for an amended judgment because the sentence imposed for that offense exceeds the range available for a Range II offender.

Shelby County Court of Criminal Appeals 08/23/16
State of Tennessee v. Susan Gail Stephens
M2014-01270-SC-R11-CD

This appeal is one of two similar appeals that were consolidated for oral argument because they involve related questions of law involving Tennessee Code Annotated section 40-15-105 (2006) (“the pretrial diversion statute”), which allows a district attorney general to suspend prosecution of a qualified defendant for a period of up to two years. See State v. Hamilton, No. E2014-01585-SC-R11-CD (Tenn. 2016). We granted this appeal to emphasize once again the process the district attorney general, trial court, and appellate courts must follow when reviewing a prosecutor’s denial of pretrial diversion. The defendant was indicted for two counts of statutory rape and two counts of contributing to the delinquency of a minor. The defendant applied for pretrial diversion three times, and the district attorney general’s office denied her application each time. The trial court likewise denied each of the defendant’s three petitions for writ of certiorari. The defendant was granted permission to file an interlocutory appeal after each denial, and the Court of Criminal Appeals reversed the trial court’s decision in the first two appeals. After the district attorney general’s office denied the defendant’s application for a third time and the trial court denied the defendant’s petition, the Court of Criminal Appeals held that the record does not contain substantial evidence to support the denial of pretrial diversion and remanded with instructions that the district attorney general’s office grant the defendant pretrial diversion. We granted review. We reverse the Court of Criminal Appeals’ judgment, finding that the district attorney general acted properly and the trial court properly found no abuse of discretion, and we reinstate the trial court’s judgment affirming the denial of pretrial diversion.

Coffee County Supreme Court 08/23/16
State of Tennessee v. Gary Hamilton
E2014-01585-SC-R11-CD

This appeal is one of two similar appeals that were consolidated for oral argument because they involve related questions of law concerning Tennessee Code Annotated section 40-15-105 (2013) (“the pretrial diversion statute”), which allows a district attorney general to suspend prosecution of a qualified defendant for a period of up to two years. See State v. Stephens, No. M2014-01270-SC-R11-CD (Tenn. 2016). We granted review in this case to emphasize once again the process the district attorney general, trial court, and appellate courts must follow when reviewing a prosecutor’s denial of pretrial diversion. The defendant was indicted for assault after he allegedly attacked a student at the school where he worked as a teacher’s assistant, and the prosecutor denied his application for pretrial diversion. After the trial court refused to overturn the prosecutor’s decision, the Court of Criminal Appeals granted the defendant’s interlocutory appeal and held that the trial court failed to review properly the district attorney general’s decision. Conducting its own review, the intermediate court concluded that the record lacked substantial evidence supporting the denial of pretrial diversion and remanded with instructions that the defendant be granted pretrial diversion. We granted review and conclude that the district attorney general considered all relevant factors. Although the trial court improperly reviewed the district attorney general’s action, the trial court reached the correct result. Therefore, we vacate the Court of Criminal Appeals’ judgment and reinstate the trial court’s judgment affirming the denial of pretrial diversion.

Knox County Supreme Court 08/23/16
Steve Kirby Kucinski v. Magali Ortega
M2015-00481-COA-R3-CV

In this divorce action, the husband appeals the award of alimony in futuro, asserting that the award should be overturned because the wife was awarded substantial marital property or, alternatively, that due to changed circumstances, the award of alimony is inappropriate. Finding no error, we affirm the judgment of the trial court.

Montgomery County Court of Appeals 08/23/16
Adedamola O. Oni v. Tennessee Department of Health, et al.
M2015-01841-COA-R3-CV

In an earlier proceeding, we determined that a physician violated three different provisions of the Medical Practice Act, Tenn. Code Ann. §§ 63-6-214(b)(1), (2), and (20). We remanded the case to the Tennessee Board of Medical Examiners (the “Board”) to determine the appropriate sanction. On remand, the physician argued the case had become moot because his medical license was not renewed and had become automatically revoked by operation of law. The Board disagreed and voted to revoke the physician’s license as punishment for his violations. The physician appealed, and the chancery court vacated the Board’s decision on the basis that the Board lacked subject matter jurisdiction over the physician’s license once it was automatically revoked. The State appealed, and we reverse the chancery court’s judgment. We conclude that the Board had subject matter jurisdiction to sanction the physician for his conduct while his license was active, even though the license was not active at the time the sanction was imposed.

Davidson County Court of Appeals 08/23/16