Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 05/22/2020
Format: 05/22/2020
Strategic Acquisitions Group, LLC v. Premier Parking Of Tennessee, LLC
E2019-01631-COA-R3-CV

Plaintiff lessor appeals the trial court’s decision to grant summary judgment concerning the interpretation of a lease in favor of the defendant lessee. Discerning no error, we affirm.

Sevier County Court of Appeals 05/22/20
Karen Potter v. YAPP USA Automotive Systems, Inc.
M2019-01531-COA-R3-CV

An employee filed and settled a workers’ compensation claim against her employer for injuries sustained in an assault. The employee then filed a complaint under the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 to -702, alleging that the assault, in conjunction with a previous incident, constituted sexual harassment that created a hostile work environment. The trial court granted summary judgment for the employer, and the employee appealed. We affirm the trial court’s decision.

Sumner County Circuit, Criminal & Chancery Courts 05/22/20
Dan E. Durell v. State of Tennessee
E2019-01393-CCA-R3-HC

The pro se petitioner, Dan E. Durell, appeals for the denial of his petition for writ of habeas corpus by the Criminal Court for Knox County, arguing the habeas court erred in summarily dismissing his petition. The petitioner asserts he is entitled to habeas corpus relief because the State withheld evidence favorable to the petitioner’s sentencing, his convictions violated double jeopardy protections, and the trial court relied on “improper, inaccurate, and mistaken information” in sentencing him. However, as noted by the State in its brief, the petitioner’s appeal is untimely, and our review of the record and the petitioner’s claims does not support a finding that the interest of justice supports the waiver of the petitioner’s untimely notice of appeal. Accordingly, we dismiss the appeal.

Knox County Court of Criminal Appeals 05/22/20
Courtney Knowles v. State of Tennessee
W2018-00739-CCA-R3-PC

Petitioner, Courtney Knowles, appeals from the denial of his petition for post-conviction relief, which challenged his 2012 conviction for rape of a child. In this appeal, Petitioner asserts that his trial counsel was ineffective and that he was denied a full and fair hearing on his post-conviction petition. After a review of the entire record, we conclude that Petitioner was not afforded a full and fair hearing on his petition. Accordingly, we reverse the judgment of the post-conviction court and remand this matter for a new evidentiary hearing. Furthermore, the interests of justice require that under the circumstances of this case, and to insure the public perception of a fair and impartial hearing, the post-conviction proceedings be heard by a different judge than the judge who previously heard the proceedings. In light of our conclusion and disposition in this case, we need not address Petitioner’s claims of ineffective assistance of trial counsel at this time.

Shelby County Court of Criminal Appeals 05/22/20
State of Tennessee v. Jason Bradley Walters
W2019-00420-CCA-R3-CD

The State appeals as of right from the trial court’s order granting the motion to suppress all evidence obtained as a result of an unconstitutional stop of the vehicle driven by Defendant, Jason Bradley Walters. The basis of the stop was the arresting deputy’s observation that Defendant violated Tennessee Code Annotated section 55-9-407, which requires a driver to dim headlights within 500 feet of an approaching vehicle. In its order, the trial court granted the motion solely based upon its determination that a violation of Tennessee Code Annotated section 55-9-407 is not a crime. On appeal the State argues it is a Class C misdemeanor pursuant to Tennessee Code Annotated section 55-10-301(a), and that the trial court’s judgment should be reversed. On this point, we agree with the State. However, we remand for the trial court to make specific findings of fact based upon the trial court’s credibility determinations of the witnesses, and any other evidence, direct or circumstantial, viewed in light of the trial court’s credibility of the testimony. The trial court must then issue a new order either granting the motion to suppress or denying the motion.

Madison County Court of Criminal Appeals 05/22/20
Kamonie Ector v. State of Tennessee
E2019-01414-CCA-R3-PC

The petitioner, Kamonie Ector, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel prior to and during his guilty plea hearing. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Knox County Court of Criminal Appeals 05/22/20
Tennessee State Bank v. Douglas V. Mashek et al.
E2019-00591-COA-R3-CV

This case involves a home equity line of credit (“HELOC”) extended to the co-defendant, Douglas V. Mashek, by the plaintiff, Tennessee State Bank (“the Bank”), via a promissory note secured by a deed of trust encumbering real property titled to Mr. Mashek and acquired during Mr. Mashek’s marriage to the co-defendant, Deborah A. Mashek. When the Bank subsequently attempted to foreclose on the property, Mr. Mashek objected based on alterations to the deed of trust and a notice of right of rescission that had allegedly occurred after the deed’s execution and prior to recordation. The Bank filed a complaint against the Masheks in the trial court, seeking declaratory judgment that the recorded deed of trust was valid and enforceable, or in the alternative, reformation of the executed deed of trust to conform to the recorded deed. The Bank also named the title company involved in the loan transaction as a third-party defendant, alleging the title company’s liability in the event that the trial court found the deed of trust, either as executed or as recorded, to be unenforceable.1 The Masheks, proceeding pro se, filed various pleadings in response to the complaint, including a counterclaim against the Bank, alleging, inter alia, common law fraud, breach of fiduciary duty, negligence, equitable estoppel, slander of title, statutory estoppel, wrongful foreclosure, and unclean hands. Upon the Bank’s motion for partial summary judgment and following a hearing, the trial court granted the motion as to reformation of the executed deed of trust, declaring the deed, as reformed, to be enforceable and finding that the Bank was entitled to pursue foreclosure proceedings. The trial court found in part that the Bank or its agent(s) had employed “procedurally questionable and perhaps fraudulent” methods that were “at the very least negligent and potentially criminal in nature” to correct mistakes in the executed deed of trust and to, without authorization, affix the Masheks’ initials over a change in a date of signature on the notice of right of rescission. However, having also found that the mistakes corrected were mutual and amounted to scrivener’s errors that were not intended to and did not prejudice the Masheks, the trial court granted the Bank’s request to reform the executed deed of trust. The trial court 1 The title company is not participating in this appeal. 05/21/2020 2 awarded to the Bank a monetary judgment against Mr. Mashek, as the sole debtor named in the loan documents, in the amount of $294,566.39 for unpaid principal and interest. The trial court also awarded to the Bank reasonable attorney’s fees and expenses in the amount of $8,795.84, limiting such fees to those that “would be expected in an ordinary foreclosure action.” The trial court dismissed the Masheks’ various counterclaims and subsequently denied the Bank’s motion to alter or amend language in the judgment. The Masheks have appealed, and the Bank has raised issues regarding the trial court’s denial of its request to alter the court’s findings and denial of its request for additional attorney’s fees and expenses. Having determined that the Bank or its agent(s) made a unilateral mistake in materially altering the deed of trust after the document’s execution and then recording the altered deed of trust with the unilateral mistake incorporated, we reverse the trial court’s judgment as to the reformation and enforceability of the executed deed of trust. Having also determined that the action of the Bank or its agent(s) in affixing the Masheks’ initials over the altered date on the rescission notice without authorization or notice constituted gross negligence, we reverse the trial court’s finding that no gross negligence occurred but affirm the trial court’s implied finding that the Bank could not succeed in its request to reform the effective date of the rescission notice. However, concluding that no alterations were made to the promissory note, we further determine that the trial court properly found Mr. Mashek to be liable for the unpaid principal and interest due under the terms of the note. We therefore affirm the trial court’s $294,566.39 monetary judgment against Mr. Mashek. We vacate the trial court’s award of attorney’s fees and expenses to the Bank and remand for a hearing to determine the amount of attorney’s fees and expenses incurred by the Bank solely to obtain a judgment based on the promissory note. We affirm the trial court’s judgment in all other respects, including its denial of the Bank’s request for additional attorney’s fees and expenses and its denial of the Bank’s motion to alter or amend the language of the judgment. Finally, we clarify that no evidence has been presented in this case to support a finding of the intent necessary for forgery as a cause of action against the Bank or its agent(s).

Knox County Court of Appeals 05/21/20
State of Tennessee v. Daniel Ginther
M2019-00112-CCA-R3-CD

The Defendant, Daniel L. Ginther, appeals as of right from the Williamson County Circuit Court’s revocation of his probation and reinstatement of the remainder of his eight-year sentence for passing worthless checks in the amount of $1,000 or more but less than $10,000. On appeal, the Defendant asserts that the trial court abused its discretion by ordering the Defendant to serve the remainder of his sentence in confinement in spite of the Defendant’s “serious medical issues.” Following our review, we affirm.

Williamson County Circuit, Criminal & Chancery Courts 05/21/20
Bruce Gillam v. Destiny Ballew
E2018-01782-COA-R3-CV

This appeal concerns the trial court’s designation of the father as the minor children’s primary residential parent after establishing his paternity. During trial, the court granted the father’s motion in limine to exclude testimony from the mother’s expert witness. The mother appeals the trial court’s evidentiary ruling and the designation of primary residential parent. We affirm the trial court’s decision.

Anderson County Court of Appeals 05/21/20
State of Tennessee v. Joseph Wayne Wethington
E2018-02140-CCA-R3-CD

The defendant, Joseph Wayne Wethington, appeals his Grainger County Circuit Court jury convictions of attempted rape of a child, arguing that the evidence was insufficient to support his conviction, that the trial court admitted certain testimony in violation of Tennessee Rule of Evidence 404(b), and that his sentence was excessive. Discerning no error, we affirm.

Grainger County Court of Criminal Appeals 05/21/20
In Re Aryana S.
E2019-01267-COA-R3-PT

Lacy B. and Quentin B. (collectively, “Petitioners”) filed a petition for adoption and to terminate the parental rights of the mother, Morgan S. (“Mother”), to the minor child, Aryana S. (“the Child”). The Trial Court found that Petitioners had proven by clear and convincing evidence that the grounds of abandonment by failure to support and severe child abuse existed for termination of Mother’s parental rights but that termination of her rights was not in the Child’s best interest. Discerning no reversible error, we affirm.

Meigs County Court of Appeals 05/21/20
RODOLFO GUERRA ROSALES v. STATE OF TENNESSEE
M2019-01375-CCA-R3-PC

The Petitioner, Rodolfo Guerra-Rosales, pleaded guilty in General Sessions Court to misdemeanor drug possession, and the court imposed a probation sentence of eleven months and twenty-nine days. The Petitioner timely filed a post-conviction petition in circuit court, alleging that his guilty plea in general sessions court was involuntary based upon the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition, concluding that the claim was not cognizable and that the court lacked jurisdiction to hear the petition. On appeal, the Petitioner asserts, and the State concedes, that the post-conviction court had jurisdiction to consider the petition and that his petition stated a colorable claim. After review, we reverse the post-conviction court’s dismissal and remand for an evidentiary hearing on the Petitioner’s claim.

Rutherford County Circuit, Criminal & Chancery Courts 05/21/20
State of Tennessee v. Benjamin Keith Franklin
E2019-01047-CCA-R3-CD

The Defendant, Benjamin Keith Franklin, was convicted by the Rhea County Circuit Court jury of sexual battery by an authority figure, a Class C felony, and was sentenced to four years and six months in the Tennessee Department of Correction. On appeal, he argues that his conviction violates principles of double jeopardy and the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

Rhea County Court of Criminal Appeals 05/21/20
In Re: Ava M., Et Al.
E2019-01675-COA-R3-PT

This appeal concerns the termination of a mother’s parental rights. Janae M. (“Mother”) is the mother of Ava M., Camille W., and Michael W., III (“the Children”).1 Tommy G. (“Grandfather”) and Glenda G. (“Grandmother”) (“Grandparents,” collectively) are the Children’s paternal grandparents. When Mother was incarcerated in 2014, Grandparents received custody of the Children. A few years later, Grandparents filed a petition in the Circuit Court for Hamblen County (“the Trial Court”) seeking to terminate Mother’s parental rights. After a trial, the Trial Court found that the grounds of failure to support and failure to manifest an ability and willingness to assume custody were proven against Mother, and that termination of Mother’s parental rights is in the Children’s best interest. Mother appeals arguing, among other things, that the Trial Court wrongly applied two different four-month periods for the ground of failure to support. Grandparents raise their own separate issue of whether the Trial Court erred in not finding the additional ground of failure to visit. We hold, inter alia, that although the Trial Court erred in applying two different four-month determinative periods for failure to support, the error was harmless in this case. We affirm.

Hamblen County Court of Appeals 05/20/20
State of Tennessee v. Ricky Lakino Covington
E2019-00359-CCA-R3-CD

Defendant, Ricky Lakino Covington, appeals from the trial court’s revocation of his probation. Upon our review of the record, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 05/20/20
State of Tennessee v. James Greenlee Davis, Jr.
E2019-00682-CCA-R3-CD

Defendant, James Greenlee Davis, Jr., was convicted by a jury of possession of a controlled substance with intent to sell within a
drug-free zone, possession of a controlled substance with intent to deliver within a drug-free zone, and criminal trespass. The trial court sentenced Defendant to twenty-year sentences for each of the drug convictions and to a thirty-day sentence for the criminal trespass conviction. The trial court merged the drug convictions, and ordered the trespass sentence to be served concurrently to the drug sentence. The trial court denied Defendant’s motion for new trial. Defendant argues the trial court erred by (1) denying the motion to suppress; (2) certifying Donna Roach as an expert; and (3) admitting the Knoxville-Knox County KUB Geographic Information Systems (”KGIS”) map in to evidence. After a thorough review of the record, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 05/20/20
State of Tennessee v. Paul Kolb
W2019-01075-CCA-R3-CD

Paul Kolb, Movant, pled guilty on November 18, 2011, to rape of a child, rape, incest, and aggravated sexual battery. Pursuant to a plea agreement, the trial court imposed an effective sentence of twenty-five years at one hundred percent service. On April 10, 2018, Movant filed a Tennessee Rule of Criminal Procedure 36.1 motion to correct what he claimed was an illegal sentence in Count 1, rape of a child. The trial court determined the sentence was not illegal and dismissed the motion. We affirm.

Shelby County Court of Criminal Appeals 05/20/20
Michael John Stitts v. State of Tennessee
W2019-00867-CCA-R3-PC

The Petitioner was convicted by a Madison County jury of attempted first-degree murder, aggravated assault, aggravated burglary, and employing a firearm during the commission of a dangerous felony, for which he received an effective sentence of sixty-one years’ imprisonment. State v. Michael John Stitts, No. W2017-00209-CCA-R3-CD, 2018 WL 2065043, at *1 (Tenn. Crim. App. Apr. 27, 2018), appeal denied (Aug. 8, 2018). After his convictions were affirmed by this Court, the Petitioner filed a petition for postconviction relief alleging ineffective assistance of trial counsel based on various grounds, which was denied following a hearing. In this appeal, the Petitioner raises the same issues and contends that trial counsel was ineffective in (1) failing to conduct a proper investigation into the facts of the case; (2) failing to object to improper witness testimony; (3) failing to adequately cross-examine witnesses; (4) failing to file certain pre-trial motions; and (5) failing to ensure juror impartiality. Upon our review, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 05/20/20
Penny Wilson v. Weigel Stores, Inc.
E2019-00605-COA-R3-CV

This is a premises liability action in which the plaintiff filed suit against the defendant convenience store for personal injuries resulting from her slip and fall near the gasoline pump. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiff failed to establish that the defendant caused or created or should have discovered with reasonable diligence the condition that caused her fall. The plaintiff appeals. We reverse the trial court’s decision. We remand this case for proceedings consistent with this opinion.

Knox County Court of Appeals 05/19/20
SHAWN GRAY, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF ANGELA G. GRAY, DECEASED v. JEREMY G. BAIRD ET AL.
M2019-01056-COA-R3-CV

This is an appeal of the trial court’s decision to summarily dismiss a claim of vicarious liability against the owner of the vehicle that was involved in a fatal vehicular accident. The driver of the vehicle was the son and employee of the vehicle owner, and it is alleged that the driver was acting in the course and scope of his employment with the vehicle owner at the time of the collision. The owner of the vehicle filed for summary judgment, and the trial court found the affidavits and deposition testimony of the owner and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code. Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his employment at the time of the collision. The plaintiff appeals contending that summary judgment was not proper because the owner and his son were interested witnesses and their credibility was at issue. We agree. It is undisputed that the son’s employment necessitated his travel on the road where the collision occurred, and whether the son had deviated from the defendant’s business prior to the collision is a material fact that is in dispute. For this reason, we reverse the trial court’s grant of summary judgment and remand for further proceedings.

Rutherford County Circuit, Criminal & Chancery Courts 05/19/20
ARACELI CORDOVA EX REL. ALFREDO C. ET AL. v. NASHVILLE READY MIX, INC. ET AL.
M2018-02002-COA-R3-CV

This wrongful-death action arises out of the death of a Lemay Concrete employee who was struck and killed by a third party’s cement-mixer truck while acting in the course and scope of his employment. The issues in this appeal are post-settlement disputes concerning an attorney’s fee lien filed by the plaintiffs’ first attorney, a subrogation lien filed by the employer’s workers’ compensation carrier, and the assessment of postsettlement discretionary costs against the carrier. The employee’s family instituted this action after agreeing to pay their first attorney 33% of the gross recovery or “a reasonable attorney’s fee” if they discharged him before recovering. While the action was pending, the insurance carrier paid workers’ compensation benefits to the family and, after declining a settlement offer of $400,000, the plaintiffs discharged their attorney. The plaintiffs then retained substitute counsel. Months later, the wrongful-death claim was settled for $1,350,000. The plaintiffs then sought to void their first attorney’s fee agreement and requested the trial court deduct a portion of their substitute counsel’s fees from the carrier’s subrogation lien. The trial court referred all issues to a special master. The special master found the fee agreement was valid and recommended a fee of $133,333—or 33% of $400,000, the amount of the last “firm offer” secured during the first attorney’s representation. The special master’s report contained no findings and identified no factors relied upon in determining that $133,333 was a “reasonable fee,” other than finding the amount would be one-third of the last “firm offer” obtained by the first attorney. The special master also found the carrier’s own counsel protected its subrogation lien and, thus, recommended that the carrier not be liable for any portion of the plaintiffs’ attorneys’ fees. The trial court adopted verbatim the special master’s findings and recommendations. Additionally, the court assessed post-settlement discretionary costs against the carrier in lieu of a deduction for plaintiffs’ attorneys’ fees. This appeal followed. We have determined that the fee awarded to the plaintiffs’ first attorney was not based on the relevant legal principles or applicable facts because the trial court’s ruling was based entirely on the special master’s recommendation—which addressed only one of the guidelines in Tennessee Rule of Professional Conduct 1.5(a) 05/19/2020 - 2 - for determining what a reasonable fee is. Therefore, we vacate the fee awarded to the plaintiffs’ first attorney and remand this issue to the trial court to award “a reasonable fee” that is based on the relevant facts and factors. We also reverse the trial court’s ruling that the workers’ compensation carrier was not liable for any portion of the plaintiffs’ attorneys’ fees and remand this issue for apportionment of the fees incurred by the plaintiffs’ attorneys. Accordingly, we also reverse the assessment of discretionary costs against the workers’ compensation carrier and remand this issue for reconsideration.

Cheatham County Circuit, Criminal & Chancery Courts 05/19/20
Wali Muhammad v. State of Tennessee
W2019-01198-CCA-R3-PC

The petitioner, Wali Muhammad, appeals the denial of his petition for post-conviction relief, which petition challenged his 2017 Shelby County Criminal Court guilty-pleaded convictions of aggravated assault and aggravated robbery. In this appeal, the petitioner claims, as he did below, that he is entitled to post-conviction relief because his guilty pleas were not knowingly, voluntarily, or intelligently entered. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 05/19/20
State of Tennessee v. Derrick Darnell Moore and Demichael Tyrone Moore
M2018-01764-CCA-R3-CD

The Defendants, Derrick Darnell Moore and Demichael Tyrone Moore, were convicted by a Davidson County Criminal Court jury of first degree felony murder and especially aggravated robbery. See T.C.A. §§ 39-13-202 (2018) (first degree murder); 39-13-403 (2018) (especially aggravated robbery). Defendant Derrick Moore was also convicted of criminally negligent homicide, which the trial court merged into the felony murder conviction. See id. § 39-13-212 (2018) (criminally negligent homicide). Defendant Demichael Moore was also convicted of second degree murder, which the trial court likewise merged into the felony murder conviction. See id. § 39-13-210 (2018) (second degree murder). The trial court sentenced Defendant Derrick Moore to concurrent terms of life imprisonment for felony murder and twenty years for especially aggravated robbery. The trial court sentenced Defendant Demichael Moore to consecutive terms of life imprisonment for felony murder and thirty-two years for especially aggravated robbery. On appeal, the Defendants contend that (1) the evidence is insufficient to support their convictions, (2) the trial court violated the rules of evidence and their confrontation rights by admitting as substantive evidence a recording of a conversation in which the Defendants were implicated in the offenses, and (3) the State engaged in prosecutorial misconduct during its rebuttal closing argument. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 05/15/20
State of Tennessee v. Johnny James Parrish
E2019-00664-CCA-R3-CD

The Defendant, Johnny James Parrish, was convicted by a Greene County Criminal Court Jury of two counts of aggravated assault, a Class C felony, for which he is serving an effective fifteen-year sentence as a Range III, persistent offender. See T.C.A. § 39-13- 102(a)(1) (2014) (subsequently amended). On appeal, he contends that (1) the evidence is insufficient to support his convictions, (2) the State made an inadequate election of offenses, (3) the trial court erred in denying his motion for a mistrial based upon the victim’s not having been sequestered before he testified, (4) the trial court abused its discretion in admitting evidence pursuant to Tennessee Rule of Evidence 404(b) regarding a prior bad act of the Defendant toward the victim, and (5) he is entitled to a new trial due to cumulative errors. We affirm the judgments of the trial court.

Greene County Court of Criminal Appeals 05/15/20
State of Tennessee v. Kurt Douglas Brown
E2019-01068-CCA-R3-CD

The Defendant, Kurt Douglas Brown, was convicted by a Campbell County Criminal Court jury of unlawful possession of a firearm by a convicted felon, a Class C felony. See T.C.A. § 39-17-1307 (2014) (subsequently amended). The trial court sentenced the Defendant as a Range II offender to eight years’ confinement. On appeal, the Defendant contends that the trial court erred (1) by admitting as evidence the 9-1-1 recording and his previous voluntary manslaughter conviction and (2) by determining that his previous aggravated assault conviction was a crime of violence. We affirm the judgment of the trial court.

Campbell County Court of Criminal Appeals 05/15/20