Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 10/24/2014
Format: 10/24/2014
Patricia Hawkins v. Maury County Board of Education, et al.
M2013-01083-WC-R3-WC

The employee filed a workers compensation action alleging that she suffered a lower back injury in the course of her employment as a school counselor. Her employer denied the claim. The trial court found that the employee failed to prove that the injury had occurred in the course and scope of her employment and dismissed the case. Judgment was entered accordingly, and the employee appealed. The appeal was referred to the Special Workers Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment of the trial court.

Maury County Workers Compensation Panel 10/23/14
State of Tennessee v. Caleb Lawrence Mullins
W2013-02691-CCA-R3-CD

The Defendant, Caleb Lawrence Mullins, pleaded guilty to second degree murder, theft of property, and tampering with evidence. The trial court sentenced him to serve an effective sentence of thirty-seven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court misapplied one enhancement factor and two consecutive sentencing factors. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 10/22/14
State of Tennessee v. Omar Robinson
E2014-00393-CCA-R3-CD

Appellant, Omar Robinson, pleaded guilty to two counts of possession of cocaine with intent to sell and two counts of simple possession of marijuana. Appellant later filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed, holding that appellant’s sentence had expired. On appeal, appellant argues that the trial court erred by summarily dismissing his motion because an illegal sentence may be challenged at any time pursuant to Rule 36.1. The State concedes that this case should be remanded to the trial court. Following our review of the parties’ briefs, the record, and the applicable law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

Loudon County Court of Criminal Appeals 10/22/14
In Re Glory A.W.
E2013-02303-COA-R3-PT

William L.W. (“Father”) appeals the termination of his parental rights to the minor child Glory A.W. (“the Child”). We find and hold that the evidence does not preponderate against the Juvenile Court for Roane County’s (“the Juvenile Court”) finding by clear and convincing evidence that grounds were proven to terminate Father’s parental rights for
abandonment by failure to provide a suitable home pursuant to Tenn. Code Ann. § 36-1- 113(g)(1) and § 36-1-102(1)(A)(ii); for substantial noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for persistent conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). We further find and hold that the evidence does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that it was in the Child’s best interest for Father’s parental rights to be terminated. We affirm the Juvenile Court’s February 19, 2014 order terminating Father’s parental rights to the Child.

Roane County Court of Appeals 10/21/14
State of Tennessee v. Ibrahim Talafhah
M2013-01556-CCA-R3-CD

The Defendant, Ibrahim Talafhah, was convicted after a bench trial in the Wilson County Criminal Court of harassment, a Class A misdemeanor.  See T.C.A. § 39-17-308(a)(2) (2014).  The trial court sentenced the Defendant to serve ten days in jail with the balance of his eleven-month, twenty-nine-day sentence to be served on probation.  On appeal, the Defendant contends that the trial court erred by denying him his constitutional right to a jury trial.  We conclude that the Defendant was denied his right to a jury trial, and we reverse the judgment of the trial court and remand the case for a new trial.

Wilson County Court of Criminal Appeals 10/21/14
Gary Guseinov v. Synergy Ventures, Inc, et al
M2014-00213-COA-R3-CV

This case involves the enrollment of a foreign judgment in Tennessee. The trial court granted summary judgment in favor of plaintiff, effectively enrolling the foreign judgment pursuant to the Full Faith and Credit Clause of the United States Constitution and Tennessee’s Uniform Foreign Judgment Enforcement Act. On appeal, the defendant argues that the grant of summary judgment was improper because he allegedly satisfied the foreign judgment.  He further argues that the trial court denied him due process when it declined to conduct an evidentiary hearing. We hold that satisfaction is not a defense to the enrollment of a foreign judgment pursuant to the Full Faith and Credit Clause of the United States Constitution or Tennessee’s Uniform Foreign Judgment Enforcement Act. Further, we discern no due process violation from the trial court’s decision not to conduct an evidentiary hearing. The judgment of the trial court is affirmed.

Williamson County Court of Appeals 10/21/14
In Re: Carrington H., et al
M2014-00453-COA-R3-PT

This appeal arises from the termination of Mother’s parental rights. After a five-year cycle of removal and failed reunification attempts, the juvenile court awarded temporary custody of the child to the State in 2009, and shortly thereafter, ordered that Mother have no visitation or contact with her child. The court later ratified a permanency plan, but nearly two years later, the Tennessee Department of Children’s Services petitioned to terminate Mother’s parental rights. Following a trial, the juvenile court entered an order terminating Mother’s parental rights on the grounds of: (1) substantial noncompliance with the permanency plan; (2) persistence of the conditions that led to the child’s removal; and (3) incompetency to adequately provide for the further care and supervision of the child. Mother appeals two of the three grounds for termination and the court’s determination that termination was in the best interest of the child. We affirm.

Maury County Court of Appeals 10/21/14
O'Neal Johnson v. State of Tennessee
W2013-02313-CCA-R3-PC

The petitioner, O’Neal Johnson, appeals the post-conviction court’s denial of his petition for post-conviction relief, arguing that he received the ineffective assistance of counsel. After review, we affirm the denial of the petition.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. John Brent
W2013-01252-CCA-R3-CD

The defendant, John Brent, was convicted of aggravated robbery and aggravated burglary, for which he was sentenced, respectively, to thirty years at 100% and fifteen years at 45%, the sentences to be served concurrently. On appeal, he argues that he is entitled to a new trial because the court erred in allowing into evidence a photograph of a pair of scissors which were similar to those in the victim’s home; that the evidence was insufficient to support either of his convictions; and that his sentence is excessive. Following our review, we conclude that the defendant’s claims are without merit and affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. Delquan Bolton
W2013-00539-CCA-R3-CD

The defendant, Delquan Bolton, was convicted by a Shelby County Criminal Court jury of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony. He was sentenced to terms of twenty-five years and ten years, respectively, to be served concurrently in the Department of Correction. On appeal, he argues that the trial court erred in admitting character evidence and that the evidence is insufficient to sustain his convictions. After review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 10/21/14
State of Tennessee v. Cynthia Gail Harvey
M2013-02391-CCA-R3-CD

The Defendant, Cynthia Gail Harvey, appeals from her Humphreys County jury conviction for felony theft, (1) challenging the trial court’s denial of her motion to dismiss for lack of a speedy trial and (2) contending that she received ineffective assistance of counsel at trial. Upon considering the relevant authorities and the record, we affirm the judgment of the trial court.

Humphreys County Court of Criminal Appeals 10/21/14
Mike Cradic v. McCoy Motors, Inc., et al.
E2013-02857-COA-R3-CV

This appeal arises from a dispute over payment on a note (“the Note”). McCoy Motors, Inc. borrowed $90,000.00 from A. D. Kinkead (“Kinkead”). The Note provided, among other things, that the loan could be renewed at the end of twelve month periods and that, if Kinkead died before the Note was fully paid, the principal of the unpaid balance would be paid to William L. McCoy, Jr. and Sue McCoy. Kinkead’s attorney-1 in-fact, Mike Cradic (“Cradic”), informed McCoy that Kinkead was demanding that the Note be paid in full. McCoy refused to pay in full but instead continued to make payments on the Note. Kinkead, through Cradic, sued the McCoys in the Law Court for Sullivan County (Kingsport) (“the Trial Court”) to compel full payment on the Note. Kinkead died and Cradic pursued the suit.
The Trial Court found that demand had been made on the Note, and that at the end of the twelve month period during which demand was made, the Note came due and payable. The Trial Court entered judgment against McCoy Motors, Inc., and the McCoys, individually. McCoy Motors, Inc. and the McCoys appeal. We affirm the Trial Court.

Sullivan County Court of Appeals 10/20/14
Herman Roland, Jr. , et al. v. Kelli Bridwell, et al.
E2014-00435-COA-R3-CV

This case involves a dispute as to whether the defendants’ predecessors in title abandoned an easement to a shared driveway either through an express intention to abandon the easement or by inference. The defendants deny that there was an intention to abandon the right-of-way. After a bench trial, the trial court found that the plaintiffs failed to present evidence to support their claim that the predecessors in title abandoned the driveway easement. Accordingly, the trial court entered a judgment that the easement has not been abandoned by the defendants or their predecessors in title. The court further concluded that the easement was to be used for ingress and egress only, and prohibited the parties from parking on or obstructing the easement in any way. The parties were found equally responsible for the upkeep and maintenance of the shared driveway. The trial court also determined that the garage maintenance agreement had been terminated. Plaintiffs appeal. We affirm.

Carter County Court of Appeals 10/20/14
Gerald Freeburg ETC v. Phillip Turner
E2013-02688-COA-R3-CV

This appeal arises from a child support matter. Gerald Freeburg (“Freeburg”), continuing in place of his adult daughter who died during the pendency of these proceedings, pursued a child support claim of his daughter against Phillip Turner (“Turner”) in the Chancery Court for Cumberland County (“the Trial Court”). Freeburg submitted what purportedly was an order from an Oklahoma court reflecting Turner’s child support arrearage. The Trial Court held that the purported order from Oklahoma did not constitute a court order and dismissed the matter. Freeburg timely appealed. We affirm the judgment of the Trial Court.

Cumberland County Court of Appeals 10/17/14
Shemeka Metin Ibrahim v. Murfreesboro Medical Clinic Surgi Center, et al.
M2013-00631-COA-R3-CV

The trial court dismissed sua sponte Plaintiff’s healthcare liability and fraud claims for failure to state a claim for which relief can be granted. It accordingly dismissed her motions to continue for the purpose of retaining counsel as moot, and denied her motion to recuse. We reverse denial of Plaintiff’s motions for continuance, vacate dismissal of her action for failure to state a claim, affirm denial of her motion to recuse, and remand for further proceedings consistent with this Opinion.

Rutherford County Court of Appeals 10/17/14
Pamela A. Moritz v. Michael P. Tulay
E2013-01528-COA-R3-CV

This is a post-divorce action involving issues of child custody, co-parenting time, and child support. The parties, Pamela Moritz (“Mother”) and Michael Tulay (“Father”), were divorced in Knox County in 2002. By agreement of the parties, custody of their children was vested in Mother, with Father being granted co-parenting time. Mother moved to Pennsylvania with the children in 2005 despite Father’s objection to such relocation. Father continued to enjoy co-parenting time with the children and pay child support to Mother. In 2007, Father filed a petition seeking to modify his child support obligation due to the oldest child’s reaching the age of majority. Thereafter, through a lengthy procedural history marked by Mother’s continuing failure to abide by the trial court’s orders, custody of the remaining minor child was granted to Father in 2009 while Mother was granted only supervised coparenting time. Mother did not appeal the 2009 order. Subsequently, in 2012, Mother filed petitions seeking to modify the custody award and invalidate the trial court’s prior orders. The trial court affirmed its earlier award of custody to Father as Mother presented no evidence of a material change of circumstance affecting the child’s best interest. The court also determined that Mother’s petitions to invalidate the earlier orders were untimely. Mother has appealed. Discerning no error, we affirm.

Knox County Court of Appeals 10/17/14
State of Tennessee v. Antonio Lamont Freeman
M2013-01813-CCA-R3-CD

The defendant, Antonio Lamont Freeman, was convicted of one count of possession of contraband in a penal facility, a Class C felony. On appeal, the defendant argues: (1) the trial court abused its discretion in removing the defendant from the courtroom during his trial; (2) the trial court abused its discretion by introducing evidence into the record during the motion for new trial; (3) the trial judge’s alleged continued acts of prejudice warrant a new trial; (4) the State committed prosecutorial misconduct when it assumed facts not in evidence; (5) the trial court abused its discretion by denying the motion for new trial based upon newly discovered evidence; and (6) numerous grounds of ineffective assistance of counsel.  After a thorough review of the record and the applicable law, we affirm the judgment of the trial court.

Sumner County Court of Criminal Appeals 10/16/14
In Re: Estate of Linda A. Farmer
M2013-02506-COA-R3-CV

This appeal arises from a civil action against the decedent’s brother who allegedly used his confidential relationship as his sister’s attorney-in-fact to unduly influence her to amend her revocable trust and name him the sole trustee and the sole beneficiary of the trust. It was also alleged that he breached his fiduciary duties by converting her assets. The claims were tried before a jury which returned a verdict in favor of the defendant; the jury found that the plaintiffs had not proven that the amendments to the decedent’s revocable living trust were brought about by undue influence. The jury also found that the defendant had proven, by clear and convincing evidence, that under the totality of circumstances the trust amendments were not the result of undue influence by the defendant and were fair to the decedent. The jury’s specific findings rendered all other claims moot; thus, the defendant prevailed on all issues. On appeal, the plaintiffs contend the trial court erred by, inter alia, not granting a directed verdict on the issue of breach of fiduciary duty and by failing to instruct the jury on certain issues; the plaintiffs also contend the jury verdict should be set aside because there is no material evidence to support the finding that the mostrecent amendment to the trust was fair to the decedent. We have determined there is material evidence to support the jury’s findings; thus, the most recent trust amendment is valid and the defendant is the sole residuary beneficiary of the trust. Because there are sufficient funds in the trust to satisfy the modest cash bequests to the remaining beneficiaries, we find that plaintiffs have no standing to pursue their remaining claims on appeal due to their inability to show a “distinct and palpable injury.” City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 55 (Tenn. Ct. App. 2004). Accordingly, we affirm.

Davidson County Court of Appeals 10/15/14
Phyllis Williams v. Larry Stovesand Lincoln Mercury, Inc., et al.
M2014-00004-COA-R3-CV

This is a dispute arising from the interpretation of a contract made during an asset sale of one automobile dealership to another. Seller filed a complaint seeking to collect payment pursuant to the contract on the ground that the contract was a promissory note upon which the buyer had defaulted. Buyer argued that the contract was actually for the payment of future rents to Seller, who remained the owner of the real estate upon which Buyer operated his automobile dealership. Seller filed a motion for summary judgment. The trial court determined that, because the contract was an unambiguous promissory note and Buyer admitted non-payment, Seller was entitled to judgment as a matter of law. Discerning no error, we affirm and remand.

Davidson County Court of Appeals 10/15/14
State of Tennessee v. Daryll Shane Stanley
E2013-01739-CCA-R3-CD

Defendant, Daryll Shane Stanley, was charged by presentment with four counts of aggravated rape, one count of attempted first degree murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. Defendant was tried in a bench trial. Defendant appeals from his convictions as charged on all counts except one count of especially aggravated kidnapping, in which he was acquitted. Defendant was sentenced to 25 years for each of his 7 convictions, and his sentences were ordered to be served consecutively for a total effective sentence of 175 years. In this appeal as of right, Defendant raises the following issues for our review: 1) whether the 16-year delay between the presentment of charges and Defendant’s trial violated his right to a speedy trial; 2) whether he was denied due process by the State’s failure to preserve evidence; 3) whether the evidence was sufficient to sustain Defendant’s convictions for four counts of aggravated rape; and 4) whether the trial court’s comments at the conclusion of the bench trial indicated that the trial court found Defendant guilty of the lesser-included offense of theft of property in count 8 charging especially aggravated robbery. Having carefully reviewed the record before us, we affirm the judgments of the trial court in counts one through six, but we conclude that Defendant’s conviction for especially aggravated robbery in count eight should be modified to a conviction for Class A misdemeanor theft and remand this case to the trial court for entry of a modified judgment.

Knox County Court of Criminal Appeals 10/15/14
State of Tennessee v. Jameson Delgizzi a/k/a Decharme
M2013-02864-CCA-R3-CD

The defendant, Jameson Delgizzi, also known as Decharme, pled no-contest to attempted aggravated sexual battery, a Class C felony, and agreed to be sentenced outside his range, as a Range III offender, with the sentence and manner of service to be determined by the trial court.  Following a sentencing hearing, the defendant received a sentence of eleven years in the Department of Correction.  On appeal, he argues that an eleven-year term is excessive and that he should have been granted probation or split confinement.  After review, we affirm the sentencing decision of the trial court.

Hickman County Court of Criminal Appeals 10/15/14
In RE: A-Action Bonding Company
M2013-01526-CCA-R3-CD

This is an appeal by A-Action Bonding Company of Columbia (“A-Action”) of an order of the Maury County Circuit Court, sitting en banc, which suspended the bonding authority of the company, its principal, and one of its agents based on its finding that the agent solicited an inmate at the county jail, in violation of Tennessee Code Annotated section 40-11-126(6).  The appellant argues that the court improperly considered as evidence a cell phone recording of a videotaped conversation between the agent and the inmate when the original jail videotape had been destroyed and the cell phone recording was made by a competitor and contained an altered version of the original.  We agree.  We also agree that, without the improperly admitted recording, there was insufficient evidence that the agent solicited business in violation of the statute.  Accordingly, we reverse the judgment of the trial court and dismiss the motion to suspend the bonding authority of A-Action, its principal, and its agent.

Maury County Court of Criminal Appeals 10/15/14
State of Tennessee v. John Robert Quinton Jackson
M2013-02172-CCA-R3-CD

The record in this matter is very sparse.  Much of our understanding of its history comes from the decision of this court in the defendant’s direct appeal, State v. John Robert Q. Jackson, No. M2012-00511-CCA-R3-CD, 2013 WL 791621 (Tenn. Crim. App. Mar. 4, 2013).  As best we can understand, the defendant, John Robert Quinton Jackson, pled guilty in February 2009 to five counts of aggravated burglary, two counts of automobile burglary, one count of theft over $10,000, and one count of theft over $1000, receiving an effective sentence of six years in community corrections.  In September 2009, he was served with a violation warrant and subsequently pled guilty to an additional count of aggravated burglary, receiving a four-year sentence in community corrections, to be served concurrently with the six-year community corrections sentence reinstated by the court.  Later, he was served with another violation warrant, based upon his participation in a home invasion and aggravated robbery.  Pursuant to Tennessee Rule of Criminal Procedure  36.1, he filed a motion for correction of an illegal sentence, which the trial court dismissed.  He appeals that dismissal.  Based upon our review, we affirm the trial court’s dismissal of his motion.

Montgomery County Court of Criminal Appeals 10/15/14
State of Tennessee v. Cary Arnaz Harbin, III
M2013-02742-CCA-R3-CD

The Defendant, Cary Arnaz Harbin, III, was charged with violating the sexual offender registration act by establishing his primary residence within one thousand feet of a licensed day care facility.  See Tenn. Code Ann. § 40-39-211(a).  The trial court dismissed the charge, finding that the Defendant, convicted in Michigan in 2008 of criminal sexual conduct in the third degree, did not meet the statutory definition of “sexual offender.”  The State appeals the order of dismissal, arguing that the record was insufficient for the trial court to make this determination.  Following our review of the record and applicable authorities, we conclude that the Defendant, an out-of-state sexual offender required to register in Michigan, is subject to the requirements of Tennessee sexual offender registration act upon sufficient contact with this State.  Therefore, we reverse the order of the trial court dismissing the indicted charge and remand the case for further proceedings consistent with this opinion.

Sumner County Court of Criminal Appeals 10/15/14
State of Tennessee v. Brian Oneal Elliott
M2014-00083-CCA-R3-CD

The appellant, Brian Oneal Elliott, challenges the length of the twenty-five-year maximum sentence the trial court imposed for his conviction of second degree murder.  Upon review, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 10/15/14