Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 09/15/2014
Format: 09/15/2014
In Re Ayden J.C.
E2013-02644-COA-R3-PT

This is a termination of parental rights case in which the Tennessee Department of Children’s Services filed a petition to terminate Parents’ parental rights to the Child. The trial court found that clear and convincing evidence existed to support the termination on the statutory grounds of abandonment for failure to remit support, substantial noncompliance with the permanency plans, and the persistence of conditions which led to removal. The court further found that termination of each parent’s parental rights was in the best interest of the Child. Parents appeal. We reverse the court’s termination of Father’s parental rights for failure to remit child support. We affirm the court’s termination of parental rights in all other respects.

Union County Court of Appeals 09/15/14
DENNIS CEDRIC WOODARD, JR. v. STATE OF TENNESSEE
M2013-01857-CCA-R3-PC

The petitioner, Dennis Cedric Woodard, Jr., appeals the summary dismissal of his petition for post-conviction relief and/or petition for writ of error coram nobis as untimely.  He asserts that the statute of limitations should be tolled in the interest of justice because he did not learn until well after its expiration that his trial counsel simultaneously represented one of the witnesses against him, Henry Young, without his knowledge.  After review, we reverse the summary dismissal and remand for an evidentiary hearing.   
 

Bedford County Court of Criminal Appeals 09/15/14
Donna Leigh Pearson v. State of Tennessee
M2013-02539-CCA-R3-PC

The petitioner, Donna Leigh Pearson, appeals the summary dismissal of her amended petition for post-conviction relief.  Because the post-conviction court erred by summarily dismissing the amended petition as conceded by the State, the case is remanded to that court for an evidentiary hearing solely on the issue of counsel’s handling of the delayed direct appeal.

Davidson County Court of Criminal Appeals 09/15/14
William Gregory Hall, Jr. v. Hillary Hudgens Hall
E2013-02227-COA-R3-CV

This is an appeal of the trial court’s grant of a one-year extension of an order of protection. The petitioner/father had initially obtained an ex parte order of protection against the respondent/mother in August 2005. Subsequent to the expiration of that ex parte order, the parties were divorced in January 2007, with the trial court incorporating into the final decree of divorce an agreed permanent parenting plan awarding the parents equal co-parenting time with their two minor children. Five years later under the docket number of the previous order of protection, the father initiated the instant action by filing an ex parte petition for a new order of protection against the mother. The trial court granted an ex parte order and subsequently entered a one-year order of protection to which the parties agreed on August 30, 2012. This order of protection, inter alia, allowed the mother three telephone calls per week with the children but no in-person contact. On October 1, 2012, the father filed a petition to modify the permanent parenting plan, utilizing the docket number of the original divorce action. In July 2013, the father filed, again within the divorce action, a motion to consolidate the order of protection and permanent parenting plan proceedings, requesting that the order of protection be extended indefinitely. Following a bench hearing, the trial court granted a one-year extension of the order of protection. The mother appeals. Because we determine that the preponderance of the evidence does not support a finding that the father proved the allegation of domestic abuse at the time the extension was granted, we vacate the trial court’s extension of the order.

Knox County Court of Appeals 09/15/14
Mark Coffey v. City of Oak Ridge, Tennessee
E2013-02200-COA-R3-CV

This is a retaliatory discharge case in which a former police officer filed suit against his department for back pay, front pay, and other compensatory damages. The trial court found that the police officer did not establish the elements of retaliatory discharge under the Tennessee Public Protection Act and dismissed his suit. The police officer appeals. We affirm the decision of the trial court.

Anderson County Court of Appeals 09/12/14
Greg Parker, Et Al. v. Holiday Hospitality Franchising, Incorporated, Et Al.
E2013-00727-SC-R11-CV

We granted permission to appeal in this premises liability action to address two issues: (1) whether the undisputed facts establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not vicariously liable for the negligence of independent contractors; and (2) whether disputes of material fact remain concerning the property owner’s actual or constructive notice of the defective condition created by the independent contractor’s negligence. We hold that the undisputed facts do not establish either exception to the general rule of non-liability and that the undisputed facts establish that the property owner had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court granting the property owner summary judgment is reinstated.

Roane County Supreme Court 09/12/14
State of Tennessee v. Letalvis Darnell Cobbins
E2013-00476-CCA-R3-CD

For his involvement in the January 2007 murders of the victims C.N. and C.C.,1 appellant, Letalvis Darnell Cobbins, was found guilty of multiple counts of first degree murder, facilitation of first degree murder, especially aggravated robbery, especially aggravated kidnapping, facilitation of especially aggravated kidnapping, and aggravated rape, for which he received an effective sentence of life in prison without the possibility of parole plus one hundred years. He appeals his convictions and sentences on the following grounds: (1) whether misconduct of the trial judge constituted structural constitutional error; (2) whether the trial court erred in denying appellant’s motion for change of venue; (3) whether the trial court erred in admitting certain photographs; (4) whether the trial court erred in denying appellant’s motion to continue; (5) whether the trial court erred in allowing testimony concerning a firearm that appellant had possessed prior to the offense date; (6) whether the trial court erred in allowing family members to wear buttons with the victims’ likenesses; and (7) whether the trial court erred in imposing an effective sentence of one hundred years to be served consecutively to his sentence of life in prison without the possibility of parole. We have thoroughly reviewed the record in this case and discern no error. Accordingly, we affirm the judgments of the trial court.

Blount County Court of Criminal Appeals 09/12/14
Thomas Edward Kotewa v. State of Tennessee
E2014-00430-CCA-R3-ECN

In 2006, the Petitioner, Thomas Edward Kotewa, pleaded guilty to second-degree murder. See Thomas E. Kotewa v. State, No. E2007-02193-CCA-R3-PC, 2009 WL 1635177, at *1 (Tenn. Crim. App., at Knoxville, June 11, 2009), perm. app. denied (Tenn. Oct. 19, 2009). For this conviction, the trial court sentenced the Petitioner to serve an agreed-upon sentence of fifteen years. In February 2012, the Petitioner filed a petition for a writ of error coram nobis alleging that he had discovered new evidence. The State filed a response to the petition requesting the trial court dismiss the petition on the basis that, among other things, it was untimely filed. The trial court agreed, and it dismissed the petition, finding that the petition was untimely filed. On appeal, the Petitioner asserts that the trial court erred when it dismissed his petition. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Anderson County Court of Criminal Appeals 09/11/14
Thomas Edward Kotewa v. State of Tennessee - Concur
E2014-00430-CCA-R3-ECN

JAMES CURWOOD WITT, JR., J., concurring. I write separately in concurring with the majority because some aspects of the case are worth explaining futher. In assessing whether the petitioner has framed a case for a due process tolling of the coram nobis statute of limitations, we see that the petition, even as amended by counsel, does not specify when and by what means the petitioner discovered the claim of affiant John D. Carter that, during the investigation of the homicide, Mr. Carter gave a statement to police that would have supported a claim of self-defense. Thus, the state of the record does not enable this court to discern whether the application of the statute of limitations afforded the petitioner a “‘reasonable opportunity to assert a claim in a meaningful time and manner,’” Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)), or if it did not, whether the petitioner’s “‘reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner’” expired before he filed the petition, Workman, 41 S.W.3d at 103-04 (quoting Williams v. State, 44 S.W.3d 464 (Tenn. 2001)). In other words, we cannot tell, despite the petitioner’s conclusory allegations, whether the delay of approximately five years in filing a timely petition for writ of error coram nobis is essentially reasonable.

Anderson County Court of Criminal Appeals 09/11/14
Herbert N. Jackson v. State of Tennessee
W2013-02423-COA-R3-CV

This is an appeal from the Tennessee Claims Commission’s dismissal of Appellant’s claim against the Madison County Circuit Court for alleged sentencing errors made in Appellant’s criminal case. The Commission dismissed the claim on the ground of judicial immunity. Appellant appeals. Because the Appellant failed to timely file his notice of appeal, this Court does not have subject matter jurisdiction over this appeal. Accordingly, we dismiss.

Court of Appeals 09/11/14
Beverly Meadow v. D & G Limited Assortments, Inc.
M2013-01627-COA-R3-CV

The trial court granted a directed verdict pursuant to Tenn. R. Civ. P. 50.01 in favor of the defendant in a premises liability action. The court found the defendant did not have constructive notice of the defective condition stating, “the plaintiff has not met the burden of proof of more likely than not that this unsafe condition existed for a period of time in order to be corrected or warned about[.]” The plaintiff, who sustained a broken femur when the automatic sliding glass door at the front of the grocery store closed on her, presented an expert witness who testified that “the immediate cause of the accident was the failure of the presence sensing capability” of the automatic door. The expert testified that had the defendant conducted daily safety checks of the sensors in the proper manner, the defendant would have known that they were not functioning properly, and the likelihood the sensors first failed on the day of the incident “was extremely small.” Whether the defendant conducted daily safety checks in the appropriate manner was disputed. Taking the strongest legitimate view of the evidence and allowing all reasonable inferences in favor of the plaintiff while discarding all evidence to the contrary as Rule 50.01 requires, we have concluded the evidence is sufficient to create an issue for the jury to decide whether the defendant had constructive notice in time to remedy or warn customers of the defective condition of the door. We, therefore, reverse and remand for further proceedings.

Sumner County Court of Appeals 09/11/14
Corey A. Adams v. Tennessee Department of Corrections et al.
M2013-00370-COA-R3-CV

The Disciplinary Board of the Turney Center Industrial Complex convicted Petitioner of assault based upon his involvement in a gang stabbing of another inmate, the conviction was affirmed by the Commissioner of the Department of Correction. Petitioner then filed this common law writ of certiorari with the Chancery Court of Hickman County to challenge his conviction. The trial court granted the writ and the administrative record was filed with the trial court. Thereafter, on motion of the respondents, the trial court denied relief to Petitioner on the grounds that the record demonstrated that the disciplinary board had not acted illegally,arbitrarily,or exceeded its jurisdiction,and that Petitioner’s due process rights were not violated. Finding no error, we affirmed. Petitioner then filed a Tenn. R. App. P. 11 application to the Supreme Court, which granted the application and remanded to this court with instructions to address the issue of whether the trial court“ improperly dismissed the writ of certiorari without first disposing of [Petitioner’s] pretrial motions.” After requesting supplemental briefs on the issue, we have concluded that the trial court erred in dismissing the writ of certiorari without first disposing of Petitioner’s motions. We reach this decision because we are unable to conclude that the outcome of the petition could not have been affected had the trial court granted some or all of the motions. Accordingly, we reverse the judgment of the trial court and remand this matter for further proceedings.

Hickman County Court of Appeals 09/11/14
State of Tennessee v. Terrance McCracken
W2013-01396-CCA-R3-CD

Appellant was convicted of rape, a Class B felony, and sentenced to nine years in confinement. On appeal, appellant argues (1) that the trial court erred by failing to grant his motion to suppress because there was an unreasonable delay in the judicial determination of probable cause; (2) that the trial erred by failing to grant his motion to suppress because his statements to police were involuntary; and (3) that there was insufficient evidence to support his conviction. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/10/14
Jack T. Jones v. State of Tennessee
M013-00863-CCA-R3-PC

The Petitioner, Jack T. Jones, appeals from the summary dismissal of his “Motion to Reopen Post-Conviction Petition,” seeking relief from his four 2007 convictions for aggravated sexual battery.  In his pleading, the Petitioner argued that the Sentencing Reform Act of 1989 is unconstitutional in violation of the separation of powers doctrine and, therefore, the trial court lacked jurisdiction to accept his guilty pleas and impose sentence.  The post-conviction court treated the pleading as a petition for post-conviction relief and dismissed it as untimely. On appeal, the Petitioner contends that the statute of limitations should be tolled because trial counsel  “should have known that the 1989 [A]ct was declared unconstitutional” and, thus, he provided ineffective assistance.  Following our review, we affirm the judgment of the post-conviction court.
 

Sumner County Court of Criminal Appeals 09/10/14
Joseph J. Levitt, Jr. v. City of Oak Ridge, Et Al.
E2013-02625-COA-R3-CV

Joseph J. Levitt, Jr. (“Plaintiff”) appeals the dismissal of his suit against the City of Oak Ridge, Oak Ridge Board of Building and Housing Appeals, and Denny Boss (“Defendants”) entered by the Chancery Court for Anderson County (“the Trial Court”). We find and hold, as did the Trial Court, that Plaintiff’s suit is barred by res judicata, and we affirm. We further find and hold Plaintiff’s appeal to be frivolous and remand to the Trial Court for an award of damages for frivolous appeal.

Anderson County Court of Appeals 09/10/14
Terri Ann Kelly v. Willard Reed Kelly
E2012-02219-SC-R11-CV

This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone.  A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision.

Hamilton County Supreme Court 09/10/14
State of Tennessee v. Heather Lee Lane
E2013-01855-CCA-R3-CD

Defendant, Heather Lee Lane, pleaded guilty to violation of a habitual traffic offender order, a Class E felony, with an agreed upon sentence of two years as a Range II multiple offender with the trial court to determine manner of service of the sentence. The trial court ordered Defendant to serve her two-year sentence in confinement. On appeal, Defendant contends the trial court erred by denying her alternative sentencing. We conclude the trial court did not abuse its discretion in sentencing Defendant. Accordingly, we affirm the judgment of the trial court.

Sullivan County Court of Criminal Appeals 09/10/14
In Re Jewell M.
M2012-02625-COA-R3-JV

Father of Child filed a petition seeking parenting time with Child when she was four years old. Mother sought retroactive child support from Father dating back to Child’s birth. The trial court entered an order stating that the child support arrearage would be measured from the date Father filed his petition. The permanent parenting plan order that was entered the same day, however, was inconsistent and indicated that the arrearage would be measured from the date of Child’s birth. Father appealed, arguing that the order measuring the child support arrearage from the date of the petition should control. The record contains no transcript or statement of the evidence, and we cannot determine which order contains the correct date. We vacate the portion of the trial court’s judgments relating to Father’s child support arrearage and remand the case back to the trial court for further proceedings. Should the court determine the child support arrearage should date back to the filing of the petition rather than to Child’s birth, the court will have an opportunity to make findings supporting such a deviation from the child support guidelines, as required by the applicable statutes and guidelines.

Montgomery County Court of Appeals 09/10/14
Stanley Dennis Waters, et al v. Benny Joe Pendergrass, et al.
E2013-00431-COA-R3-CV

Stanley Dennis Waters (“the plaintiff”), a detective with the Polk 2 County Sheriff’s Department, was seriously injured when the Polk County vehicle in which he was riding as a passenger was struck in the rear by a vehicle owned by one of the two named defendants and driven by the other named defendant (collectively “the Named Defendants”). The plaintiff’s vehicle was being driven by the Sheriff of Polk County. The plaintiff and his wife sued the Named Defendants. Process and a copy of the complaint were served3 upon two unnamed parties, Tennessee Risk Management Trust (“TRMT”) and Markel Corporation4 (collectively “the Unnamed Parties”). The suit against the Named Defendants was settled for the full amount of the liability limits of their respective casualty insurance policies. The plaintiffs seek to recover uninsured5 motorist benefits from the Unnamed Parties. The plaintiffs and the Unnamed Parties filed motions for summary judgment. The trial court granted the motion of the Unnamed Parties and denied the plaintiffs’ motion. The plaintiffs appeal. We affirm.

Bradley County Court of Appeals 09/09/14
James Ray Mynatt v. Charlene Mynatt Lemarr, et al.
E2013-02347-COA-R3-CV

This appeal involves property that the plaintiff alleged was transferred by a deed with a forged signature. The plaintiff filed an action to have the deed, filed over a decade earlier, set aside. The defendants contended that the signature on the deed was an authorized assisted signature, and was recorded and published within a few days after it was made. The defendants further asserted that they had no obligation to announce to anyone they had obtained the property. The trial court found the plaintiff failed to carry the burden of proof necessary to void the deed. The plaintiff appeals. We affirm.

Campbell County Court of Appeals 09/09/14
State of Tennessee v. Allen Lebron Tucker
E2013-02727-CCA-R3-CD

A Hamilton County jury found the Defendant, Allen Lebron Tucker, guilty of possession with intent to sell one-half gram or more of cocaine. The trial court ordered the Defendant to serve a fifteen-year sentence for this conviction. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress the evidence obtained during the execution of a search warrant and when it excluded evidence of his girlfriend’s prior drug conviction. After a thorough review of the record and relevant law, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 09/09/14
State of Tennessee v. Tan Vo
W2013-02118-CCA-R3-CD

The Defendant, Tan Vo, was convicted by a Shelby County Criminal Court jury of sexual battery and incest. The trial court imposed concurrent sentences of two years and six years for the sexual battery and incest convictions, respectively, to be served in the county workhouse. The sole issue presented for our review is whether the trial court abused its discretion in denying the Defendant’s request for probation and imposing an effective sentence of six years to be served in the county workhouse. Upon review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/09/14
Judy Smith Stewart v. Johnnie Stewart
E2013-02548-COA-R3-CV

This is the second appeal in this matter involving applicability of the parties’ agreement, embodied in their 1997 final decree of divorce, regarding issues related to the dissolution of their marriage. In May 2012, the husband sought to terminate his alimony obligation pursuant to said agreement, citing a material change of circumstances affecting his ability to pay. The trial court dismissed the husband’s motion, concluding that the language of the parties’ agreement rendered his alimony obligation non-modifiable. Husband timely appealed. Because we determine the husband’s alimony obligation to be modifiable, we reverse the trial court’s dismissal of the husband’s motion and remand this action to the trial court for a hearing to determine whether a modification of the husband’s alimony obligation is warranted. We vacate the trial court’s taxing of court costs to Husband, and we deny Husband’s request for an award of attorney’s fees on appeal.

Sevier County Court of Appeals 09/09/14
State of Tennessee v. Frederic A. Crosby
W2013-02610-CCA-R3-CD

Appellant, Frederic A. Crosby, stands convicted of possession of 0.5 grams or more of cocaine with the intent to deliver, a Class B felony, and simple possession of marijuana, a Class A misdemeanor. The trial court sentenced appellant to twelve years for his cocaine conviction and eleven months, twenty-nine days for his marijuana conviction, to be served concurrently. On appeal, appellant argues that: (1) the trial court erred by failing to grant his motion to suppress because the arresting officer did not have probable cause to search him; (2) that the evidence was insufficient to support his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver; and (3) that the trial court erred by imposing the maximum sentence within appellant’s sentencing range for his conviction for possession of 0.5 grams or more of cocaine with the intent to deliver. Following our review of the briefs, the record, and the applicable law, we affirm the judgments of the trial court.

Weakley County Court of Criminal Appeals 09/09/14
Rock-Tenn Converting Company, et al. v. The City of Memphis, et al.
W2014-00626-COA-R3-CV

The dispute in this case arises from a contract for recycling services entered into by the City of Memphis and a recycling vendor. A competing recycling vendor and a citizen and taxpayer of the City of Memphis filed a complaint for declaratory judgment seeking to void the contract, on the ground that the contract was subject to the City of Memphis’s competitive bidding procedure. The trial court determined that, because the City of Memphis did not expend any monies in connection with its recycling contract, the contract was not subject to competitive bidding. The trial court granted summary judgment to the City of Memphis and its recycling vendor and this appeal followed. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 09/09/14