Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 07/07/2020
Format: 07/07/2020
David New v. Lavinia Dumitrache, Et Al.
W2017-00776-SC-R11-CV

A general sessions court entered a one-year order of protection prohibiting the plaintiff from having contact with the defendants, who are the plaintiff’s ex-wife and the couple’s minor child. The plaintiff failed to appeal the order within ten days as required by statute. Forty-two days later, he filed a document in the chancery court titled “Petition to Enroll and Certify A Foreign Judgment and Appeal in Nature of Writ of Error.” The plaintiff attached to his pleading an incomplete copy of the couple’s 2008 Texas divorce decree that granted him parenting time with the minor child and asked the chancery court to hold a new hearing and determine whether the general sessions court erred by issuing the order of protection. The plaintiff later filed a motion asking for interim parenting time with the child. The defendants filed a notice of limited appearance, and among other things, asked the chancery court to dismiss the action for lack of personal and subject matter jurisdiction. They also requested attorney’s fees and costs incurred in defending the action, relying on statutes to support these requests. The chancery court dismissed the action for lack of subject matter jurisdiction, finding the appeal untimely and the method of appeal obsolete, and also determining that the petition for enrollment was defective on its face because the defendant had attached an incomplete copy of the Texas decree. The chancery court initially denied the defendants’ request for attorney’s fees and costs but granted their motion to alter or amend and ultimately awarded attorney’s fees and costs totaling $25,398.21. The plaintiff appealed, challenging only the award of attorney’s fees. The defendants asked for an award of attorney’s fees incurred on appeal. Before reaching these issues, however, the Court of Appeals sua sponte held that the chancery court erred by dismissing the appeal for lack of subject matter jurisdiction, ruling that the “writ of error remains an avenue for review of judgments of general sessions courts.” Rather than remanding the matter to the chancery court for consideration of the merits of the plaintiff’s writ of error appeal, however, the Court of Appeals also addressed the defendants’ challenge to the award of attorney’s fees. The intermediate appellate court ruled that a statute authorized the chancery court to award the defendants’ attorney’s fees for defending against the plaintiff’s writ of error appeal but not for fees incurred defending against the plaintiff’s petition to enroll the Texas divorce decree. As a result, the Court of Appeals vacated the award of attorney’s fees and remanded to the chancery court for a hearing and a determination of the fees incurred solely in defense of the plaintiff’s writ of error appeal. The Court of Appeals denied the defendants’ request for attorney’s fees on appeal. This Court granted the defendants’ application for permission to appeal. We hold that the chancery court correctly concluded that the writ of error is no longer a viable method of appeal in this State and dismissed the untimely appeal for lack of subject matter jurisdiction. We also hold that the chancery court correctly dismissed the plaintiff’s request to enroll the Texas decree because he provided an incomplete copy of the decree. Finally, we hold that the chancery court correctly awarded the defendants’ attorney’s fees for defending against the plaintiff’s pleading and did not err by failing to limit the award to the writ of error appeal. For these reasons, we reverse the judgment of the Court of Appeals, reinstate the judgment of the chancery court in its entirety, and remand to the chancery court for a determination of the reasonable attorney’s fees the defendants have incurred and should be awarded for this appeal.

Shelby County Supreme Court 06/29/20
Greg Calfee Builders LLC v. Neill Magee and Diane Magee
E2019-00905-COA-R3-CV

This appeal concerns an alleged breach of contract. Greg Calfee (“Mr. Calfee”), on behalf of Greg Calfee Builders LLC (“GCB”), and Neill MaGee (“Mr. MaGee”) signed an agreement (“the Contract”) whereby GCB would custom-build a home for Mr. MaGee and his wife, Diane MaGee (“the MaGees,” collectively). Mr. MaGee, citing a number of construction defects, later terminated GCB from the job and told Mr. Calfee that GCB could not come back despite GCB’s willingness and offer to correct the defects. GCB sued the MaGees in the Chancery Court for Bradley County (“the Trial Court”) seeking to recover money it alleged was still owed to it. Mr. MaGee filed a counterclaim. GCB filed a motion for summary judgment, which the Trial Court granted. The MaGees appeal. We find and hold, inter alia, that under both Tennessee caselaw and the Contract, Mr. MaGee was required to give GCB notice and a reasonable opportunity to cure the defects, yet he failed to do so. GCB is entitled to judgment as a matter of law. We affirm.

Bradley County Court of Appeals 06/29/20
DANA MARLENE PAGLIARA v. TIMOTHY J. PAGLIARA
M2019-01397-COA-R9-CV

This interlocutory appeal arises from a pending divorce action. During discovery, the husband sought certain communications between the wife and her attorneys. During some of these meetings between the wife and her attorneys, a third party was present during discussions of whether the wife should report conduct by the husband to law enforcement. The wife could not identify which of the meetings the third party had been present and which she had not. Because the wife did not meet her burden of proof in demonstrating that attorney-client privilege applied to the communications, we affirm the judgment of the Trial Court.

Williamson County Court of Appeals 06/29/20
Marquette Jones v. State of Tennessee
W2019-00399-CCA-R3-PC

The Petitioner, Marquette Jones, appeals the denial of his petition for post-conviction relief. Following our review, we affirm the judgment of the post-conviction court denying the petition.

Shelby County Court of Criminal Appeals 06/29/20
State of Tennessee v. Michael Chambers
W2019-00661-CCA-R3-CD

The Defendant-Appellant, Michael Chambers, was convicted by a Shelby County jury of felony vandalism of property in an amount $2,500 or more but less than $10,000, in violation of Tennessee Code Annotated section 39-14-408, a Class D felony. The Defendant was sentenced as a Range II, multiple offender, to six years to be served on supervised probation. In this appeal as of right, the sole issue presented for our review is whether the evidence is sufficient to sustain the Defendant’s conviction for felony vandalism. Following our review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/29/20
State of Tennessee v. Terry Trammell
E2019-01147-CCA-R3-PC

Petitioner, Terry Trammell, was convicted by a Knox County Criminal Court jury of theft over $1000 and sentenced to twelve years in prison. This Court affirmed the judgment of the trial court on direct appeal. State v. Terry Trammell, No. E2016-01267- CCA-R3-CD, 2017 WL 1861792, at *3 (Tenn. Crim. App. May 8, 2017), no perm. app. filed. Petitioner sought post-conviction relief and the post-conviction court denied relief. On appeal, Petitioner contends that the post-conviction court erred by denying his claim that he received ineffective assistance of counsel during the guilt phase of the trial. After a thorough review of the record, we affirm the judgment of the post-conviction court on the basis that Petitioner received effective assistance of counsel.

Knox County Court of Criminal Appeals 06/26/20
In re Khrystchan D.
M2018-01107-COA-R3-JV

In this appeal from Juvenile Court, the Mother of the parties’ child appeals the order holding her in criminal contempt for failing to present the child for Father to exercise parenting time and the order changing the child’s surname to that of the Father; the Father appeals the designation of Mother as primary residential parent. Upon a thorough review of the record, we affirm the judgment holding Mother in contempt and designating Mother as primary residential parent; we vacate the judgment changing the child’s surname and remand the case for the court to make specific findings as to whether the name change is in the child’s best interest.

Davidson County Court of Appeals 06/26/20
State of Tennessee v. Keisha Moses Richardson
M2019-00952-CCA-R3-CD

Defendant, Keisha Moses Richardson, was convicted by a Davidson County jury for violating an order of protection. The trial court imposed a sentence of eleven months and twenty-nine days to be served on probation. On appeal, Defendant argues that the evidence was insufficient to support her conviction. Having reviewed the entire record, the oral arguments, and the briefs of the parties, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 06/26/20
In Re Zaliyah S. et al.
M2019-01241-COA-R3-JV

This is a dependency and neglect case focusing on twin siblings (collectively, “the Twins”), who are the minor children of Tamika S. (“Mother”). The Twins were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) upon an investigation prompted by a referral that Mother had given birth to the Twins after she had previously lost custody of one of her other children due to nutritional and medical neglect. Following Mother’s refusal to comply with DCS’s request to perform a health check on the Twins, DCS filed a petition for custody and emergency removal. The Juvenile Court for Davidson County (“juvenile court”) conducted a hearing and adjudicated the Twins dependent and neglected upon its finding that Mother had committed severe child abuse. The juvenile court awarded DCS legal and physical custody of the Twins. Mother appealed to the Circuit Court for Davidson County (“trial court”), which, following a de novo trial, issued a final order determining that Mother had perpetrated severe child abuse upon the Twins while they were in her care. Consequently, the trial court adjudicated the Twins dependent and neglected. The trial court ordered that it would be in the Twins’ best interest to remain in DCS custody. Mother has appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 06/26/20
August Hedrick v. Penske Truck Leasing Corporation
W2019-01522-SC-R3-WC

August Hedrick suffered injuries to his back and shoulder in the course of his employment with Penske Truck Leasing Corporation (“Employer”). The trial court found that Mr. Hedrick is permanently and totally disabled as a result of these injuries. Employer concedes that Mr. Hedrick suffered work-related injuries but argues that the evidence preponderates against the trial court’s judgment as to permanent and total disability. The appeal has been referred to this Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After reviewing the evidence, we affirm the trial court’s judgment.

Shelby County Workers Compensation Panel 06/26/20
State of Tennessee v. Stephanie Brown
E2019-00223-CCA-R3-CD

A Sevier County Jury found Defendant, Stephanie Brown, guilty of reckless homicide. The trial court imposed a sentence of four years to be served in confinement. On appeal, Defendant raises the following issues: (1) whether the trial court properly admitted testimony about the hydrostatic or float test performed on the baby’s lungs; (2) whether the trial court properly admitted Defendant’s confession and denied her motion to dismiss the indictment; (3) whether the evidence was sufficient to support Defendant’s conviction for reckless homicide; and (4) whether the trial court properly sentenced Defendant. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Sevier County Court of Criminal Appeals 06/25/20
State of Tennessee v. Antywan Eugene Savely
M2019-00249-CCA-R3-CD

The Defendant, Antywan Eugene Savely, was convicted by a Bedford County Circuit Court jury of the sale of a Schedule II drug, a Class C felony; the delivery of a Schedule II drug, a Class C felony; and conspiracy to sell or deliver a Schedule II drug, a Class D felony. The court merged the delivery conviction into the sale conviction and imposed a twelve-year sentence as a Persistent Offender. The court imposed a consecutive twelve-year sentence as a Career Offender for the conspiracy conviction, for an effective term of twenty-four years in the Department of Correction. On appeal, the Defendant argues that: (1) the trial court abused its discretion in ruling that the State could cross-examine him on a twenty-two-year-old felony conviction; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred in imposing consecutive sentencing. After review, we affirm the judgments of the trial court.

Bedford County Court of Criminal Appeals 06/25/20
Anthea Hendrix Toutges v. Jennifer McKaig
E2019-01538-COA-R3-CV

The Notice of Appeal filed by the appellant, Anthea Hendrix Toutges, stated that the appellant was appealing the judgment entered on August 19, 2019. As the August 19, 2019 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Anderson County Court of Appeals 06/25/20
In Re Conservatorship of John Martin Muldoon
E2019-01621-COA-R3-CV

This appeal arises from a petition to appoint a conservator under Tennessee Code Annotated section 34-1-121. The petitioner/wife was originally appointed as conservator of respondent/husband in October 2018. Thereafter, the parties could not agree on an appropriate Statement of Evidence. The trial court ordered a new hearing so a court reporter could be present to provide a Transcript of Evidence. The respondent filed an appeal to this Court, which was dismissed for lack of appellate jurisdiction due to the non-final order. A new hearing took place in July 2019. The trial court found petitioner met her burden under Tennessee Code Annotated sections 34-1-101(7) and 34-1-126 and appointed the petitioner as conservator over the respondent’s person and property. The respondent appealed.

Cumberland County Court of Appeals 06/25/20
Thomas Robert Blakemore v. Lynn Ann Blakemore
W2018-01391-COA-R3-CV

This divorce action concerns the trial court’s division of the marital estate, calculation of child support, and its denial of alimony and attorney fees. We affirm in part, vacate in part, and remand for proceedings consistent with this opinion.

Henry County Court of Appeals 06/25/20
Janet Tidwell v. Holston Methodist Federal Credit Union, et al.
E2019-01111-COA-R3-CV

Former CEO brought an action for libel, false light invasion of privacy, and retaliatory discharge pursuant to the Tennessee Public Protection Act. In this appeal from the trial court’s dismissal of the amended complaint pursuant to Tennessee Rule of Civil Procedure 12.02(6), we affirm the trial court.

Knox County Court of Appeals 06/25/20
James V. Holleman v. Barbara J. Holleman
E2019-02163-COA-R3-CV

This is the second appeal of this case. In Holleman v. Holleman, No. E2018-00451- COA-R3-CV, 2019 WL 2308066 (Tenn. Ct. App. May 30, 2019), this Court remanded the case to the trial court for the sole purpose of determining the amount of Husband’s reasonable attorney’s fees and expenses under the parties’ Marital Dissolution Agreement. On remand, Appellee/Husband provided an attorney affidavit and timesheets to support his request for $11,260.00 in fees. Appellant/Wife provided no evidence to dispute the amount, and the trial court entered judgment for Husband for the full amount. Wife contends that she did not receive proper notice of the hearing on Husband’s motion and further contends that the trial court erred in awarding Husband his attorney’s fees and expenses. Discerning no error, we affirm.

Knox County Court of Appeals 06/25/20
In Re Estate of Doris Marie Sublett Dorning
M2020-00787-COA-T10B-CV

A Tennessee Supreme Court Rule 10B petition for recusal appeal was filed in this Court following the trial court’s denial of a motion for recusal. For the reasons stated herein, we affirm the trial court’s denial of the motion.

Lewis County Court of Appeals 06/25/20
In re Shyanne H. et al.
M2019-02127-COA-R3-PT

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The juvenile court terminated the parental rights of the mother and the father on the grounds of persistence of conditions and severe child abuse, pursuant to Tennessee Code Annotated sections 36-1-113(g)(3) and 36-1-113(g)(4), respectively. The juvenile court also terminated the father’s parental rights on the additional ground of severe child abuse pursuant to Tennessee Code Annotated section 36-1-113(g)(5). The Mother appealed the grounds for termination as well as the juvenile court’s finding that termination was in the children’s best interests, while the father only appealed the juvenile court’s best interests finding. Discerning no reversible error, we affirm.

Williamson County Court of Appeals 06/25/20
Anthony D. Herron v. State of Tennessee
W2020-00776-COA-T10B-CV

This is an accelerated interlocutory appeal as of right, pursuant to Tennessee Supreme Court Rule 10B, from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, pursuant to the de novo standard as required under Rule 10B,
§ 2.01, we affirm the claims commissioner’s decision to deny the motion for recusal.

Court of Appeals 06/25/20
Juan Cerano v. State of Tennessee
W2018-02037-CCA-R3-PC

The Petitioner, Juan Cerano, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions of rape of a child, a Class A felony, and aggravated sexual battery, a Class B felony, and resulting thirty-year sentence. On appeal, the Petitioner contends that the post-conviction court erred in finding that he was not prejudiced by trial counsel’s failure to include records from the Department of Children’s Services with the appellate record on direct appeal of his convictions, which resulted in this court’s being unable to review whether the trial court properly ruled that the records were inadmissible at trial. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 06/25/20
Ronald Hudson v. State of Tennessee
W2019-00385-CCA-R3-PC

The pro se Petitioner, Ronald Hudson, appeals the summary dismissal of his petition for post-conviction relief as time-barred, arguing that he should be afforded counsel and an evidentiary hearing because his petition was timely. The State agrees there is some evidence that the petition was timely but notes that the Petitioner’s notice of appeal was clearly untimely. Because the notice of appeal is untimely and we find nothing that warrants the waiver of the timely notice of appeal requirement, we dismiss the appeal.

Shelby County Court of Criminal Appeals 06/25/20
JENNIFER BLAIR DEMATTEO TURK v. MICHAEL JOSEPH TURK, JR.
M2019-00869-COA-R3-CV

This divorce action concerns the trial court’s setting of the residential schedule and calculation of child support. We affirm the trial court’s judgment on both issues and also deny the competing requests for attorney fees on appeal.

Rutherford County Court of Appeals 06/24/20
Steven Sudbury v. Sumner County Regional Airport Authority
M2019-01322-COA-R3-CV

The plaintiff filed this action against his employer for breach of contract by failing to provide the plaintiff with severance pay after the employer terminated the contract without cause. The trial court granted summary judgment to the plaintiff, determining that it was undisputed that the plaintiff was terminated without cause, which entitled him to severance pay pursuant to the employment contract. On appeal, the defendant argues that a genuine issue of material fact exists and that the trial court erred in granting the plaintiff’s motion for summary judgment by failing to conduct an objective inquiry as to whether cause was present to terminate the plaintiff’s employment. We affirm the judgment of the trial court.

Sumner County Court of Appeals 06/24/20
Kayla Rawson v. William A. Monroe
M2019-00472-COA-R3-JV

This case involves modification of a permanent parenting plan. The father has appealed, arguing that the trial court’s order does not contain a sufficient best interest analysis or the requisite factual findings to support its decision. We have concluded that the order contains sufficient factual findings and the required best interest analysis. The father did not provide a transcript or statement of the evidence presented before the trial court that would enable us to review the evidentiary basis for the trial court’s findings. As such, we must affirm the decision of the juvenile court. We grant Mother’s request for an award of attorney’s fees on appeal.

Rutherford County Court of Appeals 06/24/20