Appellate Court Opinions

Format: 12/01/2020
Format: 12/01/2020
Philemon Alexander v. State of Tennessee

This case presents an appeal as of right from the post-conviction court’s denial of relief. The Petitioner is serving an eight-year sentence for a jury conviction of theft of property valued at $1,000 or more but less than $10,000. The Petitioner asserts that Counsel’s failure to properly investigate or prepare for trial constitutes the ineffective assistance of counsel. The Petitioner, however, failed to provide clear and convincing proof at the post-conviction hearing to support his allegations of ineffective assistance of counsel. Therefore, we affirm the post-conviction court’s denial of relief.

Shelby County Court of Criminal Appeals 11/17/20
Terrance Milam v. State of Tennessee

The Petitioner, Terrance Milam, entered a best interest plea to two counts of rape of a child, involving two separate victims, and the trial court sentenced him to serve forty years, at 100%. The Petitioner filed a petition for post-conviction relief in which he alleged that he had received the ineffective assistance of counsel because his counsel failed to inform him of his right to appeal and to request that the trial court appoint appellate counsel. Following a hearing, the post-conviction court dismissed his petition, and the Petitioner timely appealed. After review, we reverse the post-conviction court’s judgment and remand the case for the appointment of counsel, entry of a certified question of law, and grant of a delayed appeal.

Shelby County Court of Criminal Appeals 11/17/20
State of Tennessee v. Audrey Downs

The Petitioner, Audrey Downs, entered “best interest” pleas to felony murder and aggravated rape pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and received concurrent sentences of life imprisonment without the possibility of parole and twentyfive years. In 2002, the Petitioner successfully petitioned for DNA testing of a condom collected from the scene where the victim’s body was discovered, and the results excluded the Petitioner as a contributor to the DNA. Because the State subsequently introduced evidence that the condom was unrelated to the crime, the Petitioner was denied permission to reopen his post-conviction petition. The Petitioner sought further testing of the condom to determine whether the victim’s DNA could be recovered, in an attempt to link it to the crime. The trial court summarily denied further testing, and this court remanded for the trial court to conduct the required analysis of the statutory factors. State v. Audrey Downs, No. W2018-00391-CCA-R3-CD, 2018 WL 6650597, at *2 (Tenn. Crim. App. Dec. 18, 2018), no perm. app. filed. On remand, the petition was again summarily dismissed, and the Petitioner appeals. We conclude that the petition did not allege a prima facie case for DNA testing under the statute, and we accordingly affirm the dismissal.

Shelby County Court of Criminal Appeals 11/17/20
Elvis L. Marsh v. State of Tennessee

The petitioner, Elvis Louis Marsh, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel at trial. Following our review, we affirm the denial of the petition.

Marshall County Court of Criminal Appeals 11/16/20
Wayne C. Lance v. Alcoa Hotel Hospitatlity, LLC

The plaintiff instituted this action to recover payments allegedly due under an agreement to sell his membership interest in a corporation. Following a bench trial, the trial court agreed with the defendant corporation’s contention that the “additional consideration” provision of the agreement was void and unenforceable because it was not supported by consideration. The trial court determined that the corporation received no consideration in exchange for its promise to make annual payments to the plaintiff. The plaintiff has appealed. Upon thorough review, we conclude that sufficient consideration supported the agreement, and we reverse the trial court’s judgment in that regard. The balance of the trial court’s judgment is affirmed.

Knox County Court of Appeals 11/16/20
State of Tennessee v. Austin Forkpa

After a bench trial, the Defendant, Austin Forkpa, was convicted of resisting arrest, for which he received a six-month sentence. On appeal, the Defendant argues that his conviction was not supported by sufficient evidence, specifically alleging that he did not intentionally use force to prevent or obstruct an arrest and, alternatively, that he was acting in self-defense based upon the officers’ use of excessive force. After our review, we affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 11/16/20
Capital Partners Network OT, Inc. v. TNG Contractors, LLC, Et Al.

Defendants appeal the trial court’s grant of summary judgment to the plaintiff corporation, the effect of which was to accord full faith and credit to a New York judgment based on a confession of judgment, or cognovit note. Defendants argue that the foreign judgment should not be enrolled in Tennessee because it is contrary to public policy, based on Tennessee Code Annotated section 25-2-101(a), which prohibits the use of prelitigation confessions of judgment and declares void any judgment based upon such a device. After reviewing the record and case law, we hold that the Constitution’s full faith and credit mandate requires enrollment of the foreign judgment so long as Defendants validly waived their due process rights. Accordingly, we affirm.

Davidson County Court of Appeals 11/16/20
State of Tennessee v. Brandon Luke Baron

The Defendant, Brandon Luke Baron, appeals from the Cumberland County Criminal Court’s denial of his request for judicial diversion following his guilty plea to child abuse, a Class D felony. See T.C.A. § 39-15-401 (2014) (subsequently amended). The court imposed the agreed-upon two-year sentence and ordered the Defendant to serve it in the Department of Correction. The Defendant contends that the court erred in denying judicial diversion. We conclude that the trial court failed to consider and weigh all of the relevant factors in accord with State v. Electroplating, 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998), and State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996), but upon de novo review, we affirm the judgment of the trial court denying judicial diversion.

Cumberland County Court of Criminal Appeals 11/13/20
In Re Brooklyn R.

The Tennessee Department of Children’s Services filed a petition to terminate a father’s parental rights based on abandonment by failure to support; abandonment by failure to visit; abandonment by wanton disregard; substantial noncompliance with permanency plans; and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the Department proved the alleged grounds by clear and convincing evidence and that terminating the father’s parental rights was in the best interests of the child. The father appeals the trial court’s conclusion that terminating his parental rights is in the best interests of the child. We affirm. 

White County Court of Appeals 11/13/20
Lisa Livingston v. Gregory Livingston

Following a public reprimand of the trial judge presiding over her divorce, Wife filed a motion to recuse the trial judge pursuant to Tennessee Supreme Court Rule 10B. The trial court denied the motion, and Wife appealed to this Court. Thereafter, the presiding judge of the Thirteenth Judicial District entered an order transferring the case to another judge in order to “equitably distribute the case load[.]” Wife then filed a notice in this Court seeking direction as to whether the appeal is moot. Following our review, we dismiss this appeal as moot.

Putnam County Court of Appeals 11/12/20
State of Tennessee v. Martell Smith

The Defendant, Martell Smith, was convicted of the sale of 0.5 grams or more of cocaine and of the delivery of 0.5 grams or more of cocaine, both occurring in a drug-free school zone, and he received a sentence of thirty years in prison. On appeal, he asserts that his convictions should be reversed because the State did not prove that the transaction occurred within the requisite distance of the school or that the educational establishment at issue was a school under statute, because the prosecutor committed misconduct in his opening statements, and because the trial court refused to deliver his requested special instructions. After a thorough review of the record, we affirm the trial court’s judgments.

Putnam County Court of Criminal Appeals 11/12/20
Eric Wayne Barton v. Mechelle Schlomer Barton

In this appeal arising out of the parties’ divorce, the Husband raises issues pertaining to the court’s classification, valuation, and division of the marital estate, as well as the court’s award of attorney’s fees to Wife. Upon our review, we vacate those parts of the judgment that awarded a lien on real property belonging to LLCs in which Husband had 100 percent ownership interest as well as an award to Wife of an interest in a contingent contractual claim against the United States Government that is an asset of an LLC in which Husband had 100 percent ownership interest. Additionally, in light of this Court’s determination that the contractual claim is an asset of an LLC owned 100 percent by Husband, we conclude that the record requires the court to reconsider the valuation of the parties’ business interests in the LLC that has the contractual claim. Although the trial court must necessarily consider the impact that the contractual claim has on the parties’ net marital business interests, we note that the court’s current calculations, which are divorced from a proper consideration of the impact of the contractual claim, overvalued the net marital business interests based upon its own findings. In light of the fact that the case is being remanded for further consideration of the valuation of the parties’ net marital business interests, we also vacate the trial court’s equitable division of the estate and its award of attorney’s fees to Wife and remand for further consideration. We also decline to award Wife her attorney’s fees on appeal. The balance of the judgment is affirmed.

Blount County Court of Appeals 11/10/20
Hugh A. Niceley v. Tennessee Department Of Correction

This appeal arises from the summary dismissal of an inmate’s petition for declaratory judgment on the calculation of his sentence expiration date. The inmate contended that each of his consecutive sentences should have begun automatically upon the expiration of the prior sentence’s period of ineligibility for release. The trial court found the material facts were undisputed and concluded that the Tennessee Department of Correction correctly calculated the sentences. Finding no error, we affirm the judgment of the trial court. 

Davidson County Court of Appeals 11/10/20
Judy Webb v. Trevecca Center For Rehabilitation And Healing, LLC

This appeal concerns the dismissal of a health care liability action against a long-term care facility.  The trial court dismissed the complaint without prejudice because the plaintiff did not provide the long-term care facility with pre-suit notice of her claim as required by statute.  The plaintiff argues that the notice she mailed to the facility’s administrator at the facility’s business address satisfied the statutory requirement.  Because her letter was not directed to the facility, we affirm the dismissal of her complaint. 

Davidson County Court of Appeals 11/10/20
State of Tennessee v. Glyn Terrance Dale, Sr.

The Appellant, Glyn Terrance Dale, Sr., appeals as of right from the Knox County Criminal Court's summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The Appellant contends that: (1) the trial court erred by increasing the Appellant' s sentence at the resentencing hearing; (2) counsel abandoned him during his resentencing hearing; and (3) the trial court abused its discretion. Discerning no error, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 11/10/20
State of Tennessee v. Jeffrey Brian Gwaltney

The trial court revoked the community corrections sentence of the Defendant, Jeffrey Brian Gwaltney, and ordered that he serve the remainder of his sentence in confinement. On appeal, the Defendant contends that, while he did violate his alternative sentence, the trial court’s full revocation of his fifteen-year sentence was excessive and constituted an abuse of discretion. After review, we affirm the trial court’s judgment.

Lauderdale County Court of Criminal Appeals 11/10/20
State of Tennessee v. Marvin Glynn Allen

Defendant, Marvin Glynn Allen, appeals his conviction for DUI, fourth offense, arguing that, based on the plain language of Tennessee Code Annotated section 55-10-405(a), his charge should have been DUI, third offense. After a thorough review of the record, applicable case law, and the legislative history, we affirm the judgment of the trial court.

Chester County Court of Criminal Appeals 11/10/20
Rodriccus Funzie v. State of Tennessee

The Petitioner, Rodriccus Funzie, was convicted by a Shelby County jury of first degree premeditated murder. Over a year after this court affirmed his conviction, the Petitioner filed a petition for post-conviction relief. The post-conviction court subsequently denied the petition on its merits. Following our review of the record and relevant law, we conclude the petition was untimely, and, therefore, this court is without jurisdiction to consider this appeal. Accordingly, we dismiss this appeal.

Shelby County Court of Criminal Appeals 11/10/20
State of Tennessee v. Michael Wilson

A Shelby County jury convicted the Defendant, Michael Wilson, of first degree felony murder, criminal attempt to commit second degree murder, aggravated robbery, and employing a firearm during the commission of a felony, and the trial court sentenced him to life in prison. In this appeal, the Defendant contends that the evidence is insufficient to support his convictions. After review, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 11/10/20
State of Tennessee v. Robert T. McLeod

Robert T. McLeod, Defendant, entered a best interest guilty plea to five counts of violating the sex offender registry, one count of violating community supervision, and one count of tampering with evidence with an effective sentence of three years. The trial court denied alternative sentencing and ordered Defendant to serve his sentence in incarceration. After a review, we determine that the trial court did not abuse its discretion. Accordingly, the judgments of the trial court are affirmed.

Madison County Court of Criminal Appeals 11/10/20
In Re Arianna B.

This appeal concerns the termination of a mother’s parental rights. Amy B. (“Mother”) is the mother of the minor child Arianna B. (“the Child”). At Mother’s request, Kayla A. (“Petitioner”), the Child’s paternal aunt, assumed temporary custody of the Child. Petitioner later filed a petition in the Chancery Court for Knox County (“the Trial Court”) seeking to terminate Mother’s parental rights. After trial, the Trial Court entered an order finding that Petitioner had proven the ground of failure to support and that termination of Mother’s parental rights is in the Child’s best interest. Mother appeals, arguing among other things that Tenn. Code Ann. § 36-1-102(1), as amended in 2018, is unconstitutional for shifting the burden of proof on willfulness to parents. As Mother failed to raise this issue below and the statute is not obviously unconstitutional on its face, we decline to consider Mother’s tardy constitutional challenge. We find the ground of failure to support was proven by clear and convincing evidence, and, by the same standard, that termination of Mother’s parental rights is in the Child’s best interest. We affirm.

Knox County Court of Appeals 11/09/20
In Re Lillian W.

Father living in California had his parental rights terminated by default judgment. Father appealed, and we vacate the termination because the trial court failed to conduct a best interest analysis.

Warren County Court of Appeals 11/09/20
Thomas John Pitera v. Samantha Pitera

This appeal arises from a divorce proceeding. Husband is a resident of Connecticut with no ties to Tennessee. Wife and minor child, also former residents of Connecticut, have resided in Tennessee since December of 2018. Wife filed for divorce in Tennessee in May of 2019 and personally served Husband in Connecticut. Husband moved to dismiss the complaint for lack of personal jurisdiction. The trial court thereafter entered a final decree of divorce in favor of Wife. Because we find that Wife was not a resident of Tennessee for six months preceding the filing of the complaint for divorce, the trial court did not have subject matter jurisdiction to grant the divorce. The judgment of the trial court is vacated and dismissed.

Sullivan County Court of Appeals 11/06/20
In Re Noah A.

This action involves the termination of both parents’ rights to a minor child. Following a trial, the Loudon County Juvenile Court found that clear and convincing evidence existed to support five statutory grounds for termination of both parents’ rights: (1) abandonment by failure to establish a suitable home; (2) abandonment by an incarcerated parent; (3) substantial non-compliance with the permanency plan; (4) persistence of conditions; and (5) failure to manifest an ability and a willingness to assume custody. The court also found that termination was in the best interest of the child. Both parents appealed. We vacate in part and affirm in part.

Loudon County Court of Appeals 11/06/20
Melanie Shea Thompson, Et Al. v. Southland Constructors Et Al.

This action involves a tragic accident resulting in the death of Tommy Smith (“Decedent”), who was working as a plumber connecting a sewer line when the trench he was in collapsed and crushed him. Decedent’s children (“Plaintiffs”) sued, among others, Focus Design Builders, LLC, general contractors for the building project, alleging negligence. The trial court granted Focus Design’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6). The trial court held that Focus Design did not owe a duty of reasonable care under the circumstances because Decedent’s death was unforeseeable. We hold the complaint states a cause of action for negligence and consequently reverse the judgment of the trial court.

Sumner County Court of Appeals 11/06/20