Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 03/21/2019
Format: 03/21/2019
Dustin W. Brown v. Sarah Farley
E2018-01144-COA-R3-CV

In this child custody action, the trial court awarded custody of the minor child to the child’s father despite the fact that the child had resided with and/or been in the legal custody of the respondent maternal grandmother for a significant period of time. The maternal grandmother has appealed. Discerning no reversible error, we affirm the trial court’s judgment in all respects.

Cumberland County Court of Appeals 02/28/19
Dale J. Montpelier v. Herbert S. Moncier et al.
E2018-00448-COA-R3-CV

Defendant/Appellant filed a motion for attorney fees in the Knox County Circuit Court after Plaintiffs/Appellees’ claims against the defendant were dismissed pursuant to Tennessee Rule of Civil Procedure 12.02(6). The trial court denied Defendant’s request, concluding that one of the plaintiffs’ claims was an issue of first impression and as such, the plaintiffs were exempt from having attorney’s fees assessed against them. Defendant appeals. Because we conclude that the trial court’s application of the attorney fees statute, Tennessee Code Annotated section 20-12-119, was in error, we vacate the order of the trial court and remand for further proceedings.

Knox County Court of Appeals 02/28/19
Branch Banking And Trust Company v. Wayne R. Hill Et Al.
E2018-00232-COA-R3-CV

In this action for a deficiency judgment following the foreclosure sale of six tracts of real property, some of which were improved by resort cabins, the trial court granted the plaintiff bank’s motion for partial summary judgment against the defendant real estate developers and their limited liability company, for which the developers were guarantors, finding that the developers were liable for deficiency balances owed on promissory notes and guaranty agreements, as well as accrued interest, bank charges, late fees, and attorney’s fees. Following a bench trial concerning the amounts owed, the trial court awarded money judgments to the bank in the amounts, respectively, of $1,180,223.77 against the developers as individuals and $144,848.30 against the developers’ limited liability company. Finding, inter alia, that the developers had failed to properly plead the defense of inadequate foreclosure sales prices, the trial court sustained the bank’s objections to the developers’ requests to cross-examine the bank’s witnesses and introduce additional evidence regarding the adequacy of the foreclosure sales prices and foreclosure process. The trial court subsequently denied the developers’ motion to vacate the order granting the money judgments. The developers have appealed. Discerning no reversible error, we affirm.

Sevier County Court of Appeals 02/28/19
Michael Jon Eckley v. Margit Eckley
M2016-02236-COA-R3-CV

In this appeal arising from a divorce, the trial court adopted a permanent parenting plan for the parties’ two minor children that named the father the primary residential parent for one child and the mother the primary residential parent for the other. The court also awarded Mother alimony in futuro after finding her to be relatively economically disadvantaged and that rehabilitation was not feasible. On appeal, the father challenges both the permanent parenting plan and the alimony award. We affirm. 

Montgomery County Court of Appeals 02/28/19
Gary Miller v. Collin Miller, et al.
W2018-00482-COA-R3-CV

This case involves the interpretation of a buy-sell provision in a partnership agreement. The trial court concluded that the buy-sell provision was properly triggered by the Appellee and ordered that $125,000.00 be paid to the Appellee, representing the value of Appellee’s interest in the partnership. The trial court also awarded the Appellee attorney’s fees and held that other claims which had been pursued by the parties were moot. Having reviewed the terms of the buy-sell provision, we conclude that the provision was never properly triggered and, therefore, reverse the judgment of the trial court to the extent that it purported to enforce the parties’ agreement. Because various other claims were dismissed as moot in light of the trial court’s specific enforcement of the buy-sell provision that dismissal is hereby vacated, and those additional claims are remanded for further consideration and proceedings in the trial court.

Madison County Court of Appeals 02/28/19
State of Tennessee v. Ronnell Barclay
W2017-01329-CCA-R3-CD

Defendant, Ronnell Barclay, was convicted after a jury trial of one count of rape of a child, one count of aggravated sexual battery, and six counts of exploitation of a minor. After a sentencing hearing, Defendant was sentenced to a total effective sentence of
thirty-five years. After the denial of a motion for new trial, Defendant appeals and argues that he did not receive adequate notice of the factual basis for the charge of rape of a child, that the State withheld exculpatory statements made by the victim, and that the prosecutor made improper statements during rebuttal closing argument. After a review of the record, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 02/28/19
Alejandro Vasquez v. State of Tennessee
W2018-00682-CCA-R3-PC

The Petitioner, Alejandro Vasquez, appeals the dismissal of his petition for post-conviction relief, arguing that due process considerations should toll the running of the statute of limitations because he is a native Spanish speaker and cannot speak English. Following our review, we affirm the dismissal of the petition as time-barred.

Lake County Court of Criminal Appeals 02/28/19
State of Tennessee v. Robert Antwan McElmurry
W2018-00360-CCA-R3-CD

The Defendant, Robert Antwan McElmurry, was convicted by a Dyer County Circuit Court jury of aggravated statutory rape, a Class D felony, and was sentenced to eight years in the Department of Correction. On appeal, he argues that the evidence is insufficient to sustain his conviction. After review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 02/28/19
State of Tennessee v. David Levon Byers, Jr.
W2018-01247-CCA-R3-CD

Following a bench trial, the Defendant-Appellant, David Levon Byers, Jr., was convicted of possession of a weapon by a convicted felon, possession of drug paraphernalia, and “improper lane change” in violation of Tenn. Code Ann. § 55-8-123, for which he received an effective sentence of four-years to be served on supervised probation. Prior to trial, the Defendant filed a motion to suppress challenging the constitutionality of the traffic stop, which was denied by the trial court. The sole issue presented in this appeal as of right is whether the trial court erred in denying his motion to suppress. Upon our review, we affirm.

Fayette County Court of Criminal Appeals 02/28/19
State of Tennessee v. Kenneth Guthrie
M2017-02441-CCA-R3-CD

Defendant, Kenneth Guthrie, entered a best interest plea to attempted rape in exchange for a three-year sentence with the manner of service of the sentence to be determined by the trial court at a sentencing hearing. After the hearing, the trial court sentenced Defendant to serve six months day-for-day with the balance of the sentence to be served on probation. Defendant appeals his sentence, arguing that the trial court improperly denied a sentence of full probation. We affirm the judgment of the trial court.

Dickson County Court of Criminal Appeals 02/27/19
Heun Kim, et al. v. State of Tennessee
W2018-00762-COA-R3-CV

Plaintiffs/Appellants brought a negligence suit against the State of Tennessee after their six-year old son fell from the fifth floor balcony of the state owned and operated Paris Landing State Park Inn. The Plaintiffs alleged that the State was negligent in two respects: 1) in allowing their son to gain access to an unoccupied guest room and the attached balcony, and 2) in maintaining balcony railings that were shorter in height than was required by applicable building codes. Following a bench trial, the Tennessee Claims Commissioner concluded that the Plaintiffs failed to establish that the State’s negligence was the proximate cause of their son’s injuries. Because we have determined that the Commissioner’s conclusions of law are deficient and only address one of the Plaintiffs’ claims for negligence, we vacate the judgment and remand for further consideration.

Court of Appeals 02/26/19
Stevie Gibson v. State of Tennessee
W2017-01971-CCA-R3-PC

Petitioner, Stevie Gibson, appeals the denial of his petition for post-conviction relief, in which he challenged his Shelby County Criminal Court convictions for two counts of second degree murder and one count of aggravated robbery. On appeal, Petitioner argues that he was denied the effective assistance of counsel based on trial counsel’s failure to argue at trial that Petitioner could not form the requisite mens rea for the charges of first degree murder and aggravated robbery due to his voluntary intoxication at the time of the offense. Additionally, Petitioner asserts that he was denied a full and fair hearing due to the post-conviction judge’s refusal to recuse himself. After a thorough review of the facts and applicable law, we affirm.

Shelby County Court of Criminal Appeals 02/26/19
In Re Julian J. Et Al.
M2018-00882-COA-R3-PT

A mother and father appeal the termination of their parental rights to two children. The juvenile court found four statutory grounds for termination of mother’s parental rights and two statutory grounds for termination of father’s parental rights. The court also found that termination of both parents’ parental rights is in the children’s best interest. We conclude that the record contains clear and convincing evidence to support one ground for termination against Mother and two grounds for termination against Father. We further conclude that termination of parental rights is in the children’s best interest. So we affirm.

Dickson County Court of Appeals 02/26/19
State of Tennessee v. Sharrad Sharp
W2018-00156-CCA-R3-CD

The Appellant, Sharrad Sharp, was convicted in the Shelby County Criminal Court of one count of aggravated child abuse of a child eight years of age or less, a Class A felony; two counts of aggravated child neglect of a child eight years of age or less, a Class A felony; one count of aggravated sexual battery of a child less than thirteen years of age, a Class B felony; three counts of aggravated assault, a Class C felony; and two counts of child abuse of a child eight years of age or less, a Class D felony. After a sentencing hearing, he received an effective thirty-seven-year sentence. On appeal, the Appellant contends that six of the
twenty-five counts of the indictment are void because they failed to state an offense, that it was plain error for the State to play the victims’ forensic interviews in their entirety for the jury and introduce those interviews into evidence, that the evidence is insufficient to support the convictions, and that the trial court abused its discretion by ordering consecutive sentencing. The State acknowledges that six of the convictions should be vacated because the indictment failed to provide the Appellant with adequate notice. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the Appellant’s convictions of aggravated child abuse in count one, aggravated child neglect in counts five and six, and aggravated assault in counts two, seven, and eight must be reversed and vacated and the charges dismissed because the indictment failed to provide the Appellant with adequate notice of the offenses charged. The Appellant’s remaining convictions of aggravated sexual battery in count seventeen and child abuse in counts eighteen and nineteen and the resulting effective sixteen-year sentence are affirmed.

Shelby County Court of Criminal Appeals 02/26/19
State of Tennessee v. William Scott Hunley
W2018-00648-CCA-R3-CD

The Defendant, William Scott Hunley, was convicted of possession with intent to sell more than 0.5 grams of methamphetamine, possession with intent to deliver more than 0.5 grams of methamphetamine, possession of marijuana, and possession of drug paraphernalia. He received an effective sentence of twenty-five years. On appeal, the Defendant challenges only his conviction of possession with intent to sell methamphetamine, arguing that the evidence is insufficient to support the verdict. He also challenges the trial court’s denial of his motion to suppress. Upon reviewing the record and applicable law, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 02/26/19
In Re Keshawn J., et al.
W2017-02490-COA-R3-JV

In this dependent and neglect proceeding, the maternal grandparents of four children appeal an order entered in the Shelby County Juvenile Court dismissing a petition in which they sought visitation with the children pursuant to the grandparent visitation statute at Tennessee Code Annotated section 36-6-306. For the reasons set forth hereinafter we affirm the juvenile court’s dismissal of the petition for lack of jurisdiction.

Shelby County Court of Appeals 02/26/19
In Re Maddox G.
W2018-01115-COA-R3-PT

This is a termination of parental rights case. The trial court terminated father’s parental rights on the grounds of abandonment by willful failure to support and abandonment by willful failure to visit. With respect to the former ground, we reverse, finding insufficient evidence to support a finding that Father had the ability to pay child support. However, we affirm the latter ground, finding ample evidence that father had failed to exercise his visitation rights for over two years prior to the filing of the termination petition. We further find that termination of father’s parental rights is in the best interest of the child.

Henderson County Court of Appeals 02/25/19
State of Tennessee v. James Ray Parker
E2017-01787-CCA-R3-CD
The defendant, James Ray Parker, appeals his Monroe County Circuit Court jury conviction of first degree murder, claiming that the trial court erred by concluding that the defendant was competent to stand trial, that the trial court erred by denying the defendant’s motion to suppress his statements to the police and the fruits derived from those statements, that the trial court erred by failing to suppress evidence obtained via an invalid search warrant, that the trial court erred by failing to grant his motion to continue, that the trial court erred by refusing to instruct the jury on the defense of insanity, and that the evidence was insufficient to support his conviction. Discerning no reversible error, we affirm.
 
Monroe County Court of Criminal Appeals 02/25/19
State of Tennessee v. Steven Kelly
M2018-00659-CCA-R3-CD

Following a bench trial, the Defendant, Steven Kelly, was convicted of possession with intent to sell or deliver 0.5 grams or more of cocaine. By agreement of the parties, the trial court sentenced the Defendant to a suspended nine-year sentence to be served consecutively to a federal sentence. On appeal, the Defendant contends that the evidence failed to prove that he had the intent to sell the cocaine. After review, we affirm the trial court’s judgment.

Montgomery County Court of Criminal Appeals 02/25/19
State of Tennessee v. Crystal L. Gregoire
M2017-01562-CCA-R3-CD

The Defendant, Crystal L. Gregoire, pled guilty in the Lawrence County Circuit Court to tampering with evidence and was convicted following a jury trial of first degree premeditated murder and sentenced to an effective term of life imprisonment. On appeal, she challenges the sufficiency of the evidence of premeditation and argues that the trial court abused its discretion by excluding the testimony of a retired Federal Bureau of Investigation (“FBI”) agent of the facts surrounding the victim’s 1982 kidnapping convictions and the victim’s having put out an “open contract” on the agent and the agent’s family, by granting the State’s request for a special jury instruction pertaining to the victim’s having become “disarmed or helpless” during the killing, and by admitting prejudicial crime scene and autopsy photographs. Following our review, we affirm the judgments of the trial court.

Lawrence County Court of Criminal Appeals 02/25/19
Jeffery Smith, et al. v. Methodist Hospitals of Memphis, et al.
W2018-00435-COA-R3-CV

This appeal stems from a healthcare liability action filed nearly two decades ago. The defendant hospital filed a motion for summary judgment arguing that neither of the plaintiffs’ expert witnesses was competent to testify and, therefore, the plaintiffs could not establish their claim. After the trial court granted the motion for summary judgment, the plaintiffs filed a motion to alter or amend the judgment along with a new affidavit of one of the previous experts, which purported to establish the expert’s competency to testify. The trial court, however, denied the motion to alter or amend, and the plaintiffs specifically appealed the trial court’s order denying their motion. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 02/25/19
Audra Snapp Olinger v. Travis Jackson Olinger
E2017-02133-COA-R3-CV
In this divorce case, the trial court decreed that husband, Travis Jackson Olinger, would be liable for the attorney’s fees and expenses of, his spouse, Audra Snapp Olinger. The court treated the assessing of fees to husband as alimony in solido to wife. A portion of those fees were to be satisfied by transfering to wife husband’s interest in the parties’ equity in the martial residence. The remainder is to be paid over time with a monthly payment of $370 until husband’s obligation is paid in full. The sole issue before us is whether the trial court abused its discretion when it assessed the subject fees to husband. He appeals. We affirm.
 
Bradley County Court of Appeals 02/25/19
Audra Snapp Olinger v. Travis Jackson Olinger - Concurring and Dissenting
E2017-02133-COA-R3-CV
D. MICHAEL SWINEY, C.J., concurring and dissenting.
I concur with the majority in its affirmance of that portion of the Trial Court’s award to Wife which can be classified distinctly as discretionary costs pursuant to Tenn. R. Civ. P. 54.04.1 Wife was granted a divorce based upon Husband’s stipulated adultery and inappropriate marital conduct. To that extent, Wife prevailed, and I agree with the majority that the Trial Court did not abuse its discretion in granting her an award of discretionary costs in the amount of $2,270.
 
Bradley County Court of Appeals 02/25/19
Sammie L. Brookins, et al. v. Saint Francis Hospital Foundation, et al.
W2018-00255-COA-R3-CV

After husband’s health care liability complaint was dismissed without prejudice for lack of prosecution, husband and wife re-filed in reliance on the savings statute. The intended defendant, who had neither been served nor named in connection with the first complaint, was eventually named in an amended complaint after the second complaint had been filed. The trial court later dismissed the action against the intended defendant, holding, among other things, that the case was barred by the statute of limitations. We affirm.

Shelby County Court of Appeals 02/22/19
Marilyn Lynn James v. City of Dyersburg
W2018-00614-COA-R3-CV

This appeal arises from injuries the plaintiff sustained from a fall while descending the exterior sidewalk steps of property owned and managed by the City of Dyersburg. The plaintiff contends she fell because, inter alia, the city was negligent in the design and maintenance of the stairway and in failing to correct the defect in the steps. Following a bench trial, the court found the proof failed to establish that there was a dangerous or defective condition that was the proximate cause of the plaintiff’s fall, and if there was a defective condition, the City of Dyersburg had no prior notice. The trial court also found that if there was a defective condition, the plaintiff was more than 50% at fault which bars any recovery. For these and other reasons, the trial court dismissed the complaint. This appeal followed. Having determined that the evidence does not preponderate against the trial court’s findings of fact, and discerning no error with its conclusions of law, we affirm.

Dyer County Court of Appeals 02/22/19