Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 08/22/2019
Format: 08/22/2019
In Re: K.S.
E2018-02274-COA-R3-PT

The Department of Children’s Services filed a petition to terminate the parental rights of S.M. (mother) with respect to her child, K.S. The trial court determined that clear and convincing evidence supported multiple grounds for terminating mother’s parental rights. By the same quantum of proof, the court determined that termination is in the best interest of the child. We affirm.

Knox County Court of Appeals 08/02/19
Henry Epps v. State of Tennessee
M2018-01772-CCA-R3-PC

Henry Epps, Petitioner, entered a best interest plea to six counts of sexual exploitation of a minor; the remaining nine counts of sexual exploitation of a minor were dismissed per the negotiated plea agreement. Petitioner received an effective sentence of eight years with release eligibility after service of 100% of the sentence in the Tennessee Department of Correction. Petitioner filed an original and an amended petition for post-conviction relief. After an evidentiary hearing, the post-conviction court denied relief. Petitioner filed a timely notice of appeal. This court reversed and remanded for a new post-conviction hearing and for entry of an order that contained specific findings of fact and conclusions of law relating to all issues raised. At the second post-conviction hearing, the post-conviction court admitted numerous affidavits and reports from Petitioner’s forensic expert and the State’s forensic expert. The post-conviction court then denied relief in an order. On appeal, Petitioner alleges that trial counsel’s performance was deficient because he “failed to consult with or inform [Petitioner] as to whether [Petitioner]’s expert would be used at trial” and “unilaterally discarded [Petitioner]’s defense, allowing him no say as to whether the case would proceed to a trial that would have presumably consisted of a jury hearing testimony from each side’s competing experts.” Petitioner asserts that he would have proceeded to trial absent trial counsel’s deficient performance. He also contends that he did not knowingly and voluntarily plead guilty because he “did not have a meaningful opportunity to confer with trial counsel about alternatives[,]” that “trial counsel . . . unilaterally deprived [Petitioner] of the option to choose trial[,]” and that Petitioner “had no prior experience with criminal proceedings, which would have weighed in favor of a finding that [Petitioner]’s plea was not voluntary, intelligent, or knowing.” After a thorough review of the facts and applicable case law, we affirm.

Montgomery County Court of Criminal Appeals 08/02/19
Tennessee Clinical School, LLC, D/B/A Hermitage Hall v. Jeffrey E. Johns
M2018-00985-SC-R3-WC

This appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. The trial court entered a final order that Employee was entitled to benefits. The trial court found that Employer failed to prove willful misconduct under Tenn. Code Ann. § 50-6-110(a)(1) because Employer failed to prove bona fide enforcement of its policy and that Employee had a valid subjective belief for violating said policy. We reverse the trial court’s finding that Employer failed to prove bona fide enforcement of its policy, but we affirm the trial court’s finding that Employee did not willfully violate Employer’s policy. As a result, we affirm the trial court’s judgment in favor of the Employee.

Davidson County Workers Compensation Panel 08/02/19
Cyrus Deville Wilson v. State of Tennessee
M2018-01109-CCA-R3-ECN

Cyrus DeVille Wilson, Petitioner, filed a petition for writ of error coram nobis. He argued that two key witnesses for the State, Marquise Harris and Phedrek Davis, had recanted their testimony. Petitioner argued that this recanted testimony was newly-discovered evidence that may have affected the outcome of his trial if it had been admitted. The coram nobis court denied relief. On appeal, Petitioner asserts that the coram nobis court abused its discretion by denying his petition. He argues that the coram nobis court illogically credited Mr. Harris’ and Mr. Davis’ trial testimony as juveniles over their recanted testimony as adults. He also contends that Detective Bill Pridemore’s testimony that Mr. Harris only spoke with police after being assured that he would receive a Crime Stopper reward was newly-discovered evidence that may have had an impact on the outcome of his trial. After a thorough review of the facts and applicable case law, we affirm.

Davidson County Court of Criminal Appeals 08/01/19
Timothy Dunn, Sr. v. State of Tennessee
M2018-01614-CCA-R3-PC

The Petitioner, Timothy Dunn, Sr., appeals from the Robertson County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective in failing to explain to the Petitioner the possible sentence he could receive if convicted at trial. Discerning no error, we affirm the judgment of the post conviction court.

Robertson County Court of Criminal Appeals 08/01/19
Robert D. Palmer, Jr. Et Al. v. Wayne Eric Colvard Et Al.
E2018-00454-COA-R3-CV

This case arises from the death of Robert D. Palmer, Sr. (“Decedent”). Prior to his death, Decedent entered into a contract with Wayne Eric Colvard and Wayne Eugene Colvard (collectively “Defendants”) for the sale of his tax preparation business. Decedent’s children, Robert Dean Palmer, Jr. and Suzanne Johnson (collectively “Plaintiffs”), filed suit against Defendants in their alleged capacities as personal representatives of Decedent’s estate for breach of contract, fraud, and unjust enrichment relating to the sale. The details of the complaint are not at issue in this appeal.

Hamilton County Court of Appeals 07/31/19
Michael Cobble Et Al. v. Greene County, Tennessee Et Al.
E2018-02017-COA-R3-CV

This case involves an action by the petitioner landowners disputing the grant of a zoning variance to their neighbors, the respondent landowners, for the construction of a carport. In a previous appeal, this Court reversed the respondent county zoning board’s grant of the variance and remanded to the trial court for collection of costs and “further proceedings consistent with this [Court’s] Opinion.” See Cobble v. Greene Cty., 559 S.W.3d 118, 127 (Tenn. Ct. App. 2017), perm. app. denied (Tenn. May 16, 2018) (“Cobble I”). Our Supreme Court subsequently denied the county’s and zoning board’s application for permission to appeal, and this Court issued a mandate on the same day. On September 4, 2018, the petitioners filed a motion for discretionary costs. The county and the zoning board filed a response, asserting that the motion for discretionary costs was untimely pursuant to Tennessee Rule of Civil Procedure 54.04(2). The respondent landowners also filed a response objecting to the motion. Upon finding that this Court’s mandate was dispositive of all issues and that the petitioners had failed to file their motion within the thirty days allowed by Rule 54.04(2), the trial court entered an order denying the motion for discretionary costs. The petitioners have appealed. Discerning no reversible error, we affirm.

Greene County Court of Appeals 07/31/19
Antonio Terrell Pewitte v. State of Tennessee
M2018-01704-CCA-R3-PC

The Petitioner, Antonio Terrell Pewitte, appeals the Davidson County Criminal Court’s denial of his petition for post-conviction relief from his 2015 conviction for aggravated child neglect and his twenty-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Davidson County Court of Criminal Appeals 07/31/19
State of Tennessee v. Austin Andrew Morse
M2018-00430-CCA-R3-CD

Defendant, Austin Andrew Morse, was indicted by the Davidson County Grand Jury for six counts of aggravated child abuse, four counts of aggravated child neglect, and four counts of aggravated child endangerment. Pursuant to a plea agreement, Defendant pleaded guilty to two counts of aggravated child neglect. The remaining counts were dismissed. It was agreed that Defendant’s sentences would be served concurrently with a 70 percent release eligibility date. The trial court would determine the length of the sentences. Following a sentencing hearing, the trial court imposed sentences of 19 and 21 years for Defendant’s convictions. In this appeal as of right, Defendant contends that the trial court abused its discretion in imposing the length of his sentences. Having reviewed the entire record and the briefs of both parties, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 07/31/19
State of Tennessee v. Jordan Clayton, Carlos Stokes, and Branden Brookins
W2018-00386-CCA-R3-CD

Defendants, Jordan Clayton, Carlos Stokes, and Branden Brookins, were convicted of first degree murder, conspiracy to commit first degree murder, attempt to commit first degree murder, two counts of employing a firearm during the commission of a dangerous felony, and reckless endangerment after a jury found them guilty of the murder of a seven-year-old female child. Defendant Clayton was also convicted of being a felon in possession of a firearm. On appeal, Defendants challenge the trial court’s refusal to sever the cases for trial, the admissibility of a recording of a preliminary hearing and a written statement of a witness with memory loss, and the sufficiency of the evidence. We determine that the trial court did not abuse its discretion by denying a motion to sever or by admitting the preliminary hearing recording and written statement into evidence. Additionally, we determine that the evidence was sufficient to support the convictions. Consequently, we affirm the judgments of the trial court with respect to the convictions for first degree murder, attempted first degree murder, employing a firearm during the commission of a dangerous felony, and reckless endangerment. However, we reverse the judgments of the trial court with respect to the conspiracy to commit first degree murder convictions because the trial court improperly merged the conspiracy convictions with the first degree murder convictions. On remand, the trial court should reinstate the judgments for conspiracy to commit first degree murder.

Shelby County Court of Criminal Appeals 07/31/19
State of Tennessee v. Shalonda Renee Pettus
M2018-01851-CCA-R3-CD

The defendant, Shalonda Renee Pettus, entered an open plea to aggravated child neglect, and the trial court sentenced her to fifteen years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the trial court improperly weighed enhancement factor (1). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Davidson County Court of Criminal Appeals 07/31/19
Donna L. Stearns-Smith v. James Ronnie Smith
M2017-01902-COA-R3-CV

After Wife filed for divorce from her husband, the parties stipulated to an equitable division of personal property and to the grounds for divorce.  The court conducted a trial to resolve questions surrounding the classification and division of two parcels of improved real property and Wife’s requests for alimony and attorney’s fees.  The trial court determined one parcel of real property was separate property while the other was marital and provided for its division.  The court also awarded Wife alimony in solido and attorney’s fees.  On appeal, Husband challenges the classification and division of the real property and the awards of alimony and attorney’s fees.  We conclude that the court erred in calculating the amounts due from Husband to Wife to accomplish its division of marital property, so we modify the judgment in that respect.  Otherwise, because of a failure to fully comply with Rule 7 of the Rules of the Court of Appeals of Tennessee, Husband’s issues related to the classification, valuation, and division of property are deemed waived.  As to the remaining issues, we affirm the award of lump sum alimony in solido but reverse the award of attorney’s fees as alimony in solido.  

Bedford County Court of Appeals 07/31/19
Bernie Ray McGill v. State of Tennessee
E2018-01872-CCA-R3-PC

The Petitioner, Bernie Ray McGill, appeals the Knox County Criminal Court’s denial of his petition for post-conviction relief from his conviction of aggravated assault and tenyear sentence. On appeal, he contends that the post-conviction court erred by finding that his petition was barred by the statute of limitations because due process required that the statute of limitations be tolled. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 07/30/19
Maurice Pinson v. David Kent DeBoer M.D. Et Al.
M2018-00593-COA-R3-CV

Appeal of an award of discretionary costs to Defendants in healthcare liability action that had been voluntarily dismissed. The trial court initially awarded Defendants, inter alia, expert witness fees for medical providers who had treated Plaintiff, expenses for videotaped depositions, and costs for the travel time and deposition preparation time for Plaintiff’s vocational expert. On Plaintiff’s motion, the court modified the award to exclude videographer expenses, expenses attendant to the vocational expert’s deposition, and other court reporter expenses. We modify the award to exclude the witness fees for the providers who treated Plaintiff and to include the court reporter fee for the deposition of Plaintiff’s vocational expert; vacate the portion of the award that reduces the amount of court reporter fees and expenses and remand the case for reconsideration of the award; and reverse the order to the extent it requires the Plaintiff to post a bond or pay discretionary costs prior to re-filing the suit. 

Davidson County Court of Appeals 07/30/19
Amber Ada Hernandez v. David Alan Hernandez
W2018-01388-COA-R3-CV

This appeal involves a petition for modification of a permanent parenting plan. The initial permanent parenting plan order was entered by the McNairy County General Sessions Court (“trial court”) in October 2006. In November 2016, the father filed a petition in the trial court, alleging that a material change in circumstance had occurred due to the mother’s having been charged with aggravated statutory rape. The father concomitantly filed a petition requesting a temporary injunction granting him “emergency custody” and suspending the mother’s co-parenting time. The mother filed a motion to dismiss the petitions, alleging that the trial court lacked subject matter jurisdiction because the parties and the child all resided outside of Tennessee. In December 2016, the trial court entered an “Order for Visitation,” inter alia, modifying the father’s holiday co-parenting time and directing that the mother’s co-parenting time be supervised by her stepmother. Following a bench trial, the trial court granted the mother’s motion to dismiss for lack of subject matter jurisdiction pursuant to Tennessee Code Annotated § 36-6-217 (2017) of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The father has appealed. We affirm with one modification to the final judgment to clarify that with the trial court’s dismissal of this action, the December 2016 temporary order was no longer of any effect.

McNairy County Court of Appeals 07/30/19
State of Tennessee v. Danny D. Keen
M2018-01152-CCA-R3-CD

A Wilson County jury convicted the defendant, Danny D. Keen, of aggravated robbery, and the trial court imposed a sentence of eight years in confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Wilson County Court of Criminal Appeals 07/29/19
State of Tennessee v. Charles Sinclair Hodge
M2018-01647-CCA-R3-CD

A Davidson County Criminal Court Jury convicted the Appellant, Charles Sinclair Hodge, of aggravated assault resulting in death and criminally negligent homicide, and the trial court ordered him to serve two years in confinement for criminally negligent homicide and five years on supervised probation for aggravated assault after completing the two-year sentence. The trial court then merged the convictions. On appeal, the Appellant contends that the trial court’s sentencing him for both convictions and entering two separate judgments of conviction violate double jeopardy principles. Based upon the record and the parties’ briefs, we conclude that the trial court properly entered two separate judgments of conviction as required by our supreme court; however, the case must be remanded to the trial court because of errors in sentencing.

Davidson County Court of Criminal Appeals 07/29/19
The Parking Guys, Inc. v. Metropolitan Government Of Nashville & Davidson County, Tennessee Ex Rel Traffic & Parking Commission
M2018-01409-COA-R3-CV

This appeal concerns the denial of a valet parking permit. The Parking Guys, Inc. (“Parking Guys”) sought a permit for valet parking from the Traffic and Parking Commission (“the Commission”) of the Metropolitan Government of Nashville and Davidson County (“Metro”). Despite a study reflecting no traffic problems caused by Parking Guys’ activities, the Commission denied the permit. Parking Guys then filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County (“the Trial Court”). The Trial Court found that, notwithstanding the study, the Commission’s decision was supported by material evidence including the firsthand observations of local business owners. The Trial Court also denied a petition to intervene filed by Linda Schipani (“Schipani”), an individual sued by Parking Guys in federal court for allegedly conspiring to deny the permit. Parking Guys appeals to this Court, as does Schipani still seeking to intervene. Parking Guys argues that the Commission’s decision was based on politics rather than material evidence. Schipani, for her part, argues she has a special interest in this case warranting her intervention because of the federal suit filed against her even though it has been dismissed. We hold that the Commission’s decision was supported by material evidence. We further find no reversible error in the Trial Court’s decision to deny Schipani’s motion to intervene. We affirm the judgment of the Trial Court. 

Davidson County Court of Appeals 07/29/19
Toni Barrios, Et Al. v. Charlie Simpkins, Et Al.
M2018-00122-COA-R9-CV

The plaintiffs filed a complaint against the defendants for trespass and sought a declaration of the boundary line between the two properties, among other things. Following discovery, the defendants moved for summary judgment on the grounds that a prior case involving the plaintiffs and the prior owner of the defendants’ property had established the boundary line between the two properties. The trial court granted the defendants’ motion. The plaintiffs appeal. We reverse the court’s decision and remand for it to hear evidence and to establish the boundary line between the two properties.

Cheatham County Court of Appeals 07/29/19
State of Tennessee v. Cedric Dante Harris
W2018-01571-CCA-R3-CD

Defendant, Cedric Dante Harris, was convicted of possession of 0.5 grams or more of methamphetamine with intent to deliver, simple possession of marijuana, and tampering with evidence. He appeals, arguing that the evidence was insufficient to support his convictions. After carefully reviewing the record, we conclude that the evidence was sufficient. Accordingly, the judgments of the trial court are affirmed.

Carroll County Court of Criminal Appeals 07/29/19
State of Tennessee v. Bobby Lewis Parks
W2018-01761-CCA-R3-CD

The defendant, Bobby Lewis Parks, entered an open plea to two counts of sale of 0.5 grams or more of cocaine, two counts of delivery of 0.5 grams or more of cocaine, one count of sale of less than 0.5 grams of cocaine, and one count of delivery of less than 0.5 grams of cocaine. The trial court sentenced the defendant to an effective sentence of thirty years’ incarceration in the Tennessee Department of Correction. On appeal, the defendant argues the sentence imposed by the trial court was excessive. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 07/29/19
State of Tennessee v. Kelvin Dewayne Golden
W2018-01477-CCA-R3-CD

A Madison County jury convicted the defendant, Kelvin Dewayne Golden, of aggravated sexual battery, and the trial court imposed a sentence of ten years’ confinement. On appeal, the defendant challenges the sufficiency of the evidence to support his conviction and argues the sentence imposed by the trial court was excessive. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Madison County Court of Criminal Appeals 07/29/19
State of Tennessee v. Luis A. Meza Olivera
E2017-01871-CCA-R3-CD

The Defendant, Luis A. Meza Olivera, was convicted by a jury of two counts of aggravated assault, a Class C felony; and three counts of aggravated kidnapping, a Class B felony. See Tenn. Code Ann. §§ 39-13-102, -304. The trial court merged the convictions into one count of aggravated assault and one count of aggravated kidnapping. The trial court then imposed a total effective sentence of twelve years. On appeal, the Defendant contends that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in admitting evidence of three prior incidents of domestic violence involving the Defendant and the victim; (3) the trial court erred in allowing a child witness to testify by closed circuit television; (4) the trial court erred in excluding a video recording taken after the offenses were committed; (5) the trial court abused its discretion by imposing the maximum sentence for each conviction; and (6) a new trial is warranted due to cumulative error.1 Following our review, we affirm the judgments of the trial court.

Washington County Court of Criminal Appeals 07/26/19
Eric Thomas v. State of Tennessee
M2018-01153-CCA-R3-HC

The Petitioner, Eric Thomas, appeals the Davidson County Criminal Court’s denial of his third petition for habeas corpus relief challenging his 1999 convictions for robbery and the resulting thirty-two-year and one-day sentence. He contends that he is being illegally detained because amended judgments of convictions were never entered following resentencing and that absent entry of valid judgment forms imposing his restraint, his six-year sentences have expired. The habeas corpus court concluded that the Petitioner had failed to state a cognizable claim for relief. We affirm.

Davidson County Court of Criminal Appeals 07/26/19
State of Tennessee v. Darryl Rene Morgan
E2018-00916-CCA-R3-CD

The State of Tennessee appeals the Knox County Criminal Court’s order granting the Defendant’s motion to suppress, which resulted in the dismissal of the case. On appeal, the State contends that the trial court erred because the warrantless search of the Defendant was conducted pursuant to probable cause and exigent circumstances. We affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 07/25/19