Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 01/21/2019
Format: 01/21/2019
Reliant Bank v. Kelly D. Bush Et Al.
M2018-00510-COA-R3-CV

Following an appeal in which this Court affirmed the judgment of the chancery court, the unsuccessful appellants moved the chancery court for relief from the judgment under Rule 60.02 of the Tennessee Rules of Civil Procedure. The chancery court granted the motion by reducing the amount of the original judgment. The matter is now before us again on the grant of Rule 60 relief. Because the Rule 60 motion was untimely, we reverse the grant of relief.    

Williamson County Court of Appeals 12/28/18
Albert Bell et al. v. Richard Cadmus d/b/a Band-Type Supply
E2017-02149-COA-R3-CV

In this unlawful detainer action, the defendant appeals the dismissal of his appeal by the Loudon County Circuit Court (“circuit court”) from an order to disburse funds entered by the Loudon County General Sessions Court (“general sessions court”). Discerning no reversible error, we affirm.

Loudon County Court of Appeals 12/26/18
State of Tennessee v. Jason D. Kubelick
E2018-00408-CCA-R3-CD

The Defendant, Jason D. Kubelick, pleaded guilty to aggravated sexual battery. By agreement, the Defendant’s sentence was four years with six years on the sex offender registry with the manner of service to be determined by the trial court. The trial court ordered the Defendant to serve his four-year sentence in confinement. On appeal, the Defendant contends that the trial court erred when it denied him judicial diversion and imposed a sentence of confinement. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Rhea County Court of Criminal Appeals 12/26/18
State of Tennessee v. Kennedy Fleming
E2017-02352-CCA-R3-CD

Defendant, Kennedy Fleming, appeals from the trial court’s order revoking his sentence of probation and ordering him to serve the balance of his sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 12/26/18
State of Tennessee v. Teresa Diana Poston
E2018-00385-CCA-R3-CD

The Defendant, Teresa Diana Poston, pleaded guilty to theft of property valued over $2,500 with an agreed sentence of two years of probation. The parties agreed to a separate hearing to determine whether the trial court would grant the Defendant judicial diversion. After the hearing, the trial court denied the Defendant’s request for judicial diversion and imposed the agreed upon sentence. On appeal, the Defendant contends that the trial court erred when it denied her request for judicial diversion. After review, we vacate the judgment of the circuit court and remand for a new hearing.

Claiborne County Court of Criminal Appeals 12/26/18
State of Tennessee v. Franklin Dee Rose
E2018-00244-CCA-R3-CD

The defendant, Franklin Dee Rose, appeals the Sullivan County Criminal Court’s denial of alternative sentencing for his guilty-pleaded convictions of kidnapping, aggravated domestic assault, possession of a schedule I controlled substance, possession of XLR 11, and possession of drug paraphernalia. Discerning no error, we affirm.

Sullivan County Court of Criminal Appeals 12/26/18
Rashan Lateef Jordan v. State of Tennessee
E2018-00195-CCA-R3-HC

Petitioner, Rashan Lateef Jordan, appeals from the dismissal of his petition for writ of habeas corpus relief. He contends that the trial court’s failure to inform him of the “direct and punitive consequences” of his accepting a guilty plea requiring community supervision for life renders his guilty plea void and that habeas corpus relief should have been granted. Upon consideration of the record and the applicable authorities, we affirm the judgment of the habeas corpus court.

Knox County Court of Criminal Appeals 12/26/18
In Re Frederick S.
W2018-00941-COA-R3-PT

Mother appeals the termination of her parental rights to her child. The juvenile court found three statutory grounds for termination: (1) abandonment by failure to establish a suitable home; (2) persistence of conditions; and (3) mental incompetence. The court also found that termination of Mother’s parental rights was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support two of the three statutory grounds for termination. We further conclude that the record contains clear and convincing evidence that termination is in the child’s best interest. So we affirm the termination of Mother’s parental rights.

Haywood County Court of Appeals 12/26/18
Bill E. Owens, Et Al. v. Otto Muenzel, Jr., Et Al.
E2018-00199-COA-R3-CV

This appeal arises from an action for personal injuries incurred in a vehicle collision. The alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware of the death of the decedent, commenced this action and named him as a defendant. The plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an administrator ad litem. The trial court eventually dismissed the matter in its entirety with prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to appoint an administrator ad litem and that the action was barred by the statute of limitations. We affirm.

Sevier County Court of Appeals 12/21/18
In Re: Nevaeh N.
E2018-00770-COA-R3-PT

Mother and Father jointly appeal from the order terminating their parental rights as to their minor child based upon the statutory ground of abandonment by willful failure to support, as well as a finding that termination was in the child’s best interest. Because we conclude that Petitioners/Appellees failed to show by clear and convincing evidence that Mother and Father willfully failed to support the child, we reverse.

Hawkins County Court of Appeals 12/21/18
Antonio Oliver v. State of Tennessee
W2017-01472-CCA-R3-PC

The Petitioner, Antonio Oliver, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his first degree murder conviction, for which he is serving a life sentence. The Petitioner contends that he received the ineffective assistance of trial counsel. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 12/21/18
In Re: Mikko B.
E2018-00521-COA-R3-PT

A mother and her husband petitioned the court to terminate the biological father’s parental rights to his son on the grounds of abandonment by failure to visit and failure to support. After a trial, the court terminated Father’s rights on those grounds and upon its holding that termination of Father’s rights would be in the best interest of the child. Father appeals. Upon our review, we affirm the judgment in all respects.

Knox County Court of Appeals 12/21/18
Demarcus Ant-Juan Nelson v. State Of Tennessee
E2017-01418-CCA-R3-PC

Petitioner, Demarcus Nelson, appeals the denial of his post-conviction petition. Petitioner argues that he received ineffective assistance of counsel in litigating his motion to suppress; that the State presented false testimony at the suppression hearing; that trial counsel was ineffective in failing to provide accurate advice concerning the gang enhancement statute; and that his guilty plea was involuntary. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 12/21/18
J.Y. Sepulveda v. Tennessee Board of Parole
M2018-00601-COA-R3-CV

In this matter involving a petition for writ of certiorari filed by a self-represented petitioner, the trial court dismissed the petition for lack of subject matter jurisdiction. Determining that the petitioner failed to properly verify the truth of the contents of his petition in accordance with the requirements of Article VI, Section 10 of the Tennessee Constitution and Tennessee Code Annotated
§ 27-8-104(a), we affirm the dismissal of the petition.

Davidson County Court of Appeals 12/21/18
Amnon Shreibman, Et Al. v. First Class Corporation Et Al.
M2017-02289-COA-R3-CV

A commercial landlord filed suit against its tenant and the guarantor of the lease. After obtaining a default judgment against the tenant, the landlord moved for partial summary judgment on the question of the guarantor’s liability. The chancery court concluded that the guarantor was liable under the guaranty. And following a trial on damages, the court entered judgment against the tenant and the guarantor. The guarantor appeals solely on the issue of his personal liability, arguing that his guaranty was conditional. Because the guaranty was an absolute undertaking, we affirm.  

Davidson County Court of Appeals 12/21/18
State of Tennessee v. Christopher Bernard Simmons
M2018-00937-COA-R3-CV

Defendant appeals the trial court’s refusal to dismiss the State’s claim that he violated Tennessee’s implied consent statute. Discerning no error, we affirm.

Davidson County Court of Appeals 12/21/18
State of Tennessee v. Tequan Laquarious Evans
M2017-02266-CCA-R3-CD

The Defendant, Tequan Laquarious Evans, was convicted after a bench trial of possession with the intent to sell or to deliver not less than one-half ounce nor more than ten pounds of marijuana, a Class E felony, possession of a firearm with the intent to go armed during the commission of a dangerous felony, a Class D felony, possession of alprazolam, a Class A misdemeanor, possession of drug paraphernalia, a Class A misdemeanor, and escape, a Class A misdemeanor. See T.C.A. §§ 39-17-417(a)(4) (2018) (possession with intent to sell and to deliver), 39-17-1324(a) (2018) (unlawful possession of firearm), 39-17-418 (2018) (misdemeanor drug possession), 39-17-425 (possession of drug paraphernalia); 39-16-605 (2018) (escape). The trial court imposed sentences of one year at 30% service for possession with the intent to sell or to deliver, three years at 100% service for unlawful firearm possession, and eleven months, twenty-nine days at 75% service each for possession of Alprazolam, possession of drug paraphernalia, and escape. The court ordered consecutive service of the firearm and escape convictions, for an effective sentence of three years, eleven months, and twenty-nine days. The possession with the intent to sell or to deliver conviction was ordered to be served consecutively to a conviction in an unrelated case. On appeal, the Defendant contends that the evidence is insufficient to support his convictions for possession with the intent to sell or to deliver not less than one-half ounce nor more than ten pounds of marijuana and possession of a firearm with the intent to go armed during the commission of a dangerous felony. We affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 12/20/18
State of Tennessee v. Coray Eugene Knight
M2017-01584-CCA-R3-CD

In November 2013, a Montgomery County grand jury returned a ten-count indictment against the defendant, Coray Eugene Knight, and his two co-defendants, Kelley Hufford and Frederick Persinger, charging them with conspiracy to commit first degree murder, first degree premeditated murder, first degree felony murder, two counts of especially aggravated kidnapping, three counts of aggravated kidnapping, abuse of a corpse, and tampering with evidence. A jury convicted the defendant as charged on all counts and he received an effective life sentence. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction for first degree premeditated murder. He also challenges the jurisdiction of the trial court and several of its rulings, including: the denial of his motion to suppress the statements he made prior to trial; the ruling finding Mr. Persinger competent to testify at trial; the denial of his motions for a mistrial, for judgment of acquittal, and for a new trial; and the denial of his request for a jury instruction on the defense of others. Based upon our review of the record, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 12/20/18
In Re Willard R. Sparks Revocable Trust 2004
W2017-01497-COA-R3-CV

This declaratory judgment action involves a multi-million dollar trust and a co-beneficiary and co-trustee’s request for a detailed accounting and a liquidation plan. The case was dismissed, and the managing trustee filed a motion for Rule 11 sanctions. The trial court found multiple Rule 11 violations by the petitioner and awarded $200,000 in sanctions. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 12/20/18
In Re: Kiara S. Et Al.
E2018-01131-COA-R3-PT

The trial court entered an order terminating Father’s parental rights to his two minor children based upon the statutory grounds of abandonment by willful failure to visit, abandonment by willful failure to support, and persistence of conditions, as well as a finding that termination was in both children’s best interest. From this order, Father appeals. We affirm the trial court’s findings as to the grounds of willful failure to visit and willful failure to support, but reverse the finding that clear and convincing evidence supports termination based upon the statutory ground of persistence of conditions. Because we conclude that termination is in the children’s best interest, we affirm the termination of Father’s parental rights.

Cocke County Court of Appeals 12/20/18
Frederick Copeland v. Healthsouth/Methodist Rehabilitation Hospital, LP Et Al.
W2016-02499-SC-R11-CV

A rehabilitation hospital hired a medical transportation company to take a patient to a doctor’s appointment. Before the transport, the company’s driver required the patient to sign an agreement that, in part, released the company from any liability. After the appointment, the patient fell as he was getting into the company’s van. He sued the medical transportation company, which moved to dismiss based on the exculpatory provisions of the agreement. The trial court and the Court of Appeals ruled that the exculpatory provisions were enforceable. We hold that to determine the enforceability of an exculpatory agreement, a court should consider the totality of the circumstances and weigh these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications. We hold that the exculpatory provisions in the agreement between the medical transportation company and the patient are unenforceable based on the unequal bargaining power of the parties, the overly broad and unclear language of the agreement, and the important public interest implicated by the agreement. Thus, the exculpatory language in the agreement does not, as a matter of law, bar the patient’s claim. We vacate the judgment of the trial court, reverse the judgment of the Court of Appeals, and remand this case to the trial court for further proceedings. 

Shelby County Supreme Court 12/20/18
Popularcategories.com, Inc. v. David Gerregano, Commissioner Of Revenue, State of Tennessee
M2017-01382-COA-R3-CV

This appeal involves the Appellant’s liability for franchise and excise taxes assessed against it by the Tennessee Department of Revenue. The trial court determined that the Appellant’s incorporation in the State of Florida did not afford it the right to apportionment for tax purposes, and entered a judgment against it in an amount over $2,000,000.00. The trial court also determined that the Commissioner of Revenue was entitled to an award of attorneys’ fees and litigation expenses as the prevailing party under Tennessee Code Annotated section 67-1-1803(d). For the reasons stated herein, we reverse the trial court’s ruling on apportionment, vacate the monetary judgment and award of attorneys’ fees, and remand for further proceedings consistent with this Opinion.

Davidson County Court of Appeals 12/20/18
Kenneth Fulmer, et al. v. Jeffrey Follis, et al.
W2017-02469-COA-R3-CV

Purchasers of real property brought this action against the sellers alleging fraud, fraudulent misrepresentation, fraudulent inducement, and fraudulent concealment. The alleged misrepresentations and concealment related to severe water damage to one wall of the purchased house. The trial court found in favor of the purchasers with respect to each claim. After our thorough review of the record, we conclude that because the purchasers were on notice of potential defects and failed to exercise ordinary diligence, the evidence preponderates against the trial court’s finding that the purchasers reasonably relied on the sellers’ misrepresentations and concealment. We reverse and remand for further proceedings.

Shelby County Court of Appeals 12/20/18
CHS Development Corporation, Inc. D/B/A Bridge Documents v. Lakeview Neurorehab Center Midwest, Inc. d/b/a/ Lakeview Specialty Hospital
E2018-00519-COA-R3-CV

This contract dispute between CHS Development Corporation, Inc. d/b/a Bridge Documents (“CHS”), and Lakeview Neurorehab Center Midwest, Inc. d/b/a Lakeview Specialty Hospital (“Lakeview”), involves the interpretation of contract provisions regarding exclusivity and noncompetition. The trial court determined that the contract provisions at issue were clear and unambiguous and granted summary judgment in favor of CHS. Lakeview has appealed. Determining that the applicable contract provisions are ambiguous, we reverse the trial court’s grant of summary judgment to CHS and remand for an evidentiary hearing to determine the contractual intention of the parties with consideration of parol evidence as necessary. Consequently, we vacate the trial court’s award of damages and attorney’s fees to CHS. We affirm the trial court’s denial of summary judgment to Lakeview. We also deny CHS’s request for attorney’s fees on appeal.

Hamilton County Court of Appeals 12/19/18
Thomas Dowlen v. State of Tennessee
M2018-00052-CCA-R3-PC

The Petitioner, Thomas Dowlen, appeals the Robertson County Circuit Court’s denial of his petition for post-conviction relief from his 2014 conviction for first degree murder and sentence of life imprisonment. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 12/19/18