Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 12/13/2019
Format: 12/13/2019
In Re Estate of JD Bush

Due to the deficiencies in Appellant’s brief, we conclude that he waived consideration of all issues on appeal and hereby dismiss the appeal.

Knox County Court of Appeals 11/01/19
State of Tennessee v. Kyle Alex Batiz

The Defendant, Kyle Alex Batiz, was convicted of aggravated child abuse and reckless homicide and was sentenced, respectively, to concurrent sentences of 21 years at 100% and 3 years at 30 percent. On appeal, he argues that the evidence was insufficient to sustain the conviction for aggravated child abuse; the trial court erred by not suppressing his text messages and statement to police; the trial court erred by allowing a forensic pathologist to testify regarding matters not within her expertise; he should have been sentenced as an especially mitigated offender; and the conviction for aggravated child abuse should be reversed because of cumulative errors that occurred during the trial. We have reviewed the record in this matter and conclude that the issues raised by the Defendant are without merit. Accordingly, we affirm the judgments of the trial court.

Montgomery County Court of Criminal Appeals 11/01/19

The trial court entered an order awarding a mother retroactive child support and calculating the amount of support the father owed.  The father filed a motion for relief from the judgment pursuant to Tenn. R. Civ. P. 60.02.  Several months later, he amended his motion to assert that he was entitled to relief from the judgment because his attorney sustained an injury and died, which prevented the father from timely receiving a copy of the judgment so he could appeal it.  The trial court denied the motion, finding that the father failed to raise the issue within a reasonable time, and then awarded the mother one-half of her attorney fees.  The father appeals.  We affirm the trial court’s denial of the motion, but we vacate the award of attorney fees because the trial court failed to consider their reasonableness.

Davidson County Court of Appeals 10/31/19
State of Tennessee v. Michael Andrew Burrows

The Montgomery County Grand Jury indicted Defendant, Michael Andrew Burrows, on seven counts of rape of a child and eight counts of aggravated sexual battery. Pursuant to a plea agreement, Defendant pled guilty as a Range I offender to two counts of sexual battery, with an agreed out-of-range sentence of four years on each count, with sentence alignment, manner of service, and the issue of judicial diversion to be determined by the trial court. The remaining counts were dismissed. Following a sentencing hearing, the trial court denied judicial diversion, imposed consecutive sentences, and sentenced Defendant to eight years’ probation. Defendant now appeals the denial of judicial diversion. Based on a thorough review of the record and applicable case law, the judgments of the trial court are affirmed.

Montgomery County Court of Criminal Appeals 10/31/19
State of Tennessee v. Christian Aaron Needham

The Defendant, Christian Aaron Needham, appeals the McMinn County Circuit Court’s order revoking his probation for his convictions for two counts of felony theft and one count of aggravated burglary and ordering him to serve the remainder of his effective six-year sentence in confinement. The Defendant contends that the trial court abused its discretion by ordering his sentence into execution. We affirm the judgment of the trial court.

McMinn County Court of Criminal Appeals 10/31/19
Kalpesh Patel and Pratikkumar V. Patel v. State of Tennessee

The Petitioners, Kalpesh Patel and Pratikkumar V. Patel, appeal from the Rutherford County Circuit Court’s summary dismissal of their respective petitions for post-conviction relief from their 2015 convictions for conspiracy to commit first degree murder and solicitation to commit first degree murder, for which the Petitioners each received fifteen-year sentences. The Petitioners contend that the post-conviction court erred by summarily dismissing their petitions for relief and motions to reconsider because (1) they received the ineffective assistance of trial counsel and (2) the trial court erred by denying their respective motions to suppress cell phone evidence at the trial. We affirm the judgments of the post-conviction court.

Rutherford County Court of Criminal Appeals 10/31/19
State of Tennessee v. Kenneth R. Boyd

Defendant, Kenneth R. Boyd, appeals from the trial court’s denial of his motion requesting additional pre-trial jail credits. The State responds that the appeal should be dismissed because it was untimely filed and that the sentence is legal. Because Defendant has failed to state a colorable claim for relief, we affirm the trial court’s denial of the motion and the denial of additional pre-trial jail credits. However, we remand the matter to the trial court for correction of a clerical error on the corrected judgment form for Count Three.

Robertson County Court of Criminal Appeals 10/31/19
Vivian Khah v. Jonathan Capley

This appeal arises from the dismissal of a personal injury action in which the alleged tortfeasor died before suit was filed.  Upon a motion to dismiss, the trial court determined that the suit was barred by the applicable statute of limitations.  Because no personal representative was appointed for the deceased tortfeasor and more than a year had elapsed following the accrual of the plaintiff’s cause of action, we affirm the dismissal.  

Davidson County Court of Appeals 10/31/19
Shauneille Sharifa (Morton) v. Wells Fargo/ASC

This is an appeal from the trial court’s denial of a motion to recuse and award of summary judgment.  Plaintiff-homeowner took out a loan secured by a deed of trust on a parcel of real property.  After defaulting on the loan, plaintiff and defendant-bank entered into a loan modification agreement.  Plaintiff, however, again defaulted on the loan, and, after she failed to make the required acceleration payments, defendant initiated foreclosure proceedings pursuant to the deed of trust.  The real property ultimately was sold at foreclosure for less than the balance owed on the loan.  Plaintiff then sued defendant for breach of contract and wrongful foreclosure.  Defendant moved for summary judgment.  Plaintiff never responded to defendant’s motion for summary judgment.  Three days prior to the hearing on the summary judgment, plaintiff filed a motion for a change of venue, which the trial judge treated as a recusal motion pursuant to Tennessee Supreme Court Rule 10B and which, following a hearing, he denied.  The trial court subsequently granted defendant’s summary judgment motion and dismissed plaintiff’s claims with prejudice.  Plaintiff appeals both the trial court’s denial of the motion to recuse and its granting of the motion for summary judgment.  We affirm.

Davidson County Court of Appeals 10/31/19
State of Tennessee Ex Rel., Amanda C. Sensing v. Bradley K. Sensing

The trial court denied Father’s petition to modify child support.  Because Father failed to establish his current gross monthly income, as necessary to prove a significant variance, we affirm the decision of the trial court.

Williamson County Court of Appeals 10/31/19
State of Tennessee v. Jimmy Lee Pearce, Jr.

The pro se Defendant, Jimmy Lee Pearce, Jr., appeals the Fayette County Circuit Court’s dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After review, we affirm the judgment of the trial court.

Fayette County Court of Criminal Appeals 10/31/19
Dearick Stokes v. State of Tennessee

The Petitioner, Dearick Stokes, was denied post-conviction relief from his convictions for felony murder and attempted especially aggravated robbery and his effective life sentence. On appeal, the Petitioner alleges that trial counsel was ineffective for failing to: (1) interview and subpoena four eyewitnesses who identified another individual as being present at the crime scene; (2) investigate and adequately cross-examine a police officer regarding the crime scene; (3) investigate or present rebuttal witnesses concerning admissions allegedly made by the Petitioner; (4) obtain and review the victim’s cellular phone records; (5) investigate and discuss the case with the Petitioner; and (6) properly investigate a witness for the State and request Jencks material relative to him. The petitioner additionally contends that either the State committed a Brady violation by failing to provide a witness’s supplemental statement to trial counsel or, if it was provided, counsel’s failure to use it during cross-examination was ineffective assistance of counsel. Furthermore, the Petitioner argues that he received ineffective assistance of appellate counsel because appellate counsel should have asserted on direct appeal that the trial court (1) improperly denied his motion for a mistrial due to juror intimidation, and (2) committed plain error by allowing a witness to testify as to how he discovered the Petitioner’s real name. After a thorough review of the record, we discern no error and affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 10/31/19
In Re Adrian M.-M., et al.

This appeal concerns termination of parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Chancery Court for Obion County (“the Trial Court”) seeking to terminate the parental rights of Emily M. M.-A. (“Mother”) to her minor children Adrian, Maribel, Alisiana, and Elena (“the Children”). The Children had been exposed to methamphetamine in Mother’s care. After trial, the Trial Court entered an order terminating Mother’s parental rights to the Children on the grounds of abandonment by failure to provide a suitable home; abandonment by failure to visit; substantial noncompliance with the permanency plan; severe child abuse; and, being sentenced to more than two years’ imprisonment for child abuse. The Trial Court also found that termination of Mother’s parental rights is in the Children’s best interest. On appeal, Mother argues that she has made improvements such that termination of her parental rights is not in the Children’s best interest. First, apart from the grounds of failure to visit and failure to provide a suitable home, which we reverse, we affirm the grounds for termination found by the Trial Court. Regarding best interest, we find that Mother has no meaningful relationship with the Children and that her purported improvements are insufficient. The evidence is clear and convincing that termination of Mother’s parental rights is in the Children’s best interest. We affirm, in part, and, reverse, in part, the judgment of the Trial Court.

Obion County Court of Appeals 10/30/19
Jeanie Morgan Beltz Et Al v. Brett Anthony Heffner

This appeal arises from the denial of a petition based on Tennessee’s Grandparent Visitation Statute. The parents of the deceased mother of a new-born child filed a petition to obtain visitation with their three-month-old granddaughter. The child’s father opposed the petition. Following discovery, the father filed a motion to dismiss or for summary judgment on the ground that there was no danger of substantial harm to the child if visitation was denied because there was no evidence that the grandparents had a significant relationship with the child. The petitioners opposed the motion relying on Tenn. Code Ann. § 36-6-306(b)(4), which established a rebuttable presumption of substantial harm to the child if visitation was denied because their daughter, the child’s mother, was deceased. The trial court found there was no significant existing relationship between the grandparents and the child. After analyzing the child’s best interests under Tenn. Code Ann. § 36-6-307, the court granted summary judgment to the father, finding the petitioners did not meet the requirements of the Grandparent Visitation Statute. We have determined that the trial court misconstrued the statutory scheme. The trial court failed to recognize that because the petitioners are the parents of the child’s deceased mother, they were entitled to the rebuttable presumption of substantial harm to the child if visitation was denied without having to establish that a “significant” relationship with their grandchild existed. Moreover, we have determined that more than one conclusion or inference can reasonably be drawn from the facts, thereby precluding summary judgment. Accordingly, we reverse and remand for further proceedings.

Jefferson County Court of Appeals 10/30/19
Diane Kikue-Yasutake Winne v. Scott Anderson Winne

Husband petitioned the court to modify his alimony obligation after Wife moved in with her boyfriend. Wife maintained that her new living arrangement did not affect her need for alimony because she and her partner shared expenses equally and her living expenses after the move were unchanged. The trial court disagreed and suspended a portion of Husband’s alimony obligation. Both sides raise issues with the trial court’s decision. Contrary to Wife’s assertion, we conclude that the alimony provision in the parties’ marital dissolution agreement did not preclude modification of the alimony award as authorized by statute. We further conclude that the trial court did not err in basing its modification decision on the evidence of Wife’s financial circumstances at the time of trial. We affirm the alimony modification, but we modify the judgment so that the modification applies retroactively to the date of Husband’s petition.

Hamilton County Court of Appeals 10/30/19
City of Franklin, Tennessee v. W. L. Hailey & Co., Inc. Et Al.

Appellant city appeals from the dismissal of its negligent misrepresentation claim on the basis of the economic loss doctrine, arguing that Tennessee law recognizes an exception to the economic loss doctrine for negligent misrepresentations. Because we conclude that Tennessee law does not recognize a negligent misrepresentation exception to the economic loss doctrine, we affirm the decision of the trial court.

Williamson County Court of Appeals 10/30/19
E Solutions For Buildings, LLC v. Knestrick Contractor, Inc., Et Al.

This appeal involves payment disputes arising out of a public construction project.  Among other things, the case involves claims made by an equipment supplier against a subcontractor, the project’s general contractor, and the general contractor’s bonding company, and claims made by the same subcontractor against the general contractor.  Following a trial, the trial court granted the supplier a judgment against the subcontractor and granted the subcontractor a judgment against the general contractor. The supplier’s claim against the general contractor and its bonding company was denied. The propriety of these rulings and numerous other issues are now before this Court.  Having reviewed the record transmitted to us on appeal, we affirm in part, affirm in part as modified, reverse in part, and remand the case for such further proceedings as are necessary and consistent with this Opinion.

Davidson County Court of Appeals 10/30/19
101 Construction Company v. Lawrence B. Hammet, II Et Al.

Plaintiff client sued Defendant attorney and law firm for damages tied to a breach of an attorney’s fees contract following the completion of an arbitration matter. Following a jury trial, the jury returned a verdict in favor of defendants.  Plaintiff appeals the denial of its motion for directed verdict and motion for new trial. Because the trial court erred in denying plaintiff’s motion for directed verdict on interpretation of the written contract at issue, we reverse the verdict entered by the trial court and remand with instructions to enter a directed verdict against the attorney and law firm in the amount of $67,335.69 and to determine whether prejudgment interest is warranted in this case.

Davidson County Court of Appeals 10/30/19
Robert Andrew Hawkins v. State of Tennessee

A Claiborne County jury convicted the Petitioner, Robert Andrew Hawkins, of one count of aggravated kidnapping and two counts of aggravated assault, and the trial court sentenced him to an effective sentence of sixteen years in confinement. The Petitioner appealed his convictions on the basis of a juror issue and sentencing. This court affirmed his convictions and sentence. State v. Robert Andrew Hawkins, No. E2015-01542-CCA-R3-CD, 2016 WL 5210770 (Tenn. Crim. App, at Knoxville, Sept. 19, 2016), perm. app. denied (Tenn. Dec. 14, 2016). The Petitioner filed a timely petition for post-conviction relief in which he alleged that: (1) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 93 (1965); (2) Counsel was ineffective for failing to investigate or communicate effectively with him; and (3) the cumulative effect of these errors entitles him to a new trial. The post-conviction court denied relief, and the Petitioner maintains his allegations on appeal. After review, we affirm the postconviction court’s judgment.

Claiborne County Court of Criminal Appeals 10/30/19
Sonya Lee Westbrooks v. Earl Lavon Westbrooks

Appellant/Husband appeals the trial court’s denial of his Tennessee Rule of Civil Procedure 59.04 motion to reopen proof in this divorce case. By his motion, Husband sought to introduce allegedly “newly discovered evidence” concerning the premarital value of his retirement account. The trial court denied the motion, finding that the evidence, which consisted of Husband’s previous divorce decree, was a matter of public record and was available to Husband during discovery in the instant divorce matter. We conclude that the trial court did not abuse its discretion in denying Husband’s motion. Affirmed and remanded.

Hamilton County Court of Appeals 10/29/19
Takesha Curtiss Nelvis v. Lafayette Baptist, Jr.

Father appeals the juvenile court’s decision to deny him equal parenting time. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law as to the statutory best interest factors contained in Tennessee Code Annotated section 36-6-106(a), we vacate the judgment of the trial court and remand for the entry of a proper order.

Shelby County Court of Appeals 10/29/19
Brewco, LLC Et Al. v. Martha R. Scent

The plaintiffs filed a complaint seeking recovery for improvements they had made to real property that had been purchased at a foreclosure sale by the defendant. When the plaintiffs originally purchased the property, the defendant as mortgagee held a deed of trust on it. Due to a fraudulently recorded release of that deed of trust, however, the plaintiffs purchased and improved the property, believing that they had clear title. The defendant did not learn of the various improvements to the property until after the improvements were complete. At approximately the same time, the defendant discovered that a third party had recorded a release of the deed of trust without her consent, with such release containing a forgery of her signature. The defendant filed suit against the third party who purportedly forged the release, the plaintiffs, and others, and she ultimately received a monetary judgment that resulted in a judicial foreclosure to enforce her deed of trust. At the foreclosure sale, the defendant purchased title to the property in question with a credit bid. Shortly before the foreclosure sale, the plaintiffs filed this action, ultimately asserting claims of unjust enrichment, quantum meruit, constructive trust, and an equitable lien. The trial court granted the defendant’s motion for summary judgment concerning the plaintiffs’ claims, determining that the plaintiffs had not demonstrated facts supporting their theories of recovery. The plaintiffs have appealed. Discerning no reversible error, we affirm.

Scott County State Court Clerks 10/29/19
In Re Alexis S.

This is an appeal from the trial court’s termination of a mother’s parental rights and denial of the maternal grandmother’s petition for grandparent visitation. The court terminated the mother’s rights on the grounds that she abandoned the child by willfully failing to visit and support the child, and failed to manifest an ability or willingness to assume personal custody of the child. The court also found that termination of the mother’s rights was in the child’s best interest. The court awarded guardianship of the child to her paternal grandparents and denied the maternal grandmother’s intervening petition for visitation, finding that the risk of harm in permitting visitation was greater than the risk of harm in denying it. The mother appeals the termination of her parental rights, and the grandmother appeals the denial of her petition for visitation. Because the trial court failed to make sufficient findings as mandated by Tennessee Code Annotated § 36-1-113(k), we reverse the trial court’s determination that the ground of abandonment by willful failure to support the child was established and remand the issue for the trial court to make the requisite findings and to enter judgment accordingly. We reverse the court’s determination that the other two grounds for termination were proven because the record fails to establish either ground by clear and convincing evidence. Because no ground for termination has been proven, we also reverse the court’s determination regarding the child’s best interests. Because the court terminated the father’s parental rights, we affirm the court’s appointment of the paternal grandmother and her husband as the child’s guardians, subject to the mother’s rights, which have not been terminated. We also affirm the denial of the maternal grandmother’s petition for visitation.

Hamblen County Court of Appeals 10/29/19
Dr. Victor W. McLaughlin, M.D. v. Elizabeth King McLaughlin a/k/a Rev. Elizabeth King

The plaintiff filed this action on a sworn account, seeking to recover $20,451.00 that he had allegedly loaned in several money transfers to the defendant, plus prejudgment interest and costs. In her answer to the complaint, the defendant denied all substantive allegations but failed to raise any affirmative defenses. At trial, the defendant stipulated to having received the money transfers. However, she requested that the court allow her to orally swear under oath that the transfers did not constitute a valid debt. The trial court found that the defendant was attempting to assert an affirmative defense that the transfers constituted gifts rather than loans and that she had waived such a defense pursuant to Tennessee Rule of Civil Procedure 8.03 by failing to raise it in her responsive pleading. The trial court entered a judgment in favor of the plaintiff in the total amount of $33,942.69, including prejudgment interest. The defendant filed a motion to alter or amend, requesting that the judgment be vacated on the ground that under Tennessee Code Annotated § 24-5-107 (2017), she should have been allowed to raise any defense orally at trial. Following a hearing, the trial court found that because the defendant had elected to file a responsive pleading, she was required to raise the affirmative defense in the pleading. The trial court thereby declined to vacate the judgment. The defendant has appealed. Discerning no reversible error, we affirm.

Anderson County Court of Appeals 10/28/19
State of Tennessee v. Brandon Cole-Pugh

The defendant, Brandon Cole-Pugh, was convicted of being a felon in possession of a handgun, in violation of Tennessee Code Annotated section 39-17-1307(b)(1).  The evidence presented at trial suggested that the defendant obtained a handgun during a physical altercation, during which the handgun became loose, fell from another individual’s possession, and dropped to the floor.  Prior to the trial court’s instructions to the jury, defense counsel orally requested an instruction on the defense of necessity.  The trial court denied the request.  Based upon the evidence presented at trial, the briefs of the parties, the arguments of counsel, and the applicable law, we hold that the defense of necessity was fairly raised by the evidence and that the trial court erred in refusing to instruct the jury accordingly.  We further hold that Tennessee law does not preclude plenary review of a claim of error based on a trial court’s failure to instruct the jury on a general defense when the request was not made in writing.  We, therefore, reverse the judgment of the Court of Criminal Appeals and remand this case to the trial court for further proceedings consistent with this opinion. 

Madison County Supreme Court 10/25/19