Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 01/21/2019
Format: 01/21/2019
Brandon Washington v. State of Tennessee
W2017-02126-CCA-R3-PC

The petitioner, Brandon Washington, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel upon the entry of his guilty plea which he argues was entered involuntarily and unknowingly. Following our review, we affirm the denial of the petition and conclude the petitioner has waived any challenge to the entrance of his plea.

Shelby County Court of Criminal Appeals 12/14/18
State of Tennessee v. Lance Loveless
M2017-02048-CCA-R3-CD

A Humphreys County grand jury charged the defendant, Lance Loveless, with theft of property between $1000.00 and $10,000.00. Following trial, a jury found the defendant guilty of the lesser-included offense of attempted theft of property between $1000.00 and $10,000.00. On appeal, the defendant contends: the State failed to prove attempt, so the proof was insufficient to support the guilty verdict, and the trial court erred when denying his request for judicial diversion. Discerning no error, we affirm the judgment of the trial court.

Humphreys County Court of Criminal Appeals 12/14/18
Travis Daniel Freeman v. Wendy Y. Freeman
E2017-02110-COA-R3-CV

This appeal concerns the proper method of invoking a trial court’s subject matter jurisdiction in a proceeding to modify a permanent parenting plan. About one year after the parties’ divorce, Travis Freeman (father) filed a petition to modify the court-ordered custody arrangement and attached a proposed permanent parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a) (2017). Wendy Freeman (mother) opposed the requested modification. The trial court subsequently entered two orders gradually expanding father’s co-parenting time. Later, father filed another motion seeking greater expansion of his co-parenting time and/or designation as the primary residential parent. Father did not attach a new proposed parenting plan to this motion. Ultimately, the trial court ordered a new permanent parenting plan that retained mother as the primary residential parent but granted father additional co-parenting time. Mother appeals. She argues that father did not properly invoke the trial court’s subject matter jurisdiction because father did not attach a new proposed parenting plan to his most recent motion to modify the custody arrangement. We agree with mother that father was statutorily required to submit a new proposed parenting plan pursuant to Tenn. Code Ann. § 36-6-405(a); nevertheless, we hold that father’s petition to modify the parenting plan was sufficient to invoke the trial court’s jurisdiction. Accordingly, we affirm

Meigs County Court of Appeals 12/14/18
In Re: Mason C. Et Al.
E2018-01378-COA-R3-PT

This is a termination of parental rights case involving the parental rights of Allison T. (“Mother”) to the children, Mason C. and Nathan C. (“the Children”), and the parental rights of Jeffrey M. (“Father”) to Nathan C. On November 14, 2016, the maternal grandparents, Patricia T. and Robert T. (“Grandparents”), filed a petition to terminate the parental rights of Mother and Father to their respective Children. Following a bench trial, the trial court terminated Mother’s parental rights to the Children and Father’s parental rights to Nathan upon its determination that the parents had abandoned the Children by willfully failing to support them and that termination of their parental rights was in the best interest of the Children. Because the trial court failed to enter sufficient findings of fact and conclusions of law, we vacate the trial court’s judgment and remand for entry of sufficient findings of facts and conclusions of law in compliance with Tennessee Code Annotated § 36-1-113(k) (2017).

Cumberland County Court of Appeals 12/14/18
In Re Billy F.
E2018-01639-COA-R3-PT

Father appeals the trial court’s finding that termination of his parental rights to his son is in the child’s best interest. Because we conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest finding, we affirm.

Cocke County Court of Appeals 12/14/18
John Doe By His Next Friend Jane Doe, Et Al. v. Brentwood Academy Inc., Et Al.
M2018-02059-COA-R9-CV

This Tenn. R. App. P. 9 application for permission to appeal concerns whether portions of a trial court order and a transcript, both of which reference Plaintiff Jane Doe’s medical history, should be placed under seal. Pursuant to an October 2, 2018 order of remand from this court in Appeal No. M2018-01611-COA-R10-CV1, the trial court determined that portions of the documents should be redacted but that certain portions of the transcript and order which include references to Jane Doe’s medical history should not be placed under seal. The trial court subsequently granted Jane Doe and John Doe permission to appeal under Tenn. R. App. P. 9. We concur with the trial court that this is an appropriate case for an interlocutory appeal. Furthermore, because the application and answer fully set forth the parties’ positions and the material facts, we dispense with further briefing and oral argument and proceed to the merits of the appeal in order to save the parties additional time and expense.

Williamson County Court of Appeals 12/14/18
Nationwide Mutual Fire Insurance Company v. Memphis Light, Gas, and Water
W2017-02551-COA-R3-CV

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section 20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

Shelby County Court of Appeals 12/13/18
State of Tennessee v. Arvester Brown
W2017-02547-CCA-R3-CD

The Defendant, Arvester Brown, appeals his convictions for felony murder and especially aggravated robbery, for which he received an effective sentence of life imprisonment. On appeal, the Defendant contends that (1) the trial court erred in failing to declare a mistrial due to the behavior of one of the State’s witnesses; (2) the trial court erred in excluding evidence that the victim had agreed to carry out a “hit” on the Defendant; and (3) the State made improper statements during closing arguments. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 12/13/18
State of Tennessee v. Joseph Proffitt
W2017-01958-CCA-R3-CD

The Defendant, Joseph Proffitt, was convicted of two counts of attempted second degree murder, three counts of aggravated assault, and two counts of employing a firearm during the attempted murders. He received an effective sentence of fourteen years. On appeal, the Defendant challenges only his convictions for attempted second degree murder, arguing that the evidence is insufficient to support the verdicts. Upon reviewing the record and applicable law, we affirm the Defendant’s convictions.

Shelby County Court of Criminal Appeals 12/13/18
State of Tennessee v. Carl Allen aka Artie Perkins
W2017-01118-CCA-R3-CD

The Appellant, Carl Allen, appeals the Shelby County Criminal Court’s granting a motion filed by the Tennessee Bureau of Investigation (TBI) to intervene in this case and the court’s vacating a portion of a previous order in which the court determined that the Appellant was required to register as a sexual offender as opposed to a violent sexual offender in the TBI’s sexual offender registry (SOR). Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the appeal must be dismissed.

Shelby County Court of Criminal Appeals 12/13/18
LaFarge North America v. Warren Mills, et al.
W2017-00431-COA-R3-CV

The trial court granted summary judgment in favor of Appellee, finding that the guaranty agreement Appellant executed was enforceable. At the time Appellant executed the guaranty, Choctaw II, LLC (“Choctaw”), a company of which Appellant was a member, owed approximately $275,000.00 to Appellee on an open credit line, which was guaranteed by William Carrier, another owner of Choctaw. Mr. Carrier filed bankruptcy, and Appellee closed the open credit line for lack of guaranty. In an effort to continue to purchase materials from Appellee, Appellant signed a guaranty. After Appellant signed the guaranty, Appellee sold an additional $75,000 worth of goods to Choctaw, and Choctaw paid Appellee approximately $79,000 after Appellant signed the guaranty. Appellee applied these payments to the $275,000 balance and then sought payment for the $75,000 in goods from Appellant. The trial court held that Appellee properly applied the payments to the older debt. We hold that the guaranty agreement is enforceable. However, as to the application of the payments, we hold that Appellee was required to apply the $79,000 to the debt guaranteed by Appellant. Because the payments were sufficient to pay off the $75,000 in goods, Appellant owes nothing to Appellee under the guaranty and is entitled to summary judgment. Reversed and remanded for entry of summary judgment in favor of Appellant.

Shelby County Court of Appeals 12/13/18
Deborah Hart v. Memphis Light, Gas, & Water Division
W2018-00254-COA-R3-CV

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the applicable statute of limitations was tolled by service of process when no proof of service was returned to the court as required under Tennessee Code Annotated section 16-15-902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we conclude, as did the trial court, that Appellee’s failure to make return to the court did not, ipso facto, constitute a lack of service of process such that the statute of limitations expired. Affirmed and remanded.

Shelby County Court of Appeals 12/13/18
Joan Elizabeth Hall v. State of Tennessee
M2017-01621-CCA-R3-ECN

Petitioner, Joan Elizabeth Hall, appeals the denial of her petition for a writ of error coram nobis based upon newly discovered evidence. After thoroughly reviewing the record and applicable authorities, we affirm the error coram nobis court’s judgment.

Lincoln County Court of Criminal Appeals 12/12/18
Domnick Doria v. State of Tennessee
M2017-02024-CCA-R3-PC

The Petitioner, Domnick Doria, appeals from the Montgomery County Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that he received ineffective assistance of counsel because (1) original counsel forced the Petitioner to participate in a television interview prior to trial that caused the State to “cut off” plea negotiations; and (2) trial counsel failed to call the Petitioner’s mother and his ex-wife to testify at trial. Discerning no error, we affirm the judgment of the post conviction court.

Montgomery County Court of Criminal Appeals 12/12/18
State of Tennessee v. Donald Lyndon Madewell
M2018-00183-CCA-R3-CD

The Defendant, Donald Lyndon Madewell, was convicted by a jury of promoting the manufacture of methamphetamine. On appeal, he challenges the denial of his motion to suppress, asserting that he lacked common authority over the hotel room and could not provide valid consent to search. He also alleges that evidence was insufficient to support his conviction. After our review, we affirm the judgment of the trial court.

Warren County Court of Criminal Appeals 12/12/18
Bruce Elliott v. State of Tennessee
M2018-00808-CCA-R3-HC

The pro se Petitioner, Bruce Elliott, appeals the summary dismissal of his petition for writ of habeas corpus. Following our review, we affirm the dismissal of the petition.

Trousdale County Court of Criminal Appeals 12/12/18
State of Tennessee v. Jacob Erwin Branch
M2017-01448-CCA-R3-CD

The Defendant, Jacob Erwin Branch, was convicted by a Marshall County jury of two counts of rape of a child, a Class A felony, and contributing to the delinquency of a minor, a Class A misdemeanor, and was sentenced by the trial court to an effective term of twenty-eight years at 100% in the Department of Correction. On appeal, the Defendant challenges the sufficiency of the evidence in support of his child rape convictions. Following our review, we affirm the judgments of the trial court. However, we note the verdict forms indicate the jury found the Defendant not guilty on the charges of rape and aggravated sexual battery, but the judgment forms indicate those charges were dismissed. We therefore remand for entry of corrected judgment forms as to these charges.

Marshall County Court of Criminal Appeals 12/12/18
Mary Reynolds, As Administrator Of The Estate Of Carol Ann Reynolds, v. Gray Medical Investors, LLC., Et Al.
E2017-02403-COA-R9-CV

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer review statute”), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County (“the Trial Court”) excluding the testimony of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Washington County Court of Appeals 12/11/18
Windell Middleton v. City of Millington, Tennessee
W2018-00338-COA-R3-CV

The trial court granted summary judgment to defendant city on the basis of the expiration of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint was ineffective to toll the statute of limitations where service of process on the city clerk did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process was not reissued. Discerning no error, we affirm.

Shelby County Court of Appeals 12/11/18
Brent Allen Blye v. State of Tennessee
E2017-02176-CCA-R3-PC

In 2006, the Petitioner, Brent Allen Blye, was convicted by a jury of various drug offenses, and later entered guilty pleas to several other unrelated offenses, for which he received an effective sentence of thirty years’ confinement. State v. Brent Allen Blye, No. E2008-00976-CCA-R3-CD, 2011 WL 529515, at *1 (Tenn. Crim. App. Feb. 14, 2011), perm. app. denied (Tenn. May 25, 2011). On direct appeal, this court determined that the issues raised pertaining to his jury convictions were waived based on trial counsel’s failure to timely file a motion for new trial and reviewed those convictions for sufficiency of the evidence only. His remaining issues, pertaining to his guilty pleas, were reviewed and affirmed. The Petitioner later filed a post-conviction petition seeking relief based on trial counsel’s failure to timely file a motion for new trial and ineffective assistance of trial counsel based on failure to assert a certain defense theory. After conducting a full evidentiary hearing as to both issues, the post-conviction court denied relief, a decision which was later reversed, in part, by this court. Brent A. Blye v. State, No. E2012-02626-CCA-R3-PC, 2013 WL 3973468 (Tenn. Crim. App. Aug. 5, 2013), no perm. app. filed. In that case, this court remanded to the post-conviction court on the issue of the delayed appeal, id. at *12; however, we affirmed the court’s denial of the Petitioner’s claim of ineffective assistance of trial counsel based on his failure to pursue a certain defense theory. The Petitioner was granted a delayed appeal on remand and filed a timely motion for new trial, which was denied by the trial court. Upon review of the delayed appeal, we affirmed the Petitioner’s felony drug convictions, but reversed and remanded his misdemeanor drug convictions for a new trial. State v. Brent Allen Blye, No. E2014-00220-CCA-R3-CD, 2015 WL 4575279 (Tenn. Crim. App. July 30, 2015), perm. app. denied (Tenn. Jan. 14, 2016). The Petitioner subsequently filed a “second” petition for post-conviction relief, the subject of this appeal, alleging ineffective assistance of trial counsel, which was summarily dismissed by the post-conviction court. After an exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Sullivan County Court of Criminal Appeals 12/11/18
State of Tennessee v. Westley A. Albright
M2016-01217-SC-R11-CD

The Defendant, Westley A. Albright, pled nolo contendere to one count of solicitation of a minor, a Class E felony, and was placed on judicial diversion, with a one-year probationary term. As part of his plea-agreement, the Defendant was required to register as a sex offender and to participate in sex offender treatment. After the Defendant was discharged from his treatment program for noncompliance, the Defendant’s probation officer filed a Diversion Violation Report. Following a hearing, the trial court revoked the Defendant’s diversion, adjudicated the Defendant guilty, extended the Defendant’s probation by six months, and ordered the Defendant to attend and complete sex offender therapy. The Defendant appealed, and the Court of Criminal Appeals affirmed. We granted the Defendant’s application for permission to appeal in order to determine whether the Defendant’s due process rights were violated because he was not specifically informed in conjunction with his nolo contendere plea that his judicial diversion could be revoked if he refused to admit certain facts during his sex offender treatment. We hold that due process does not require a sex offender placed on judicial diversion with a probationary period to be informed specifically in conjunction with his plea that his judicial diversion and probation may be revoked if he is discharged from sex offender treatment due to his refusal to acknowledge that he committed the elements of the offense to which he pled. Accordingly, we affirm the courts below.   

Dickson County Supreme Court 12/11/18
State of Tennessee v. Westley A. Albright - Dissenting
M2016-01217-SC-R11-CD

Westley Albright, with the trial court’s consent, entered a nolo contendere plea to the charge of solicitation of a minor without being required to admit his guilt. The trial court granted Albright judicial diversion with one year of probation. Albright complied with all the stated conditions of his diversion. He attended and participated in all scheduled treatment group meetings, paid for sex offender treatment, and underwent an assessment. Albright even took a lie-detector test. Yet the trial court revoked Albright’s diversion, convicted him of solicitation of a minor, and extended his probation by six months, because of his noncompliance with an unstated condition of diversion. This unstated condition was that Albright had to admit during treatment that he was guilty of solicitation. Because he would not or could not make this forced admission, Albright’s therapist discharged him from the treatment program, and the trial court revoked his diversion.

Dickson County Supreme Court 12/11/18
Victor Thompson v. State of Tennessee
W2017-00679-CCA-R3-PC

Petitioner, Victor Thompson, appeals the denial of his post-conviction petition. Petitioner argues that he was denied the right to testify at trial, and trial counsel was ineffective for failing to request a Momon hearing. Following a review of the briefs of the parties and the entire record, we affirm the judgment of the post-conviction court.

Gibson County Court of Criminal Appeals 12/11/18
Darrell Malone v. State of Tennessee
W2018-00524-CCA-R3-PC

The Petitioner, Darrell Malone, appeals the Shelby County Criminal Court’s summary dismissal of his petition for post-conviction relief from his 2016 conviction for attempt to commit rape and his four-year sentence. The Petitioner contends that the post-conviction court erred by determining that his petition was untimely. We reverse the judgment of the post-conviction court and remand the case for consideration of the issues raised in the petition.

Shelby County Court of Criminal Appeals 12/11/18
State of Tennessee v. Rodricus Antwan Johnson
W2018-00950-CCA-R3-CD

Rodricus Antwan Johnson, Movant, filed a Tennessee Rule of Criminal Procedure 36.1 motion seeking correction of what he claimed was an illegal sentence because the trial court applied enhancement factors that were required by Blakely v. Washington, 542 U.S. 296 (2004) to be determined by the jury. The trial court summarily dismissed the motion for failure to state a colorable claim. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 12/11/18