Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 01/21/2019
Format: 01/21/2019
Hamilton County Et Al. v. Tax Year 2011 Delinquent Taxpayers Et Al.
E2017-02505-COA-R3-CV

This case involves the right of redemption after a tax sale. REO Holdings, LLC (REO), purchased a parcel of real property at a delinquent tax sale. After the sale, the original property owners quitclaimed their remaining interest in the property to Basswood Revocable Land Trust (the Trust). The Trust filed a motion to redeem the property, which the trial court granted. REO appeals. We reverse.

Hamilton County Court of Appeals 12/03/18
Marvin Christopher Long v. State of Tennessee
M2017-01758-CCA-R3-PC

The Petitioner, Marvin Christopher Long, filed for post-conviction relief, alleging that his trial counsel and his appellate counsel were ineffective. The post-conviction court dismissed the petition upon finding that the Petitioner previously filed for post-conviction relief and that he failed to state a claim upon which relief could be granted. On appeal, the Petitioner challenges the dismissal of the petition. Upon review, we affirm the post-conviction court’s dismissal of the Petitioner’s claim regarding the effectiveness of appellate counsel. However, we remand to the post-conviction court for entry of an order ruling on the Petitioner’s claims regarding the effectiveness of trial counsel.

Davidson County Court of Criminal Appeals 12/03/18
State of Tennessee v. Darrell Grant Fisher
M2017-01966-CCA-R3-CD

The defendant, Darrell Grant Fisher, entered an open plea to four counts of sexual battery by an authority figure. The trial court sentenced the defendant to five years on two counts and four years on the remaining two counts with all sentences to be served consecutively for an effective sentence of eighteen years. On appeal, the defendant claims the trial court erred in imposing consecutive terms. After a thorough review of the record and the applicable law, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 12/03/18
City of Chattanooga, Tennessee v. Basil Marceaux
E2018-00821-COA-R3-CV

The Notice of Appeal in this case was filed with the Appellate Court Clerk on May 7, 2018, more than thirty (30) days after the April 4, 2018 date of entry of the only order in the record from which the appellant could be appealing. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Hamilton County Court of Appeals 12/03/18
City of Soddy Daisy, Tennessee v. Basil Marceaux
E2018-01046-COA-R3-CV

The Notice of Appeal in this case was filed with the Appellate Court Clerk on June 7, 2018, more than thirty (30) days after the April 4, 2018 date of entry of the only order in the record from which the appellant could be appealing. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

Hamilton County Court of Appeals 12/03/18
State of Tennessee v. John Matthew Cabe
M2017-02340-CCA-R3-CD

Defendant, John Matthew Cabe, was indicted for tampering with evidence after selling an item, which was the subject of a theft investigation, from his pawnshop. After a jury trial, Defendant was convicted of attempted tampering with evidence. On appeal, Defendant contends that he was improperly charged with tampering with evidence because the Pawnbrokers Act of 1988 is a specific statute which governs his conduct as a pawnbroker, and he argues that the evidence was insufficient to support his conviction for attempted tampering with evidence. After a thorough review of the record and the applicable statutes, we conclude that the Pawnbrokers Act of 1988 specifically governs the actions of a pawnbroker in his or her official capacity, thereby precluding prosecution for tampering with evidence. Accordingly, the judgment of the trial court is reversed and vacated.

Marshall County Court of Criminal Appeals 12/03/18
State of Tennessee v. Tracy Arnold
W2018-00307-CCA-R3-CD

The Defendant, Tracy Arnold, appeals the Henderson County Circuit Court’s revocation of her probation related to her convictions for attempted aggravated child abuse and neglect. After a review of the record and applicable law, we affirm the trial court’s judgment.

Henderson County Court of Criminal Appeals 11/30/18
State of Tennessee v. Kenneth S. Gourley
W2017-00919-CCA-R3-CD

The Appellant, Kenneth S. Gourley, appeals the trial court’s order revoking his probationary sentence and ordering him to serve the remainder of his sentence in confinement. Upon review, we affirm the judgment of the trial court.

Dyer County Court of Criminal Appeals 11/30/18
Don Edward Carter v. State of Tennessee
W2018-00285-CCA-R3-PC

The Petitioner, Don Edward Carter, appeals from the McNairy County Circuit Court’s dismissal of his petition for post-conviction relief from his convictions of two counts of first degree murder, for which he is serving concurrent life sentences. On appeal, he contends that (1) the post-conviction court erred in dismissing his petition as untimely without a hearing to determine whether due process required tolling of the statute of limitations, (2) he received the ineffective assistance of counsel, and (3) prosecutorial misconduct in the conviction proceedings deprived him of his rights to due process and a fair trial. We affirm the judgment of the post-conviction court.

McNairy County Court of Criminal Appeals 11/30/18
Mary L. Miller v. Brenda S. Maples, Et Al.
E2016-00511-COA-R3-CV

Following settlor’s death, settlor’s daughters, the beneficiaries of the settlor’s trust, engaged in mediation, which resulted in a settlement agreement concerning the distribution of the trust’s assets. Before the settlement was approved by the trial court under the Tennessee Uniform Trust Act (“TUTA”), one of the daughters died, and her estate was substituted in the lawsuit. The surviving siblings then joined in an amended complaint seeking a determination concerning whether the terms of the settlement agreement violated a material purpose of the trust so as to be unenforceable under the TUTA. The deceased daughter’s estate argued for enforcement of the settlement agreement such that the estate would receive the deceased daughter’s share of the trust. The trial court granted summary judgment in favor of the estate, holding that the settlement was enforceable under the TUTA. The trial court awarded attorney’s fees and costs to the estate under the terms of the settlement. We affirm the trial court’s enforcement of the settlement but reverse its award of attorney’s fees and costs to the estate.

Hamilton County Court of Appeals 11/30/18
Leroy Sexton v. State of Tennessee
M2017-00698-CCA-WR-CO

Dr. William Diebold seeks review of the post-conviction court’s denial of his motion to quash a judicial subpoena compelling him to testify at a hearing on behalf of the Petitioner, who is seeking post-conviction relief in an underlying criminal case. Dr. Diebold, a practicing physician, contends that he is exempt from subpoena to the hearing but subject to subpoena to a deposition pursuant to Tennessee Code Annotated section 24-9-101. Based upon the oral arguments, the record, and the parties’ briefs, we agree with Dr. Diebold that he is statutorily exempt from subpoena to the hearing but subject to subpoena to a deposition. Therefore, the post-conviction court erred by failing to grant Dr. Diebold’s motion to quash. Accordingly, the judgment of the post-conviction court is reversed, and the motion to quash is granted.

Fentress County Court of Criminal Appeals 11/30/18
Caitlin J. Groves, Et Al. v. Tennessee Department of Safety And Homeland Security
M2016-01448-COA-R3-CV

After his vehicle was seized, the owner filed a claim and request for hearing. After the passage of thirty days following the filing of his claim, the owner moved to dismiss the forfeiture, arguing that the Tennessee Department of Safety and Homeland Security had failed to timely set his claim for a hearing. The Administrative Law Judge took the motion to dismiss under advisement, but declined to set a hearing on the merits of the forfeiture. The owner sought interlocutory review of the decision not to set a hearing on the merits, which the Commissioner ultimately denied. Shortly before the Commissioner’s decision on the interlocutory appeal, the ALJ granted the owner’s motion to dismiss and ordered the vehicle returned. The ALJ also denied the owner’s request for attorney’s fees. The owner petitioned for judicial review of the Commissioner’s decision and later amended the petition to include a request for declaratory relief. The chancery court dismissed the owner’s petition for judicial review as moot. The court also dismissed the declaratory judgment action for improper joinder of an original action with an administrative appeal. We affirm.

Davidson County Court of Appeals 11/30/18
In Re Alexis S. Et Al.
M2018-00296-COA-R3-PT

This is a termination of parental rights case involving the parental rights of the mother, Lequita S. (“Mother”), to her minor children, Alexis S., Jaxon S., and Jasmine S. (collectively, “the Children”). The Children were born in 2011, 2014, and 2017, respectively, to Mother and Jerry S. (“Father”). In November 2016, the Overton County Juvenile Court (“trial court”) entered an order removing Alexis and Jaxon from the parents’ custody and placing the two children into the temporary legal custody of the Tennessee Department of Children’s Services (“DCS”). These children were immediately placed in foster care, where they remained at the time of trial. The trial court subsequently entered an order on February 15, 2017, wherein the trial court found that Alexis and Jaxon were dependent and neglected due to the parents’ drug abuse and unsuitable home. Jasmine was placed into the same foster home as her siblings following her birth in June 2017, and the trial court entered an order on October 4, 2017, finding Jasmine to be dependent and neglected. On October 19, 2017, DCS filed a petition to terminate Mother’s and Father’s parental rights to the Children. Following a bench trial, the trial court terminated Mother’s parental rights to the Children upon determining by clear and convincing evidence that (1) Mother had abandoned the Children by failing to provide a suitable home for them, (2) Mother had abandoned the Children by her willful failure to visit them, (3) Mother had demonstrated substantial noncompliance with the permanency plans, (4) Mother had committed severe child abuse against Jasmine, (5) Mother had failed to manifest an ability and willingness to personally assume custody of or financial responsibility for the Children, and (6) the conditions leading to removal still persisted and a return of custody would in all probability cause the Children to be subjected to further abuse and neglect. The trial court further found clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the Children. Mother has appealed. Discerning no reversible error, we affirm.

Overton County Court of Appeals 11/30/18
Brianna Danielle King v. Aaron Jefferson Daily
M2017-01743-COA-R3-CV

This appeal arises from a divorce action involving two minor children. Mother filed a complaint for divorce on the grounds of irreconcilable differences and inappropriate marital conduct. Father filed an answer and counter complaint based on Mother’s inappropriate marital conduct and adultery. As to the minor children, Father wanted to have the children vaccinated, and Mother opposed vaccinations on religious grounds. The trial court awarded the divorce to Father based on Mother’s inappropriate marital conduct and adultery. The court also designated Father as the primary residential parent and gave him sole decision-making authority for non-emergency medical decisions, which included vaccinations. On appeal, Mother contends that the court interfered with her right to exercise a religious exemption from vaccines. Mother also takes issue with the court’s decision to award the divorce to Father based on Mother’s adultery. She argues that because she had sexual relationships with other men after the parties separated, her acts do not constitute adultery. Finding no error, we affirm.

Rutherford County Court of Appeals 11/30/18
Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.
W2017-02211-COA-R3-CV

This interlocutory appeal pursuant to Tennessee Code Annotated section 27-1-125 follows the trial court’s denial of a motion for class action certification. The proposed class consists of various physicians and health care professionals who are participating providers in the Defendants’ insurance networks and who provide medical services in the emergency departments of hospitals. The central contention is that the class members’ contracts with the Defendants were breached when the fee for certain services was capped at a $50.00 rate. The trial court ultimately concluded that certification of the class was improper and held, among other things, that the plaintiff had not demonstrated that common issues in the case predominated over individual ones. For the reasons stated in this Opinion, we affirm the trial court’s denial of class certification.

Madison County Court of Appeals 11/29/18
Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.- Dissent
W2017-02211-COA-R3-CV

I respectfully dissent from the majority’s decision in this case. I disagree with the majority’s assertion that “the argument that diagnosis codes cannot be the standard upon which an emergency is determined for purposes of payment does not somehow make common issues predominate regarding the claims for which a $50.00 cap provision is operative.” I would reverse the trial court as I believe that common issue predominates over all individual issues in this case.

Madison County Court of Appeals 11/29/18
State of Tennessee v. Jewel Moses Bess
M2017-01519-CCA-R3-CD

A Rutherford County grand jury indicted the defendant, Jewel Moses Bess, with first degree murder for the death of his wife, the victim. Following trial, a jury found the defendant guilty as charged, and the trial court imposed a sentence of life imprisonment. On appeal, the defendant challenges the trial court’s evidentiary rulings allowing testimony of the victim’s intent to end their marriage and the defendant’s prior physical abuse of his son. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 11/29/18
In Re Jeromia W.
W2017-02529-COA-R3-PT

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and wanton disregard for the child’s welfare; substantial noncompliance with the permanency plan; and failure to manifest an ability and willingness to personally assume responsibility for the child. The court further found that termination was in the best interest of the child. We affirm.

Shelby County Court of Appeals 11/29/18
Susan R.Templeton v. Macon County, Tennessee, Board of Education
M2017-02544-COA-R3-CV

A 62-year-old former employee of the Macon County School System sued the Board of Education on the grounds of age discrimination and retaliation under the Tennessee Human Rights Act. She alleged that her supervisor, the school principal, made age related discriminatory remarks and demoted her after she complained about a co worker’s repeated, sexually explicit comments. In its answer, the Board of Education contended that the re-assignment was a lateral transfer and was justified by nondiscriminatory reasons. The trial court summarily dismissed the complaint finding, inter alia, that Plaintiff failed to establish a prima facie case of age discrimination or retaliation, and that the Board produced undisputed evidence of legitimate, nondiscriminatory reasons for transferring Plaintiff. We respectfully disagree, having concluded that Plaintiff identified and produced evidence to establish a prima facie case for both claims and to create a genuine issue of fact concerning whether the Board’s stated reasons are pretexts for discriminatory or retaliatory animus. For these reasons, the Board was not entitled to summary judgment. Accordingly, we reverse and remand for further proceedings.

Macon County Court of Appeals 11/29/18
State, ex rel., Shem Peter Malmquist v. Danielle Nicolosi Malmquist
W2017-00893-COA-R3-JV

In this post-divorce dispute, the mother, a California resident, asked the court to modify a Tennessee child support order. At the hearing before the magistrate, the mother agreed to a voluntary dismissal without prejudice. But later she asked the juvenile court for a rehearing. At the request of both parties, the juvenile court then directed the magistrate to hold another hearing on the mother’s motion. At the new hearing, the magistrate denied the mother’s request to testify by telephone. And, because no one present was ready to proceed, the magistrate also dismissed the notice of rehearing. On appeal, the mother argues that she was entitled to testify by telephone under the Uniform Interstate Family Support Act and the Americans with Disabilities Act. We conclude that the Uniform Interstate Family Support Act did not apply to her request to modify a Tennessee child support order. We further conclude that the record does not support her claim under the Americans with Disabilities Act. So we affirm.

Shelby County Court of Appeals 11/29/18
State of Tennessee v. Marcus Williams
W2018-00498-CCA-R3-CD

On March 2, 2018, the Defendant, Marcus Williams, was convicted of two counts of identity theft; two counts of theft of property over $500 but less than $1000; one count of fraudulent use of a credit/debit card over $1000 but less than $10,000; and two counts of fraudulent use of a credit/debit card over $500 but less than $1000. He was sentenced as a Range II, multiple offender to a total effective sentence of twenty-four years, to be served consecutively to a prior twenty-year sentence, for a combined total of forty-four years. On appeal, the Defendant asserts that there is insufficient evidence to sustain his convictions and that the trial court abused its discretion in denying his motion to sever the offenses. After thorough review, we dismiss this appeal.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Merrico Jackson
W2017-01782-CCA-R3-CD

The Defendant, Merrico Jackson, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, the Defendant argues that the trial court erred in: (1) denying his request for a continuance; (2) failing to exclude a witness statement written on the back of a photograph array due to a discovery violation; (3) ruling that photographs of text messages and the call log from the Defendant’s phone were properly authenticated; and (4) excluding testimony about alleged witness intimidation by the State. After review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Martrice Thomas
W2017-02489-CCA-R3-CD

On September 21, 2017, the Defendant, Martrice Thomas, was convicted of first-degree premeditated murder. The trial court sentenced her to life imprisonment in the Department of Correction. The Defendant argues on appeal that the evidence is insufficient to sustain her conviction. After thorough review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Breyon Bates
W2017-01930-CCA-R3-CD

The Defendant, Breyon Bates, was convicted by a Madison County Circuit Court jury of possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony; simple possession of cocaine, a Class A misdemeanor; and resisting arrest and criminal impersonation, both Class B misdemeanors. The trial court merged the simple possession count into the possession with intent to deliver count and sentenced the Defendant as a Range II, multiple offender to concurrent terms of 18 years for the felony cocaine conviction and six months for each of the misdemeanor convictions, for an effective term of 18 years in the Department of Correction, to be served consecutively to the sentence for an offense for which the Defendant was on probation at the time he committed the instant offenses. On appeal, the Defendant challenges the sufficiency of the evidence in support of his felony conviction and argues that the trial court erred by not charging the jury with casual exchange under Tennessee Code Annotated section 39-17-419. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 11/29/18
Albert Jackson v. State of Tennessee
W2017-01589-CCA-R3-PC

A Shelby County jury convicted the Petitioner, Albert Jackson, of attempted voluntary manslaughter, employing a firearm during the commission of a felony, reckless endangerment with a deadly weapon, and being a felon in possession of a handgun, and the trial court sentenced the Petitioner to an effective sentence of twenty-four years of incarceration. State v. Albert Jackson, No. W2014-00050-CCA-R3-CD, 2014 WL 7432000, at *1 (Tenn. Crim. App., at Jackson, Dec. 30, 2014), no Tenn. R. App. P. 11 application filed. This court affirmed the convictions on appeal. Id. The Petitioner filed a petition for post-conviction relief challenging the jury instructions and claiming that his trial counsel was ineffective. Appointed counsel added a request for a delayed Rule 11 application. The post-conviction court denied the petition and a delayed appeal. On appeal, the Petitioner contends that the
post-conviction court erred when it denied his request for a delayed Rule 11 appeal and when it denied his petition for post-conviction relief. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 11/29/18