Court Opinions

Format: 12/08/2022
Format: 12/08/2022
In Re Legion S.
E2021-01198-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her daughter based on severe child abuse and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the two statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
In Re Masson S.
E2021-01196-COA-R3-PT
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Brian J. Hunt

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to her son based on abandonment by failure to provide a suitable home, abandonment by an incarcerated parent, substantial noncompliance with permanency plans, failure to remedy persistent conditions, and failure to manifest an ability and willingness to assume custody of the child. The trial court granted the petition, finding that the five statutory grounds were proven by clear and convincing evidence and that terminating the mother’s parental rights is in the best interests of the child. We affirm.

Anderson County Court of Appeals 11/22/22
State of Tennessee v. Tony Dale Crass
M2021-00528-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Joseph A. Woodruff

The Williamson County Grand Jury indicted Tony Dale Crass, Defendant, with driving under the influence (DUI), DUI per se, and possession of a firearm while under the influence. Defendant moved to suppress the evidence, arguing that the State did not have probable cause or reasonable suspicion for the traffic stop and that video evidence of Defendant’s driving was erased and deleted as a result of a malfunctioning recording system in Tennessee Highway Patrol (THP) Trooper Joey Story’s patrol car. The trial court concluded that the loss of video evidence constituted a violation of the State’s duty to preserve potentially exculpatory evidence recognized in State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999), and deprived Defendant of the right to a fair trial. The trial court granted the motion to suppress and dismissed the indictment, and the State appealed. We conclude that the video was not lost or destroyed by the State, (2) that a Ferguson violation is not applicable to a suppression hearing based on reasonable suspicion or probable cause for a traffic stop, (3) that the trial court misapplied the “degree of negligence” Ferguson factor by equating perceived public policy decisions on the part of the State to negligence, and (4) that Defendant’s right to a fair trial can be protected without dismissal of the indictment. We reverse the judgment of the trial court, reinstate the indictment, and remand for further proceedings.

Williamson County Court of Criminal Appeals 11/22/22
City of Knoxville, Tennessee v. Netflix, Inc. et al.
M2021-01107-SC-R23-CV
Authoring Judge: Justice Sarah K. Campbell
Trial Court Judge: Judge Clifton L. Corker

This is a case about fitting new technology into a not-so-new statutory scheme. Exercising our power to answer questions certified to us by federal courts, we consider whether two video streaming services—Netflix, Inc. and Hulu, LLC—provide “video service” within the meaning of a Tennessee law that requires such providers to obtain a franchise and pay franchise fees to localities. Netflix and Hulu say they do not provide “video service” and therefore do not owe franchise fees; the City of Knoxville says they do. We agree with Netflix and Hulu.

Supreme Court 11/22/22
Randolyn Laferney v. Kim Livesay Et Al
E2021-00812-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge E. Lauderback

Plaintiff Randolyn Laferney filed a tort action against several defendants, alleging causes of action for, inter alia, libel, civil conspiracy, and malicious prosecution. The allegations arose primarily out of social media comments and posts made by the defendants regarding Ms. Laferney. On December 10, 2020, the trial court dismissed the legal action as to some, but not all, of the defendants pursuant to Tennessee’s anti-SLAPP statute, the Tennessee Public Participation Act (“the TPPA” or “the Act”). Several months later, after the trial court awarded the dismissed defendants their attorney’s fees, Ms. Laferney appealed to this Court. Because we conclude that the notice of appeal was untimely pursuant to the TPPA, the appeal is dismissed.

Washington County Court of Appeals 11/22/22
Darin Woods v. State of Tennessee
W2021-01332-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Paula L. Skahan

The Petitioner, Darin Woods, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions for attempted second degree murder, attempted aggravated robbery, aggravated robbery, and employing a firearm during the commission of a dangerous felony, for which he is serving an effective twenty-seven year sentence. On appeal, the Petitioner contends that the post-conviction court erred in denying relief on his ineffective assistance of counsel claim. We affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/22/22
In Re: Joseph H. Crabtree, Jr., BPR #011451
M2022-00339-SC-BAR-BP
Authoring Judge: Chief Justice Roger A. Page
Trial Court Judge: Board of Professional Responsibility Hearing Panel
This is an attorney discipline proceeding concerning Tennessee attorney Joseph H.
Crabtree, Jr. and his representation of several clients with varying legal issues. The Board
of Professional Responsibility ("the Boare) filed formal petitions for discipline against
Mr. Crabtree in February 2019. A Hearing Panel of the Board ("Hearing Panel")
adjudicated the petitions and rendered a judgment suspending Mr. Crabtree for two years
and ordering him to serve six months as active suspension and the remainder on probation.
It also directed Mr. Crabtree to pay restitution to two clients, to reimburse one client for
any costs assessed against her upon the dismissal of her case, and to reimburse the
Tennessee Lawyers Fund for Client Protection ("TLFCP") for any money it pays to the
complainants in this matter. Mr. Crabtree failed to perfect an appeal from the Hearing
Panel's decision, and the Board petitioned this Court for an order enforcing the Hearing
Panel's judgment. Pursuant to Tennessee Supreme Court Rule 9, sections 15.4(d) and (e),
we determined that the punishment imposed by the Hearing Panel appeared inadequate.
Thus, we proposed to increase it. Based on our careful consideration of the entire record,
"with a view to attaining uniformity of punishment throughout the State and
appropriateness of punishment under the circumstances of each particular case," we modify
the judgment of the Hearing Panel to impose a three-year suspension, with one year served
as active suspension and the remainder on probation. Tenn. Sup. Ct. R. 9, § 15.4(b), (d).
During the first year of the probationary period, Mr. Crabtree shall engage a practice
monitor at his own expense to supervise his compliance with trust account rules and office
management procedures in accordance with Tennessee Supreme Court Rule 9, section
12.9. Finally, as a condition of reinstatement, Mr. Crabtree shall complete twelve hours of
continuing legal education ("CLE"), with six hours focused on ethics and six hours on law
office management, in addition to the annual fifteen-hour CLE requirement. In all other
respects, including payment of restitution to his clients and reimbursement to TLFCP, the
decision of the Hearing Panel is affirmed.
McMinn County Supreme Court 11/22/22
State of Tennessee v. Larry Dale Pitts
M2021-01334-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Barry R. Tidwell

Larry Dale Pitts, Defendant, was convicted of aggravated assault after a jury trial. The trial court denied his request for judicial diversion and sentenced him to split confinement, with one year of incarceration, and the remainder on supervised probation. He now appeals the sentencing determinations of the trial court, arguing that it abused its discretion in denying judicial diversion, denying full probation, and sentencing him to the maximum within-range sentence of six years. After review, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 11/22/22
State of Tennessee v. Robert Lancaster Steed, Jr.
E2022-00145-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge G. Scott Green

In 2019, the Defendant, Robert Lancaster Steed, Jr., pleaded guilty to evading arrest, false imprisonment, domestic assault, and theft. The trial court sentenced the Defendant, by agreement of the parties, to an effective sentence of six years of probation. After several violations, the trial court ultimately revoked the Defendant’s probation and ordered him to serve his sentence in the Department of Correction. On appeal, the Defendant contends that his poor performance on probation was due to his drug addiction, so the trial court should have ordered a period of confinement followed by intensive outpatient substance abuse and mental health treatment. After review, we affirm the trial court’s judgment.

Knox County Court of Criminal Appeals 11/21/22
In Re Estrella A. et al.
M2022-00163-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Tim Barnes
Mother appeals the termination of her parental rights on five grounds, including severe
child abuse. Because we conclude that clear and convincing evidence supports the grounds
for termination and that termination is in the children’s best interests, we affirm.
Montgomery County Court of Appeals 11/21/22
Family Trust Services LLC et al v. Green Wise Homes LLC et al
M2021-01350-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Anne C. Martin
This appeal involves claims by four plaintiffs against an attorney, his business partner,
and the attorney’s and partner’s limited liability company. The plaintiffs claim that the
defendants fraudulently redeemed properties sold via tax sales, utilizing forged or
fraudulent documents. Following a bifurcated jury trial, the plaintiffs’ claims were
dismissed except for the claim of one plaintiff against the attorney defendant, which
resulted in a verdict for damages in the amount of $53,450. The trial court subsequently
denied a motion for new trial filed by the plaintiffs. The plaintiffs have appealed. Upon
thorough review, we conclude that the trial court’s denial of the plaintiffs’ motion for
new trial should be reversed. However, we affirm the trial court’s pre-trial determination
that judgment on the pleadings was appropriate concerning the plaintiffs’ claims of unjust
enrichment and “theft” of the right of redemption. We further affirm (1) the trial court’s
grant of summary judgment in favor of the defendants concerning the plaintiffs’ claim
based on Tennessee Code Annotated § 66-22-113 and (2) the court’s denial of the
defendant company’s motion to dissolve the lien lis pendens on its property. The
remaining issue raised by the defendants is pretermitted as moot. We remand this matter
to the trial court for a new trial.
Davidson County Court of Appeals 11/21/22
Abraham A. Augustin v. Bradley County Sheriff's Office Et Al.
E2021-00345-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Lawrence Howard Puckett

This is the second appeal of this forfeiture action. Appellant seeks the return of seized property and damages under Tennessee Code Annotated section 40-33-215(b). In Augustin v. Bradley County Sheriff’s Office, et al., 598 S.W.3d 220 (Tenn. Ct. App. Oct. 10, 2019), this Court affirmed the trial court’s dismissal of Mr. Augustin’s claim for return of the seized property but remanded the case for further proceedings on the section 40-33- 215(b) question. The trial court denied Appellant’s request for damages under section 40- 33-215(b). Because Appellant is not a prevailing party, he does not meet the threshold requirement for an award of damages under section 40-33-215(b). Affirmed and remanded.

 

Bradley County Court of Appeals 11/21/22
Brandon Nathaniel Merritt v. State of Tennessee
W2021-01448-CCA-R3-PC
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, Brandon Nathaniel Merritt, pled guilty to attempted rape and sexual battery and agreed to an effective sentence of six years. Pursuant to the plea agreement, the trial court was to determine how the sentence would be served. After the trial court imposed a sentence of full confinement, the Petitioner timely filed a petition for post-conviction relief asserting that he received the ineffective assistance of counsel regarding his guilty pleas and at his sentencing hearing. He also asserted that his guilty pleas were not knowingly and voluntarily entered. After an evidentiary hearing, the post-conviction court denied the petition for post-conviction relief. On appeal, we affirm the judgment of the postconviction court.

Shelby County Court of Criminal Appeals 11/18/22
State of Tennessee v. Aaron Dewayne Troutt
M2021-01248-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge Vanessa A. Jackson

The Defendant, Aaron Dewayne Troutt, appeals as of right from the trial court’s dismissal of his Tennessee Rule of Criminal Procedure 36 motion to correct a clerical error. The Defendant contends that the trial court erred by concluding it was without jurisdiction to modify a final judgment to award behavioral and pretrial jail credit. After review, we affirm the trial court’s decision in part, reverse in part, and remand for findings on whether a clerical error exists regarding the Defendant’s pretrial jail credit.

Coffee County Court of Criminal Appeals 11/18/22
State of Tennessee v. Tyshon Booker (Dissent)
E2018-01439-SC-R11-CD
Authoring Judge: Justice Jeffrey S. Bivins (C.J. Page, joins)
Trial Court Judge: Judge G. Scott Green
I respectfully dissent from the result reached by a majority of the Court today. Quite
frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the
concurring opinion of Justice Kirby to be sound. However, it is just that. It is a policy
decision by which the majority today has pushed aside appropriate confines of judicial
restraint and applied an evolving standards of decency/independent judgment analysis that
impermissibly moves the Court into an area reserved to the legislative branch under the
United States and Tennessee Constitutions.
Knox County Supreme Court 11/18/22
State of Tennessee v. Tyshon Booker (Concur)
E2018-01439-SC-R11-CD
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge G. Scott Green
Not so long ago, it was commonplace for states to require juveniles convicted of
homicide to serve sentences of over fifty years. Now, that practice has vanished. A review
of sentencing statutes enacted by state legislatures and court decisions shows that there is
now only one state where juvenile offenders face a mandatory non-aggregated sentence of
more than 50 years for first-degree murder with no aggravating factors—Tennessee. In the
entirety of the nation, Tennessee stands alone.
Knox County Supreme Court 11/18/22
State of Tennessee v. Tyshon Booker
E2018-01439-SC-R11-CD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge G. Scott Green
Tyshon Booker challenges the constitutionality of Tennessee’s mandatory sentence of life
imprisonment when imposed on a juvenile homicide offender. In fulfilling our duty to
decide constitutional issues, we hold that an automatic life sentence when imposed on a
juvenile homicide offender with no consideration of the juvenile’s age or other
circumstances violates the prohibition against cruel and unusual punishment under the
Eighth Amendment to the United States Constitution. Mr. Booker stands convicted of
felony murder and especially aggravated robbery—crimes he committed when he was
sixteen years old. For the homicide conviction, the trial court automatically sentenced Mr.
Booker under Tennessee Code Annotated section 40-35-501(h)(2) to life in prison, a
sixty-year sentence requiring at least fifty-one years of incarceration. But this sentence
does not square with the United States Supreme Court’s interpretation of the Eighth
Amendment. When sentencing a juvenile homicide offender, a court must have discretion
to impose a lesser sentence after considering the juvenile’s age and other circumstances.
Here, the court had no sentencing discretion. In remedying this constitutional violation, we
exercise judicial restraint. We need not create a new sentencing scheme or resentence Mr.
Booker—his life sentence stands. Rather, we follow the policy embodied in the federal
Constitution as explained in Montgomery v. Louisiana, 577 U.S. 190 (2016) and grant Mr.
Booker an individualized parole hearing where his age and other circumstances will be
properly considered. The timing of his parole hearing is based on release eligibility in the
unrepealed version of section 40-35-501(h)(1), previously in effect, that provides for a term
of sixty years with release eligibility of sixty percent, but not less than twenty-five years
of service. Thus, Mr. Booker remains sentenced to sixty years in prison, and after he has
served between twenty-five and thirty-six years, he will receive an individualized parole
hearing where his age and other circumstances will be considered. Our limited ruling,
applying only to juvenile homicide offenders, promotes the State’s interest in finality and
efficient use of resources, protects Mr. Booker’s Eighth Amendment rights, and is based
on sentencing policy enacted by the General Assembly.
Knox County Supreme Court 11/18/22
Balmoral Shopping Center, LLC v. City of Memphis ET AL.
W2022-01488-COA-T10B-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Carol J. Chumney

This is an appeal of a trial judge’s denial of a Tennessee Supreme Court Rule 10B motion for the recusal of the trial judge from the case. We affirm the trial court’s denial of the recusal motion.

Shelby County Court of Appeals 11/18/22
Sarah Boren v. David Wade, Jr.
W2020-01560-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jerry Stokes

This case involves a post-divorce modification of the parties’ parenting plan for their minor child. The trial court suspended Appellant/Father’s visitation. Because the trial court failed to make any findings concerning the child’s best interest, Tenn. R. Civ. P. 52.01, Tenn. Code Ann. §§ 36-6-404(b), 36-6-106(a), we vacate the trial court’s order.

Shelby County Court of Appeals 11/18/22
Jennifer Gaby v. Tony Gaby
E2022-00217-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Thomas J. Wright

This is the second appeal of this action concerning the father’s petition to modify the permanent parenting plan for his two children. In the first appeal, we remanded the case back to the trial court for submission of additional findings of fact and conclusions of law. The father now appeals the decision on remand. We vacate the order of the trial court and remand for entry of a new permanent parenting plan for the remaining minor child.

Hamilton County Court of Appeals 11/17/22
Vanessa Colley v. John S. Colley, III
M2021-00731-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Philip E. Smith

Appellant/Husband voluntarily nonsuited his post-divorce lawsuit involving issues of alimony and the parties’ alleged settlement of an IRS debt. Appellee/Wife moved for an award of her attorney’s fees on alternative grounds, i.e., the abusive lawsuit statute, Tenn. Code Ann. § 29-41-106; the parties’ MDA; and Tennessee Code Annotated section 36-5- 103(c). The trial court granted Wife’s motion and entered judgment for her attorney’s fees and costs. The trial court specifically held that Husband’s lawsuit was not abusive, and Wife does not raise this as an issue on appeal. As such, we conclude that she is not entitled to her attorney’s fees under the abusive lawsuit statute. As to her claim for attorney’s fees and costs under the MDA and Tennessee Code Annotated section 36-5-103(c), both grounds require that Wife be a “prevailing party” in the underlying lawsuit. Because Husband took a voluntary nonsuit, neither party prevailed in the action, and Wife is not entitled to her attorney’s fees and costs. Reversed and remanded.

Davidson County Court of Appeals 11/17/22
In Re Trust of Katherine D. Graham
M2021-00967-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge David Randall Kennedy
Decedent created a trust and named one of the beneficiaries and Appellee, a third-party
bank, as co-trustees. The trust beneficiaries petitioned for Appellee’s removal and for the
substitution of another beneficiary as co-trustee. The petitioners also sought an order
directing Appellee to reimburse the trust for fees paid to Appellee as co-trustee. The trial
court held that Appellee administered the trust diligently and without any malfeasance,
misfeasance, or non-feasance. As such, the trial court implicitly found that Appellee was
entitled to its fees. The trial court further found that it would violate a material purpose of
the trust to appoint, as co-trustee, another related beneficiary. Ultimately, the trial court
declined to remove Appellee and to substitute another beneficiary as co-trustee. Appellant
is the only petitioner/beneficiary to appeal. Although we conclude that the trial court erred
in its material purpose finding, for reasons discussed below, we affirm the trial court’s
decision not to remove Appellee as co-trustee. Further, we affirm the trial court’s denial
of the petitioners’ request that Appellee reimburse the trust for its fees. Appellee’s motion
for appellate attorney’s fees is denied.
Davidson County Court of Appeals 11/17/22
Lori S. Fernandez v. Tennessee Department of Revenue
M2021-01417-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Thomas W. Brothers

Lori S. Fernandez (“Appellant”) was employed by the Tennessee Department of Revenue from 2014 until March 6, 2020, when she resigned. Following her resignation, Appellant sued the Department and several of its employees (the “Appellees”) for various causes of action including, inter alia, racial and disability discrimination. Appellees filed a motion to dismiss which the trial court granted. Thereafter, Appellant filed a Tenn. R. Civ. P. 59 motion to alter or amend the trial court’s order, as well as an amended complaint. The trial court denied the motion to alter or amend and declined to address the outstanding amended complaint. Appellant timely appealed to this court. We conclude that the order appealed from is non-final. Accordingly, this Court lacks subject matter jurisdiction, and the appeal must be dismissed.

Davidson County Court of Appeals 11/16/22
State of Tennessee v. Marlon J. Johnson, Jr.
E2022-00098-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge James F. Goodwin, Jr.

The Defendant-Appellant, Marlon J. Johnson, Jr., appeals the revocation of his six-year probationary sentence for two counts of aggravated burglary, domestic assault, misdemeanor assault, misdemeanor theft, and misdemeanor false imprisonment. The Defendant conceded the probation violation before the trial court and on appeal. Accordingly, the sole issue presented for our review is whether the trial court erred in ordering the Defendant to serve the balance of his sentence in confinement. Upon review, we affirm.

Sullivan County Court of Criminal Appeals 11/16/22
First Bank F/D/B/A Northwest Georgia Bank v. Mountain Apartments, LLC Et Al.
E2021-01433-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge John B. Bennett

The plaintiff bank appeals the trial court’s summary dismissal of its breach of contract action against the defendants pursuant to the law in Georgia. We affirm.

Hamilton County Court of Appeals 11/16/22