Court Opinions

Format: 12/08/2022
Format: 12/08/2022
Brian Boling v. Spireon, Inc.
E2021-00598-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Deborah C. Stevens

This appeal involves a contractual dispute related to the plaintiff’s employment. The trial court granted summary judgment to the defendant. The plaintiff appealed. We affirm.

Knox County Court of Appeals 10/27/22
Jenny Sue Taylor v. George Green Taylor, III
E2021-01281-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge John B. Bennett

George Green Taylor, III (“Father”) filed a petition to modify his permanent parenting plan in the Circuit Court for Hamilton County (the “trial court”). Father’s ex-wife, Jenny Sue Taylor (“Mother”), responded to the petition contending, inter alia, that Father’s proposed plan was not in the children’s best interests. Following a bench trial, the trial court determined that a slight change in the parties’ children’s summer schedule was warranted and ordered an upward deviation in Father’s child support for extraordinary educational expenses. Father appeals. The trial court’s ruling on Father’s child support is modified to reflect that Father’s base child support obligation is $731.00 per month, and we affirm as modified. We also affirm the trial court’s finding that an upward deviation in Father’s child support is warranted and in the children’s best interests, but we remand for entry of an order and child support worksheet reflecting the monthly amount owed for said upward deviation. Finally, we affirm the trial court’s ruling that Mother is entitled to her attorney’s fees incurred in the trial court pursuant to Tennessee Code Annotated § 36-5-103(c).

Court of Appeals 10/27/22
State of Tennessee v. Ernest Seard
W2021-01485-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Robert Carter, Jr.

Following the denial of a motion to suppress, the defendant, Ernest Seard, pled guilty to one count of driving under the influence (“DUI”) and was sentenced to eleven months and twenty-nine days in jail with all but five days suspended to probation. As a condition of his plea, the defendant reserved the right to appeal a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(D), challenging the denial of his motion to suppress his “search, seizure and arrest.” Upon our review, we conclude the trial court erred in its application of Tennessee Rule of Criminal Procedure 37(b)(2)(D). Accordingly, we vacate the judgment of the trial court, reinstate count 2 of the indictment, and remand the case for further proceedings consistent with this opinion.

Shelby County Court of Criminal Appeals 10/25/22
In Re Autumn D. Et. Al.
E2022-00033-COA-R3-CV
Authoring Judge: Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John S. McLellan, III

This appeal arises from a common-law writ of certiorari filed in the circuit court; however, the dispositive issue on appeal is whether the juvenile court, which was presiding over a dependency and neglect action, retained jurisdiction to enter a custodial order after a petition to adopt the children at issue had been filed in the chancery court. The adoption petition was filed after a contested evidentiary hearing for the change of custody had concluded but prior to the juvenile court announcing its decision or entering an order. After the adoption petition was filed, the juvenile court entered an order removing the children from their grandmother’s custody and awarding custody to the mother. The grandmother challenged the jurisdiction of the juvenile court to enter the order by filing a petition for a common-law writ of certiorari. The circuit court granted the writ but held “that the Juvenile Court had the authority to enter the [post-petition custodial order] owing to the fact that proof had been heard on [the petition to change custody].” We respectfully disagree. Tennessee Code Annotated § 37-1-103(c) unambiguously states, “when jurisdiction has been acquired [by dependency and neglect proceedings] under this part, such jurisdiction shall continue until . . . a petition for adoption is filed regarding the child in question as set out in § 36-1-116(f).” (emphasis added). Furthermore, Tennessee Code Annotated § 36-1- 116(f)(2) directs that “any proceedings that may be pending seeking the custody . . . of the child . . . who is in the physical custody of the [adoption] petitioners on the date the petition is filed . . . shall be suspended pending the court’s orders in the adoption proceeding, and jurisdiction of all other pending matters concerning the child . . . shall be transferred to and assumed by the adoption court.” Here, the grandmother had legal and physical custody of the children when the adoption petition was filed. Accordingly, the juvenile court’s jurisdiction was automatically transferred to the chancery court upon the filing of the adoption petition. For these reasons, the juvenile court no longer had jurisdiction to enter an order removing custody from the petitioner in the adoption case, the grandmother. Accordingly, the judgment of the circuit court is reversed, and this matter is remanded with instructions for the circuit court to enter judgment holding that the juvenile court’s order changing custody is void for want of jurisdiction. 

Sullivan County Court of Appeals 10/25/22
Mary Causby Jackson, As Administratrix of the Estate of Samara Elizabeth Jackson v. Lenita H. Thibault, M.D., Et Al.
E2021-00988-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge John S. McLellan, III

Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial court to exclude the expert. Additionally, we affirm the grant of summary judgment to defendants.

Sullivan County Court of Appeals 10/25/22
State of Tennessee v. Michael Lee Arthur Moreno
M2020-01090-CCA-R3-CD
Authoring Judge: Judge John W. Campbell Sr.
Trial Court Judge: Judge Cheryl A. Blackburn

The Defendant, Michael Lee Arthur Moreno, was convicted by a Davidson County Criminal Court jury of attempted voluntary manslaughter, a Class D felony; reckless endangerment, a Class A misdemeanor; and employing a firearm during the commission of a dangerous felony, a Class C felony, and was sentenced by the trial court to an effective term of eight years in the Department of Correction. He raises the following three issues on appeal: (1) whether the evidence is sufficient to sustain his convictions; (2) whether the trial court abused its discretion under Tennessee Rule of Evidence 404 and Tennessee Code Annotated section 24-7-125 by restricting cross-examination of one of the victims about text messages the victim sent the night before the shooting expressing the victim’s desire to commit a robbery; and (3) whether the trial court erred under Tennessee Rule of Evidence 613 by allowing the State to introduce rebuttal evidence of a defense witness’s recorded statement to police. Based on our review, we conclude that the evidence is sufficient to sustain the convictions, that the trial court did not err in restricting cross-examination of the victim, and that the Defendant, who failed to raise a contemporaneous objection at trial, cannot show plain error in the introduction of the defense witness’s statement. Accordingly, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 10/24/22
Asata D. Lowe v. State of Tennessee
E2022-00285-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Jeffery Hill Wicks

The Petitioner, Asata D. Lowe, appeals the Morgan County Circuit Court’s summary dismissal of his pro se petition seeking habeas corpus relief from his convictions for two counts of first degree premeditated murder and one count of especially aggravated robbery, for which he received an effective sentence of life imprisonment without the possibility of parole plus twenty-five years. On appeal, the Petitioner argues he is entitled to habeas corpus relief because he was deprived of his right to be present at his initial appearance, deprived of his right to counsel at his initial appearance, and deprived of his right to present a defense at his initial appearance. He additionally contends that the habeas corpus court denied his right of access to the courts when it summarily dismissed his habeas corpus petition before ruling on two of his pending motions. After review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

Morgan County Court of Criminal Appeals 10/24/22
Dianne Moore v. Beacon Transport LLC et al.
M2021-01451-SC-R3-WC
Authoring Judge: Judge Thomas J. Wright, Senior Judge
Trial Court Judge: Judge Joshua Davis Baker

Employee Dianne Moore experienced bilateral numbness, weakness, and tingling from her mid-chest down after performing a work-related task as a truck driver for Employer Beacon Transport, LLC. Following initial treatment in a local emergency room in Ardmore, Oklahoma, Employee was seen by Oklahoma City neurosurgeon Dr. Joseph Cox. Dr. Cox diagnosed Employee with an incomplete spinal cord injury in the form of a spinal cord contusion or lesion, which he opined resulted from her work-related activity. Employee was subsequently seen by panel physician, Nashville, Tennessee neurologist Dr. W. Garrison Strickland. Dr. Strickland diagnosed Employee with a thoracic spinal cord lesion caused by transverse myelitis, a condition which was not work-related. Employee additionally was seen by Nashville, Tennessee neurologist Dr. Darian Reddick, who similarly diagnosed Employee with idiopathic transverse myelitis syndrome-myelitis of unknown origin—a condition which was not work-related. Employee self-referred to Goodlettsville, Tennessee neurologist Dr. James Anderson, who indicated that Employee suffered a work-related back injury with effect on the spinal cord caused by back strain with transient give-way of structural elements traumatizing the spinal cord. The Court of Workers' Compensation Claims denied Employee's claim for benefits, and the Workers' Compensation Appeals Board affirmed. Employee has appealed, asserting that the trial court erred in accrediting the causation opinions of Dr. Strickland and Dr. Reddick, over the opinions of Dr. Cox and Dr. Anderson and concluding that she had failed to establish her condition was work-related. The appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm.

Workers Compensation Panel 10/24/22
State of Tennessee v. Daniel Hickman
E2021-00662-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Defendant, Daniel Hickman, appeals his convictions for criminally negligent homicide and especially aggravated robbery, for which he received an effective 27-year sentence. On appeal, Defendant contends that (1) the evidence is insufficient to support his convictions; (2) the trial court erred in excluding evidence supporting the defense theory that a third party committed the offenses in violation of Defendant’s right to present a defense; (3) the trial court erred in admitting the entire audio recording of Defendant’s interview with police and photographs taken of Defendant during the interview; (4) the trial court erred in admitting testimony regarding a prior suspect’s willingness to take a polygraph examination; (5) the jury improperly considered a lesser included offense for especially aggravated robbery in violation of the trial court’s sequential jury instructions; and (6) the cumulative effect of the errors deprived Defendant of his right to a fair trial. Upon reviewing the record, the parties’ briefs, oral arguments and the applicable law, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 10/24/22
E. Joseph Robinson, II et al. v. Nelle Powell Williams Mahaffey et al.
M2021-01068-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J.B. Cox

This appeal arises from a dispute between three neighbors over the nature and permissible use of an easement created through a 1983 judgment of the chancery court.  The plaintiffs own the property that is burdened by the easement and argue that the trial court correctly found that the 1983 judgment created an easement in gross in favor of the landowner directly north of their property.  We find that the trial court erred in finding an easement in gross and hold that the 1983 judgment created an express easement appurtenant creating a dominant and servient tenement; however, the easement appurtenant was not capable of being conveyed to landowners who were not purchasing the dominant estate.  Likewise, we find that there was no prescriptive or implied easement allowing the easement to be deeded from one neighbor to another.  Because the trial court’s judgment lacked findings of fact relevant to the slander of title cause of action, we remand this issue to the trial court for the entry of specific findings of fact on the elements of slander of title.  We affirm the trial court’s holding that defendants are responsible for the cost of re-installing a gate that they damaged.  The chancery court’s order is reversed in part, vacated in part, and affirmed in part.

Bedford County Court of Appeals 10/21/22
KLDW Wyocorp, Inc. v. Reginald Hall
E2022-00799-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor M. Nichole Cantrell

Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Anderson County Court of Appeals 10/21/22
Alexandrea Parker Ex Rel. Orrin Arlo Parker v. Jeanie D. Dassow, M.D.
E2021-01402-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Kyle E. Hedrick

This appeal involves a healthcare liability action. The plaintiff sued a physician who had interpreted the results of her fetal ultrasound. The physician was employed by a Tennessee state university as a professor. Her job duties included both educational responsibilities and clinical care to patients in the residency clinics. The trial court granted summary judgment in favor of the physician, finding that she had received no personal gain by her act of interpreting the ultrasound. Therefore, the physician possessed absolute immunity under the Tennessee Claims Commission Act for her actions within the scope of her state employment. Discerning no error, we affirm.

Hamilton County Court of Appeals 10/20/22
State of Tennessee v. Tyler Keith Parrish
M2021-01452-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge M. Wyatt Burk

Tyler Keith Parrish, Defendant, was convicted by a jury of two counts of aggravated sexual battery. The trial court affirmed the jury verdict, merged the two convictions, and sentenced Defendant to a within-range sentence of 12 years as a Range I, standard offender. On appeal, Defendant challenges the sufficiency of the evidence and his sentence as excessive. After review, we affirm the judgments of the trial court.

Marshall County Court of Criminal Appeals 10/20/22
Raymond Sines v. Regina Tinnin
E2021-01434-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Howard L. Upchurch

This post-divorce appeal arises from the trial court’s designation of the primary residential parent of two minor children. Due to the lack of a transcript or a statement of the evidence, we must affirm.

Bledsoe County Court of Appeals 10/20/22
In Re Brayleigh C.
W2021-00910-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Andrew T. Cook

This appeal involves a dispute between unwed parents, in which the mother filed a petition to modify a parenting plan and the father filed a counter-petition to modify the parenting plan and to modify custody. The juvenile court dismissed both the petition and counterpetition finding that modification was not in the child’s best interests. The father appeals. We affirm.

Lake County Court of Appeals 10/19/22
Benjamin McCurry v. Agness McCurry
E2022-01387-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James E. Lauderback

The appellant, Agness McCurry, has appealed the September 29, 2022 order of the Circuit Court for Washington County (“the Trial Court”). Because the September 29, 2022 order does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.

Washington County Court of Appeals 10/18/22
In Re Kendall K.
M2021-01463-COA-R3-PT
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Ted A. Crozier Jr.

A father and stepmother sought to terminate the parental rights of a mother to her child.  The trial court found clear and convincing evidence that the mother had abandoned her child by willful failure to visit during the four months preceding the filing of the termination petition.  But the court found the evidence less than clear and convincing that termination of the mother’s parental rights was in the child’s best interest.  We affirm. 

Robertson County Court of Appeals 10/18/22
State of Tennessee v. Justin Michael Banning
E2022-00188-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Tammy M. Harrington

The Defendant, Justin M. Banning, was originally sentenced to a term of four years and placed on probation. Thereafter, the Defendant committed a new criminal offense, engaged in unlawful substance use, and violated a no-contact order with the victim. As a consequence, the trial court revoked the suspended sentence and ordered that the Defendant serve the original four-year sentence in custody. On appeal, the Defendant contends the trial court abused its discretion by revoking his suspended sentence in its entirety. We affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 10/18/22
Steven Jeffrey Pike v. State of Tennessee
E2021-01055-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Kyle A. Hixson

The Petitioner, Steven Jeffrey Pike, appeals the Knox County Criminal Court’s denial of his post-conviction petition, wherein he challenged his conviction for first degree premeditated murder. On appeal, the Petitioner argues that (1) trial counsel provided ineffective assistance in failing to impeach a witness for the State with the witness’s prior statement to police; (2) appellate counsel provided ineffective assistance in failing to raise on appeal the trial court’s limitation of defense expert’s testimony; (3) appellate counsel provided ineffective assistance in failing to raise on appeal that the Petitioner’s involuntary statements constituted a due process violation not subject to harmless error analysis; and (4) the multiple errors committed by trial counsel and appellate counsel constituted prejudicial error in the aggregate.1 After review, we affirm the denial of post-conviction relief.

Knox County Court of Criminal Appeals 10/17/22
Mark Leedy v. Hickory Ridge, LLC
E2022-00035-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge E.G. Moody

This appeal concerns a breach of contract claim. Mark Leedy (“Plaintiff”) and Hickory Ridge, LLC (“Defendant”) executed the Real Estate Land Installment Contract (“the Contract”) under which Plaintiff would purchase real estate from Defendant located at 195 Derby Drive, Kingsport, Tennessee (“the Property”). Although Defendant accepted money from Plaintiff to be applied toward insurance, Defendant opted to “self-insure.” Sometime later, severe storms damaged the Property. Defendant failed to properly assess or repair the damage. Plaintiff spent another 18 months living on the Property all the while making payments before he left. Plaintiff sued Defendant in the Circuit Court for Sullivan County (“the Trial Court”) for breach of contract. Defendant filed a counterclaim. After a bench trial, the Trial Court ruled in favor of Plaintiff. Defendant appeals, arguing, among other things, that Plaintiff assumed the risk of loss. We hold, inter alia, that Defendant was obliged to insure the Property pursuant to the Contract and associated documents. However, we reverse the Trial Court’s award to Plaintiff of attorney’s fees and expenses as there is no provision in the Contract for such an award to Plaintiff. Otherwise, we affirm.

Sullivan County Court of Appeals 10/17/22
In Re Kailyn B.
E2021-00809-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Elizabeth C. Asbury

Mother appeals the termination of her parental rights. In addition to disputing the grounds for termination and best interest, Mother argues that the petition was fatally flawed, and Petitioners should not have been allowed to amend after the close of their proof. We conclude that the trial court did not err in deciding the case on its merits because the amendments were not prejudicial to Mother and remedied the petition’s deficiencies. We further conclude that clear and convincing evidence was presented of both the grounds for termination and that termination was in the child’s best interest. As such, we affirm the decision of the trial court.

Campbell County Court of Appeals 10/17/22
In Re Travionna W., et al.
W2021-01349-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Dan H. Michael

This appeal concerns the termination of a mother’s parental rights to four of her children. The trial court found that the Tennessee Department of Children’s Services (“DCS”) established several grounds for terminating the mother’s parental rights and that termination of her rights was in the children’s best interests. On appeal, the mother contends that the trial court erred when it terminated her rights because the evidence is insufficient to prove any ground for termination or that termination of her parental rights is in the children’s best interests. We have determined that DCS proved grounds for termination and that termination of the mother’s parental rights was in the best interests of the children. Accordingly, we affirm the termination of the mother’s parental rights.

Shelby County Court of Appeals 10/14/22
Micah Transou v. State of Tennessee
W2022-00172-CCA-R3-PC
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Donald H. Allen

Petitioner, Micah Transou, appeals the denial of his petition for post-conviction relief in which he alleged that his guilty plea was not made knowingly or voluntarily because “it created an illegal sentence” and that it was not entered with the effective assistance of counsel. Following oral argument, our review of the entire record and the briefs of the parties, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 10/14/22
Emily Daily Fuller v. Christopher Mark Fuller
E2022-00701-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Marie Williams
Because the order appealed from does not constitute a final appealable judgment, this Court lacks jurisdiction to consider this appeal.
Hamilton County Court of Appeals 10/14/22
State of Tennessee v. David Wayne Eady
M2021-00388-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn

For the reasons that follow, I am compelled to dissent from the section of the majority opinion affirming the decision of the trial court to deny severance of the offenses in this case. I agree that the trial court correctly determined that permissible joinder, pursuant to Rule 8(b)(2), was proper because of the similar nature of the crimes alleged in this case. In these circumstances, a defendant has an absolute right under Rule 14(b)(1) to have offenses separately tried unless the prosecution shows (1) that the offenses are part of a common scheme or plan, and (2) evidence of each crime would be admissible in the trial of the others. State v. Garrett, 331 S.W.3d 392, 401 (Tenn. 2011); State v. Toliver, 117 S.W.3d 216, 228 (Tenn. 2003); see also State v. Moore, 6 S.W.3d 235, 239 n. 7 (Tenn. 1999) (“[A] common scheme or plan for severance purposes is the same as a common scheme or plan for evidentiary purposes.”). To justify consolidation here, the State relied upon the second category of common scheme or plan evidence, that each of the offenses committed and to be joined were part of a larger, continuing plan or conspiracy. State v. Garrett, 331 S.W.3d at 404 (observing that there are three types of common scheme or plan evidence: (1) offenses that reveal a distinctive design or are so similar as to constitute signature crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal transaction) (internal citations and quotations omitted). Because there was no proof that the offenses were part of a larger, continuing plan, I would have concluded that the trial court erred in denying the severance request under Rule 14(b)(1). Garrett, 331 S.W.3d at 403 (the prosecution bears the burden of producing evidence to establish that consolidation is proper).

Davidson County Court of Criminal Appeals 10/14/22