Braylen Bennett v. State of Tennessee
E2022-01746-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Braylen Bennett, appeals the denial of his petition for post-conviction relief,
arguing that he was denied the effective assistance of trial counsel, that his guilty pleas
were unknowing, unintelligent, and involuntary, and that the cumulative effect of trial
counsel’s deficiencies in performance warrants post-conviction relief. Based on our
review, we affirm the judgment of the post-conviction court.

Janet Sura v. Jimmy's Last Laugh LLC
M2023-01174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Plaintiff sued the owner of a hotel after she fell in its lobby. The trial court granted summary judgment in favor of the defendant, concluding that the defendant did not owe a duty to the plaintiff. Because the trial court’s order does not adequately explain how an expert report proffered by the plaintiff was treated in adjudicating the motion for summary judgment, we vacate and remand to the trial court for the entry of an order that addresses this issue.

Cherokee Fiber & Associates , Inc. v. David Gerregano, Commissioner of the Tennessee Department of Revenue
M2023-00748-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

The Tennessee Department of Revenue conducted an audit of a business and assessed unpaid taxes against the business. After an informal review by the Commissioner of the Tennessee Department of Revenue, the business filed suit in the Chancery Court for Davidson County to challenge the assessment. The trial court concluded that the complaint was not timely filed, thus preventing the court from exercising subject matter jurisdiction over the complaint. Finding no error, we affirm the chancellor’s decision.

Stargate Auto Sales, LLC v. David Gerregano, Commissioner of the Tennessee Department of Revenue
M2023-00496-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Russell T. Perkins

The Tennessee Department of Revenue audited a car dealership and assessed unpaid taxes against the business. After an informal review by the Commissioner of the Tennessee Department of Revenue, the auto dealership filed suit in the Chancery Court for Davidson County to challenge the assessment. The trial court found that the auto dealership’s complaint had been filed one day past the applicable filing period and dismissed the action for lack of subject matter jurisdiction. Finding no error, we affirm.

Loring E. Justice v. Board of Professional Responsibility
E2022-01105-SC-R3-BP
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Senior Judge Thomas J. Wright

This is a direct appeal of a disciplinary proceeding involving a Knoxville attorney who filed four motions containing pejorative statements about the trial judge in a child custody case involving the attorney’s minor child. A hearing panel of the Board of Professional Responsibility determined that the attorney violated multiple Rules of Professional Conduct and imposed a three-year suspension as punishment. The attorney appealed to the trial court. The trial court affirmed the hearing panel’s judgment in all respects with the exception of the attorney’s punishment. The trial court held that the hearing panel erred in imposing a suspension, and it increased the punishment to disbarment. The attorney appealed to this Court. We affirm the judgment of the trial court on all issues with the exception of the issue regarding the attorney’s punishment. We hold that the trial court erred in increasing the punishment to disbarment, and we reinstate the three-year suspension imposed by the hearing panel but modify it to take effect upon the filing of this Opinion.

Michael Beinke, et al. v. Adam Roberson d/b/a 38 Construction, et al.
M2023-00637-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Michael Binkley

This appeal involves the right to a nonsuit pursuant to Tennessee Rule of Civil Procedure 41.01. Two plaintiffs (an individual and a limited liability company) filed this lawsuit against several defendants, asserting eight causes of action arising out of a construction contract. The defendants filed a motion to dismiss. At a hearing, the trial judge orally ruled that the motion to dismiss was denied as to all claims, with one exception. The trial judge took under advisement whether Count 2, asserting a violation of the Tennessee Consumer Protection Act, was barred by the statute of limitations. Four days after the hearing, the plaintiffs filed a notice of voluntary dismissal without prejudice along with a proposed order to that effect. In response, the defendants filed a “motion in opposition” to the proposed order of voluntary dismissal, asking the trial court to delay entry of the order of voluntary dismissal until the trial court entered an order addressing the TCPA claim. The trial court ultimately ruled that the defendants had a “vested right” that prevented the plaintiffs from voluntarily dismissing the TCPA claim from the moment the trial court took the matter under advisement. The trial court then proceeded to analyze the TCPA claim. Although the issue taken under advisement related to the statute of limitations, the trial court sua sponte dismissed the TCPA claim asserted by the individual plaintiff because the court found that he did not meet the definition of a “consumer” pursuant to the TCPA. The trial court then considered the statute of limitations issue as it related to the TCPA claim asserted by the remaining plaintiff. The trial court found that the TCPA claim was not barred by the statute of limitations and denied the motion to dismiss on that basis. Having resolved the motion to dismiss as to the TCPA claim, the trial court ruled that the nonsuit then became “effective,” as of the date of the trial court’s order, resulting in voluntary dismissal of all claims except the individual plaintiff’s TCPA claim, which the trial court sua sponte dismissed with prejudice. The individual plaintiff appealed, asserting, among other things, that the trial court erred by concluding that the defendants had obtained a vested right and by delaying entry of the order of nonsuit so that the trial court could rule on the motion to dismiss. For the following reasons, we reverse the decision of the trial 06/12/2024 - 2 - court to the extent it dismissed the individual’s TCPA claim with prejudice and remand for entry of an order under Rule 41.01 dismissing all claims without prejudice.

State of Tennessee v. Orlando Nichols
W2023-01183-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Orlando Nichols, was convicted in the Shelby County Criminal Court of especially aggravated kidnapping and aggravated rape, Class A felonies, and received consecutive twenty-five-year sentences to be served at one hundred percent.  On appeal, the Defendant contends that (1) the time delay between the commission of the offenses and the issuance of the indictment violated his right to due process; (2) his effective fifty-year sentence is excessive; and (3) the evidence is insufficient to support his convictions.  Upon review, we affirm the judgments of the trial court.

Loring E. Justice v. Board of Professional Responsibility (concurring)
E2022-01105-SC-R3-BP
Authoring Judge: Chief Justice Holly Kirby
Trial Court Judge: Senior Judge Thomas J. Wright

I agree with virtually all of the majority’s thorough and well-reasoned opinion, with one exception: its determination that ABA Standards 6.21 and 7.1, which identify disbarment as the presumptive sanction, do not apply to this case. As explained below, I would hold that ABA Standards 6.21 and 7.1 apply, and consequently disbarment is the presumptive sanction, because Mr. Justice engaged in the misconduct with intent to obtain personal benefit. I nonetheless concur in the majority’s decision to impose a three-year suspension, based on the comparative cases cited in the majority opinion.

State of Tennessee v. Talvin D. Armstrong
M2022-01164-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Stella L. Hargrove

A Maury County jury found Defendant, Talvin D. Armstrong, guilty of one count of possession of 0.5 grams or more of cocaine with intent to sell and one count of possession of drug paraphernalia. The trial court imposed an effective sentence of fifteen years in the Tennessee Department of Correction (TDOC). On appeal, Defendant argues that: (1) he was coerced into waiving his confrontation rights as to two witnesses who contracted COVID-19 and were permitted to testify at trial remotely; (2) the trial court erred in introducing the affidavit of complaint supporting the search warrant for the house where the drugs and paraphernalia were found; and (3) he was entitled to a mistrial based on a witness’s reference to the Department of Probation and Parole. 1 After review, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Rex H. Ogle

The Defendant, Anthony Jared Ross, pled guilty to one count of carjacking, and after a sentencing hearing, the trial court sentenced him to serve a term of nine years and to pay restitution. On appeal, the Defendant argues that the trial court erred in imposing a sentence without having or considering the results of a validated risk and needs assessment as required by Tennessee Code Annotated section 40-35-210(b). Our review reveals that the General Assembly has mandated that a sentence must be based, in part, upon the risk and needs assessment. Because this required sentencing information was never prepared, and consequently not considered by the court and the parties, we respectfully remand this case for resentencing. We also remand the case for entry of a judgment reflecting the appropriate disposition of other charges.

State of Tennessee v. Anthony Jared Ross
E2023-00381-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Rex H. Ogle

I dissent from the majority’s conclusion that the case must be remanded for
resentencing on the basis that the record fails to reflect that the trial court considered a
validated risk and needs assessment (“RNA”). The majority concludes from the parties’
arguments and from the absence of an RNA in the appellate record that no RNA was
prepared and, therefore, that the trial court did not consider one. See T.R.A.P. 13(c)
(limiting an appellate court to consideration of those facts which appear in the record or
are within the parameters of certain post-judgment facts of which the court may take
judicial notice pursuant to T.R.A.P. 14); Threadgill v. Board of Prof’l Resp., 299 S.W.3d
792, 812 (Tenn. 2009) (stating that allegations in pleadings or a party’s brief are not
evidence that is before an appellate court for review), overruled on other grounds by
Lockett v. Board of Prof’l Resp., 380 S.W.3d 19, 28 (Tenn. 2012); State v. Draper, 800
S.W.2d 489, 493 (Tenn. Crim. App. 1990); State v. Roberts, 755 S.W.2d 833, 836 (Tenn.
Crim. App. 1988). As the majority has observed, the Defendant did not object to the trial
court’s sentencing the Defendant in the purported absence of an RNA at sentencing.

Terrance Reece v. State of Tennessee
E2023-00305-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Terrance Reece, appeals from the Knox County Criminal Court’s denial of
post-conviction relief from his convictions for four counts of weapons violations, three
counts of aggravated assault, and one count of vandalism and his effective twenty-two-year
sentence. On appeal, the Petitioner contends that the post-conviction court erred by
denying relief on his ineffective assistance of counsel claims and that he was prejudiced by
the cumulative effect of counsel’s multiple instances of deficient performance. We reverse
the judgment of the post-conviction court and remand this case for a new trial.

In Re Jaylynn J.
M2023-01496-COA-R3-PT
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Sheila Calloway

This appeal involves the termination of parental rights of a mother.  The juvenile court found by clear and convincing evidence that five grounds for termination were proven and that termination was in the best interest of the child.  The mother appeals.  On appeal, DCS maintains that four grounds for termination were sufficiently proven against the mother.  We vacate one ground due to insufficient findings by the trial court.  We conclude that the three other remaining grounds for termination were sufficiently proven, but due to insufficient findings in the termination order, we vacate the court’s determination that termination of the mother’s parental rights was in the best interest of the child and remand for the court to consider all of the relevant best interest factors and detail its findings.  Accordingly, we affirm in part, reverse in part, vacate in part, and remand for further proceedings.

Matthew Ooten v. Jason Baril
E2022-01673-COA-R3-CV
Authoring Judge: Judge John McClarty
Trial Court Judge: Judge Christopher D. Heagerty

The plaintiff, a founding member of a law firm, filed this action against other members. The trial court found that the defendant members violated their duty of good faith and fair dealing, breached their contract with the plaintiff, violated their fiduciary duty toward the plaintiff, engaged in a conspiracy, and committed conversion. We affirm the ruling of the trial court.

Robert R. Batson, Sr. Revocable Living Trust, by Sean Batson v. Diane Batson-Smith Et Al.
M2024-00739-COA-T10B-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Matthew Joel Wallace

The Petitioners seek accelerated interlocutory review of an order denying their motion to
recuse. However, because the Petitioners’ filings fail to comply with Tennessee Supreme
Court Rule 10B, we dismiss the appeal.

State of Tennessee v. Mykhah Calvin Simon
M2023-00814-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge Forest A. Durard, Jr.

The Defendant, Mykhah Calvin Simon, appeals his convictions for possession of one-half gram or more of methamphetamine with intent to sell and deliver, possession of less than one-half gram of fentanyl with intent to sell and deliver, and driving on a suspended license, second offense. On appeal, the Defendant argues that (1) the evidence was insufficient to sustain his convictions and (2) his sentence was excessive. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Rickey Na'Tarius Porter
E2023-00876-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Andrew Freiberg

Defendant, Rickey Na’Tarius Porter, appeals the consecutive six-year sentences he
received after pleading guilty to one count of aggravated burglary, two counts of
aggravated assault, and one count of employment of a firearm during the commission of a
dangerous felony. Because the trial court improperly sentenced Defendant to the maximum
sentence in the range on each offense as an especially mitigated offender, we reverse the
judgments of the trial court and remand for resentencing.

In Re Temperance A.
M2023-00641-COA-R3-PT
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Matthew Joel Wallace

Mother appeals the termination of her parental rights.  The trial court found four statutory grounds for termination: abandonment by failure to visit, abandonment by failure to support, persistent conditions, and failure to manifest an ability and willingness to assume custody.  The trial court also concluded termination was in the child’s best interest.  Neither the guardian ad litem nor Mother received notice of the trial court’s Order.  Becoming aware of the trial court’s Order more than thirty days after the decision, Mother filed a motion asking the trial court to set aside and then re-enter its final order, seeking to ensure that she could still appeal.  The trial court granted Mother’s motion.  Mother appeals, arguing the trial court erred with regard to each ground of termination that it found and that its conclusion as to the best interest of the child was also in error.  On appeal, Petitioners, paternal grandparents seeking to terminate Mother’s parental rights, argue the trial court erred in setting aside and then re-entering its termination order and, consequently, that this court lacks jurisdiction over Mother’s appeal.  The Petitioners also defend the trial court’s termination decision on the merits.  We conclude this court has jurisdiction over Mother’s appeal, that the trial court did not err in finding that grounds were established for termination, and that the trial court did not err in finding that termination is in the best interest of the child.

State of Tennessee v. Brady O'Brien Holmgren
M2023-00795-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge James A. Turner

The trial court furloughed the Defendant, Brady O’Brien Holmgren, to a mental health court program following his convictions for domestic assault and aggravated assault. The furlough was later revoked, and he was ordered to serve his sentence. Nearly a year later, the Defendant filed a motion to modify his sentence. The trial court denied the motion, and the Defendant appealed. Upon our review, we hold that the Defendant has waived any issues by failing to properly prepare his brief in accordance with Tennessee Rule of Appellate Procedure 27. Accordingly, we respectfully affirm the trial court’s judgment.

State of Tennessee v. Emily Ashton Williams and Joel Scott Sweeney
M2023-00606-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Jennifer Smith

In this consolidated appeal, the defendants, Emily Ashton Williams and Joel Scott
Sweeney, appeal their Davidson County Criminal Court jury convictions of aggravated
child neglect. Defendant Sweeney argues that the evidence was insufficient to support his
conviction, that the trial court committed plain error by failing to require the State to make
an election of offenses, and that the trial court erred in sentencing him. Defendant Williams
argues that the evidence was insufficient to support her conviction. Discerning no
reversible error, we affirm.

Magnolia Pointe Homeowners' Association v. Kathryn Mitchell
E2022-1581-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Christopher D. Heagerty, Jr.

A homeowner’s association sought to enforce a recorded declaration of restrictive
covenants against a property owner in a subdivision. The property owner moved to dismiss
on the basis that the declaration did not appear in her chain of title and did not expressly
apply to her property. The HOA contended that language in the property owner’s chain of
title was sufficient to make the property subject to the restrictive covenants. And if not,
the restrictive covenants were enforceable as equitable servitudes. Without notice to the
parties, the trial court dismissed the action on an unasserted basis. We reverse.

Brian C. Frelix v. State of Tennessee
M2023-00291-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr
Trial Court Judge: Judge Joseph A. Woodruff

Petitioner, Brian C. Frelix, appeals from the Williamson County Circuit Court’s denial of his petition for post-conviction relief related to his convictions for four counts of aggravated robbery, four counts of aggravated assault, one count of aggravated burglary, and one count of theft of property valued at $1,000 or more, but less than $10,000.  Petitioner argues that the post-conviction court erred in denying relief based upon his claims that he received ineffective assistance of counsel because trial counsel failed to (1) raise a Double Jeopardy issue at trial or on direct appeal related to two of his aggravated robbery charges; and (2) raise a Brady issue on direct appeal related to the State’s failure to disclose three letters sent to the police by a jailhouse informant.  Petitioner also raises a freestanding claim that the State improperly withheld the letters in violation of Brady v. Maryland, 373 U.S. 83 (1963).  After a thorough review of the record, we affirm the judgment of the post-conviction court.

In Re Miguel P., et al.
W2023-01261-COA-R3-PT
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Special Judge W. Ray Glasgow

The Tennessee Department of Children’s Services filed a petition to terminate a mother’s parental rights to two of her children. The trial court found that two grounds had been proven and that termination of the mother’s parental rights was in the children’s best interests. Based on these findings, the court terminated the mother’s parental rights. The mother appeals. We reverse the trial court’s finding that the ground of persistence of conditions has been proven but affirm the trial court’s finding that another ground for termination has been proven and that termination of the mother’s parental rights is in the children’s best interests. Thus, we affirm the termination of the mother’s parental rights.

State of Tennessee v. Aaron Michael King
E2021-01375-CCA-R3-CD
Authoring Judge: Judge Kyle A. Hixson
Trial Court Judge: Judge G. Scott Green

The Defendant, Aaron Michael King, appeals his jury convictions for rape, rape of a child, statutory rape by an authority figure, incest, aggravated sexual battery, especially aggravated sexual exploitation of a minor, tampering with evidence, especially aggravated kidnapping, and aggravated kidnapping. For these convictions, he received an effective seventy-seven-year sentence. On appeal, the Defendant argues that (1) there was insufficient evidence to support his kidnapping convictions because they were merely incidental to the contemporaneous rapes; (2) the trial court erred by failing to grant his motion for a mistrial after a State’s witness impermissibly vouched for the victim’s credibility; (3) the trial court erred by failing to grant his motion for new trial where defense counsel, who was acting as treasurer for the prosecuting assistant district attorney general’s campaign for a general sessions court judgeship during the Defendant’s trial, had an impermissible conflict of interest; and (4) the cumulative effect of these errors entitle him to a new trial. After our review, we conclude that sufficient evidence supports the challenged convictions, that the trial court properly denied a mistrial, and that the Defendant is not entitled to relief pursuant to the cumulative error doctrine. We further conclude that no adverse effect resulted from the improper conflict of interest. We affirm the judgments of the trial court.

Lindsey Brooke Lowe v. State of Tennessee
M2022-01490-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Dee David Gay

Petitioner, Lindsay Lowe, was convicted by a Sumner County jury of two counts of first
degree murder and two counts of aggravated child abuse for killing her newborn twin sons
shortly after their birth at her parents’ home and concealing their bodies in a laundry basket.
State v. Lowe, 552 S.W.3d 842, 846-48 (Tenn. 2018), cert. denied, 139 S. Ct. 1204 (2019).
Her convictions and resulting life sentence were affirmed on direct appeal, and the
Tennessee Supreme Court affirmed. Id. Petitioner unsuccessfully sought rehearing.
Petitioner then sought a writ of certiorari in the United States Supreme Court, which was
denied. Id. Petitioner ultimately filed an untimely petition for post-conviction relief in
which she made innumerable allegations of ineffective assistance of counsel as well as
several constitutional violations that she argued necessitated reversal of her convictions.
Petitioner also requested due process tolling of the post-conviction statute of limitations
based on erroneous legal advice about when the statute of limitations commenced.1 The
post-conviction court determined due process tolling was warranted and permitted
Petitioner to have a lengthy hearing on the merits of the post-conviction petition. After the
hearing, the post-conviction court granted post-conviction relief on the basis that a juror
was presumptively biased against Petitioner, violating her right to a fair trial, and that trial
counsel’s failure to remove the juror violated Petitioner’s right to effective assistance of
counsel. The post-conviction court did not address the merits of any of the remaining
claims in the petition. In this timely State appeal, we determine first that the postconviction
court improperly granted due process tolling of the statute of limitations for
post-conviction relief. Additionally, because the post-conviction court went on to grant
post-conviction relief, we review those findings of fact and conclusions of law and
determine that the post-conviction court also erred in finding that the juror was
presumptively biased and that trial counsel was ineffective. As a result, we reverse and
remand the judgment of the post-conviction court. All of Petitioner’s convictions are
reinstated and her petition for post-conviction relief is dismissed.