Santiago Toscani v. Nader Rahbe
E2011-00294-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge L. Marie Williams

The order from which the appellant Nader Rahbe seeks to appeal was entered on Wednesday, January 5, 2011. A notice of appeal was filed by the appellant on Tuesday, February 8, 2011, the 34th day following the entry of the trial court’s order. Because the notice of appeal was not timely filed, we have no jurisdiction to consider this appeal. Accordingly, the motion of the appellee to dismiss is granted. This appeal is dismissed.

Hamilton Court of Appeals

Robert Stabler v. Ramie Stabler-Marston
E2010-02230-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Senior Judge Walter C. Kurtz

The order from which the appellant Ramie Stabler-Marston seeks to appeal was entered on February 24, 2010. Notices of appeal were filed by the appellant on October 18, 2010, and October 20, 2010. Because neither of the notices of appeal was timely filed, we have no jurisdiction to consider this appeal. Accordingly, this appeal is dismissed.

Knox Court of Appeals

State of Tennessee v. Terry Gunter
E2010-02140-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge R. Jerry Beck

The defendant, Terry Wayne Gunter, appeals the sentencing decision of the Sullivan County Criminal Court. The defendant pled guilty to Class E felony forgery and Class D felony identity theft. Pursuant to the agreement, he was to be sentenced to concurrent terms of one year and two years, respectively, with the manner of service to be determined by the trial court. Following a hearing, the court ordered that the sentences be served in confinement. On appeal, the defendant contends that the trial court erred in denying him an alternative sentence, specifically probation. Following review of the record, we find no error and affirm the sentences as imposed.

Sullivan Court of Criminal Appeals

State of Tennessee v. Alvertis Boyd
W2010-01513-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Chris Craft

Following a jury trial, the Defendant, Alvertis Boyd, was convicted of aggravated robbery, a Class B felony. The Defendant was sentenced as a repeat violent offender to life imprisonment without the possibility of parole. In this appeal as of right, the Defendant contends (1) that the evidence is insufficient to sustain his conviction; (2) that the trial court erred in admitting two prior convictions as impeachment evidence; and (3) that the trial court erred in sentencing him as a repeat violent offender. Following our review, we affirm the judgment of the trial court.

Shelby Court of Criminal Appeals

John L. Houston v. Rhey Houston, et al.
E2010-02649-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Chancellor Jeffrey F. Stewart

The order of the trial court entered November 29, 2010, from which the appellant John L. Houston seeks to appeal, is not a final order. Accordingly, the appellant’s appeal is hereby dismissed.

Rhea Court of Appeals

State of Tennessee v. James Edward Farrar, Jr.
M2011-00838-CCA-RM-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Lee Russell

The defendant, James Edward Farrar, Jr., appealed the Bedford County Circuit Court’s revocation of his probation. This court reversed the trial court’s revocation, concluding that the State failed to establish a violation of probation by a preponderance of the evidence and that the trial court abused its discretion by revoking probation. See State v. James Edward Farrar, Jr., No. M2009-01285-CCA-R3-CD, slip op. 6 (Tenn. Crim. App., Nashville, Sept. 10, 2010). The State filed an application for permission to appeal to our supreme court. On April 14, 2011, the supreme court granted the State’s application and remanded the case to this court for reconsideration in light of the supreme court’s recent decision in State v. Teddy Ray Mitchell, ___ S.W.3d ___, No. E2008-02672-SC-R11-CD (Tenn. Mar. 21, 2011). We have reconsidered our prior opinion in light of Teddy Ray Mitchell, and following our review, we affirm the judgment of the trial court, although we reject part of that court’s rationale for the revocation.

Bedford Court of Criminal Appeals

State of Tennessee v. James Edward Farrar, Jr. - Concurring/Dissenting
M2011-00838-CCA-RM-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Lee Russell

The majority opinion has provided an excellent analysis of the facts and the law in this case, and I agree with the conclusion regarding the lack of evidence of public intoxication. I also believe that the present statute regarding revocation requires a preponderance of the evidence to show that a probation violation has occurred and that a subsequent decision regarding revocation is within the trial court’s discretion. See, e.g., State v. Vincent Jordan, No. M2009-02488-CCA-R3-CD, Montgomery County, slip op. at 3 (Tenn. Crim. App. Nov. 10, 2010); State v. Richard Thomas Jones, No. E2009-01241-CCA-R3-CD, Hamilton County, slip op. at 3 (Tenn. Crim. App. Jan. 7, 2010). I respectfully disagree, however, with the result reached regarding “excessive consumption of alcohol.” My problem in this case is with the concept of “excessive consumption” and what proves it has occurred.

Bedford Court of Criminal Appeals

In Re: Emily L.
E2011-00017-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor W. Frank Brown, III

In this Petition to terminate the parental rights of the father to two minor children, the Trial Court, following an evidentiary hearing, terminated the parental rights of the father on the statutory grounds of abandonment and held that it was in the best interests of the children that the father's parental rights be terminated. The father appealed, and upon our review we affirm the Judgment of the Trial Court.

Hamilton Court of Appeals

In Re: D.L.
E2011-00132-COA-R3-PT
Authoring Judge: Presiding Judge Herschel Pickens Franks
Trial Court Judge: Chancellor W. Frank Brown, III

In this Petition to terminate the parental rights of the father to two minor children, the Trial Court, following an evidentiary hearing, terminated the parental rights of the father on the statutory grounds of abandonment and held that it was in the best interests of the children that the father's parental rights be terminated. The father appealed, and upon our review we affirm the Judgment of the Trial Court.

Hamilton Court of Appeals

Keith Ezell v. State of Tennessee
W2010-00698-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge John T. Fowlkes, Jr.

The Petitioner, Keith Ezell, appeals from the Shelby County Criminal Court’s denial of his petition for post-conviction relief from his convictions for seven counts of especially aggravated kidnapping and four counts of aggravated robbery, for which he is serving an effective 198-year sentence. He contends that his trial attorney failed to provide effective assistance because counsel did not advise him that accepting a guilty plea offer was in his best interest and did not accurately advise him of the likelihood he would receive a greater sentence after a trial than if he accepted the plea offer. Upon review, we affirm the judgment of the trial court.

Shelby Court of Criminal Appeals

Bryant Adair v. State of Tennessee
W2010-01608-CCA-R3-PC
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge W. Otis Higgs, Jr.

The Petitioner, Bryant Adair, appeals from the Shelby County Criminal Court’s dismissal of his untimely filed petition for post-conviction relief from his convictions for especially aggravated kidnapping and two counts of aggravated robbery and from his effective sentence of thirteen and one-half years. On appeal, the Petitioner contends that principles of due process require the tolling of the applicable statute of limitations. We affirm the judgment of the trial court.

Shelby Court of Criminal Appeals

State of Tennessee v. Carl Lee Houghton
W2010-01482-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Donald H. Allen

The Defendant, Carl Lee Houghton, was found guilty by a Henderson County Circuit Court jury of aggravated sexual battery, a Class B felony. See T.C.A. § 39-13-504(a)(4) (2010). He was sentenced as a Range I, standard offender to ten years’ confinement in the Department of Correction. On appeal, he contends that (1) the evidence was insufficient to support his conviction, (2) the trial court erred by denying his motion to suppress his confession because it was not made voluntarily, and (3) the trial court erred in sentencing by not giving more weight to applicable mitigating factors. We affirm the judgment of the trial court.

Henderson Court of Criminal Appeals

State of Tennessee v. Carrie D. Young
W2010-01164-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge J. Weber McCraw

The defendant, Carrie D. Young, stands convicted of possession with intent to deliver 0.5 grams or more of cocaine, a Class B felony. The trial court sentenced her as a Range I, standard offender to an eight-year sentence, to serve 350 days with the remainder suspended. On appeal, the defendant argues that the trial court erred in denying the defendant’s motion to suppress and that the evidence was insufficient to support her conviction. Specifically, she argues that the trial court erred in finding that law enforcement had probable cause to do a field strip search of her, that the trial court erred in finding that the confidential informant was reliable, and that the proof was insufficient to show that she intended to deliver the cocaine. Following our review, we affirm the judgment of the trial court.

Fayette Court of Criminal Appeals

The Bank of Fayette County v. Simon M. Woody, Jr., d/b/a Royal Kingdom Builders
W2010-01798-COA-R3-CV
Authoring Judge: Judge Holly M. Kirby
Trial Court Judge: Chancellor William C. Cole

This is an action by the bank to recover against the debtor for defaulting on a loan. The plaintiff bank made a loan to the defendant debtor for the purchase of real property, and the property was pledged to secure the loan. The debtor defaulted on the loan, the property was sold, and the proceeds were applied to the debt. The bank filed this lawsuit against the debtor for the deficiency. After a bench trial, the trial court entered a judgment in favor of the bank. The debtor now appeals, arguing that the trial court erred in failing to grant him a continuance in order to obtain counsel. We affirm.

Fayette Court of Appeals

Linda Epps v. Civil Service Commission of the Metropolitan Government of Nashville and Davidson County, and the Metropolitan Action Commission
M2010-01929-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Russell T. Perkins

This appeal arises out of a dismissal of a petition for writ of certiorari in which review was sought of the denial of a grievance filed by an employee of the Metropolitan Action Commission’s Head Start program. The grievance was initially denied by the Executive Director of the Metropolitan Action Commission. The employee then appealed the grievance to the Metropolitan Civil Service Commission, which assigned the appeal to an administrative law judge; after a hearing, the administrative law judge denied the grievance. Upon further appeal, the Civil Service Commission overturned the administrative law judge’s decision and held in favor of the employee; the Civil Service Commission transmitted its decision to the Board of Commissioners of the Metropolitan Action Commission as a recommended final order. The Board of Commissioners rejected the recommended decision and voted to deny the grievance. When the employee sought to appeal the Board of Commissioner’s decision to the Civil Service Commission, that Commission responded that it had no further authority to hear the appeal because the employee was not an employee in classified service and because the Metropolitan Action Commission had final authority on grievance decisions involving employees of the Head Start program. The employee then sought review by writ of certiorari in chancery court, which found that the employee was not a civil service employee and was, therefore, not entitled to a second appeal to the Civil Service Commission; the court also found that the Metropolitan Action Commission had conformed to the applicable grievance process. On appeal, the employee asserts that she was employed in a civil service position and entitled to the grievance process set forth in the civil service rules. Finding that the grievance procedure applicable to employees in the classified service is not applicable to the employee and that the Action Commission properly exercised final authority on the grievance, we affirm the action of the trial court.

Davidson Court of Appeals

Anthony Bruce Colston v. Melinda Kay Colston
M2010-02094-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge C. L. Rogers

In this post-divorce proceeding, Husband appeals the trial court’s order requiring him to pay an alimony arrearage of $86,000.00. We affirm the judgment for the arrearage and remand the case for reconsideration of the requirement that Husband pay the arrearage at $1,500.00 per month.

Sumner Court of Appeals

Kathy H. Wright v. James Charles Wright
E2009-01932-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge W. Dale Young

In this post-divorce proceeding, the trial court granted the father sole custody and decision making authority over the parties’ minor children. The mother appealed. We affirm the judgment of the trial court on all issues.

Knox Court of Appeals

State of Tennessee v. David Earl Offutt
M2010-01296-CCA-R3-CD
Authoring Judge: Presiding Judge Joseph M. Tipton
Trial Court Judge: Judge Cheryl A. Blackburn

This case is before the court after remand to the Davidson County Criminal Court for sentencing after this court reinstated three convictions for attempted incest that the trial court incorrectly merged with three attempted rape convictions. On remand, the trial court sentenced the Defendant, David Earl Offutt, to serve four years for each of the Class D felony attempted incest convictions and ordered that the sentences be served consecutively to each other but concurrently with an effective eighteen-year sentence the Defendant was serving for other convictions. See T.C.A. §§ 39-12-101 (attempt), 39-15-302 (2010) (incest). On appeal, the Defendant contends that the trial court erred by imposing maximum sentences for his attempted incest convictions and ordering that they be served consecutively. We affirm the judgments of the trial court.

Davidson Court of Criminal Appeals

Cadlerock, LLC v. Sheila R. Weber
E2010-02137-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Telford E. Forgety, Jr.

The plaintiff, an assignee to a foreign judgment, filed a petition to domesticate the judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, found at Tenn. Code Ann. § 26-6-101 et seq. The defendant objected to the enrollment of the foreign judgment because it was assigned. After a hearing on the matter, the trial court denied the plaintiff’s motion to domesticate the foreign judgment and dismissed the case. The plaintiff appeals. Our review of the record reveals that the plaintiff properly followed the statutory requirements to enroll a foreign judgment. Accordingly, the trial court erred. We reverse.

Sevier Court of Appeals

Marla H., Individually and as Next Best Friend to her Daughter Moriah F. H. v. Knox County, et al.
E2010-01705-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Dale Workman

This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving. The trial court found the City of Knoxville liable for the student’s emotional injuries because the school resource officer who distributed the photographs intended  to evoke an emotional response. We conclude it was generally foreseeable that providing graphic  accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court’s finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.

Knox Court of Appeals

Nancy L. Blue v. State of Tennessee
W2010-02526-CCA-R3-PC
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Clayburn Peeples

A jury convicted the Petitioner, Nancy L. Blue, of two counts of rape of a child and two counts of incest. On direct appeal, this Court affirmed her convictions but modified her sentences. See State v. Nancy Blue, No. W2008-00187-CCA-R3-CD, 2009 WL 1097450, at *1 (Tenn. Crim. App., Jackson, Apr. 23, 2009), perm. to appeal denied, (Tenn. Sept. 28, 2009). The Petitioner filed a pro se petition for post-conviction relief; however, the postconviction court granted the State’s motion to dismiss, finding that the petition was not timely filed. The Petitioner alleges that both prison notaries were unavailable for several days preceding the date that her petition was due and, because of their absence, she was not able to get her petition to the appropriate prison authorities for mailing until the day after the one-year statute of limitations ran. After our review, we remand to  the post-conviction court for an evidentiary hearing to determine whether sufficient evidence exists to warrant tolling the statute of limitations for due process concerns and whether the Petitioner timely filed her petition for post-conviction relief.

Haywood Court of Criminal Appeals

State of Tennessee v. Carlos Walls
W2010-01129-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge Otis W. Higgs, Jr.

A Shelby County jury convicted the defendant, Carlos Walls, of aggravated sexual battery, a Class B felony. The trial court sentenced him as a Range I, violent offender to twelve years in the Tennessee Department of Correction. On appeal, the defendant argues that the evidence was insufficient to support his conviction, that the trial court erred in admitting the defendant’s statement to the Department of Children’s Services as evidence, and that the trial court applied improper enhancement factors. Following our review, we affirm the judgment of the trial court.

Shelby Court of Criminal Appeals

Sally Jo Witty v. Christopher Cantrell et al.
E2010-02303-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge David R. Duggan

Sally Jo Witty is a teacher employed by the Blount County School System. She filed this action after her request to draw pay from a pool of donated sick leave was denied. She named as defendants the trustees appointed to administer the pool (collectively “the Trustees”). She also sued the Blount County Board of Education (“the School Board”) and alleged it is vicariously liable. She demanded the full monetary value of the requested sick leave and also asked for damages to compensate her for the mental suffering resulting from the “wrongful” decision to deny her  benefits. The trial court held that the Trustees were an independent body for which the School Board could not be held vicariously liable. It also held that the Trustees were immune from liability in their individual capacities and that the action filed against the Trustees in their official capacity was a petition for writ of certiorari that was not timely filed. Therefore, it dismissed the complaint. Witty appeals. We affirm the trial court’s judgment in part and vacate it in part.

Blount Court of Appeals

State of Tennessee v. Derek Deon Hester
W2009-01608-CCA-R3-CD
Authoring Judge: Judge J.C. McLin
Trial Court Judge: Judge J. Weber McCraw

The defendant, Derek Deon Hester, stands convicted of felony murder; aggravated child abuse, a Class A felony; and aggravated rape of a child; a Class A felony. The trial court sentenced him as a Range I, violent offender to a life sentence for the felony murder conviction; as a Range I, violent offender to twenty years for the aggravated child abuse conviction, to be served concurrently with the life sentence; and as a Range III, violent offender to forty years for the aggravated rape of a child conviction, to be served consecutively to the life sentence, in the Tennessee Department of Correction. On appeal, the defendant argues that the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); that the trial court erred in granting the state’s motion to consolidate the cases; that the trial court erred in the admission and exclusion of certain evidence; and that the evidence was insufficient to support his convictions. Following our thorough review of the record, the parties’ arguments, and the applicable law, we affirm the judgments of the trial court.

Fayette Court of Criminal Appeals

Alonzo Fishback v. State of Tennessee
M2010-00900-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Don R. Ash

The petitioner, Alonzo Fishback, appeals the post-conviction court’s denial of his petition for post-conviction relief from his convictions for especially aggravated kidnapping, aggravated assault, and possession of a weapon during the commission of an offense. He argues that he received the ineffective assistance of counsel at trial and on appeal. After review, we affirm the denial of the petition.

Rutherford Court of Criminal Appeals