Kearn Weston v. State of Tennessee
W2015-00460-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Kearn Weston, appeals the denial of his petition for post-conviction relief. Petitioner argues that he received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge based on the loss of a surveillance video. Upon our review, we affirm the decision of the post-conviction court.

State of Tennessee v. Dwayne Moore
W2014-02432-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, Dwayne Moore, was convicted by a Shelby County jury of second degree murder and sentenced by the trial court as a Range I offender to twenty-two years at 100% in the Department of Correction. He raises two issues on appeal: (1) whether the trial court committed reversible error by allowing a police officer to offer improper opinion testimony about the appearance of a gun in a photograph and by admitting the photograph and the gun without a proper chain of custody; and (2) whether the evidence is sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

James A. Farley v. Tennessee Department of Safety and Homeland Security
M2014-02479-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This is an appeal from the trial court’s dismissal of a petition for judicial review for lack of subject matter jurisdiction. The petitioner is seeking to recover a motor vehicle he claims to own that was seized due to “illegal alterations to the vehicle’s identification numbers.” It is undisputed that the petitioner was never the registered owner of the vehicle, that he was not in possession of the vehicle when it was seized, and that he did not receive notice of the seizure of the vehicle or the issuance of the notice of forfeiture. More than 60 days after the Tennessee Department of Safety and Homeland Security issued the Order of Forfeiture, which constitutes the Department’s final order, the petitioner filed his petition for judicial review. His primary contention was that the Department of Safety failed to provide him with proper notice of the issuance of forfeiture warrant. The chancery court rejected this contention, concluding that he was not entitled to notice because he was never the registered owner. The court also found the petition for judicial review was untimely filed because administrative orders become final pursuant to Tenn. Code Ann. § 4-5-322(b)(1)(A) if a petition for judicial review is not filed within 60 days from the entry of the order. Concluding that the 60-day limitation period is jurisdictional, the court dismissed the petition for lack of subject-matter jurisdiction. We affirm.

Clayton Keltner, et al v. Estate of Mary Lois Simpkins, et al.
M2014-02023-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Robert E. Burch

This appeal involves a dispute arising from the plaintiff’s attempted exercise of an option to purchase a tract of land. In part, the contract provided that “a fair and equitable price for said property will be established at a later date.” The trial court held that the option was not enforceable because it was too vague with respect to price. The plaintiffs appealed. We affirm. 

State of Tennessee v. Christopher Scottie Itzol-Deleon - Dissent
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant argues on appeal that dual convictions for attempted aggravated sexual battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade Mouth incident, violate due process because they a part of a “single continuous criminal episode.”  Defendant asks this Court to utilize the five-factor test adopted by the supreme court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999).  The State, on the other hand, argues that the analysis in Barney is no longer controlling law because the supreme court relied on cases which have since been abrogated.  Because I believe the issue is more properly one of double jeopardy, I respectfully dissent.

State of Tennessee v. Christopher Scottie Itzol-Deleon
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Christopher Scottie Itzol-Deleon, was found guilty by a Davidson County Criminal Court jury of attempted aggravated sexual battery, a Class C felony, four counts  of aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A felony. See T.C.A. §§ 39-13-504 (2014) (aggravated sexual battery), 39-13-522 (2010,  2014) (rape of a child), 39-12-101 (2014) (criminal attempt).  He received an effective forty-year sentence.  On appeal, the Defendant contends that (1) the evidence is insufficient to establish the element of penetration for rape of a child in Counts 3 and 4, (2) the trial court erred in allowing separate convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3 and for rape of a child in Counts 4 and 5, (3) the court erred in permitting testimony regarding the Defendant’s excessive drinking, (4) the court erred in admitting a letter written by the victim to her mother, (5) the court erred in not redacting a portion of the Defendant’s statement to the police, (6) the court erred in admitting the victim’s school photograph, (7) the court erred in sentencing the Defendant as a Range II offender relative to his rape of a child convictions, and (8) the judgment in Count 6 contains a clerical error.  We merge Count 1, attempted aggravated sexual battery, with Count 3, rape of a child.  Although we affirm the convictions, we remand the judgments for Counts 1 and 3 for entry of amended judgments reflecting merger of the offenses.  We also modify the Defendant’s sentences relative to Counts 3, 4, and 5 to twenty-five years in each count at 100% service.  Finally, we remand the judgment in Count 6 for the correction of clerical errors.

In re K.J.G.
E2015-00087-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This is a termination of parental rights case. The trial court found clear and convincing evidence of grounds for terminating the parental rights of R.P.G. II, (father) to K.J.G. (the child). By the same quantum of proof, the court found that termination was in the child‘s best interest. Father appeals. We hold that the trial court‘s final judgment does not include or incorporate written findings of fact justifying its decision as required by Tenn. Code Ann. § 36-1-113(k) (2014). For this reason, we vacate the trial court‘s judgment and remand for further proceedings consistent with this opinion.

In re K.J.G. - Dissenting
E2015-00087-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Douglas T. Jenkins

D. MICHAEL SWINEY, C.J., dissenting.
I respectfully dissent from the majority’s decision in this case. I cannot agree with the majority as to the issue of what constitutes written findings of fact and conclusions of law sufficient to satisfy the requirements of ...

State of Tennessee v. Gerald Davis Thomas
E2014-01157-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Gerald Davis Thomas, was convicted by a Loudon County jury of one count of first degree premeditated murder. The trial court sentenced the Defendant to life imprisonment, which was to be served consecutively to a separate federal sentence. In this appeal, the Defendant raises the following issues for our review:  (1) whether the evidence is sufficient to sustain his conviction for first degree premeditated murder; (2) whether the State engaged in improper closing arguments; (3) whether the trial court erred in allowing expert testimony regarding a forensic ballistic match; (4) whether the admission of the victim’s autopsy report violated his right of confrontation; (5) whether the State failed to produce potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) whether trial counsel was ineffective; and (7) whether the trial court erred in denying his motion for additional DNA testing.Upon our review, we dismiss without prejudice the Defendant’s claim of ineffective assistance of counsel.  We also remand this matter to the trial court for entry of an order for additional DNA testing; specifically, the interior of the FUBU pants alleged to have been worn by the Defendant on the night the victim was killed and the substance recovered from underneath the victim’s nails.  In all other respects, we affirm the judgments of the trial court.

Wendy W. Rose v. Lisa Bushon, et al.
E2015-00644-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William T. Ailor

Wendy Rose filed suit alleging, among other things, breach of contract and misrepresentation by defendants Lisa Bushon and Innovative Risk Management, LLC. Later, on October 13, 2014, plaintiff filed a notice of “voluntary nonsuit” in the trial court.  She also faxed the notice to opposing counsel.  A hearing on a pending motion to disqualify the plaintiff’s counsel had been previously scheduled for October 14.  The hearing was held as scheduled.  Plaintiff, assuming that the case was concluded with the filing of her notice, did not appear at the hearing.  On October 20, 2014, the trial court entered an order granting plaintiff a voluntary nonsuit and dismissing the case without prejudice.  Defendants filed a motion to modify or amend the order of dismissal.  On December 17, 2014, the trial court entered an order disqualifying plaintiff’s counsel and awarding defendants attorney’s fees of $7,779.  We hold that Tenn. R. Civ. P. 41.01 grants plaintiff the free and unrestricted right to take a voluntary nonsuit.  Accordingly, we hold that the trial court erred in ordering the disqualification of counsel and awarding attorney’s fees after plaintiff filed the notice of voluntary dismissal and the trial court entered an order of dismissal.  We reverse the trial court’s judgment, which disqualified plaintiff’s counsel and awarded attorney’s fees to defendants.

BancorpSouth Bank v. 51 Concrete, LLC, et al.
W2013-01753-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Walter L. Evans

This is a conversion case. The appellant bank perfected a security interest in collateral for a loan made to its debtor. The debtor subsequently sold the collateral to appellee companies, representing that there were no liens on the collateral. The appellee companies subsequently resold the collateral. Later, the debtor defaulted on the loan, and the appellant bank obtained a default judgment against him. The debtor then filed bankruptcy. The appellant bank filed this lawsuit against the appellee companies for conversion, seeking the proceeds from the sale of the collateral. The trial court awarded judgments against both appellee companies, plus prejudgment interest accruing from the date of the appellant bank's prior default judgment against the debtor. The appellant bank appealed arguing, among other things, that the trial court erred in determining the date from which prejudgment interest began to accrue. The appellee companies contend that the appellant bank should not be awarded prejudgment interest. On appeal, we affirm the trial court's decision to award prejudgment interest but modify the amount of the award.

State of Tennessee Ex Rel. Michelle Amanda Creigton v. James Michael Hayner
M2014-02503-COA-R3-JV
Authoring Judge: Presiding Judge Frank Clement, Jr.
Trial Court Judge: Judge Barry R. Brown

Father seeks to declare a child support arrearage judgment entered in January 2005 void ab initio for lack of service of process. The dispositive issue is whether the petition for civil contempt and summons issued in August 2004 were properly served on Father. It is undisputed that the 2004 petition and summons were delivered to an attorney’s office and left with the receptionist. After learning that a summons and petition had been “served on Father” at her office, the attorney promptly notified Mother’s attorney she was not authorized to accept service on Father’s behalf and that she did not represent Father in the pending matter. When the petition came on for hearing, no one appeared on behalf of Father, and the juvenile court entered an arrearage judgment for the amount owed. Several years later, Father filed a motion seeking to set aside the 2005 judgment as void for lack of service of process. The motion was supported by affidavits from the attorney and Father. The attorney testified that she was not authorized to accept service on Father’s behalf and that she did not represent Father in the pending matter. In his affidavit, Father confirmed the testimony of the attorney and he further stated that he was in the United Kingdom when service of process was attempted. The juvenile court held that Father was properly served and denied the motion. Father appealed, insisting the January 2005 arrearage judgment was void ab initio for lack of service of process. The State, acting on behalf of Mother in this appeal, admits in its brief that service of process was not properly effectuated, and that the judgment obtained on January 2005 is void. We agree. Accordingly, the judgment of the juvenile court entered on November 25, 2014, is reversed, and this matter is remanded with instructions for the juvenile court to enter an order declaring the January 2005 arrearage judgment void.

Kenneth D. Hardy v. Tennessee State University, et al
M2014-02450-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Carol Soloman

Former state university police officer brought suit against the university, its governing board, and the university’s chief of police asserting causes of action under the Tennessee Public Protection Act (“TPPA”), the Tennessee Human Rights Act (“THRA”), and Title VII of the Civil Rights Act of 1964 (“Title VII”); the officer alleged that he had been discriminated against on the basis of his sex and in retaliation for filing a complaint of discrimination with the university and charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and that he was subjected to a hostile work environment and constructively discharged. At a hearing on the defendants’ motion for summary judgment on all causes of action the trial court orally granted the motion in full; in the final order the court adopted findings of fact and conclusions of law which had been prepared by counsel for defendants. The officer appeals the dismissal of all causes of action except for sex discrimination; he also asserts that the findings and conclusions do not comply with Tenn. R. Civ. P. 56.04. Holding that the findings and conclusions adopted by the court reflect the court’s independent analysis as required by Tenn. R. Civ. P. 56.04 with respect to the incidents which were alleged to violate the TPPA, we review the grant of summary judgment and affirm the judgment. As to the causes of action arising under Title VII and the THRA, we conclude that TSU was only entitled to summary judgment on the claim that the officer was constructively discharged and on all claims of retaliation except those arising from his transfer to the downtown campus and from multiple warnings the officer received for tardiness, and from his claim of a hostile work environment with respect to numerous write-ups he received. Accordingly, we remand the case for further proceedings related to those claims.    

John N. Moffitt v. Grady Perry, Warden
W2015-01763-CCA-R3-HC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Joseph H. Walker, III

The petitioner, John N. Moffitt was sentenced on September 15, 2014, to four years in the Department of Correction for reckless aggravated assault. He filed a pro se petition for writ of habeas corpus, claiming that his indictment was so defective that his restraint was unlawful. We affirm the dismissal of his habeas corpus petition, pursuant to Rule 20, Rules of the Court of Criminal Appeals.

Alexis Breanna Gladden v. Cumberland Trust and Investment Company et al.
E2015-00941-COA-R9-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Thomas Wright

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the signature of the trustee of the Alexis Breanna Gladden Irrevocable Trust (“the Trust”) on an investment/brokerage account agreement agreeing to arbitration binds the minor beneficiary of the Trust to conduct arbitration of unknown future disputes or claims. We find and hold that while the plain language of the trust agreement does allow the trustee to agree to arbitrate claims and disputes that have arisen, it does not allow the trustee to agree to arbitration of unknown future disputes or claims. Therefore, the signature of the trustee of the Trust on an investment/brokerage account agreement agreeing to arbitration does not bind the minor beneficiary to conduct arbitration of unknown future disputes or claims.

State of Tennessee v. Marcus Grady Hodge
M2015-01225-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Steve R. Dozier

The appellant, Marcus Grady Hodge, filed a motion to correct an illegal sentence in the Davidson County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1.  The trial court summarily denied the motion, and the appellant appeals the ruling. Based upon our review of the record and the parties’ briefs, we affirm the trial court’s denial of the motion but remand the case for correction of a clerical error on the judgments of conviction.

State of Tennessee v. Belinda Potter
W2015-01164-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Senior Judge Paul G. Summers

The defendant, Belinda Potter, pled guilty to theft of property valued at $60,000 or more, a Class B felony, and was sentenced as a Range I, standard offender to nine years in the Department of Correction and ordered to pay $55,809.69 in restitution. On appeal, she argues that the trial court erred in denying alternative sentencing. After review, we affirm the judgment of the trial court.

State of Tennessee Ex Rel. Daniel E. Blandford v. Tanya L. Blandford
E2015-00357-COA-R3-JV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Timothy E. Irwin

This appeal involves a juvenile court’s subject matter jurisdiction to address a post-divorce matter of child support. The parties were divorced through judgment entered by the Knox County Fourth Circuit Court. Although the Circuit Court initially ordered the mother to pay child support for the parties’ three children, the Circuit Court subsequently entered an agreed order in 2008, directing that neither party would be obligated to pay child support from that date forward. The father commenced the instant action on June 7, 2010, by filing a petition in the Knox County Juvenile Court, alleging dependency and neglect as to the mother. Following a hearing conducted on February 14, 2011, the Juvenile Court entered an agreed order awarding “custody” to the father and finding the children dependent and neglected as to the mother. The father subsequently filed a petition to set child support. Following a hearing conducted on June 1, 2012, the Juvenile Court magistrate entered findings and recommendations, setting the mother’s child support obligation.

State of Tennessee v. Timothy L. Jefferson
M2015-01321-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Amanda McClendon

Timothy L. Jefferson (“the Petitioner”) appeals from the summary dismissal of his Petition for Writ of Certiorari and Supersedeas (“the Petition”) for failure to make partial payment of the initial filing fee.  Upon review, we hold that the Petitioner filed sufficient documentation to show that he was unable to make partial payment of the initial filing fee.  However, we conclude that the trial court properly dismissed the Petition because the writ of certiorari is not available in this case.  Therefore, we affirm the judgment of the trial court.

Vodafone Americas Holdings, Inc. & Subsidiaries v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
M2013-00947-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Russell T. Perkins

In this appeal, we review a tax variance. The Commissioner of Tennessee’s Department of Revenue determined that, if the standard apportionment formula in Tennessee’s franchise and excise tax statutes were applied to the appellant taxpayer, a multistate wireless telecommunications company, nearly all of the taxpayer’s sales receipts for services to its Tennessee customers—over a billion dollars in receipts—would not be subject to Tennessee franchise and excise taxes.  Pursuant to his authority under Tennessee’s franchise and excise tax variance statutes, the Commissioner imposed on the taxpayer a variance that required the taxpayer to pay taxes on the receipts from its Tennessee customers. The taxpayer now argues that, by imposing the variance, the Commissioner has usurped the legislature’s prerogative to set tax policy.  After review of the legislative history, we find that Tennessee’s legislature intended for the Commissioner to have the authority to impose a variance where, as here, application of the statutory apportionment formula does not fairly represent the extent of the taxpayer’s business activity in Tennessee.  We decline to judicially abrogate the legislature’s express delegation of this authority to the Commissioner.  The variance in this case comports with Tennessee’s franchise and excise tax statutes, the implementing regulation, and the statutory purpose of imposing upon corporations a tax for the privilege of doing business in this State.  Finding no abuse of the Commissioner’s discretion, we affirm.

State of Tennessee v. Tyler Alexis Dixon
M2015-00543-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Forest A. Durard, Jr.

The appellant, Tyler Alexis Denton, pled guilty in the Lincoln County Circuit Court to three counts of selling less than one-half gram of cocaine within a drug-free zone and three counts of delivering less than one-half gram of cocaine within a drug-free zone, Class C felonies.  The trial court merged each count of delivering cocaine into its corresponding count of selling cocaine and sentenced the appellant to three, concurrent sentences of five and one-half years.  On appeal, the appellant contends that the length of his sentences is excessive.  Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.  However, we remand the case to the trial court for correction of the judgments.

Patrick Rico Edwards v. State of Tennessee
M2014-01839-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge Monte Watkins

Patrick Rico Edwards (“the Petitioner”) appeals from the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues (1) that his trial counsel was ineffective for failing to present at the sentencing hearing expert testimony about the Petitioner’s mental health; and (2) that his plea was unknowing and involuntary.  Additionally, the Petitioner contends that the post-conviction court’s failure to make findings of fact and conclusions of law about the voluntariness of his plea constitutes reversible error.  We conclude that the post-conviction court erred when it failed to make findings of fact and conclusions of law regarding the voluntary and intelligent nature of the Petitioner’s plea but such error was harmless in this case.  Further, we conclude that the Petitioner has failed to prove that he is entitled to post-conviction relief for either of his claims.  The judgment of the post-conviction court is affirmed.

Gdongalay P. Berry v. State of Tennessee
M2015-00052-CCA-R3-ECN
Authoring Judge: Judge Robert L. Holloway
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Gdongalay P. Berry (“the Petitioner”) was convicted of two of counts of first-degree premeditated murder, two counts of first-degree felony murder, two of counts especially aggravated kidnapping, and two of counts especially aggravated robbery in connection with the deaths of D’angelo McKinley Lee and Gregory Lanier Ewing. In this coram nobis proceeding, the Petitioner claims that a previously undisclosed videotaped interview of Yakou Murphy might have led to a different result had that interview been disclosed prior to trial.  After a hearing, the coram nobis court denied relief.  Discerning no error, we affirm the judgment of the coram nobis court.

Vodafone Americas Holdings, Inc. & Subsidiaries v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee - Concurring in Part and Dissenting in Part
M2013-00947-SC-R11-CV
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Russell T. Perkins

I agree with much of the analysis in the majority opinion. Indeed, although in my mind it presents a close question, I can agree with the majority that the taxpayer’s calculation of franchise and excise taxes under the statutory apportionment formula does not “fairly represent the extent of the taxpayer’s business activity” in Tennessee. See Tenn. Code Ann. § 67-4-2014(a) (2015). However, where I must part company with the majority is on the issue of the Commissioner’s compliance with the Tennessee Department of Revenue’s (“Department”) own regulation applicable in this case. See Tenn. Comp. R. & Regs. 1320-06-01-.35(1)(a)(4) (“the variance regulation”).

State of Tennessee v. Gary Wayne Garrett
M2015-01390-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Steve R. Dozier

The defendant, Gary Wayne Garrett, is serving an effective sentence of 119 years, following his convictions in 1986 for sixteen felonies.  Pursuant to Tennessee Rule of Criminal Procedure 36.1, the defendant filed a motion to correct what he views as sentences which are illegal because the trial court failed to award proper jail credits, and the court then entered an order providing the defendant with jail credits from October 31, 1985, until October 10, 1986.  The defendant appealed, arguing that he was entitled to additional credits, and we note that the State did not appeal the awarding of these credits. We conclude that the defendant has failed to present a colorable claim for relief in asking for additional credits, pursuant to Rule 36.1, and affirm the order of the court awarding only these credits.