Appellate Court Opinions

Format: 06/11/2021
Format: 06/11/2021
Kristin M. Myers v. State of Tennessee
E2020-01401-CCA-R3-PC

The petitioner, Kristin M. Myers, appeals the denial of her post-conviction petition, arguing the post-conviction court erred in finding she received the effective assistance of counsel at trial. After our review of the record, briefs, and applicable law, we affirm the denial of the petition. 

Loudon County Court of Criminal Appeals 06/11/21
State of Tennessee v. Jason Burchfield
E2020-01369-CCA-R3-CD

The trial court revoked the community corrections sentence of the defendant, Jason Burchfield, and ordered him to serve the remainder of his sentence in confinement. On appeal, the defendant contends that, while he did violate the terms and conditions of his alternative sentence, the trial court’s full revocation of his sentence was excessive and constituted an abuse of discretion. After a thorough review of the record, the applicable law, and the briefs of the parties, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 06/11/21
State of Tennessee v. Matthew Anthony Perry
E2020-00911-CCA-R3-CD

A Johnson County jury convicted the defendant, Mathew Anthony Perry, of unlawful possession of a firearm by a convicted felon, and the trial court imposed a sentence of fifteen years’ confinement. On appeal, the defendant argues the trial court erred in sentencing him as a Range II offender, asserting the State’s notice of enhanced punishment was deficient. The defendant also argues the trial court erred in failing to grant a mistrial based upon alleged improper testimony. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court. However, we remand the matter for the sole purpose of ensuring that judgment forms were entered for each count of the indictment.

Johnson County Court of Criminal Appeals 06/11/21
Gene Lovelace Enterprises, LLC Et Al. v. City of Knoxville Et Al.
E2019-01574-COA-R3-CV

This is the second appeal of this action concerning the enforceability of a licensing ordinance applicable to sexually oriented businesses in the City of Knoxville. The trial court found the ordinance lawful upon remand from this court and granted summary judgment in favor of the City. We affirm.

Knox County Court of Appeals 06/11/21
State of Tennessee v. James Michael Martin
E2020-00097-CCA-R3-CD

The defendant, James Michael Martin, appeals his Greene County Criminal Court jury conviction of driving under the influence (“DUI”), arguing that the trial court erred by denying his motions to dismiss and suppress and that the evidence was insufficient to support his conviction. Discerning no error, we affirm.

Greene County Court of Criminal Appeals 06/10/21
State of Tennessee v. Douglas M. Ferguson
E2020-00400-CCA-R3-CD

The Sullivan County Grand Jury indicted Douglas M. Ferguson, Defendant, for attempted first degree premeditated murder in count one, aggravated assault in count two, and reckless endangerment in count three. Following a trial, the jury convicted Defendant of misdemeanor reckless endangerment in count one, aggravated assault in count two, and felony reckless endangerment in count three. The trial court merged counts one and three into count two, sentenced Defendant to five years in the Tennessee Department of Correction with a thirty percent release eligibility, and imposed a fine of $10,000. On appeal, Defendant argues that the trial court erred by denying alternative sentencing and by ordering Defendant to pay an excessive fine. Upon a thorough review, we affirm the judgments of the trial court.

Sullivan County Court of Criminal Appeals 06/10/21
Frederick Jones Et Al. v. Reda Homebuilders, Inc.
M2020-00597-COA-R3-CV

Appellants purchased a home from Appellee home builder and later discovered numerous defects in the construction of the home. Appellants sued Appellee for breach of contract, breach of warranty, and negligence, and the trial court entered judgment in favor of Appellants. Appellants appeal the trial court’s denial of their motion for attorney’s fees under the provisions of the parties’ contract. Appellee appeals the trial court’s award of damages as speculative. We affirm the trial court’s award of damages in favor of Appellants and reverse the trial court’s denial of Appellants’ motion for attorney’s fees.  

Montgomery County Court of Appeals 06/10/21
State of Tennessee v. Shanthony Mays
W2020-00201-CCA-R3-PC

The Petitioner, Shanthony Mays, filed a petition for post-conviction relief challenging his convictions for aggravated robbery, aggravated assault, and unlawful possession of a weapon and the resulting twelve-year sentence. The post-conviction court denied relief, and the Petitioner appeals. On appeal, the Petitioner alleges the following: (1) that he provided new evidence establishing an improper jury venire; (2) that trial counsel was ineffective by failing to provide statistical information to show the systematic exclusion of African-Americans in the jury venire of Obion County; (3) that trial counsel was ineffective by failing to properly examine the State’s witnesses regarding the admissibility of evidence and impeachment; (4) that trial counsel was ineffective by failing to file a pretrial motion regarding the chain of custody for “tainted evidence”; and (5) that the post-conviction court should have given more weight to the co-defendant’s recantation of his trial testimony. After our review, we affirm the judgment of the post-conviction court denying the Petitioner relief.

Obion County Court of Criminal Appeals 06/10/21
In re Anna H., et al.
E2020-01206-COA-R3-PT

This case involves a petition to terminate parental rights. The petition was filed by the children’s biological father and stepmother against the biological mother. The trial court terminated the mother’s rights, finding that the mother abandoned the children under Tennessee Code Annotated section 36-1-113(g)(1) and -102(1)(A)(iv) and that termination was in the best interest of the children. We affirm the trial court’s decision and remand.

Anderson County Court of Appeals 06/09/21
Tracy Roberson v. State of Tennessee
E2020-00643-CCA-R3-PC

Tracy Roberson, Petitioner, was convicted of one count of aggravated burglary, one count of especially aggravated kidnapping, one count of aggravated robbery, two counts of aggravated rape, and three counts of theft. The trial court sentenced Petitioner to an effective sentence of sixty years in the Tennessee Department of Correction. On direct appeal, this court modified one of the theft counts and merged the three theft convictions, affirming all other judgments. Petitioner filed a pro se post-conviction petition and three amended petitions through counsel. Following a hearing, the post-conviction court denied relief. On appeal, Petitioner argues that he was denied the effective assistance of counsel and due process. After a thorough review, we affirm the judgment of the post-conviction court.

Hamilton County Court of Criminal Appeals 06/09/21
In Re Brittany W. Et Al.
E2020-01631-COA-R3-PT

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Cocke County (“the Juvenile Court”) seeking to terminate the parental rights of Jamie W. (“Mother”) to her minor children, Brittany W. and Isaiah W. (“the Children,” collectively). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights on three grounds. Mother appeals, arguing that termination of her parental rights is not in the Children’s best interest. We find, first, that the grounds found against Mother were proven by clear and convincing evidence. We find further, also by clear and convincing evidence, that termination of Mother’s parental rights is in the Children’s best interest. We affirm the Juvenile Court.

Cocke County Court of Appeals 06/08/21
Angela Varner Nickerson v. Knox County, Tennessee
E2020-01286-SC-R3-WC

Employee filed a workers’ compensation claim against Employer alleging mental injury resulting from traumatic work-related experiences that occurred years earlier. Employer denied the claim and moved for summary judgment citing the statute of limitations. The Court of Workers’ Compensation Claims denied the motion. The Workers’ Compensation Appeals Board vacated the order and remanded for the court to consider whether it had subject matter jurisdiction based on Employee’s alleged date of injury. After a second hearing, the court again denied summary judgment, concluding the date of Employee’s mental injury should be determined by the “discovery rule” and the “last day worked” rule. The Appeals Board reversed and remanded for entry of an order of dismissal based on lack of subject matter jurisdiction. Employee appealed. 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 the judgment of the Appeals Board and adopt its opinion as set forth in the attached Appendix.

Workers Compensation Panel 06/08/21
State of Tennessee v. Ricky Allen Davis
E2019-01819-CCA-R3-CD

The Appellant, Ricky Allen Davis, was convicted in the Knox County Criminal Court of first degree premediated murder and unlawful possession of a firearm and received concurrent sentences of life and eight years, respectively. On appeal, the Appellant contends that the evidence is insufficient to support the convictions and that the trial court committed plain error by admitting a witness’s hearsay statement into evidence, by allowing a witness to testify that she saw the Appellant with a gun prior to the shooting when there was no evidence that it was the same gun used in the shooting, and by allowing a witness to testify that low-income people often shared cellular telephones and did not help the police due to fear of retribution. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

Knox County Court of Criminal Appeals 06/07/21
P.H. v. Gregory O. Cole
M2020-01353-COA-R3-CV

P.H. and Gregory O. Cole dated for a period of time between 2014 and 2018. P.H. learned in 2018 that she had become infected with HSV-2, a sexually transmitted disease commonly known as genital herpes. P.H. believed she contracted HSV-2 from Mr. Cole and filed a complaint against him asserting claims for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, and fraud. Mr. Cole denied transmitting HSV-2 to P.H. and underwent blood tests to determine whether or not he was infected. When his blood test came back negative for HSV-2, Mr. Cole moved for summary judgment and attached as an exhibit the declaration of Dr. Fritz Wawa, the physician in charge of the medical center where Mr. Cole had his blood drawn, as well as the test results showing his negative status for HSV-2. P.H. opposed the motion for summary judgment and suggested that Mr. Cole’s test results may have shown a false negative, and not be reliable, if he were immunocompromised. In response, Mr. Cole returned to the medical center to have additional blood drawn and tested for HIV. The additional test results showed that Mr. Cole did not have HIV and that he was not immunocompromised. Mr. Cole filed a reply to P.H.’s opposition to his motion for summary judgment and attached a second declaration from Dr. Wawa and a copy of his second blood test to show that he was not immunocompromised.

Davidson County Court of Appeals 06/07/21
Flora Gordon v. Cherie Felps Harwood Et Al.
E2021-00459-COA-R3-CV

The notice of appeal filed by the appellant, Flora Gordon, stated that the appellant was appealing the judgment entered on April 1, 2021. 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 06/04/21
State of Tennessee v. Desmond Price
W2020-00952-CCA-R3-CD

Desmond Price, Defendant, entered a guilty plea to one count of attempted conspiracy to possess more than 150 grams of heroin in exchange for a nine-year sentence and the dismissal of the remaining three counts of the indictment. The parties agreed that Defendant would serve his sentence consecutively to the sentence for another unrelated conviction. Subsequently, Defendant filed a motion pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure, arguing that he was a candidate for split confinement. The trial court denied the motion. This appeal followed. After our review, we determine that the trial court properly denied the relief sought by Defendant in the Rule 35 motion. Accordingly, the judgment of the trial court is affirmed. The matter is remanded to the trial court for entry of judgments dismissing the remaining three counts of the indictment.

Shelby County Court of Criminal Appeals 06/04/21
State of Tennessee v. Eric Manzenberger
E2020-00218-CCA-R3-CD

A jury convicted the Defendant of driving under the influence of an intoxicant, driving in excess of the speed limit, and violating the light law, and he received an effective sentence of eleven months and twenty-nine days, with the sentence to be suspended after fourteen days in confinement. On appeal, the Defendant asserts that the trial court erred in denying his motion to suppress certain statements made to law enforcement. After a review of the record, we conclude that the Defendant was not in custody under Miranda v. Arizona, 384 U.S. 436 (1966), and we affirm the judgments.

Sevier County Court of Criminal Appeals 06/03/21
State of Tennessee v. Crystal Michelle Rickman
W2020-00882-CCA-R3-CD

Defendant, Crystal Rickman, was convicted by a jury of aggravated assault by strangulation or attempted strangulation and domestic assault. The trial court imposed an effective fifteen-year sentence, as a Range III persistent offender, to be served in the Department of Correction. On appeal, Defendant argues: that the evidence was insufficient to support her convictions; that she was denied a fair and impartial trial because of inadmissible hearsay; that she was denied the right to a fair and impartial trial because neither the State nor the defense called the victim to testify at trial; that the trial court erred by failing to instruct the jury as to the missing witness rule; that the trial court erred by not allowing her to call witnesses to testify at the motion for new trial hearing; and that her sentence was excessive. Following our review of the entire record and the briefs of the parties, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 06/03/21
In Re Jayden L.
E2020-01668-COA-R3-PT

This is an appeal from a termination of parental rights case. While the trial court concluded that two grounds for termination existed in this case, it determined that there was a lack of clear and convincing evidence that the termination of the mother’s rights was in the child’s best interests. For the reasons stated herein, namely the absence of appropriate findings under Tennessee Code Annotated section 36-1-113(k), we vacate the trial court’s order with respect to the grounds for termination and remand the case for the preparation of appropriate findings of fact and conclusions of law.

Hawkins County Court of Appeals 06/03/21
Cynthia E.Yebuah, Et Al. v. Center For Urological Treatment, PLC
M2018-01652-SC-R11-CV

This is a healthcare liability action involving the application of the statutory cap on noneconomic damages to loss of consortium claims. The issue before the Court is whether the statutory cap on noneconomic damages applies separately to a spouse’s loss of consortium claim pursuant to Tennessee Code Annotated section 29-39-102, thus allowing each plaintiff to receive an award of up to $750,000 in noneconomic damages. Here, the surgery patient filed suit for noneconomic damages resulting from the defendant physicians’ negligence, namely that a portion of a Gelport device was unintentionally left in her body after surgery. In the same suit, the patient’s spouse claimed damages for loss of consortium. The jury awarded the patient $4,000,000 in damages for pain and suffering and loss of enjoyment of life. The jury also awarded her husband $500,000 in damages for loss of consortium. The trial court initially applied the statutory cap on noneconomic damages by entering a judgment in favor of both plaintiffs collectively for a total judgment of $750,000. However, the trial court subsequently granted the plaintiffs’ motion to alter or amend and applied the statutory cap to each plaintiff separately, thereby entering a judgment of $750,000 for the patient and $500,000 for her husband. The Court of Appeals affirmed. We hold that the language of Tennessee Code Annotated section 29-39-102 allows both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages. We therefore reverse the holding of the Court of Appeals and the trial court.

Davidson County Supreme Court 06/02/21
Cynthia E. Yebuah, Et Al. v. Center For Urological Treatment, PLC - Dissenting
M2018-01652-SC-R11-CV

This case illustrates how the damages cap statute, Tennessee Code Annotated section 29-39-102, deprives injured plaintiffs of fair compensation by arbitrarily limiting their awards for noneconomic damages. Cynthia Yebuah and her husband, Eric Yebuah, suffered noneconomic damages because of the carelessness of Mrs. Yebuah’s surgeon. Based on the evidence at trial, a jury awarded Mrs. Yebuah more than $750,000 in noneconomic damages for her pain and suffering and loss of enjoyment of life and awarded Mr. Yebuah less than $750,000 for his loss of consortium. The issue here is whether the trial court must apply the $750,000 statutory cap on noneconomic damages separately to each of the Yebuahs’ awards or to the combined total of their awards. If the cap is applied separately to each award, the trial court must slash the jury’s verdict to Mrs. Yebuah by 81% and allow Mr. Yebuah to recover all of the damages the jury awarded him. If the cap is applied to the combined total of the awards, then the trial court must cut the total award to the Yebuahs by 83%. Neither application can withstand constitutional scrutiny. I decline to choose between these two alternatives; both are unconstitutional violations of the Yebuahs’ right to trial by jury. See McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 701–09 (Tenn. 2020) (Lee, J., dissenting). 

Davidson County Supreme Court 06/02/21
Kwame Leo Lillard v. James Walker, Et Al.
M2020-00328-COA-R3-CV

This appeal arises out of a dispute over a mobile home and real property. Because the appealed order awards reasonable attorney’s fees but does not set the amount of those fees, we dismiss the appeal for lack of a final judgment.

Davidson County Court of Appeals 06/02/21
Cedra Deanntre Potts (Taylor) v. Starr Anastasia Potts
M2020-00170-COA-R3-CV

This appeal arises from the denial of the plaintiff’s Tenn. R. Civ. P. 60.02 motion requesting relief from an agreed-upon permanent parenting plan that was approved by the court and incorporated into the final divorce decree. The plaintiff contended that the defendant spouse lacked standing to seek custody and visitation of the minor children, who were conceived by in vitro fertilization;[1] therefore, the permanent parenting plan was void for lack of subject matter jurisdiction, i.e., standing was jurisdictional. The material facts are that the couple entered into a contract with a reproductive clinic in October 2013 to perform an in vitro fertilization procedure, with each party signing the contract as “Prospective Parent.” The reproductive clinic impregnated the plaintiff with embryos created from the plaintiff’s eggs and donated sperm. As a result of the procedure, the plaintiff gave birth to twins in July 2014. The parties, a same-sex couple, married in June 2015, shortly following the United States Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015). In August 2017, the plaintiff filed for divorce, contending there were no children born of the marriage, and the defendant filed an answer and a counter-complaint alleging there were two children born of the marriage and requesting that the court designate her as the primary residential parent. After the parties resolved all issues, the trial court entered a final divorce decree, incorporating an agreed-upon permanent parenting plan that (1) stated the children were a product of the parties’ marriage, (2) designated the plaintiff as the primary residential parent with 240 days of parenting time per year and designated the defendant as the alternate residential parent with 125 days of parenting time, (3) provided for joint decision-making authority, and (4) ordered the defendant to pay child support. Three months after the divorce decree became a final judgment, the plaintiff filed the Rule 60.02 motion at issue in this appeal. Following briefing and a hearing, the trial court determined that the defendant was able to establish parentage under Tenn. Code Ann. § 36-2-403 because she met the requirements of the statute, in that she was a party to the written contract consenting to the in vitro fertilization procedure, and she accepted full legal rights and responsibilities for the embryos and any children that resulted. The trial court also determined that the defendant was entitled to the presumption that she was the children’s parent in accordance with § 36-2-304(a)(4) because the defendant held the children out as her natural children. For these and other reasons, the trial court denied the plaintiff’s Rule 60.02 motion for relief. This appeal followed. Because the custody and visitation statutes specifically provide that only a parent has standing to seek custody and visitation in a divorce action, “the issue of standing is interwoven with that of subject matter jurisdiction and becomes a jurisdictional prerequisite.”Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). Therefore, the defendant must fit the statutory definition of “parent” for the court to have jurisdiction to grant visitation. Tennessee Code Annotated § 36-2-403 provides the single means of establishing the parentage of children born as a result of the in vitro fertilization procedure. See Tenn. Code Ann. § 36-2-401. Contrary to the plaintiff’s contention that all of the gametes (both the sperm and the egg) must be donated for § 36-2-403 to apply, we read the statute as addressing situations such as this one, where only half of the gametes are donated, as well as situations where all of the gametes are donated. Because the defendant contractually agreed to accept full legal rights and responsibilities for the embryos and any children produced as a result, the defendant is presumed to be the children’s parent under § 36-2-403(d); therefore, the defendant had standing to seek custody and visitation in the underlying divorce action. Accordingly, the trial court had subject matter jurisdiction over the controversy. For these reasons, we affirm the trial court’s decision to deny the plaintiff’s Rule 60.02 motion for relief from the judgment.

[1] Merriam-Webster’s Dictionary defines “in vitro fertilization” as “fertilization by mixing sperm with eggs surgically removed from an ovary followed by uterine implantation of one or more of the resulting fertilized eggs.” “In vitro fertilization.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/in%20vitro%20fertilization (last visited May 28, 2021). The applicable statutes—Tenn. Code Ann. §§ 36-2-401 to -403—primarily use the term “embryo transfer,” which is defined as “the medical procedure of physically placing an embryo in the uterus of a female recipient intended parent.” Tenn. Code Ann. § 36-2-402(4). The terms “in vitro fertilization” and “embryo transfer” are used interchangeably throughout this opinion.

Davidson County Court of Appeals 06/02/21
Khalid Almuawi v. Antwan Gregory
M2020-01018-COA-R3-CV

The plaintiff and defendant were in a car accident when the defendant’s car rear-ended the plaintiff’s car. The defendant admitted liability, leaving only the issue of damages for trial. The jury awarded the plaintiff some damages, but the plaintiff argued he was entitled to a larger sum than the jury awarded. The plaintiff also argued that the defendant’s attorney misrepresented the evidence in his closing argument and that he was entitled to a new trial. We conclude that the jury’s verdict was supported by material evidence and that the trial court did not abuse its discretion in denying the plaintiff’s motion for a new trial. 

Davidson County Court of Appeals 06/02/21
State of Tennessee v. Bobby Wayne Centers
M2019-02285-CCA-R3-CD

The Appellant, Bobby Wayne Centers, was convicted by a jury in the White County Criminal Court of the sale of 26 grams or more of methamphetamine, the delivery of 26 grams or more of methamphetamine, the possession of 26 grams or more of methamphetamine with the intent to sell; and the possession of 26 grams or more of methamphetamine with the intent to deliver. The trial court merged the sale of methamphetamine conviction and the possession with intent to sell methamphetamine conviction into a single conviction and merged the delivery of methamphetamine conviction and the possession with intent to deliver methamphetamine conviction into a single conviction. The trial court imposed concurrent sentences of eighteen years as a Range II, multiple offender with release eligibility after service of thirty-five percent of the sentence in confinement. On appeal, the Appellant contends that the trial court erred by allowing Agent Eaton to narrate the video of the drug transaction. Upon review, we conclude that the case must be remanded to the trial court for the correction of the judgments to reflect the merger of all of the convictions into the sale of methamphetamine conviction. The judgments of the trial court are affirmed in all other respects.

White County Court of Criminal Appeals 06/02/21