Appellate Court Opinions

Format: 09/20/2021
Format: 09/20/2021
State of Tennessee v. Khamphonh Xayyasith
M2020-00379-CCA-R3-CD

The Defendant, Khamphonh Xayyasith, was convicted by a Davidson County Criminal Court jury of three counts of aggravated assault, a Class C felony, and domestic assault, a Class A misdemeanor. See T.C.A. §§ 39-13-102 (2018) (subsequently amended) (aggravated assault); 39-13-111 (2018) (domestic assault). The trial court merged the aggravated assault convictions and imposed concurrent sentences of fifteen years for aggravated assault and eleven months, twenty-nine days for domestic assault. On appeal, the Defendant contends that (1) the evidence is insufficient to support his aggravated assault convictions, (2) the trial court erred by admitting a recorded jail telephone call, and (3) his sentence is excessive. We affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 09/20/21
Ronald Whitford Et Al. v. Village Groomer & Animal Inn, Inc.
M2020-00946-COA-R3-CV

A property owner filed suit against the owners of a neighboring property, alleging that the neighbors had created a nuisance and trespassed by diverting surface water onto his property and causing a sinkhole to develop. After a trial on the matter, a jury returned a verdict finding that the neighbor had not created a nuisance and had not trespassed. The trial court judge confirmed the jury’s verdict and dismissed all claims against the neighbor with prejudice. Because the record contains material evidence supporting the jury’s verdict, we affirm.

Montgomery County Court of Appeals 09/17/21
Sarah H. Richardson v. Benjamin N. Richardson
M2020-00179-COA-R3-CV

Mother appeals the trial court’s decision to change the parties’ permanent parenting plan to designate Father as the primary residential parent of the children. Discerning no reversible error, we affirm. 

Montgomery County Court of Appeals 09/17/21
State of Tennessee v. Reginald Bond
W2020-01455-CCA-R3-CD

The defendant, Reginald Bond, appeals the Madison County Circuit Court’s order revoking his probation and ordering him to serve the balance of his six-year sentence in confinement. Discerning no error, we affirm.

Madison County Court of Criminal Appeals 09/16/21
Dennis Allen Rayfield v. State of Tennessee
M2020-00546-CCA-R3-PC

The petitioner, Dennis Allen Rayfield, appeals the denial of his petition for post-conviction relief, which petition challenged his conviction of first degree murder, alleging that the trial court committed errors which deprived him of his constitutional rights to due process and a fair trial and that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

Wayne County Court of Criminal Appeals 09/16/21
Johnny Lee Jenkins v. State of Tennessee
W2021-00032-CCA-R3-PC

The Petitioner, Johnny Lee Jenkins, was convicted of voluntary manslaughter, attempted voluntary manslaughter, and two counts of employing a firearm during the commission of a dangerous felony. One of the counts of employing a firearm during the commission of a dangerous felony was dismissed after the Petitioner filed a motion for new trial, and this court reversed and vacated the voluntary manslaughter conviction on direct appeal and remanded the case for entry of corrected judgments to reflect a conviction for reckless homicide. On appeal, the Petitioner asserts that he received ineffective assistance of counsel, specifically contending that trial counsel failed to argue the inclusion of lesser-included offenses. Upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 09/15/21
State of Tennessee v. Courtney Perry
W2020-01682-CCA-R3-CD

The Petitioner, Courtney Perry, appeals the summary dismissal of his “Motion to Correct Illegal Sentence” pursuant to Tennessee Rule of Criminal Procedure 36.1. Upon our review, we affirm the summary dismissal of the motion.

Shelby County Court of Criminal Appeals 09/15/21
Abraham Best v. City of Memphis
W2021-00020-COA-R3-CV

Former firefighter who alleged miscalculation of his Line of Duty disability benefits brought an action for breach of contract, negligence, and negligent infliction of emotional distress against the City of Memphis. In this appeal from the trial court’s dismissal of the complaint pursuant to Tennessee Rule of Civil Procedure 12.02(1) we affirm the trial court.

Shelby County Court of Appeals 09/15/21
County of Sumner, In Its Own Capacity And For The Use And Benefit Of The State Of Tennessee, Et Al. v. Delinquent Taxpayers As Shown On The Real Property Tax Records, Jay Kalbes
M2020-01119-COA-R3-CV

This is an appeal by a pro se appellant. Due to the deficiencies in the appellant’s brief on appeal, we conclude that he waived consideration of any issues on appeal and hereby dismiss the appeal.

Sumner County Court of Appeals 09/15/21
In Re Kendall K.
M2021-00204-COA-R3-PT

An issue regarding attorney’s fees remains pending.  As such, the order appealed from does not constitute a final appealable judgment, and this Court lacks jurisdiction to consider this appeal.

Robertson County Court of Appeals 09/15/21
State of Tennessee v. Emmanuel Wallace
M2020-00484-CCA-R3-CD

Emmanuel Wallace, Defendant, and co-defendant Joshua Aretz were indicted for their roles in the shooting death of Savon Easterling in Clarksville in August of 2015.  Defendant was indicted for premeditated murder, felony murder, and aggravated robbery.  Defendant elected to proceed to trial.  After the presentation of the proof, the trial court granted a motion for judgment of acquittal with respect to the offense of aggravated robbery.  The trial court submitted the lesser-included offenses of attempted aggravated robbery, attempted robbery, and attempted theft of property for the jury’s consideration.  After deliberating, the jury found Defendant guilty of second degree murder and felony murder but not guilty of attempted aggravated robbery and all lesser included offenses.  The trial court sentenced Defendant to an effective life sentence after merging the convictions.  After the denial of a motion for new trial, Defendant appealed to this Court.  On appeal, Defendant argues that the jury’s verdict was inconsistent because he was found guilty of felony murder and not guilty of the underlying felony.  He also argues that the trial court improperly responded to a jury question in violation of Tennessee Rule of Criminal Procedure 30(c).  After a thorough review of the record and the briefs, we determine that Defendant is not entitled to relief.  Consequently, the judgments of the trial court are affirmed.

Montgomery County Court of Criminal Appeals 09/15/21
State of Tennessee v. Zacarias Salas-Rufino
E2020-00986-CCA-R3-CD

Aggrieved of his Hamilton County Criminal Court jury conviction of second degree murder, the defendant, Zacarias Salas-Rufino, appeals, challenging the admission of certain telephone calls and the testimony of the medical examiner on the issue of “excited delirium.” Discerning no error, we affirm.

Hamilton County Court of Criminal Appeals 09/14/21
Tennessee Farmers Mutual Insurance Co. v. John A. Simmons Et Al.
E2020-00791-COA-R3-CV

In the underlying declaratory judgment action, an insurance company sought a judgment that an automobile insurance policy issued to a mechanic does not provide coverage for an accident involving the mechanic. After examining the mechanic under oath, the insurance company moved for summary judgment, arguing that the policy contained a business purpose exclusion for accidents occurring while road testing a vehicle, which the mechanic stated he was doing at the time the accident occurred. The mechanic responded with an affidavit asserting that he was driving the vehicle for personal errands. The trial court denied the motion, finding that there was a genuine issue of material fact as to the mechanic’s purpose for driving the vehicle. At trial, the mechanic testified that he was running personal errands at the time of the accident but offered no explanation for his contradictory sworn statements. Following the close of proof, the insurance company renewed its argument regarding the policy’s exclusion and moved for a directed verdict. The trial court denied the motion and submitted the matter to a jury, which found that the exclusion did not preclude coverage of the accident.

Loudon County Court of Appeals 09/14/21
Lee Ann Polster v. Russell Joseph Polster
M2020-01150-COA-R3-CV

In this divorce case, a husband appeals the trial court’s denial of his motion to alter or amend, arguing that the court should not have granted the divorce on the ground of irreconcilable differences or approved the parties’ marital dissolution agreement when the husband purportedly withdrew his consent to the divorce, lacked the capacity to enter into a marital dissolution agreement, and was under duress at the time he executed it. He also argues that his due process rights were infringed. Upon our review, we affirm the judgment of the trial court. We also award the wife her attorney’s fees for this appeal and remand to the trial court for a calculation of those fees.

Montgomery County Court of Appeals 09/14/21
Michael Bailey v. State of Tennessee
W2019-02152-CCA-R3-PC

The pro se Petitioner, Michael Bailey, appeals the denial of his petition for post-conviction relief in seven cases that resulted in his convictions for eight counts of aggravated robbery and one count of aggravated assault and an effective sentence of two consecutive life terms without the possibility of parole. Based on our review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 09/13/21
State of Tennessee v. Clarence Willis Moore, Jr.
M2020-00704-CCA-R3-CD

The Wilson County Grand Jury charged Defendant, Clarence Willis Moore, Jr., with four counts of selling 0.5 grams or more of cocaine within 1,000 feet of a child care agency in violation of the Drug-Free School Zone Act.  Following trial, a jury convicted Defendant in counts one and three of sale of “Schedule II, cocaine, within 1,000 feet of a school zone.”[1]  The jury found Defendant not guilty in counts two and four.  At the sentencing hearing, the trial court determined that Defendant’s Class B felony convictions were not subject to a one classification increase under Tennessee Code Annotated section 39-17-432(b)(1) because the offenses occurred within the prohibited zone of a childcare center.  See Tenn. Code Ann. § 39-17-432(b)(3) (2016).  The court sentenced Defendant as a Range III persistent offender to twenty-five years in Count 1 and twenty-two years in Count 3, ran the sentences consecutively, and imposed a fine of $2,000 on each count.  Pursuant to Tennessee Code Annotated section 39-17-432(c), the court ordered Defendant to serve the minimum twenty-year sentence on each count.  Following a thorough review of the record and applicable law, we conclude that the evidence was insufficient to prove that the offenses occurred within 1,000 feet of a childcare center or a child care agency.  Because the evidence was insufficient to establish a violation of section 39-17-432(b), the court erred in ordering Defendant to serve the minimum sentences for the two Class B felonies.  Accordingly, we affirm the judgments of conviction and the total effective sentence of forty-seven years with a release eligibility of forty-five percent but modify the sentence to exclude the harsher penalty requiring service of the twenty-year minimum sentence on each count.  We remand for entry of new judgments of conviction for Counts 1 and 3 consistent with this opinion.


 
Wilson County Court of Criminal Appeals 09/13/21
In Re Christopher L.
M2020-01449-COA-R3-PT

This case concerns the termination of a father’s parental rights to his son. The trial court predicated termination of parental rights on the ground of abandonment by failure to visit and found termination of the father’s parental rights was in the child’s best interest. We have determined that the record contains clear and convincing evidence to support the trial court’s findings and affirm the termination of the father’s parental rights. 

Lewis County Court of Appeals 09/13/21
E Solutions For Buildings, LLC v. Knestrick Contractors, Inc., Et Al.
M2020-01189-COA-R3-CV

This is the third appeal in a dispute among a general contractor, a subcontractor, and an equipment supplier. Each party blamed the others for delays in a construction project. After the first appeal was dismissed for lack of a final judgment, the trial court held each party partially responsible for the delays and partially responsible for liquidated damages assessed by the owner. In the second appeal, this court modified the judgment in part, reversed it in part, and remanded for further proceedings. On remand, the subcontractor sought to recover from the general contractor discretionary costs of $10,962.42, attorneys’ fees of $220,724.53 under the Prompt Pay Act of 1991, Tenn. Code Ann. §§ 66-34-101 to -704, and “[a]dditional charges.” The trial court awarded some of the requested fees but excluded $100,350 of attorneys’ fees attributed to legal services rendered during the first and second appeal because the subcontractor’s request for appellate attorneys’ fees was untimely, i.e., the relief had not been requested in the pleadings in the prior appeals. The trial court also denied $29,685 in fees incurred in the trial court proceedings for legal services that were “unrelated to [the general contractor].” The trial court also found the subcontractor was not entitled to recover the “[a]dditional charges” because the remand from the Court of Appeals did not authorize such expenses. This appeal followed. The principal issues in this appeal concern the subcontractor’s claims for attorneys’ fees and additional expenses and whether the general contractor’s surety is secondarily liable for one of the judgments. Finding no error, we affirm the trial court’s judgment in all respects.

Davidson County Court of Appeals 09/13/21
Fred Auston Wortman, III v. State of Tennessee Board Of Parole, Et Al.
M2020-01554-COA-R3-CV

After being denied parole, Fred Auston Wortman, III (“Plaintiff”) filed suit against the State of Tennessee (the “State”), the Tennessee Board of Parole (the “Board”), several board members and other state employees, and two assistant district attorneys in the Chancery Court for Davidson County (the “trial court”). Several defendants moved for dismissal for failure to state a claim for which relief can be granted. The trial court granted the motion to dismiss and Plaintiff appealed to this Court. Because the trial court’s order is not final, however, we lack subject matter jurisdiction to hear this appeal. The appeal is therefore dismissed.

Davidson County Court of Appeals 09/13/21
Hunter Ryan Ellis, Et Al. v. Christina L. Duggan, Et Al.
E2020-00723-COA-R3-CV

This is a case involving allegations of undue influence. The plaintiffs are the grandchildren of the decedent. The sole defendant at issue on appeal is the decedent’s niece, who also held power of attorney for the decedent during the last years of her life. The transaction at issue occurred roughly six months before the decedent died and consisted of a gift of $176,000 to the niece for the purchase of a house. The executor of the decedent’s estate declined to pursue the claim for undue influence and assigned the cause of action to the decedent’s four grandsons, who were the residuary beneficiaries of the estate. After a five-day bench trial, the trial court found that a confidential relationship existed between the decedent and the defendant niece and that multiple suspicious circumstances existed to support a finding of undue influence. As such, the trial court entered a judgment against the defendant niece for $176,000. However, the trial court denied the plaintiffs’ request for attorney fees on the basis that they were “not available under the current caselaw relating to undue influence.” The defendant niece appeals, challenging the finding of undue influence. The plaintiffs appeal the denial of their request for attorney fees. Having carefully reviewed the voluminous record, we affirm the finding of undue influence and the judgment against the defendant niece. We reverse the denial of the plaintiffs’ request for attorney fees and remand for a reasonable award of attorney fees incurred by the plaintiffs in the trial court and on appeal.

Hamilton County Court of Appeals 09/10/21
Larry Lee Johnson v. State of Tennessee
W2020-00753-CCA-R3-ECN

The Petitioner, Larry Lee Johnson, appeals from the Shelby County Criminal Court’s summary dismissal of his petition for writ of error coram nobis, wherein he claimed that first coram nobis counsel refused to amend the original coram nobis petition after discovery of two witnesses’ statements that might have led to a different result had they been available at trial. The Petitioner contends that the coram nobis court erred by summarily dismissing his petition as having been untimely filed and for failing to state a cognizable claim for relief. Following our review, we affirm the judgment of the coram nobis court.

Shelby County Court of Criminal Appeals 09/09/21
Revail Murphy v. State of Tennessee
W2020-01298-CCA-R3-PC

The Petitioner, Revail Murphy, pled guilty in two separate cases to aggravated assault and sexual battery, respectively. The trial court sentenced the Petitioner as a Range III, persistent offender to a total effective sentence of ten years, to be served at forty-five percent. On appeal, the Petitioner asserts that he received ineffective assistance of counsel, contending that his guilty plea for aggravated assault was not “knowingly, voluntarily, and intelligently entered.” Upon our review, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 09/09/21
Walter Shegog v. State of Tennessee
W2019-01966-CCA-R3-PC

In 2014, the Petitioner, Walter Shegog, was convicted of theft of property valued at more than $1,000 but less than $10,000. The Petitioner received a twelve-year sentence as a Career Offender and later appealed his conviction to this court. We affirmed the judgment of the trial court. State v. Walter Shegog, No. W2014-02440-CCA-R3-CD, 2015 WL 12978195 (Tenn. Crim. App., at Jackson, Oct. 13, 2015), perm. app. denied (Tenn. Feb. 19, 2016). Subsequently, the Petitioner filed a petition for post-conviction relief alleging that the State had committed a Brady violation by withholding exculpatory evidence and that he had received the ineffective assistance of counsel on multiple bases. After a hearing, the post-conviction court denied the petition, and the Petitioner appeals. After review, we affirm the post-conviction court’s judgment.

Shelby County Court of Criminal Appeals 09/09/21
State of Tennessee v. Raymond Brandon Saffles
E2020-01116-CCA-R3-CD

The Defendant, Raymond Brandon Saffles, was charged by criminal information with one count of arson, and he entered a guilty plea to this charge the same day. See Tenn. Code Ann. § 39-14-301. The trial court, after accepting his plea agreement, sentenced the Defendant to six years, suspended this sentence, and then ordered the Defendant to serve 364 days in jail before serving six years on supervised probation. The trial court also ordered that the Defendant have no contact with the victim or her property and that restitution would be determined at a later hearing. Following this hearing, the trial court entered a restitution order requiring the Defendant to pay restitution in the amount of $99,017.78 with a payment schedule of $50 per month for the length of his probationary sentence, which the trial court determined to be six years. On appeal, the Defendant argues: (1) the trial court erred ordering him to pay nearly $100,000 in restitution and to pay $50 per month over the term of his probation; and (2) no amount of restitution is appropriate because his Social Security benefits are exempt from court-ordered collection under 42 U.S.C. § 407(a) and that even if his benefits are not exempt, he does not have the ability to pay any amount toward restitution. We reverse the judgment of the trial court as to restitution and remand this case for entry of a corrected judgment of conviction and probation order and for a new restitution hearing consistent with this opinion.

Monroe County Court of Criminal Appeals 09/08/21
IN RE A.W.
M2020-00892-COA-R3-PT

A mother and an unknown father were the subjects of a petition to terminate parental rights and to adopt a child.  Only mother appeals.  She argues that she lacked notice of the proceedings and that the petitioners failed to comply with the parental termination statutes.  She also contests the statutory grounds relied on for terminating her parental rights and the trial court’s determination that termination was in her child’s best interest.  We affirm the termination of the mother’s parental rights.  But because the record does not reflect that the unknown father was served under the Tennessee Rules of Civil Procedure or the statutes governing substituted service, we vacate the judgment terminating his parental rights.

Rutherford County Court of Appeals 09/08/21