APPELLATE COURT OPINIONS

John Stalnaker, Jr. v. Carole Cupp

M2023-00404-COA-R3-CV

The beneficiary of a trust sued the trustee, who also served as the executor of the estate of the beneficiary’s stepmother, for various claims, including breach of fiduciary duty and conversion. The trustee moved to dismiss the petition pursuant to Tenn. R. Civ. P. 12.02(6), and the trial court granted the motion after concluding that the breach of fiduciary duty claim was time-barred and that the petition failed to allege facts sufficient to establish a claim for conversion. Discerning no error, we affirm the trial court’s decision.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Deanne B. Johnson
Williamson County Court of Appeals 06/18/24
State of Tennessee v. Jeremie Scott Modine

M2022-01183-CCA-R3-CD

A Maury County jury convicted Defendant, Jeremie Scott Modine, of one count of rape,
one count of domestic assault, three counts of violating a no-contact order, and two counts
of violating a protective order. Defendant argues on appeal that (1) the trial court
committed plain error in constructively amending the indictment to charge rape by lack of
consent, and (2) that the trial court erred in denying alternative sentencing. After careful
consideration, we hold that the trial court committed plain error in constructively amending
the indictment by instructing the jury on a mode of liability not charged in the indictment.
The trial court did not abuse its discretion in denying alternative sentencing. We therefore
vacate Defendant's rape conviction and remand this matter for a new trial on that count of
the indictment as well as correction of judgment forms as outlined in this opinion.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Stella L. Hargrove
Maury County Court of Criminal Appeals 06/18/24
Deirdra Ransom et al. v. Legends Bank

M2023-00132-COA-R3-CV

This appeal arises from a dispute regarding a residential property mortgage and the subsequent default, foreclosure, and eviction. Because the notice of appeal was not timely filed, we find that this court does not have jurisdiction over the matter. Accordingly, we dismiss the appeal.

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Judge Joe Thompson
Montgomery County Court of Appeals 06/18/24
Tyler Keith Parrish v. State of Tennessee

M2023-01270-CCA-R3-PC

Petitioner, Tyler Keith Parrish, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received the effective assistance of counsel. After our review of the record, briefs, and applicable law, we affirm the denial of the petition.

Authoring Judge: Judge Matthew J. Wilson
Originating Judge:Judge M. Wyatt Burk
Marshall County Court of Criminal Appeals 06/18/24
State of Tennessee v. Gregory Tyrone Dotson

M2023-00430-CCA-R3-CD

This is an appeal from the order of the trial court revoking a community corrections sentence. On February 18, 2022, the Appellant, Gregory Tyrone Dotson, entered a guilty plea to aggravated assault with a deadly weapon, vandalism, and possession with intent to sell .5 grams or more of a substance containing cocaine, for which he received an effective sentence of ten years to be served on community corrections. Following an evidentiary hearing, the trial court revoked the Appellant’s community corrections sentence based on the preliminary hearing testimony of Able Aguilar, the victim of the aggravated robbery as alleged in the violation warrant, and imposed the original ten-year sentence in confinement. On appeal, the Appellant contends the admission of Aguilar’s preliminary hearing testimony violated his confrontation rights because there was an insufficient showing of good cause or reliability. He additionally argues the trial court erred in considering an offense that was not included in the violation warrant to revoke the Appellant’s community corrections sentence and in ordering complete confinement. After review, we affirm the judgments of the trial court.

Authoring Judge: Presiding Judge Camille R. McMullen
Originating Judge:Judge Angelita Blackshear Dalton
Davidson County Court of Criminal Appeals 06/17/24
Janet Sura v. Jimmy's Last Laugh LLC

M2023-01174-COA-R3-CV

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

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Thomas W. Brothers
Davidson County Court of Appeals 06/14/24
Braylen Bennett v. State of Tennessee

E2022-01746-CCA-R3-PC

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

Authoring Judge: Judge John W. Campbell, Sr.
Originating Judge:Judge Steven Wayne Sword
Knox County Court of Criminal Appeals 06/14/24
Cherokee Fiber & Associates , Inc. v. David Gerregano, Commissioner of the Tennessee Department of Revenue

M2023-00748-COA-R3-CV

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

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Russell T. Perkins
Davidson County Court of Appeals 06/13/24
Stargate Auto Sales, LLC v. David Gerregano, Commissioner of the Tennessee Department of Revenue

M2023-00496-COA-R3-CV

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

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Russell T. Perkins
Davidson County Court of Appeals 06/13/24
Loring E. Justice v. Board of Professional Responsibility

E2022-01105-SC-R3-BP

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

Authoring Judge: Justice Jeffrey S. Bivins
Originating Judge:Senior Judge Thomas J. Wright
Knox County Supreme Court 06/12/24
Loring E. Justice v. Board of Professional Responsibility (concurring)

E2022-01105-SC-R3-BP

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

Authoring Judge: Chief Justice Holly Kirby
Originating Judge:Senior Judge Thomas J. Wright
Knox County Supreme Court 06/12/24
State of Tennessee v. Orlando Nichols

W2023-01183-CCA-R3-CD

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

Authoring Judge: Judge John W. Campbell, Sr.
Originating Judge:Judge Lee V. Coffee
Shelby County Court of Criminal Appeals 06/12/24
State of Tennessee v. Talvin D. Armstrong

M2022-01164-CCA-R3-CD

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

Authoring Judge: Judge Matthew J. Wilson
Originating Judge:Judge Stella L. Hargrove
Maury County Court of Criminal Appeals 06/12/24
State of Tennessee v. Anthony Jared Ross

E2023-00381-CCA-R3-CD

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

Authoring Judge: Judge Tom Greenholtz
Originating Judge:Judge Rex H. Ogle
Sevier County Court of Criminal Appeals 06/12/24
State of Tennessee v. Anthony Jared Ross

E2023-00381-CCA-R3-CD

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

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge Rex H. Ogle
Sevier County Court of Criminal Appeals 06/12/24
Michael Beinke, et al. v. Adam Roberson d/b/a 38 Construction, et al.

M2023-00637-COA-R3-CV

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

Authoring Judge: Judge Carma Dennis McGee
Originating Judge:Judge Michael Binkley
Williamson County Court of Appeals 06/12/24
Matthew Ooten v. Jason Baril

E2022-01673-COA-R3-CV

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

Authoring Judge: Judge John McClarty
Originating Judge:Judge Christopher D. Heagerty
Knox County Court of Appeals 06/11/24
Terrance Reece v. State of Tennessee

E2023-00305-CCA-R3-PC

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

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge Steven Wayne Sword
Knox County Court of Criminal Appeals 06/11/24
State of Tennessee v. Rickey Na'Tarius Porter

E2023-00876-CCA-R3-CD

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

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Andrew Freiberg
Bradley County Court of Criminal Appeals 06/11/24
State of Tennessee v. Mykhah Calvin Simon

M2023-00814-CCA-R3-CD

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

Authoring Judge: Judge Kyle A. Hixson
Originating Judge:Judge Forest A. Durard, Jr.
Bedford County Court of Criminal Appeals 06/11/24
Robert R. Batson, Sr. Revocable Living Trust, by Sean Batson v. Diane Batson-Smith Et Al.

M2024-00739-COA-T10B-CV

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

Authoring Judge: Judge Jeffrey Usman
Originating Judge:Judge Matthew Joel Wallace
Montgomery County Court of Appeals 06/11/24
In Re Jaylynn J.

M2023-01496-COA-R3-PT

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

Authoring Judge: Judge Carma Dennis McGee
Originating Judge:Judge Sheila Calloway
Davidson County Court of Appeals 06/11/24
State of Tennessee v. Brady O'Brien Holmgren

M2023-00795-CCA-R3-CD

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

Authoring Judge: Judge Tom Greenholtz
Originating Judge:Judge James A. Turner
Rutherford County Court of Criminal Appeals 06/10/24
Magnolia Pointe Homeowners' Association v. Kathryn Mitchell

E2022-1581-COA-R3-CV

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

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Chancellor Christopher D. Heagerty, Jr.
Knox County Court of Appeals 06/10/24
State of Tennessee v. Emily Ashton Williams and Joel Scott Sweeney

M2023-00606-CCA-R3-CD

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

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Jennifer Smith
Davidson County Court of Criminal Appeals 06/10/24