APPELLATE COURT OPINIONS

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In re Adison P.

W2014-01901-COA-R3-CV

This case arises from a writ of mandamus issued by the Circuit Court for Henderson County. The writ of mandamus directed Appellant/Judge Robert Stevie Beal, of the Juvenile Court for Henderson County, to hold a hearing on Appellee’s motion for a show cause order in the underlying child custody case. Appellant appeals, arguing that the Circuit Court did not have authority to issue a writ of mandamus to the Juvenile Court because the Circuit Court and Juvenile Court have concurrent jurisdiction over custody matters. Before oral argument in the instant appeal, this Court entered judgment in Appellee’s separate, accelerated, interlocutory appeal under Tennessee Supreme Court Rule 10B. In re Adison P., No. W2015-00393-COA-T10B-CV, 2015 WL 1869456 (Tenn. Ct. App. April 21, 2015) (“Adison I”). In Adison I, this Court reversed Judge Beal’s order denying Appellee’s motion for recusal. Although not part of our appellate record in this appeal, we take judicial notice of our judgment in Adison I. Having removed Judge Beal from the underlying case, we conclude that the writ of mandamus, which is issued directly to “Judge Beal,” is rendered null by his removal from the case. Because no present ongoing controversy remains in this case, this appeal is dismissed as moot.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Roy B. Morgan, Jr.
Henderson County Court of Appeals 05/29/15
Vernon Lavone Roberts v. State of Tennessee

M2014-01371-CCA-R3-PC

Vernon Lavone Roberts (“the Petitioner”) appeals from the dismissal of his petition for post-conviction relief.  On appeal, the Petitioner argues that he received ineffective assistance of counsel.  Upon review, we conclude that the Petitioner’s claim was previously determined by this Court on direct appeal.  Consequently, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Steve R. Dozier
Davidson County Court of Criminal Appeals 05/29/15
In re Jamie G.

M2014-01310-COA-R3-PT

In this termination of parental rights case, Mother appeals the trial court’s findings of abandonment by willful failure to support and the persistence of conditions as grounds for termination. Mother also appeals the trial court’s conclusion that termination was in the child’s best interest. Pre-adoptive parents appeal the trial court’s decision declining to find the ground of willful failure to visit. We affirm the trial court’s findings of willful failure to support and persistent conditions. Further, albeit for different reasons, we affirm the trial court’s decision declining to terminate Mother’s parental rights on the ground of willful failure to visit. We also affirm the trial court’s finding that termination is in the child’s best interest, and therefore, affirm the termination of the Mother’s parental rights.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Sophia Brown Crawford
Davidson County Court of Appeals 05/29/15
In re Braydon C.

W2014-01641-COA-R3-PT

Petitioners Father and Stepmother filed a petition to terminate Mother’s parental rights on the ground of abandonment for failure to visit and failure to support. The trial court denied the petition upon determining that Petitioners failed to demonstrate willful abandonment by clear and convincing evidence. We affirm.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Chancellor James F. Butler
Madison County Court of Appeals 05/29/15
In re: Justin H.

M2013-02517-COA-R3-JV

This appeal involves a child support order entered after an international adoption. The trial court found that the child's adoptive mother failed to pay child support as previously ordered by the court, and therefore, the mother was adjudged in contempt. On appeal, the mother argues that the trial court lacked subject matter jurisdiction to enter the previous order requiring her to pay child support and also lacked jurisdiction to hold her in contempt of that order. Alternatively, she argues that she did not willfully violate the court's order. Finally, the mother argues that a separate injunction entered by the trial court is also void for lack of subject matter jurisdiction and/or procedural irregularities. We affirm.

Authoring Judge: Judge Brandon O. Gibson
Originating Judge:Judge Franklin L. Russell
Bedford County Court of Appeals 05/29/15
Timothy Davis ex rel. Katherine Michelle Davis v. Michael Ibach, MD, et al.

W2013-02514-SC-R11-CV

The Plaintiff filed a medical malpractice action against the Defendants. Following the Defendants’ motions to dismiss the action, asserting that the certificate of good faith was noncompliant with the requirement in Tennessee Code Annotated section 29-26-122(d)(4) (Supp. 2008), the trial court granted the Plaintiff’s request to voluntarily dismiss the action. The Defendants appealed, and the Court of Appeals affirmed the order of the trial court. We granted review to determine whether the requirement of Tennessee Code Annotated section 29-26-122(d)(4) that a certificate of good faith filed in a medical malpractice action disclose the number of prior violations of the statute by the executing party also requires disclosure of the absence of any prior violations of the statute. We hold that it does not. Accordingly, the judgment of the Court of Appeals is affirmed.

Authoring Judge: Justice Jeffrey S. Bivins
Originating Judge:Judge William B. Acree
Dyer County Supreme Court 05/29/15
State of Tennessee v. George Robert Hamby

M2014-00839-CCA-R3-CD

Appellant, George Robert Hamby, was convicted of aggravated robbery, a Class B felony.  The trial court sentenced appellant as a Range II offender to twelve years in confinement.  On appeal, appellant argues that: (1) the trial court erred in not accepting a negotiated guilty plea; (2) the trial court erred in denying appellant’s motion for judgment of acquittal; (3) the evidence was insufficient to support his conviction; and (4) the trial court erred in sentencing.  Following our review of the evidence and the applicable law, we affirm the judgment of the trial court.

Authoring Judge: Judge Roger A. Page
Originating Judge:Judge Stella L. Hargrove
Maury County Court of Criminal Appeals 05/28/15
John Milton Arledge v. Brenda Pauletter Cripps Arledge, et al.

M2014-01344-COA-R3-CV

This case concerns the applicability of Tennessee Code Annotated Section 20-12-119(c). When the trial court grants a motion to dismiss pursuant to Tennessee Rule of Civil Procedure 12 for failure to state a claim upon which relief may be granted, Section 20-12-119(c) requires the trial court to award the dismissed party his or her reasonable attorney’s fees. In this case, Appellant was dismissed from the lawsuit, but the trial court denied an award of attorney’s fees. Because the trial court’s orders do not specify on what grounds it dismissed Appellant, we cannot determine whether Section 20-12-119(c) was triggered in this case. Accordingly, we vacate and remand for entry of an order specifying the grounds for dismissal. 

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge William M. Locke
Warren County Court of Appeals 05/28/15
Terry Lynn King v. State of Tennessee

E2014-01202-CCA-R3-ECN
The Petitioner, Terry Lynn King, appeals the Knox County Criminal Court’s denial of his petition for a writ of error coram nobis regarding his convictions for felony murder, for which he was sentenced to death, and for armed robbery, for which he is serving 125 years. The coram nobis court dismissed the petition because it was untimely and because due process did not require tolling the one-year statute of limitations. On appeal, the Petitioner contends that the court erred by dismissing the petition. We affirm the judgment of the coram nobis court.
Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge Mary Beth Leibowitz
Knox County Court of Criminal Appeals 05/28/15
Mark A. White, et al v. Turnberry Homes, LLC, et al.

M2014-01858-COA-R3-CV

Homeowners sued the builder and others for defects in their home. The builder sought to compel arbitration pursuant to the arbitration clause in the purchase agreement. The trial court granted the motion to compel arbitration except as to the fraudulent inducement claim. The builder appealed. We affirm.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge James G. Martin, III
Williamson County Court of Appeals 05/28/15
Alejandro Neave Vasquez v. State of Tennessee

M2014-01404-CCA-R3-PC

Petitioner, Alejandro Neave Vasquez, was convicted by a jury of conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone and possession with intent to deliver 300 grams or more of cocaine in a drug-free school zone.  He received concurrent twenty-year sentences for each count, for a total effective sentence of twenty years in the Tennessee Department of Correction.  Petitioner filed a petition for post-conviction relief alleging that he received the ineffective assistance of counsel.  After a hearing, the post-conviction court denied relief.  On appeal, petitioner argues that he received the ineffective assistance of counsel because trial counsel: (1) failed to utilize an interpreter during all meetings and at trial; (2) advised petitioner not to testify; and (3) failed to adequately explain the school-zone enhancement. Following our review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Roger A. Page
Originating Judge:Judge Steve R. Dozier
Davidson County Court of Criminal Appeals 05/28/15
Phyllis Smith v. Shelby County

W2014-01557-COA-R3-CV

In this premises liability action, Appellant Phyllis Smith (“Ms. Smith”) appeals the trial court’s finding that Shelby County (“the County”) is immune from suit under the Tennessee Governmental Tort Liability Act. Because we conclude that the order appealed from is not a final judgment, we dismiss the appeal.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge John R. McCarroll
Shelby County Court of Appeals 05/28/15
In re Ariana S., et al

M2014-02031-COA-R3-PT

This case arises from the termination of parental rights of the father of two children, Ariana S., born April 2002, and Luis S., born February 2003. Father left his children and moved to Puerto Rico in 2007; he has been incarcerated since 2012. Father’s parental rights were terminated on the grounds of abandonment by willful failure to visit or support and persistence of conditions; he appeals. We reverse the termination on the grounds of abandonment by willful failure to support and persistence of conditions and affirm the termination of Father’s rights on the ground of abandonment by willful failure to visit. 

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Betty K. Adams Green
Davidson County Court of Appeals 05/28/15
Ophelia Carney v. Santander Consumer USA

W2015-00853-COA-T10B-CV

This appeal involves the trial court's denial of a recusal motion. We affirm the trial court's decision to deny the motion to recuse, but vacate the order entered by the trial court while the recusal motion was pending.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Kyle Atkins
Madison County Court of Appeals 05/28/15
David Wayne Britt v. Debra Johnson, Warden

W2014-01787-CCA-R3-HC

The Petitioner, David Wayne Britt, appeals the Circuit Court of Hardeman County‘s denial of his third petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court‘s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State‘s motion and affirm the judgment of the trial court.

Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge J. Weber McCraw
Hardeman County Court of Criminal Appeals 05/28/15
In re Conservatorship of Timothy Beasley

M2014-02263-COA-R3-CV

A man was injured in an accident, and his relatives initiated conservatorship proceedings in the probate court of Rutherford County.  The conservators were dissatisfied with the probate court’s handling of the case and moved to have the case removed to the chancery court.  The probate court granted the motion to remove, but the chancery court determined the removal was improper and sent the case back to the probate court.  The conservators appealed the chancery court’s decision to review the probate court’s order granting the removal.  On appeal, we note that the probate court and the chancery court in Rutherford County have concurrent jurisdiction over conservatorship proceedings.  Neither court is inferior to the other, and an appeal from either court is to the Court of Appeals.  The chancery court lacked subject matter jurisdiction to determine any issues in the conservatorship once the case was filed in the probate court.  We vacate the judgment by the chancery court and remand the case to the probate court for further proceedings.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Howard W. Wilson
Rutherford County Court of Appeals 05/28/15
Douglas Wayne Young v. State of Tennessee

E2014-00968-CCA-R3-PC

The petitioner, Douglas Wayne Young, appeals the denial of post-conviction relief from his 2009 Sullivan County Criminal Court jury convictions of aggravated burglary, aggravated assault, especially aggravated kidnapping, and four counts of aggravated rape, claiming that the post-convction court abused its discretion by denying his motion for a continuance and that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Robert H. Montgomery, Jr.
Sullivan County Court of Criminal Appeals 05/28/15
State of Tennessee v. Deanty Montgomery

E2014-01014-CCA-R3-CD

The Defendant, Deanty Montgomery, appeals as of right from his jury convictions for aggravated assault, unlawful possession of a weapon, and misdemeanor reckless endangerment, which resulted in an effective five-year sentence. On appeal, the Defendant raises the following issues for our review: (1) whether the trial court properly permitted the State‘s argument that the Defendant was engaged in unlawful activity and was, therefore, not excused from the duty to retreat under a theory of self-defense; (2) whether the trial court committed error during jury deliberations in its response to a question from the jury about a person‘s duty to retreat when engaged in an unlawful activity; and (3) whether the evidence is sufficient to support his convictions. Following our review, we affirm the trial court‘s judgments.

Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Steven W. Sword
Knox County Court of Criminal Appeals 05/28/15
State of Tennessee v. Antonio Williams aka Antwoin Williams

W2014-02108-CCA-R3-CD

Appellant, Antonio Williams a.k.a. Antwoin Williams, pleaded guilty to selling a controlled substance and received a suspended three-year sentence with eighteen months on probation. Appellant’s probation officer issued a probation violation warrant before appellant had completed his eighteen months on probation. While the warrant was pending, appellant received four additional charges and subsequently pleaded guilty to the violation of probation and the four additional charges, receiving concurrent sentencing. Appellant later filed a Motion to Correct Illegal Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1, which the trial court summarily dismissed. On appeal, appellant argues he stated a colorable claim in his motion because the trial court erroneously imposed concurrent sentencing and the trial court failed to make proper findings during sentencing. Following our review of the parties’ briefs, the record, and the applicable law, we affirm the judgment of the trial court.

Authoring Judge: Judge Roger A. Page
Originating Judge:Judge Lee V. Coffee
Shelby County Court of Criminal Appeals 05/28/15
Abdelrahman Amrokbeer v. Richard Roberts, et al.

M2013-02639-COA-R3-CV

A corporate officer responsible for paying over the sales taxes collected by a corporation pled guilty to attempted tax evasion under Tennessee Code Annotated § 67-1-1440. As part of his plea agreement, the criminal court ordered the corporate officer to pay restitution in the amount of $17,500. After completing probation, the Department of Revenue notified the corporate officer of an individual sales tax assessment of $137,493.76 arising from the corporation’s operations. The corporate officer filed a complaint in the Davidson County Chancery Court challenging the assessment. The corporate officer argued that the amount of the criminal restitution, which he had already paid, was the full amount of his individual liability to the Department. The Department filed a motion to dismiss, which the trial court granted. Concluding that criminal restitution and civil tax liability are separate and distinct, we affirm the dismissal.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Chancellor Claudia Bonnyman
Davidson County Court of Appeals 05/28/15
State of Tennessee v. Sebastian Pegues

W2014-00854-CCA-R3-CD

A Shelby County jury convicted the Defendant, Sebastian Pegues, of two counts of first degree felony murder, one count of aggravated child abuse and one count of aggravated child neglect. The trial court merged the two first degree felony murder convictions and sentenced the Defendant to life. The trial court sentenced the Defendant to concurrent twenty-year sentences for the aggravated child abuse and aggravated child neglect convictions. On appeal, the Defendant asserts that there is insufficient evidence to support his convictions. After a thorough review of the record and applicable law, we affirm the Defendant’s convictions and sentences. We remand this case to the trial court for the entry of a corrected judgment in Count 3, indicating that the convicted offense is aggravated child neglect.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge J. Robert Carter, Jr.
Shelby County Court of Criminal Appeals 05/27/15
State of Tennessee v. Jerry Edward Lanier

W2014-01840-CCA-R3-CD

A Dyer County jury convicted the Defendant, Jerry Edward Lanier, of two counts of selling more than .5 gram of cocaine in a drug-free zone. Following a sentencing hearing, the trial court ordered the Defendant to serve concurrent thirty-year sentences for his convictions. On appeal, the Defendant challenges the sufficiency of the evidence against him. After a thorough review of the record and the applicable authorities, we affirm the trial court’s judgments.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Russell Lee Moore, Jr.
Dyer County Court of Criminal Appeals 05/27/15
In re: Tanasia A.

M2014-01696-COA-R3-JV

This case involves a petition for grandparent visitation filed by the paternal grandparents of the child at issue. The trial court granted the petition for visitation pursuant to Tennessee Code Annotated section 36-6-306. Because the trial court did not make appropriate written findings in accordance with Tennessee Rule of Civil Procedure 52.01, we do not reach the merits of this appeal. We vacate and remand for appropriate findings of fact and conclusions of law.

Authoring Judge: Judge Brandon O. Gibson
Originating Judge:Judge Barry R. Brown
Sumner County Court of Appeals 05/27/15
James Randall Roskam v. State of Tennessee

M2014-00599-CCA-R3-PC

Petitioner, James Roskam, appeals from the post-conviction court’s denial of his petition for post-conviction relief. Petitioner was convicted of aggravated robbery and was sentenced to twenty years in confinement as a Range II multiple offender. Petitioner challenged his conviction on appeal, and a panel of this court affirmed the judgment of the trial court. State v. James Randall Roskam, No. M2011-02071-CCA-R3-CD, 2012 WL 3611749 (Tenn. Crim. App., Aug. 20, 2012), perm. app. denied (Tenn., Nov. 26, 2012). On appeal, Petitioner contends that his trial counsel was ineffective for failing to request a mistrial, failing to investigate whether exculpatory video evidence existed, failing to acquire 911 recordings, and failing to communicate with Petitioner during voir dire. After a careful review of the record, we affirm the judgment of the post-conviction court.

Authoring Judge: Presiding Judge Thomas T. Woodall
Originating Judge:Judge Cheryl A. Blackburn
Davidson County Court of Criminal Appeals 05/27/15
State of Tennessee v. James Harrell Driver

W2014-01152-CCA-R3-CD

A Madison County jury convicted the Defendant, James Harrell Driver, of violating the Sexual Offender Registry residency restriction. The trial court sentenced the Defendant, as a Range II offender, to four-years’ incarceration. On appeal, the Defendant asserts that: (1) the evidence is insufficient to support his conviction; (2) the trial court improperly imposed a four-year sentence; and (3) Tennessee Code Annotated section 40-39-211(c) is unconstitutional as applied in this case. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Roy B. Morgan, Jr.
Madison County Court of Criminal Appeals 05/27/15