Appellate Court Opinions

Format: 03/03/2021
Format: 03/03/2021
Jennifer Susan Bennett v. Duncan Geoffrey Bennett
E2020-00634-COA-R3-CV

Because a motion for attorney’s fees and for a timeline within which to pay a court ordered arrearage remain pending, the order appealed from does not constitute a final appealable judgment, and this Court lacks jurisdiction to consider this appeal

McMinn County Court of Appeals 02/25/21
State of Tennessee v. Jason Monroe Griffith
E2020-00259-CCA-R3-CD

The Defendant, Jason Monroe Griffith, pleaded guilty to one count of attempted aggravated burglary, seven counts of aggravated burglary, ten counts of theft of property, and one count of conspiracy to commit aggravated burglary, and he entered a “best interest” plea to one count of aggravated burglary pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). The trial court imposed an effective sentence of 15 years and ordered the Defendant to pay $10,750 in restitution. On appeal, the Defendant argues that the trial court should have held a hearing regarding his ability to pay restitution and the reasonableness of the restitution amount. After review, we reverse the judgment of the trial court with respect to restitution and remand this case for a restitution hearing and entry of amended judgments that reflect the amount of restitution and the manner of payment.

Sullivan County Court of Criminal Appeals 02/25/21
Hampton Reserve Homeowner's Association, Inc. v. Kirk Leipzig
M2020-00288-COA-R3-CV

This appeal concerns a general sessions warrant for unpaid dues owed to the plaintiff homeowner’s association.  The general sessions court dismissed the action based upon a settlement agreement.  The plaintiff appealed to the circuit court, which ultimately entered an agreed order of dismissal during the pendency of this appeal.  We dismiss the appeal.  

Williamson County Court of Appeals 02/25/21
Ronald Mercer v. Brandi Chiarella
M2020-00602-COA-R3-CV

This appeal arises from a petition by Father to modify his child support. Mother contested Father’s request, ultimately filing a counter-petition wherein she argued that, based on Father’s income, his child support obligation should be increased. The trial court found in favor of Father, and Mother filed a timely appeal. For the reasons contained herein, we affirm the trial court’s order.

Williamson County Court of Appeals 02/25/21
Debra A. Irvin v. Green Wise Homes, LLC Et Al.
M2019-02232-COA-R3-CV

Debra A. Irvin (“Plaintiff” or “Appellee”) filed a complaint in 2019 alleging real estate fraud against numerous parties. Several defendants, including Green Wise Homes, LLC (“Green Wise”), asserted various counterclaims against Plaintiff and her attorneys, which the trial court dismissed for failure to state a claim for which relief could be granted. The trial court then awarded attorney’s fees to Plaintiff against Green Wise pursuant to Tennessee C

Davidson County Court of Appeals 02/24/21
In Re Lucas S.
M2019-01969-COA-R3-PT

In this termination of parental rights case, Appellant/Mother appeals the trial court’s termination of her parental rights to the minor child on the grounds of: (1) persistence of the conditions that led to the child’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) abandonment by failure to visit, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(1); (3) abandonment by failure to support, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(1); and (4) failure to manifest a willingness and ability to assume custody of child, Tenn. Code Ann. § 36-1-113(g)(14).  Mother also appeals the trial court’s finding that termination of her parental rights is in the child’s best interest, Tenn. Code Ann. § 36-1-113(i).  Because Appellees did not plead the ground of persistence of conditions and because the threshold requirements for that ground are not met, we reverse the trial court’s termination of Mother’s parental rights on the ground of persistence of conditions.  We affirm the trial court’s termination of Mother’s parental rights on all remaining grounds and on its finding that termination of Mother’s parental rights is in the child’s best interest.

Trousdale County Court of Appeals 02/24/21
State of Tennessee v. Vonda Star Smith
E2019-00968-CCA-R3-CD

The Defendant, Vonda Star Smith, was convicted by a Greene County Criminal Court jury of first degree premeditated murder and second degree murder. See T.C.A. §§ 39-13- 202(a)(1) (2018) (first degree murder) (subsequently amended), 39-13-210 (2014) (second degree murder) (subsequently amended), 39-13-214 (2018) (embryo or fetus as a victim of criminal homicide). The trial court sentenced the Defendant to life for first degree murder and to twenty-five years as a Range I offender for second degree murder, and the court imposed the sentences concurrently. On appeal, the Defendant contends that (1) the evidence is insufficient to support her convictions, (2) the court erred in denying her motion to dismiss because the State’s failure to provide exculpatory information regarding the victim’s cell phone “ping” violated her right to due process, (3) the State’s failure to provide a witness’s statement during discovery deprived her of due process, (4) the court improperly commented on the evidence during a defense witness’s testimony, (5) cumulative errors require reversal of the Defendant’s convictions, and (6) the court erred in imposing a twenty-five-year sentence for second degree murder. We affirm the judgments of the trial court.

Greene County Court of Criminal Appeals 02/24/21
Elvis Presley Enterprises, Inc., Et Al. v. City of Memphis, Et Al.
W2019-00299-SC-R11-CV

The appellants filed the instant action seeking a declaratory judgment concerning the rights and obligations of the parties under a 2001 contract. The contract, to which the three appellees were parties, concerns the governance of the FedEx Forum in Memphis, Tennessee. In a previously filed action, the appellants sought similar relief, but the trial court dismissed the case for failure to exhaust administrative remedies. In the instant case, however, the trial court granted the appellees’ motions under Tennessee Rule of Civil Procedure 12.02 to dismiss the complaint based on the court’s conclusion that the appellants lacked standing. The Court of Appeals affirmed the dismissal but for a different reason. The intermediate appellate court instead concluded that dismissal was appropriate because the complaint was barred by the doctrine of res judicata and, as such, declined to address the standing issue. After thorough review, we conclude that the Court of Appeals’ decision was erroneous because an essential element of the res judicata doctrine—an underlying judgment that was final and on the merits—has not been established. Accordingly, we reverse the judgment of the Court of Appeals and remand for consideration of whether the trial court properly dismissed the complaint based on the doctrine of standing.   

Shelby County Supreme Court 02/24/21
State of Tennessee v. Edward Wayne Shumacker Alias Jeff Wayne Witt
E2019-01297-CCA-R3-CD

The Appellant, Edward Wayne Shumacker, was convicted in the Hamilton County Criminal Court of driving under the influence (DUI), DUI per se, driving on a revoked license, violating the seatbelt law, violating the financial responsibility law, and violating the vehicle registration law, all misdemeanors. After the jury found the Appellant guilty, he stipulated that he had five prior convictions of DUI and two prior convictions of driving on a revoked license. The trial court sentenced the Appellant as a Range III, persistent offender to twelve years for each conviction of sixth offense DUI, Class C felonies; merged the convictions; and ordered that the Appellant serve the twelve-year sentence concurrently with his misdemeanor sentences. On appeal, the Appellant contends that the trial court erred by denying his motion for additional discovery, that the trial court erred by denying his motion to exclude references to other bad acts, that the trial court erred by overruling his objection to the admissibility of expert testimony, and that his twelve-year sentence for DUI is excessive. Based upon the record and the parties’ briefs, we conclude that there is no reversible error and affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 02/23/21
State of Tennessee v. Samantha Grissom Scott
M2018-01852-SC-R11-CD

Defendant, Samantha Grissom Scott, pleaded guilty to possession with the intent to deliver more than twenty-six grams of methamphetamine and possession of drug paraphernalia but specifically reserved a certified question of law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure. The trial court, Defendant, and the State all agreed that the certified question is dispositive of the case. The question pertained to the legality of the initial search of Defendant’s house during which law enforcement discovered illegal contraband. In a split opinion, the Court of Criminal Appeals dismissed the appeal after determining that the certified question is not dispositive because the evidence would have been admissible under the inevitable discovery doctrine notwithstanding the search in question. We conclude that the certified question is dispositive of the case, that the inevitable discovery doctrine does not apply, that exigent circumstances did not exist, that Defendant’s consent to the search was involuntary, and that the case against her should be dismissed. We, therefore, reverse the judgment of the Court of Criminal Appeals and dismiss Defendant’s convictions.

Warren County Supreme Court 02/23/21
Anthony Parker v. ABC Technologies, Inc. Et Al.
M2020-00675-COA-R3-CV

A discharged employee sued his former employer and two managers for (1) retaliatory discharge under the Tennessee Public Protection Act, (2) common law retaliatory discharge, (3) negligent retention, and (4) breach of contract.  The trial court dismissed the employee’s claims pursuant to Tennessee Rule of Civil Procedure 12.02(6).  After our independent examination of the pleadings, we conclude that the employee failed to state a claim upon which relief can be granted and affirm the trial court’s judgment.

Sumner County Court of Appeals 02/23/21
Michael Bennett Et Al. v. Chattanooga Properties, LLC
E2019-01790-COA-R3-CV

Buyers filed this breach of contract action alleging that the seller failed to timely complete construction of their custom home. Buyers also sought damages for conversion based on the seller’s failure to return fixtures and other items purchased by the buyers for use in the construction. The seller maintained that construction was complete, as that term was defined in the parties’ agreement. In its counterclaim for breach of contract, the seller alleged that the buyers committed the first material breach by refusing to finalize the purchase. After a bench trial, the trial court found that the buyers had committed the first material breach by refusing to close the purchase after the seller had completed performance. The court dismissed the buyers’ claims and awarded the seller damages and attorney’s fees. The evidence does not preponderate against the trial court’s findings with respect to the parties’ breach of contract claims. But we conclude that the court erred in dismissing the buyers’ conversion claim. All the elements of a conversion claim were established at trial. So we reverse the dismissal of the conversion claim and remand for a determination of damages on that claim. Otherwise, we affirm.

Hamilton County Court of Appeals 02/23/21
Stanley Blair Hill v. State of Tennessee
E2018-02080-CCA-R3-PC

The Petitioner, Stanley Blair Hill, filed for post-conviction relief from his conviction of first degree murder, alleging that his trial counsel were ineffective. The post-conviction court denied relief, and the Petitioner appeals, contending that counsel were ineffective by failing “to obtain adequate expert and investigative assistance and/or to present such testimony at trial”; by failing “to object to the introduction of improper, irrelevant, inflammatory and prejudicial evidence”; and by failing to adequately advise the Petitioner whether to accept or reject the State’s plea offer. Upon review, we affirm the judgment of the post-conviction court.

Blount County Court of Criminal Appeals 02/22/21
State of Tennessee v. Nona Kilgore
M2020-003530-CCA-R3-CD

The Defendant, Nona Kilgore, pleaded guilty to possession of a schedule IV controlled substance with intent to sell or deliver. The Defendant reserved a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether the warrantless search of the Defendant’s home was lawful based on the issue of consent. After a thorough review of the record and relevant authorities, we conclude that the reserved question of law is not dispositive of the case and, accordingly, we dismiss the appeal.

Grundy County Court of Criminal Appeals 02/22/21
State of Tennessee v. Dwayne Edward Harris
M2019-01609-CCA-R3-CD

A Williamson County jury convicted the Defendant, Dwayne Edward Harris, of joyriding (Count 1), carjacking (Count 2), and aggravated robbery (Count 3). In response to a motion for judgment of acquittal, the trial court reduced Count 3 from aggravated robbery to robbery. The trial court then merged Count 1 and Count 3 into Count 2, and sentenced the Defendant to an effective sentence of thirty years in the Tennessee Department of Correction. The Defendant appeals, asserting: (1) the evidence is insufficient to support his convictions; (2) the trial court improperly admitted evidence; and (3) a Bruton violation. The State appeals the trial court’s reducing the jury’s conviction for aggravated robbery in Count 3 to robbery and the trial court’s merging Count 3 into Count 2. This court consolidated the Defendant’s and the State’s appeals. After review of the Defendant’s issues, we discern no error. As to the State’s issues on appeal, we vacate the trial court’s judgment in Count 3, reinstate the jury’s verdict of guilty of aggravated robbery, and remand for sentencing on Count 3. The trial court’s judgment in Count 2 is remanded for corrections consistent with this opinion. 

Williamson County Court of Criminal Appeals 02/22/21
Bradi Baker-Brunkhorst v. Geoffrey B. Brunkhorst
W2020-00154-COA-R3-CV

This appeal arises from a divorce action. The matter in controversy concerns an attorney’s fee lien and abstract of suit filed and recorded by the wife’s former counsel following the entry of the divorce decree. In pertinent part, the decree required the husband to pay the entire equity in jointly owned real property to the wife contemporaneous with the wife quitclaiming her interest in the property to the husband; however, the husband died prior to the conveyance or the payment. Thereafter, the wife’s former counsel filed a motion to perfect and enforce its attorney’s lien on the property, and the court granted the motion. The administrator of the husband’s estate filed a motion to release the attorney’s lien, and the court ruled that the lien was valid and enforceable because neither party performed their respective obligations under the divorce decree. The administrator for the husband’s estate then filed a Tenn. R. Civ. P. 59.04 motion to alter or amend on the grounds (1) there was no legal basis for allowing the wife’s attorneys to file a charging lien against property awarded to the husband and (2) the lien was not valid because the attorneys based the lien on the wrong section of the statute. The court denied the Rule 59.04 motion to alter or amend, and this appeal followed. The singular issue in this appeal is whether the trial court abused its discretion by denying the Rule 59.04 motion. Because the administrator’s motion was not based on a change in controlling law, previously unavailable evidence, or a clear error of law, see In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005), we hold that the trial court did not abuse its discretion in denying it. Therefore, we affirm.

Madison County Court of Appeals 02/22/21
State of Tennessee v. Cody King
E2019-01404-CCA-R3-CD

The Defendant, Cody Ryan King, was convicted by a Morgan County Circuit Court jury of rape of a child, a Class A felony, attempted rape of a child, a Class B felony, two counts of aggravated sexual battery, a Class B felony, two counts of sexual battery, a Class E felony, and attempted statutory rape, a Class A misdemeanor. See T.C.A. §§ 39-13-522 (2010) (subsequently amended) (rape of a child), 39-13-505 (2018) (sexual battery), 39- 13-504 (2018) (aggravated sexual battery); 39-13-506 (2010) (subsequently amended) (statutory rape); 39-12-101 (2018) (criminal attempt). The Defendant was sentenced to an effective twenty-five years for the convictions. However, at the motion for new trial hearing, the trial court ordered a new trial for one count of aggravated sexual battery on the basis that the State failed to make an election of the offenses. The court, likewise, ordered a new trial for both counts of aggravated sexual battery and both counts of sexual battery on the basis that the Defendant received the ineffective assistance of counsel for the failure to request a jury instruction on the lesser included offense of assault by offensive or provocative contact. As a result, the court ordered a new trial for two counts of aggravated sexual battery and two counts of sexual battery. On appeal, the Defendant contends that (1) the evidence is insufficient to support his rape of a child and attempted rape of a child convictions and (2) he received the ineffective assistance of trial counsel. Because the Defendant received the ineffective assistance of counsel during the pretrial proceedings, we vacate the Defendant’s convictions and remand the case to the trial court with instructions for the State to reinstate the eight-year plea offer and to negotiate in good faith. 

Morgan County Court of Criminal Appeals 02/19/21
In Re Hadley R.
E2020-00256-COA-R3-PT

Scarlett B. (“Mother”) appeals the termination of her parental rights to the minor child, Hadley R. (“the Child”). In April 2019, Christy D. (“Petitioner”) filed a petition to terminate Mother’s parental rights in the Campbell County Chancery Court (“Trial Court”). Following a trial, the Trial Court terminated Mother’s parental rights on three grounds of abandonment due to Mother’s failure to visit the Child, failure to support the Child, and wanton disregard for the Child’s welfare. The Trial Court further found that termination of Mother’s parental rights was in the Child’s best interest. Discerning no error, we affirm.

Campbell County Court of Appeals 02/19/21
Sandra Cummings v. Express Courier International, Inc.
E2020-00548-SC-R3-WC
Sandra Cummings was injured at work on April 29, 2010, and February 7, 2012. She filed complaints against Express Courier International, Inc. ("Employer"), Hartford Insurance Company ("Hartford"), and Zurich American Insurance Company ("Zurich"). The trial court found that Ms. Cummings is permanently and totally disabled as the result of an injury to the body and that Employer is entitled to an offset based on Ms. Cummings's social security benefits. Tenn. Code Ann.§ 50-6-207(4)(A)(i) (2014) (applicable to injuries occurring prior to July 1, 2014). In this appeal, Ms. Cummings argues that the trial court erred in applying the social security offset because her injury was to a scheduled member. In addition, Hartford argues that the trial court erred in ordering it to pay temporary total disability benefits because Zurich was the insurance carrier at the time of Ms. Cummings's second injury. The appeal has been referred to this Panel for a hearing and a report of findings of fact and conclusions of law. See Tenn. Sup. Ct. R. 51. We affirm the trial court's judgment that Ms. Cummings is permanently and totally disabled as a result of an injury to the body and that Employer is entitled to a social security offset. We modify the judgment by requiring Zurich to reimburse Hartford for the payment of temporary total disability benefits.
Hamilton County Workers Compensation Panel 02/17/21
Latoya Paris v. McKee Foods Corp.
E2020-00358-SC-R3-WC

The employee in this workers’ compensation case appeals the trial court’s ruling that the independent intervening cause principle applies to relieve her former employer of liability for continued benefits under the parties’ settlement of the employee’s prior claim. After the employee’s original compensable injury while working for the defendant employer, the parties settled the claim. The employee was placed on lifting restrictions. The trial court held the employee negligently exceeded those lifting restrictions and this conduct constituted an independent intervening cause that relieved the original employer from liability for continued workers’ compensation benefits. The trial court also held, however, that the employee’s negligent conduct did not result in a new injury. On appeal, we hold that, if the employee’s activity results in only an increase in pain but there is no new injury or aggravation of the original injury, the independent intervening cause principle is not applicable to relieve the original employer of liability. We reverse the trial court’s holding that the independent intervening cause principle relieves the defendant employer of liability for workers’ compensation benefits. We affirm the trial court’s holding that there was not a new injury or an aggravation of the employee’s condition and hold that the employee is entitled to statutory medical benefits, attorney fees, and costs.

Hamilton County Workers Compensation Panel 02/16/21
State of Tennessee v. Frederick John Schmitz, Jr.
M2019-01254-CCA-R3-CD

A Hickman County jury convicted the Defendant, Frederick John Schmitz, Jr., of evading arrest while operating a motor vehicle, reckless driving, and speeding. The trial court sentenced him to an effective eighteen-month sentence, suspended to supervised probation. On appeal, the Defendant contends that the evidence at trial was insufficient to support his convictions for evading arrest and reckless driving. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments.

Hickman County Court of Criminal Appeals 02/12/21
State of Tennessee v. William Eugene Moone
M2019-01865-CCA-R3-CD

A Coffee County jury convicted William Eugene Moon, Defendant, of attempted second degree murder and unlawful employment of a firearm during the commission of or attempt to commit a dangerous felony. On appeal, Defendant argues that the trial court erred by allowing the improper impeachment of a defense witness, that there was insufficient evidence to support his convictions, and that he was denied the right to a speedy trial. After a thorough review of the record and applicable case law, the judgments of the circuit court are affirmed.

Coffee County Court of Criminal Appeals 02/12/21
Donald R. Ferguson v. Sarah K. Ferguson
M2019-01630-COA-R3-CV

In this divorce action, Sarah K. Ferguson (“Mother”) appeals the trial court’s decisions to grant Donald R. Ferguson (“Father”) an absolute divorce and designate him as the primary residential parent for their two minor children. She also challenges the trial court’s award of alimony. Finding no error, we affirm.

Montgomery County Court of Appeals 02/12/21
David Manor v. Brett Woodroof
M2020-00585-COA-R3-CV

Following a dispute that spanned several years, the parties, David Manor and Brett Woodroof, filed countervailing petitions for orders of protection in the Metropolitan General Sessions Court for Nashville and Davidson County (“general sessions court”). After separate hearings, the general sessions court granted each petitioner an order of protection. In turn, each party appealed the order of protection entered against him to the Davidson County Circuit Court (“trial court”). Following a hearing with a special master presiding, the trial court entered orders continuing the cases. During a subsequent hearing, the special master announced from the bench that both petitions were being dismissed and that each party would be responsible for his respective attorney’s fees. The trial court entered separate written orders dismissing each petition. Mr. Manor subsequently filed an objection to the dismissal of his petition, averring that the trial court had made an oral finding that Mr. Woodroof had stalked Mr. Manor, which, according to Mr. Manor, led to the continuation of his order of protection against Mr. Woodroof. Mr. Manor argued that the court’s action constituted an “extension” of the order of protection, pursuant to Tennessee Code Annotated § 36-3-617 (2017), thereby entitling him to an award of attorney’s fees. Thereafter, the trial court confirmed the findings of the special master and declined to award attorney’s fees. Upon its consideration of several motions, the trial court conducted a hearing and remanded the matter to the special master for “a finding and Order” concerning the issue of attorney’s fees. Upon remand, the special master denied an award of attorney’s fees to Mr. Manor, and the trial court subsequently confirmed the order. Mr. Manor timely appealed. Discerning no reversible error, we affirm.

Davidson County Court of Appeals 02/12/21
In Re: Tiffany B.
E2020-00854-COA-R3-PT

The trial court terminated a father’s parental rights to his daughter based upon two statutory grounds: persistence of conditions and failure to manifest a willingness and ability to assume custody of the child. We reverse the trial court’s decision as to the first ground, but affirm as to the second. We also affirm the trial court’s finding that termination of the father’s parental rights is in the child’s best interests.

Washington County Court of Appeals 02/11/21