Appellate Court Opinions

Format: 12/09/2021
Format: 12/09/2021
James G. Akers v. Gregory Funding, LLC et al.
M2020-01351-COA-R3-CV

A homeowner sued to stop a foreclosure on his home.  Most of the defendants filed motions to dismiss, which the trial court orally granted.  But before written orders of dismissal could be entered, the homeowner filed a notice of voluntary dismissal.  The court then entered an order of voluntary dismissal without prejudice, as well as the orders of dismissal with prejudice.  Claiming that the orders were inconsistent, the homeowner filed a post-judgment motion for reconciliation of conflicting orders.  The court clarified that the order granting the voluntary dismissal without prejudice only applied to claims against defendants that did not file motions to dismiss.  But the dismissals with prejudice applied to claims against defendants that did file such motions.  Finding no error, we affirm.    

Davidson County Court of Appeals 11/30/21
Brian Koblitz v. State of Tennessee
M2021-00282-COA-R3-CV

An out-of-state resident filed a petition for declaratory judgment to challenge the constitutionality of certain amendments to the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, Tenn. Code Ann.
§ 40-39-201 et seq., as applied to him.  The petition named the State of Tennessee and the Tennessee Bureau of Investigation as respondents.  The respondents moved to dismiss, and the trial court granted their motions on several grounds.  Because the petitioner did not appeal all of the trial court’s grounds for dismissal, we affirm.

Davidson County Court of Appeals 11/29/21
In Re Ashanti P. Et Al.
M2021-00039-COA-R3-PT

A mother appeals the termination of her parental rights, arguing only that the court abused its discretion in denying her motion to continue the trial. Upon our review of the record, we affirm the juvenile court’s denial of the motion to continue. The record contains clear and convincing evidence to support the grounds on which the mother’s rights were terminated and to support a conclusion that termination was in the children’s best interest; accordingly, we affirm the judgment of the juvenile court terminating the mother’s parental rights.

Montgomery County Court of Appeals 11/29/21
First Community Mortgage, Inc. v. Appraisal Services Group, Inc., et al.
W2020-01246-COA-R3-CV

A mortgage company appeals the dismissal of its lawsuit against an appraisal company and its employee as barred by the applicable statute of limitations. The appraisal company and its employee urge this Court to affirm the dismissal of the lawsuit and to award them attorney’s fees under Tennessee Code Annotated section 20-12-119(c). We affirm the dismissal of the mortgage company’s action against the appraisal company and its employee. We conclude, however, that section 20-12-119(c) does not authorize the award of attorney’s fees incurred for appellate work.

Weakley County Court of Appeals 11/29/21
State of Tennessee v. Joseph Gevedon
M2020-00359-CCA-R3-CD

The Defendant-Appellant, Joseph Gevedon, pleaded guilty to two counts of driving under the influence and to one count each of leaving the scene of an accident, violation of the financial responsibility law, and simple possession of marijuana.  He agreed to serve an effective sentence of three consecutive terms of eleven months, twenty-nine days, with ninety-six hours in confinement and the remainder on probation.  He also agreed to a special condition that a restitution hearing would be held at a later time.  A violation of probation warrant was issued before the restitution hearing was held, and following a hearing, the trial court found that the Defendant violated the terms of his probation, revoked his probation, and ordered him to serve his sentence in confinement and to pay $30,490.76 as restitution.  On appeal, the Defendant challenges the trial court’s order requiring him to serve his sentence in confinement and its restitution order.  After review, we conclude that we are without jurisdiction to consider the merits of this appeal. 

Giles County Court of Criminal Appeals 11/29/21
State of Tennessee v. Joseph Gevedon (Dissent)
M2020-00359-CCA-R3-CD

John Everett Williams, P.J., dissenting.

I respectfully disagree with the majority’s conclusion that this court is without jurisdiction to hear the appeal because no final judgment has been entered.

Tennessee Rule of Appellate Procedure 3(b) provides that a criminal defendant has “a right to appeal when the trial court has entered a final judgment of conviction.”  State v. Comer, 278 S.W.3d 758, 760-61 (Tenn. Crim. App. 2008) (quotation omitted).  However, “‘Rule 3 appeals … may be taken only from final judgments.’”  State v. William Chandler Daniels, No. E2009-02172-CCA-R3-CD, 2010 WL 5343776, at *1 (Tenn. Crim. App. Dec. 23, 2010) (quoting State v. Maddox, 603 S.W.2d 740, 741 (Tenn. Crim. App. 1980)).  A judgment is considered final “‘when it decides and disposes of the whole merits of the case leaving nothing for the further judgment of the court.’”  State v. David Allan Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254, at *3 (Tenn. Crim. App. Oct. 25, 2013) (quoting Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995)).

Giles County Court of Criminal Appeals 11/29/21
Miracle Tenney Ex Rel. Desirae B. v. Daniel Paul Bullington
M2020-01432-COA-R3-CV

The father of a fourteen-year-old daughter appeals the propriety of two separate orders of protection issued upon the mother’s petition for the protection of their daughter. Because both orders of protection have expired, we dismiss the father’s challenges to the propriety of the orders of protection on the basis of mootness and decline the father’s claim to recover his attorney’s fees. Notwithstanding the dismissal of the father’s issues, the mother seeks to recover the attorney’s fees and costs she incurred in defending the father’s appeal. The Tennessee Supreme Court’s recent decision inNew v. Dumitrache, 604 S.W.3d 1 (Tenn. 2020), makes it clear that the legislative mandate in Tenn. Code Ann. § 36-3-617(a)(1) extends to the reasonable attorney’s fees and costs incurred on appeal by victims of domestic abuse, even if the respondent’s challenge to the order of protection is no longer justiciable. Accordingly, we hold that the mother is entitled to an award of the reasonable attorney’s fees and costs she incurred in defending this appeal and remand this case for the trial court to make the appropriate award.

Williamson County Court of Appeals 11/29/21
Deborah P. Linn v. Mark A. Linn
M2020-01624-COA-R3-CV

At issue in this appeal is the trial court’s characterization of the alimony obligation in the parties’ divorce decree. The trial court determined that the alimony is part alimony in solido and part alimony in futuro. Based in part on this conclusion, the court denied Husband’s petition to modify his alimony obligation. The trial court also entered judgment against Husband for alimony arrearages, life insurance premiums, and Wife’s discretionary costs and attorney’s fees. Additionally, the court found Husband in contempt for failing to pay alimony and life insurance premiums. Because we conclude the trial court mischaracterized the alimony at issue, we affirm in part, reverse in part, and vacate in part its judgment.

Sumner County Court of Appeals 11/29/21
Park Place Boat Dock Association, Inc. Et Al. v. Gary Phillips Construction, LLC Et AL.
E2021-00160-COA-R3-CV

This appeal concerns easement rights. The Park Place Community Association, Inc. (“the PPCA”) and the Park Place Boat Dock Association, Inc. (“the PPBDA”) (“Plaintiffs,” collectively) filed suit in the Chancery Court for Washington County (“the Trial Court”) against Gary Phillips Construction, LLC and Gary Phillips (“Phillips”). Plaintiffs sought access to a certain boat dock and sun deck on Boone Lake over a strip of land previously owned by the community’s developer that Phillips bought at a bankruptcy auction. After a trial, the Trial Court found Plaintiffs had proven the elements of an easement by implication and an easement by necessity over the property at issue. Phillips appeals raising a number of issues, including whether Plaintiffs have standing. We find, inter alia, that Plaintiffs have standing to bring this action. We further find that lake access has been, and is, essential for Plaintiffs’ use and beneficial enjoyment of Park Place, in some instances representing the exclusive reason why people bought their homes in the community. Plaintiffs have proven the elements of an easement by implication and an easement by necessity. We affirm the judgment of the Trial Court in all respects.

Washington County Court of Appeals 11/29/21
State of Tennessee v. Jeremy Reynolds
E2018-01732-SC-R11-CD

Jeremy Reynolds was convicted of premeditated first-degree murder at the conclusion of a jury trial in which the State was permitted to introduce evidence related to gang membership. On appeal, the Court of Criminal Appeals concluded that the evidence of premeditation was legally insufficient and reversed the conviction. The intermediate appellate court noted that the evidence was legally sufficient to support a conviction for the lesser-included offense of second-degree murder, but it nevertheless remanded for a new trial based on its determination that the trial court had abused its discretion in admitting certain pieces of evidence related to gang membership. We accepted the State’s appeal. After a thorough review of the record, we conclude that the evidence was legally sufficient to support the conviction for premeditated first-degree murder. We further conclude that there was no reversible error on the part of the trial court in admitting evidence related to gang membership. Accordingly, we reverse the decision of the Court of Criminal Appeals and reinstate Reynolds’s conviction for premeditated first-degree murder.

Hamilton County Supreme Court 11/29/21
Stefani Franklin v. Jimmy Franklin
W2020-00285-COA-R3-CV

In this post-divorce case, Father appeals the trial court’s order allowing Mother to relocate with the parties’ son from the Memphis area to Houston, Texas. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 11/24/21
Mark DeLong Et Al. v. Brian Paul General Partner, LLC
M2021-00075-COA-R3-CV

Appellant debtor appeals the judgment of the trial court on the sole basis that the choice of law provision in the parties’ contract means that another state is the exclusive forum for this action. We affirm the decision of the trial court and award Appellee creditors damages for responding to a frivolous appeal.

Williamson County Court of Appeals 11/24/21
Perry Singo v. State of Tennessee
M2021-00299-CCA-R3-HC

The pro se petitioner, Perry Singo, appeals the denial of his petition for writ of habeas corpus by the Circuit Court for Hickman County, arguing the trial court erred in summarily dismissing the petition.  After our review, we affirm the summary dismissal of the petition pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Hickman County Court of Criminal Appeals 11/24/21
John William Owens v. Meredith Elizabeth Owens
E2020-01470-COA-R3-CV

This is an appeal of rulings by the trial court in a contentious divorce action. Following a bench trial, the trial court valued the parties’ marital assets and divided the marital estate equally. The court awarded the husband the marital home upon his payment to the wife of one-half the combined equity, equal parenting time, and designation as the primary residential parent. The court found that the wife was not entitled to alimony. The wife, inter alia, challenges the trial court’s division and valuation of the marital estate, in declining to award her attorney’s fees, in awarding the parties equal parenting time, and the designation of the husband as primary residential parent. Having carefully reviewed the voluminous record, we affirm in part and reverse in part.

Meigs County Court of Appeals 11/24/21
Michael Kizer v. State of Tennessee
W2020-00929-CCA-R3-ECN

For offenses occurring in 2010, a Shelby County jury convicted the Petitioner, Michael Kizer, of two counts of aggravated robbery and one count of attempted aggravated robbery, and the trial court sentenced him to a total effective sentence of forty-five years of incarceration. This court affirmed the judgments on appeal. State v. Michael Kizer, No. W2013-02559-CCA-R3-CD, 2014 WL 5512863, at *1 (Tenn. Crim. App., at Jackson, Oct. 3, 2014), perm. app. denied (Tenn. Feb. 13, 2015). In 2017, the Petitioner filed a petition for a writ of error coram nobis. In it, he contended that there was newly discovered evidence about his mental capacity that was not considered by mental health professionals at the time of their evaluation. The coram nobis court summarily dismissed the petition, finding that the one-year statute of limitations had run and that the Petitioner had failed to establish that he was entitled to a hearing. The Petitioner filed this appeal. After review, we affirm the coram nobis court’s judgment.

Shelby County Court of Criminal Appeals 11/24/21
State of Tennessee v. Bernard Woodard
M2020-01538-CCA-R3-CD
A jury convicted the Defendant, Bernard Woodard, of burglary of a building other than a habitation, theft of property valued $2,500 or more, and Class E felony evading arrest in a motor vehicle, and he received an effective sentence of eighteen years in prison as a career offender. On appeal, the Defendant asserts that his right to an impartial jury was violated by the racial composition of the jury venire, that the State did not establish the value of the stolen property, that the prosecutor committed misconduct in closing argument, and that the trial court erred in imposing partially consecutive sentences. After a thorough review, we discern no error and affirm the judgments.
 
Putnam County Court of Criminal Appeals 11/23/21
G.T. Issa Construction, LLC v. Bonnie Blalock
E2020-00853-COA-R3-CV

This is a controversy between a homebuyer, the plaintiff, and a residential developer/contractor concerning the construction and sale of a newly constructed custombuilt home and lot within a subdivision with restrictive covenants. The parties executed a fill-in-the-blank “Purchase and Sale Agreement” (“the Agreement”) pursuant to which the defendant agreed to construct a custom home and sell the home and lot to the plaintiff. The principal matter in dispute is whether the defendant was contractually obligated to provide a brick veneer on the retaining wall installed by the defendant. The Agreement did not expressly include the construction of a retaining wall; however, the parties agree that a retaining wall was to be constructed and included in the sale. Although the brick veneer had not been installed and the hotly disputed issue remained unresolved, the sale closed. Shortly thereafter, the buyer commenced this action in which she asserted, inter alia, claims for breach of contract and violation of the Tennessee Consumer Protection Act. The plaintiff alleged that the defendant failed to finish the retaining wall with brick veneer as required by the subdivision’s restrictive covenants and implicitly required by the Agreement. In its answer, the defendant denied liability and asserted that it had no obligation to provide a veneer finish on the retaining wall.

Hamilton County Court of Appeals 11/23/21
Buttercup Ridge Farms, LLC, Et Al. v. McFall Sod & Seeding, LLC, Et Al.
M2021-00457-COA-R3-CV

This is an action to quiet title to a strip of land used as an ingress/egress for property perpendicular to the land at issue.  The trial court found in favor of the plaintiff.  We affirm.

Maury County Court of Appeals 11/23/21
Levie Roberts v. State of Tennessee
W2019-02165-CCA-R3-PC

The Petitioner, Levie Roberts, appeals the Shelby County Criminal Court’s denial of his post-conviction petition, seeking relief from his conviction of second degree murder and resulting twenty-year sentence. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel did not notice before trial that the State’s “key” witness gave inconsistent statements to the police and because trial counsel failed to recall the witness to the stand in order to question her about the inconsistencies. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 11/23/21
Stacy Renee Lofton v. James Warren Lofton
W2020-01349-COA-R3-CV

This is a divorce case. On appeal, the husband raises issues about the trial court’s property division and spousal support award. We generally affirm the trial court’s judgment. For the reasons discussed herein, however, we vacate the trial court’s partition of Husband’s railroad retirement pension benefits, not because of any error with the intended disposition, but for the entry of an order that is fully compliant with 20 C.F.R. § 295.3.

Obion County Court of Appeals 11/23/21
State of Tennessee v. Joseph Lawrence Street
M2021-00036-CCA-R3-CD

The defendant, Joseph Lawrence Street, appeals the denial of his Tennessee Rule of Criminal Procedure 35 motion to reduce the sentence imposed for his 2018 convictions of automobile burglary.  Discerning no error, we affirm.

Rutherford County Court of Criminal Appeals 11/22/21
In Re Ima D. Et Al.
M2021-00022-COA-R3-PT

In this case involving termination of the father’s parental rights to his children, the Hickman County Juvenile Court (“trial court”) determined that several statutory grounds for termination had been proven by clear and convincing evidence.  The trial court further determined that clear and convincing evidence demonstrated that termination of the father’s parental rights was in the children’s best interest.  The father has appealed.  Discerning no reversible error, we affirm.

Hickman County Court of Appeals 11/22/21
Terrell Biggs, Jr. v. Liberty Mutual Insurance Company
E2021-00138-COA-R3-CV

The plaintiff challenges the order of the Sullivan County Circuit Court (“trial court”) granting summary judgment in favor of the defendant, Liberty Insurance Corporation1 (“Liberty”), and dismissing his complaint on the merits with prejudice. The trial court granted summary judgment to Liberty based on lack of subject matter jurisdiction and its conclusion that the plaintiff would be unable to produce sufficient evidence at trial to withstand a motion for directed verdict. Because the plaintiff’s claims are barred by the exclusive remedy provision of the Tennessee Workers’ Compensation Act, we affirm the trial court’s grant of summary judgment to Liberty, albeit for a different reason than that found by the trial court.

Sullivan County Court of Appeals 11/22/21
Johah Paul Anders v. Mayla C. Anders
W2018-02172-COA-R3-CV

This is an appeal from a final decree of divorce. The trial court granted the parties a divorce instead of the annulment Husband requested, among other findings. Husband now appeals. Finding no error, we affirm the trial court.

Shelby County Court of Appeals 11/22/21
State of Tennessee v. Laseena Tirree White
E2020-01473-CCA-R3-CD

The Appellant, Laseena Tirree White, was convicted by a Knox County Criminal Court jury of theft of property valued $10,000 or more but less than $60,000, a Class C felony, and sentenced by the trial court as a Range I, standard offender to three years in the Department of Correction, suspended to supervised probation. On appeal, she challenges the sufficiency of the evidence, arguing that there was insufficient proof of her identity as the perpetrator and of the value of the stolen items. Upon review, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 11/22/21