APPELLATE COURT OPINIONS

Jamesway Construction, Inc. v. David W. Salyers, P.E.

M2023-01704-COA-R3-CV

The plaintiff appeals from the dismissal of its claim concerning the Water Quality Control Act (“WQCA”), codified at Tennessee Code Annotated section 69-3-101, et seq.1 We now affirm the dismissal due to the applicable statute of limitations.

Authoring Judge: Judge John W. McClarty
Originating Judge:Chancellor Anne C. Martin
Davidson County Court of Appeals 09/20/24
Jamesway Construction, Inc. v. David W. Salyers, P.E. (Dissenting)

M2023-01704-COA-R3-CV

The parties in the present appeal duel over the question of whether, when appealing the decision of an administrative judge to the Board of Water Quality, Oil, and Gas in relation to an alleged violation of the Water Quality Control Act, a party has 15 or 30 days in which to appeal. Jamesway Construction, Inc. asserts that the Tennessee Department of Environment and Conservation (TDEC) only had 15 days to appeal, and, accordingly, that the administrative judge’s decision became final when TDEC failed to appeal within that period. TDEC insists that it had 30 days to appeal, and, accordingly, that its appeal was timely.

Authoring Judge: Judge Jeffrey Usman
Originating Judge:Chancellor Anne C. Martin
Davidson County Court of Appeals 09/20/24
Nickolus L. Johnson v. State of Tennessee

E2021-01393-CCA-R3-PD

Nearly twenty years ago, Petitioner, Nickolus L. Johnson,1 shot Bristol Police Officer Mark
Vance in the face as Officer Vance entered a home responding to a disturbance call, killing
the officer. State v. Johnson, 401 S.W.3d 1, 8 (Tenn. 2013). A Sullivan County jury
convicted Petitioner of first degree murder and sentenced him to death. Id. After his
conviction and sentence were affirmed on direct appeal, id. at 7, Petitioner subsequently
sought post-conviction relief. The post-conviction court denied relief after extensive
hearings. Petitioner raises numerous arguments on appeal assailing his conviction and
sentence based primarily on ineffective assistance of counsel as well as several standalone
constitutional claims. After a thorough review of the record, the applicable law, the parties’
briefs, and oral arguments, we affirm the post-conviction court’s judgment in all respects.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge William K. Rogers
Sullivan County Court of Criminal Appeals 09/20/24
Cynthia Evans v. Robert David Derrick

M2023-01550-COA-R3-JV

Father appeals the trial court’s award of grandparent visitation to the child’s maternal grandmother. Although we affirm the trial court’s determination that an award of grandparent visitation is warranted, we vacate the visitation schedule set by the trial court.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Magistrate Lesli Oliver Wright
Cheatham County Court of Appeals 09/20/24
Erin Mishkin v. Robert Cole Gordon

M2024-01397-COA-T10B-CV

Appellant filed this petition for recusal appeal after the trial court denied a motion to recuse. In light of Appellant’s failure to comply with Rule 10B of the Rules of the Supreme Court of the State of Tennessee, we affirm.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Deanna B. Johnson
Williamson County Court of Appeals 09/20/24
State of Tennessee v. Robert Allen Turner

M2023-01832-CCA-R3-CD

The Defendant, Robert Allen Turner, was convicted in the Davidson County Criminal Court of aggravated robbery and two counts of possession of a firearm with intent to go armed and received an effective twelve-year sentence. The Defendant did not file a direct appeal of his convictions but filed a petition for post-conviction relief based on the ineffective assistance of counsel. The post-conviction court ultimately determined that the Defendant was entitled to a delayed appeal. On appeal, the Defendant claims that the evidence is insufficient to support his aggravated robbery conviction and that the trial court erred by sentencing him as a Range II, multiple offender for that conviction. Based upon our review, we conclude that the post-conviction court was without jurisdiction to grant a delayed appeal because the post-conviction petition was untimely. Accordingly, the appeal is dismissed.

Authoring Judge: Judge John W. Campbell, Sr.
Originating Judge:Judge Mark J. Fishburn
Davidson County Court of Criminal Appeals 09/20/24
Smiledirectclub, Inc., Et Al. v. NBCUniversal Media, LLC, Et Al.

M2021-01491-COA-R3-CV

This is an action for defamation and violation of the Tennessee Consumer Protection Act (“the TCPA”). The plaintiffs operated a teledentistry platform dedicated to providing remote treatment for mild-to-moderate malocclusion of the teeth. The defendants published an online article and broadcast an “investigative report” that alleged, inter alia, that the plaintiffs’ customers were experiencing “painful problems” such as nerve damage, joint damage, and loss of teeth. In their complaint, the plaintiffs argued these and other statements—as well as the implications derived from those statements—injured the plaintiffs’ reputation and disparaged the plaintiffs’ products, services, and business. The trial court dismissed the action under the Tennessee Public Participation Act (“the TPPA”), holding that the TCPA did not apply and that the plaintiffs failed to make a prima facie case for their defamation claims. This appeal followed. Considering the evidence in a light most favorable to the plaintiffs and disregarding all countervailing evidence, we have determined that the plaintiffs presented prima facie evidence of falsity to support some of their claims but failed to produce clear and convincing evidence of actual malice. Accordingly, we affirm the judgment of the trial court. Defendants ask for an award of their appellate attorney’s fees under Tennessee Code Annotated § 20-17-107, which requires an award of costs and fees “[i]f the court dismisses a legal action pursuant to a petition filed under [the TPPA].” Because we have affirmed the dismissal of the plaintiffs’ claims under the TPPA, Defendants are entitled to an award to be determined by the trial court on remand.

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Judge Thomas W. Brothers
Davidson County Court of Appeals 09/19/24
State of Tennessee v. Lacorious Tyquez Fuller

M2023-00694-CCA-R3-CD

Defendant, Lacorious Tyquez Fuller, appeals his Rutherford County Circuit Court conviction for conspiracy to deliver more than 150 grams of heroin, for which he received a sentence of 17 years’ incarceration. On appeal, Defendant challenges the sufficiency of the convicting evidence and the trial court’s admission of a video recording of a controlled purchase between Defendant and two confidential informants. Finding no reversible error, we affirm the judgment of the trial court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge James A. Turner
Rutherford County Court of Criminal Appeals 09/19/24
State of Tennessee v. Jimmy Smith

M2024-00340-CCA-R3-CD

Jimmy Smith, Defendant, appeals the summary dismissal of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Because Defendant failed to state a colorable claim, we affirm the judgment of the trial court pursuant to Rule 20 of the Court of Criminal Appeals.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Angelita Blackshear Dalton
Davidson County Court of Criminal Appeals 09/19/24
Radames Antonio Rivera v. State of Tennessee

M2023-01276-CCA-R3-PC

The Petitioner, Radames Antonio Rivera, appeals the denial of his petition for post-conviction relief from his second degree murder conviction, arguing that his trial counsel provided ineffective assistance by failing to strike two jurors who had prior connections with the parties and by failing to effectively cross-examine a principal State witness. Based on our review, we affirm the judgment of the post-conviction court denying the petition.

Authoring Judge: Judge John W. Campbell, Sr.
Originating Judge:Judge Robert Bateman
Montgomery County Court of Criminal Appeals 09/18/24
State of Tennessee v. Taeshaun K. Patterson

M2023-00794-CCA-R3-CD

The Defendant, Taeshaun K. Patterson, was convicted by a Rutherford County Circuit Court jury of first degree felony murder, second degree murder, a Class A felony, facilitation of conspiracy to commit aggravated robbery, a Class D felony, facilitation to commit aggravated robbery, a Class C felony, and robbery in concert with two or more persons, a Class B felony. See T.C.A. §§ 39-13-202 (2018) (subsequently amended) (first degree murder), 39-13-210 (2018) (second degree murder), 39-11-403 (2018) (facilitation), 39-12-103 (2018) (criminal conspiracy), 39-13-402 (2018) (aggravated robbery), 39-13- 401 (2018) (robbery), 39-12-302 (2018) (sentencing classification for acting in concert). The Defendant was sentenced to life imprisonment. On appeal, he contends that (1) the evidence is insufficient to support his convictions and (2) the trial court should have held a sentencing hearing for the first degree murder conviction. We affirm the judgments of the trial court. However, in light of State v. Booker, 656 S.W.3d 49 (Tenn. 2022), we remand for the entry of an amended first degree felony murder judgment form to reflect in the special conditions section that the Defendant is entitled to an individualized parole hearing after serving between twenty-five and thirty-six years of his life sentence.

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge James A. Turner
Rutherford County Court of Criminal Appeals 09/18/24
Westport Insurance Corporation et al. v. Howard Tate Sowell Wilson Leathers & Johnson, PLCC et al.

M2023-01168-COA-R3-CV

Plaintiff insurance company is the insurance carrier for an insurance agency that was sued for negligence in five Tennessee lawsuits. After the underlying lawsuits were settled, the plaintiff, in its own name and on behalf of its insured, sued the law firm that represented the insured in the lawsuits. The plaintiff asserted a direct legal malpractice claim, a legal malpractice claim as subrogee of the insured, and a negligent misrepresentation claim. The trial court dismissed all claims. In particular, the trial court ruled that the plaintiff could not maintain a direct legal malpractice claim against the law firm due to the lack of attorney-client relationship and that the assignment of legal malpractice claims is prohibited in Tennessee. In the alternative, the trial court ruled that the plaintiff could not establish the damages element of its legal malpractice claims. The trial court further ruled that the plaintiff failed to establish a misrepresentation of existing or past fact. We affirm the trial court’s dismissal of the plaintiff’s direct legal malpractice action. As to the remainder of the trial court’s rulings, however, we reverse.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Senior Judge Don R. Ash
Davidson County Court of Appeals 09/18/24
State of Tennessee v. John Michael Storey

E2023-00431-CCA-R3-CD

The Defendant, John Michael Storey, pled guilty as a Range III, persistent offender to reckless homicide and the sale and delivery of fentanyl. As part of the plea, the parties agreed to have the trial court decide the length of the sentences and the manner of their service. Following a sentencing hearing, the trial court imposed an effective sentence of eight years and denied the Defendant’s request for an alternative sentence. On appeal, the Defendant argues that the trial court should have granted an alternative sentence or, alternatively, should have modified his sentence pursuant to Tennessee Rule of Criminal Procedure 35 to provide for probation or split confinement. Upon our review, we conclude that the Defendant’s notice of appeal was untimely as to the trial court’s original sentencing decision, and we dismiss that part of the appeal. We respectfully affirm the trial court’s judgments in all other respects.

Authoring Judge: Judge Tom Greenholz
Originating Judge:Judge Zachary R. Walden
Campbell County Court of Criminal Appeals 09/17/24
Janine Halterman-Scott v. Tennessee Society of Certified Public Accountants

M2024-00373-COA-R3-CV

The Plaintiff was injured as a result of stepping into a hole in the grass on the Defendant’s property and brought a premises liability action. The trial court granted summary judgment to the Defendant, finding that the Plaintiff’s responses to the Defendant’s statement of undisputed material facts established that the Defendant had no actual or constructive notice of the dangerous condition. On appeal, the Plaintiff asserts there is evidence from which notice could be inferred. We conclude that the trial court properly granted summary judgment. The judgment is affirmed.

Authoring Judge: Judge Jeffrey Usman
Originating Judge:Judge Joseph A. Woodruff
Williamson County Court of Appeals 09/17/24
Buchanan Dobson Dunavant v. The William B. Dunavant, Jr. Revocable Living Trust ET AL.

W2023-01213-COA-R3-CV

At issue in this appeal is the petitioner’s attempt to recover for breach of contract of a marital dissolution agreement entered into between his parents prior to their divorce. Although the parents’ agreement had called for the petitioner’s father to create an irrevocable life insurance trust for the petitioner’s benefit, the trial court concluded that there was not an enforceable obligation regarding that subject matter and entered summary judgment. For the reasons stated herein, we affirm.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge Rynette N. Hurd
Shelby County Court of Appeals 09/17/24
James Lee McClain v. State of Tennessee

W2023-01118-CCA-R3-PC

The Petitioner, James Lee McClain, appeals the Madison County Circuit Court’s denial of his petition for post-conviction relief challenging his convictions for aggravated assault and witness coercion. The Petitioner argues he received the ineffective assistance of both pretrial and appellate counsel. Specifically, he contends both attorneys who represented him during the pretrial stage were ineffective by failing to discuss discovery materials and case strategy with him, failing to adequately prepare for trial, and failing to file “critical” motions, resulting in the Petitioner’s having to represent himself at trial. Additionally, he argues appellate counsel was ineffective by failing to include sufficiency of the evidence and severance issues in his direct appeal. Following our review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Kyle A. Hixson
Originating Judge:Judge Kyle C. Atkins
Madison County Court of Criminal Appeals 09/17/24
Fred Auston Wortman, III v. Eric Shirkey

E2023-020763-COA-R3-CV

This appeal concerns whether witness testimony in the course of a parole hearing is absolutely privileged. Fred Auston Wortman, III (“Plaintiff”), a prisoner, filed a defamation lawsuit against Eric Shirkey (“Defendant”), a detective who testified at Plaintiff’s parole hearing, in the Circuit Court for Morgan County (“the Trial Court”).1 Plaintiff alleged that Defendant’s statements about him at the parole hearing, such as calling Plaintiff a “narcissist,” damaged his reputation. Defendant filed a motion to dismiss, which the Trial Court granted. The Trial Court concluded that Defendant’s statements were absolutely privileged. Plaintiff appeals, arguing that his parole hearing was administrative rather than judicial in nature, so Defendant’s statements were not protected by absolute privilege. We hold that the parole board, in considering whether to grant Plaintiff parole, was exercising a judicial function such that absolute privilege extended to testimony at the parole hearing. We hold further that Defendant’s statements were relevant and pertinent to the issues involved. Therefore, Defendant’s statements at Plaintiff’s parole hearing were absolutely privileged. We affirm.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge Michael S. Pemberton
Morgan County Court of Appeals 09/17/24
Shelby County Democratic Party ET AL. v. Greg Grant D/B/A Greater Memphis Democratic Club, Inc.

W2022-01185-COA-R3-CV

In response to a petition alleging the violation of Tennessee Code Annotated section 2-19- 116, a statute that prescribes a criminal penalty and that this Court has held does not provide for a private right of action, the trial court entered an injunction. The trial court thereafter found that the appellant was in criminal contempt of the injunction and sentenced him to ten days in the county jail. The appellant appeals, arguing, among other things, that the order that he was held in contempt of was not lawful. For the reasons stated herein, we hold that the contempt judgment should be reversed.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Senior Judge William B. Acree
Shelby County Court of Appeals 09/16/24
Amy Leanne Wilhite v. Seth Evan Wilhite

M2023-00188-COA-R3-CV

This post-divorce action concerns the distribution of proceeds from the sale of the parties’ former marital residence as specified in their marital dissolution agreement. The husband claimed a right under the MDA to, inter alia, one-half of the net proceeds, but the wife asserted that the MDA limited the husband’s equity interest to $40,000. The parties also disputed who was liable for income taxes, including interest and penalties, incurred and accruing after 2019, when the parties entered the MDA. Each party also asserted claims and entitlements to various credits and/or offsets resulting from the delay in the sale of the marital residence. The trial court held that the MDA limited the husband’s interest to $40,000. The court assessed $29,368.52 in post-divorce income taxes, including penalties and interest, against the husband. The court also ordered him to pay $20,543.10 for the wife’s attorney’s fees per the MDA’s fee-shifting provision. But the court granted the husband’s request for reimbursement for the cost of repairs to the property and awarded the husband credit for one-half of the utilities that he paid pending the sale of the property. The husband appeals, raising several issues. We respectfully disagree with the trial court’s finding that the MDA limited the husband’s equity interest to $40,000. We also conclude that the MDA obligated Husband to pay for all utilities and other expenses pending the sale of the property. For this reason, we reverse the trial court’s finding that Husband was entitled to a credit of one–half of those payments. Thus, we vacate the monetary awards that were based, in part, on these decisions, and remand with instructions to recalculate the parties’ respective entitlements to “the net proceeds.” We affirm the trial court in all other respects. We also find that the wife has a right to recover her reasonable and necessary attorney’s fees and expenses incurred on appeal under § 15 of the MDA and remand with instructions for the trial court to make the appropriate award.

Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Originating Judge:Judge Joe H. Thompson
Sumner County Court of Appeals 09/16/24
State of Tennessee v. David Anthony Avery

M2024-00651-CCA-R3-CD

Petitioner, David Anthony Avery, filed a motion pursuant to Tennessee Rule of Criminal Procedure 36.1 claiming that his sentences were illegal because his criminal case was a civil matter, that the United States District Court had original jurisdiction over all civil cases, and that the trial court did not have jurisdiction to impose the sentences. We determine that the motion failed to state a colorable claim and affirm summary dismissal of the motion by the trial court.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Cheryl A. Blackburn
Davidson County Court of Criminal Appeals 09/16/24
Lexington Charter, LP, et al. v. FBT of Tennessee, Inc.

W2023-01311-COA-R3-CV

This appeal arises from a dispute between a partnership and its limited partners concerning the payment of attorney’s fees under the parties’ limited liability agreement. The trial court held that the attorney’s fees were payable from the proceeds of the sale of the partnership’s property, and the limited partners appeal. Discerning no error, we affirm.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Chancellor JoeDae L. Jenkins
Shelby County Court of Appeals 09/16/24
Rory Mills Sullivan v. AnneMarie Culp Allen, Individually, and as Trustee for The Tommy Ray Allen and AnneMarie Culp Allen Revocable Trust ET AL.

W2023-01357-COA-R3-CV

This appeal follows the dismissal of a proceeding brought in probate court. Because we cannot discern the basis for the trial court’s decision in the two orders that are at issue, we vacate both orders and remand for further proceedings consistent with this Opinion.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge Joe Townsend
Shelby County Court of Appeals 09/13/24
State of Tennessee v. Anthony Tucker

M2024-00104-CCA-R3-CD

Petitioner, Anthony Tucker, appeals the denial of his motion to correct an illegal sentence, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Following our review of the entire record and the briefs of the parties, we affirm the judgment of the trial court.

Authoring Judge: Judge Jill Bartee Ayers
Originating Judge:Judge Barry R. Tidwell
Rutherford County Court of Criminal Appeals 09/13/24
State of Tennessee v. Brandon Francis

M2022-01777-CCA-R3-CD

The Defendant, Brandon Francis, pled guilty to the offenses of aggravated assault and possession of a handgun by a convicted felon. After a hearing, the trial court sentenced the Defendant to an effective sentence of ten years to be served in custody. On appeal, the Defendant challenges both the length of the sentence and the manner of its service. Upon our review, we respectfully affirm the judgments of the trial court.

Authoring Judge: Judge Tom Greenholtz
Originating Judge:Chancellor Howard W. Wilson
Rutherford County Court of Criminal Appeals 09/13/24
State of Tennessee v. James Carter Millinder

W2024-00059-CCA-R3-CD

The Defendant, James Carter Millinder, appeals the trial court’s decision ordering his agreed-upon nine-year sentence to be served consecutively to an unserved sentence in another county. The Defendant claims that the trial court erred by sentencing him in a manner not contemplated by the agreement between the parties and that this error rendered his guilty plea involuntary. Given the deficiencies in the Defendant’s appellate brief, as well as the absence of transcripts of the guilty plea and sentencing proceedings from the appellate record, we affirm the judgments of the trial court.

Authoring Judge: Judge Kyle A. Hixson
Originating Judge:Judge Donald H. Allen
Henderson County Court of Criminal Appeals 09/12/24