Appellate Court Opinions

Format: 10/21/2021
Format: 10/21/2021
State of Tennessee v. Shaughn Walker
W2019-00751-CCA-R3-CD

A jury convicted the Defendant, Shaughn Walker, of robbery, and he was sentenced to serve ten years in the Community Corrections program. The Defendant appeals, asserting the trial court erred in denying his motion to suppress the victim’s identification from a photographic lineup; that the trial court erred in refusing to allow the Defendant to sit at the table with counsel during trial; that the trial court erred in denying a continuance, additional funding, or other relief after eyewitness identification expert Dr. David Ross used the allocated funding prior to trial and refused to testify absent additional payment; and that he is entitled to cumulative error relief. After a thorough review of the record, we discern no error and affirm the trial court’s judgment.

Shelby County Court of Criminal Appeals 10/01/21
State of Tennessee v. Shaughn Walker - Dissent
W2019-00751-CCA-R3-CD

I respectfully disagree with the majority’s conclusion that the trial court did not err in refusing to grant a continuance and additional funding for an eyewitness identification expert. This case rested almost entirely on the victim’s identification of the Defendant as the perpetrator. Upon being notified by defense counsel the first day of trial that Dr. David Ross would not testify unless additional funds were provided, the trial court was understandably frustrated and concerned about further delay in this case. However, for the reasons that follow, I do not believe the trial court’s concerns about delay and expense warranted the severity of the sanction imposed on the Defendant. Because this case hinged on the victim’s identification and because the Defendant had already demonstrated a “particularized need” for state-funded expert assistance in the field of eyewitness identification, I believe the trial court erred in not granting a continuance and additional funds for a new expert. At the very least, I believe the trial court erred in not allowing testimony in some form from Dr. Jeffrey Neuschatz, who was available if the trial court had simply granted a one-day continuance. Because these errors were not harmless beyond a reasonable doubt, I would reverse the Defendant’s conviction and remand for a new trial.

Shelby County Court of Criminal Appeals 10/01/21
Wilmington Savings Fund Society, FSB Et Al. v. Thomas S. Jackson
E2021-00300-COA-R3-CV

This appeal arises from an action for default on a promissory note. Wilmington Savings Fund Society, FSB, as certificate trustee on behalf of Bosco Credit II Trust Series 2010-1 (“Plaintiff”), filed suit against Thomas S. Jackson (“Defendant”) in the Chancery Court for Sevier County (the “trial court”), alleging causes of action for breach of contract and unjust enrichment arising from a note executed in 2006. Defendant moved the trial court for summary judgment, alleging that he defaulted on the note in 2007 and that the property was foreclosed in 2008. Defendant averred that Plaintiff’s cause of action accrued when Defendant’s remaining debt was accelerated in 2008 and that Plaintiff’s cause of action was therefore time-barred by Tennessee’s six-year statute of limitations on breach of contract actions. Plaintiff responded to Defendant’s motion but failed to cite to any facts in the record that created a dispute as to Defendant’s statements and failed to produce any countervailing evidence. Accordingly, the trial court granted Defendant’s motion and Plaintiff filed a timely appeal to this Court. Discerning no error, we affirm.

Sevier County Court of Appeals 09/30/21
State of Tennessee v. Zachary Smith
M2020-01056-CCA-R3-CD

Aggrieved of his Hickman County Circuit Court jury conviction of attempted domestic assault, the defendant, Zachary Smith, appeals, arguing that the trial court should have dismissed Count 1 of the indictment as duplicitous.  Discerning no error, we affirm.

Hickman County Court of Criminal Appeals 09/30/21
State of Tennessee v. Universal Fire and Casualty Insurance Company Et Al.
M2020-00564-CCA-R3-CD
Universal Fire and Casualty Insurance Company, acting as the Surety in the criminal cases of Shalisha Monique Settles (“defendant”), appeals from the judgment of the Williamson County Circuit Court ordering final forfeiture of her bond in the amount of $40,000. On appeal, the Surety argues it is entitled to relief based on its belief that the defendant was incarcerated under an alias in another state, making it “impossible” to fulfill its bond obligation. Upon review, we affirm the judgment of the trial court.
 
Williamson County Court of Criminal Appeals 09/30/21
In Re Madylynn C. Et Al.
M2021-00184-COA-R3-PT

This is a termination of parental rights case.  Appellants, the children’s biological mother and father, appeal the trial court’s termination of their respective parental rights to the four children on the grounds of: (1) abandonment by an incarcerated parent by wanton disregard, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); (2) substantial non-compliance with the requirements of the permanency plans, Tenn. Code Ann. § 36-1-113(g)(2); (3) persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); (4) severe child abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (5) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. §36-1-113(g)(14).  Appellants also appeal the trial court’s determination that termination of their respective parental rights is in the children’s best interest.  Discerning no error, we affirm.

Dickson County Court of Appeals 09/30/21
William Green v. Timothy Thomas Et Al.
M2021-01140-COA-R3-CV

This is an appeal from an order dismissing an inmate’s petition for common law writ of certiorari.  Because the inmate did not file his notice of appeal within thirty days after entry of the order as required by Rule 4(a) of the Tennessee Rules of Appellate Procedure, we dismiss the appeal.

Hickman County Court of Appeals 09/30/21
Ronald Moore v. Tennessee Board of Parole
M2020-00982-COA-R3-CV

An inmate petitioned for a writ of certiorari after the Tennessee Board of Parole denied him parole. The Board moved to dismiss the petition for lack of subject matter jurisdiction. The trial court concluded that, in the absence of a verification attesting to the truth of the contents of the petition and proper notarization of the petition, it lacked subject matter jurisdiction. So the court dismissed the petition. We affirm. 

Davidson County Court of Appeals 09/30/21
James G. Akers v. Dyck-O'Neal, Inc. Et Al.
M2021-00063-COA-R3-CV

Appellant sought an injunction to stop foreclosure on real property. Appellees, the lienholder, the lienholder’s law firm, and the substitute trustee, filed motions to dismiss, which the trial court granted. After Appellant filed this appeal, Appellee lienholder filed a release of its lien on the subject property. As such, Appellant’s appeal is moot, and the appeal is dismissed.

Davidson County Court of Appeals 09/30/21
Larry E. Parrish, P.C. v. Nancy J. Strong
M2020-01145-COA-R3-CV

This is but the latest appeal in what has been a prolonged course of litigation between the parties. In a prior appeal, this Court ruled in favor of Ms. Strong on all issues raised by the professional corporation and also held, among other things, that an injunction regarding disputed funds in the case should be dissolved. On remand, the trial court accordingly dissolved the injunction and ordered the court’s Clerk & Master to pay the disputed fund proceeds to Ms. Strong and her attorneys. The professional corporation now appeals from this decision. We affirm and hold that the funds should be immediately disbursed to Ms. Strong pursuant to the trial court’s order. Further, finding the professional corporation’s appeal to be frivolous under Tennessee Code Annotated section 27-1-122, we remand the case for a determination of Ms. Strong’s damages incurred on appeal.

Lincoln County Court of Appeals 09/30/21
Brian Adams v. State of Tennessee
W2020-00958-CCA-R3-PC

The Petitioner, Brian Adams, filed a petition for post-conviction relief challenging his convictions for rape of a child and aggravated sexual battery and the resulting ninety-year sentence. The post-conviction court denied relief, and the Petitioner appeals. On appeal, the Petitioner alleges that he received ineffective assistance of counsel because trial counsel failed to adequately cross-examine the victim and failed to object to hearsay evidence from hospital personnel. After our review, we affirm the judgment of the post-conviction court denying the Petitioner relief.

Court of Criminal Appeals 09/30/21
State of Tennessee v. LaVonte Lamar Douglas
W2020-01012-CCA-R3-CD

The Defendant, LaVonte Lamar Douglas, appeals as of right from his convictions for first degree felony murder and attempted aggravated robbery, for which the trial court imposed an effective sentence of life imprisonment. The Defendant argues that (1) the evidence was insufficient to support his convictions because his involvement was based upon uncorroborated accomplice testimony and no direct evidence linked him to the offenses; (2) his right to confront a witness was violated when a police witness referenced a nontestifying co-defendant’s statement; and (3) his mandatory life sentence is unconstitutional in light of his status as a juvenile at the time of the offenses. After a thorough review of the record and applicable law, we affirm.

Hardeman County Court of Criminal Appeals 09/30/21
State of Tennessee v. Kevin McDougle
W2020-00376-CCA-R3-CD

The Appellant, Kevin McDougle, appeals the Shelby County Criminal Court’s summary denial of his pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. On appeal, the Appellant contends that we should remand the case for the appointment of counsel and an evidentiary hearing because his motion states a colorable claim. Based upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 09/29/21
In Re The Estate of Mary E. Schaumberg
E2019-02030-COA-R3-CV

In this action to contest a will, the trial court determined that the contestants were estopped from maintaining their action because they had received property from the decedent’s estate pursuant to the will’s provisions and were therefore bound by its terms. The will contestants have appealed. Determining that the elements of estoppel were not proven, we vacate that portion of the trial court’s final order and remand this matter to the trial court for further proceedings.

Cumberland County Court of Appeals 09/29/21
City of Morristown Et Al. v. Michael W. Ball Et Al.
E2020-01567-COA-R3-CV

The trial court granted the cross-plaintiff’s motion for judgment on the pleadings. Because this case is inappropriate for rendering judgment on the pleadings, we reverse.

Hamblen County Court of Appeals 09/29/21
In Re Kyler C. Et Al.
M2020-01366-COA-R3-PT

In this second appeal of the termination of a mother’s and father’s rights to their children, we consider the best interest of four children.  In the previous appeal, we affirmed that clear and convincing proof established the existence of severe abuse and therefore constituted a ground for termination. On remand, the trial court made appropriate findings and determined that it was in the children’s best interest for the rights of the mother and father to be terminated.  On appeal, we conclude that the evidence establishes that termination is in the children’s best interest. Accordingly, we affirm.

Grundy County Court of Appeals 09/29/21
In Re Isabella M., Et Al.
M2020-01616-COA-R3-PT

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) substantial noncompliance with the permanency plan; (2) the persistence of conditions which led to removal; and (3) failure to manifest an ability and willingness to care for the children. The court also found that termination was in the best interest of the children. We affirm the trial court.

Macon County Court of Appeals 09/29/21
State of Tennessee Ex Rel. Larry E. Parrish, P.C. v. The Honorable James B. Cox Et Al.
M2021-00029-COA-R3-CV

Appellant brought a mandamus action in the trial court praying that the court would mandate certain actions related to other litigation involving Appellant. The trial court dismissed the action. We affirm the court’s dismissal and, finding the appeal to be frivolous pursuant to Tennessee Code Annotated section 27-1-122, remand the case for a determination of Appellees’ damages incurred as a result of the appeal.

Lincoln County Court of Appeals 09/29/21
State of Tennessee v. Briston J. Smith, Jr.
E2020-00823-CCA-R3-CD

Following a trial, a jury convicted Briston J. Smith, Jr., (“Defendant”) of first degree felony murder and attempted especially aggravated robbery, for which he received an effective life sentence. On appeal, Defendant contends: (1) the evidence is insufficient to support his convictions; (2) the trial court erred in denying his motion to suppress his statements to law enforcement; (3) the trial court abused its discretion in admitting autopsy and life photographs of the victim; and (4) he is entitled to a new trial based on improper prosecutorial argument. Upon review, we affirm the judgments of the trial court.

Hamilton County Court of Criminal Appeals 09/29/21
Samuel O. McAlister v. State of Tennessee
W2021-00045-CCA-R3-PC

The Petitioner, Samuel O. McAlister, appeals the Madison County Circuit Court’s denial of his post-conviction petition, seeking relief from his pleas to possession of a firearm by a convicted felon, possession of marijuana, possession of drug paraphernalia, driving on a revoked license, violating the financial responsibility law, and failing to illuminate his license plate and resulting effective five-year sentence. On appeal, the Petitioner contends that he received the ineffective assistance of counsel, which resulted in his pleas being unknowing and involuntary. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Madison County Court of Criminal Appeals 09/29/21
Kimberly Johnson Dougherty v. M.E. Buck Dougherty, III
W2021-01014-COA-T10B-CV

This accelerated interlocutory appeal is taken from the trial court’s order denying Appellant’s motion for recusal. Because there is no evidence of bias that would require recusal under Tennessee Supreme Court Rule 10B, we affirm the judgment of the trial court.

Fayette County Court of Appeals 09/29/21
In Re Allainah B.
M2020-01381-COA-R3-PT

Cara S. and Bradley S. (together, “Petitioners”) sought termination of the parental rights of Austin B. (“Father”) as to Father’s daughter, Allainah B. (the “Child”).  Following a bench trial, the Juvenile Court for Franklin County (the “trial court”) found four statutory bases for termination of Father’s parental rights and further concluded that termination was in the Child’s best interest.  Father appealed to this Court.  We conclude that the trial court’s decision should be affirmed as to three statutory grounds for termination and vacated as to the fourth ground.  We also conclude that termination of Father’s parental rights is in the Child’s best interest.  The ultimate holding of the trial court is therefore affirmed. 

Franklin County Court of Appeals 09/29/21
In Re Raiden H. Et Al.
E2021-01105-COA-R3-PT

The appellant filed a motion to accept late-filed notice of appeal. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Hawkins County Court of Appeals 09/28/21
State of Tennessee v. Terry Lee Gilbreath
E2020-00971-CCA-R3-CD

A Monroe County jury convicted the Defendant of rape of a child, and the trial court sentenced him to forty years of incarceration. On appeal, the Defendant contends that: (1) the trial court erred when it did not suppress electronic evidence against him; (2) the evidence is insufficient to sustain his conviction; (3) the prosecutor’s closing argument was improper; and (4) the trial court erred when it denied his motion for a new trial. After review, we affirm the trial court’s judgment.

Monroe County Court of Criminal Appeals 09/28/21
State of Tennessee v. Venessa Baston
E2021-00187-CCA-R3-ECN

The petitioner, Venessa Baston, through counsel, appeals from the Morgan Criminal Court’s judgment summarily dismissing her petition for a writ of error coram nobis. The State has filed a motion to affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s position is well-taken and affirm the judgment of the trial court.

Morgan County Court of Criminal Appeals 09/28/21