APPELLATE COURT OPINIONS

Stephen Gerard Smith, the Defendant, filed a pro se Motion for Reduction of Sentence pursuant to Tennessee Rule of Criminal Procedure 35 in which he asked the trial court to either reduce his sentence or to grant a new sentencing hearing.  Because the Defendant was erroneously sentenced as a career offender rather than a persistent offender for Class C felony aggravated assault and because the sentence was entered as the result of an agreement between the State and the Defendant, the trial court granted a new sentencing hearing.  Following the sentencing hearing, the trial court sentenced the Defendant to thirteen years’ incarceration as a Range III persistent offender for Class C felony aggravated assault and to a consecutive sentence of twelve years’ incarceration as a career offender for Class D felony attempted aggravated assault.  The Defendant was sentenced to eleven months and twenty-nine days for each of the three domestic assault convictions to be served concurrently with each other and with the felony sentences.  The Defendant claims the trial court abused its discretion in allowing him to proceed pro se in the motion hearing and in the imposition of the sentences.  Discerning no error, we affirm the judgments of the trial court.

In this accelerated interlocutory appeal, Appellants appeal from separate orders denying two motions for recusal filed in this case. As to denial of the first motion for recusal, we hold that Appellants failed to file a timely appeal pursuant to Rule 10B of Rules of the Supreme Court of Tennessee. As to the denial of the second recusal motion, we hold that the recusal motion was ineffective because it was not signed by local counsel as required by Rule 19 of the Rules of the Supreme Court of Tennessee. In the absence of a timely filed appeal from an effective recusal motion, we dismiss this appeal.

In this divorce action, the trial court granted the wife a divorce, divided the marital assets, and awarded her alimony in solido but denied her request for alimony in futuro. The wife appeals. We reverse and grant a divorce without fault to either party. We also modify the judgment to reflect an award of alimony in futuro in the amount of $2,000 per month.

The developer of a Nashville subdivision and its surety entered into three performance agreements by which they bound themselves to complete the infrastructure in the subdivision. The Metropolitan Government brought an action to enforce the agreements against both parties when the developer failed to complete the infrastructure. The surety filed an answer as well as a cross claim against the developer and a third-party complaint against a group of investors who had executed a separate agreement to indemnify the surety for any amounts the surety might pay or be held liable. After settling with the Metropolitan Government, the surety sought summary judgment against the developer and investors; the cross and third-party defendants also sought summary judgment asserting that, since the surety did not issue a separate bond, they had no obligation to indemnify the surety. The court granted summary judgment to the surety upon holding that the performance agreement operated as a bond and entitled the surety to indemnification. The developer and investors appeal the grant of the surety’s motion and the denial of their motion. We hold that the surety’s execution of the performance agreements operated as an “undertaking[] or other writing[] obligatory in nature of a bond” as contemplated by the indemnity agreement and, accordingly, affirm the judgment of the trial court.

This appeal involves the termination of a contract between an electric power distributor and an independent contractor. After a bench trial, the trial court concluded that the electric power distributor was justified in terminating the contract because the independent contractor materially breached the contract by violating a safety policy and an oral directive from the power distributor. The independent contractor appeals, claiming that the evidence did not support a finding that it violated the safety policy or directive, that such a violation, even if it did occur, did not constitute a material breach of the contract, and that the power distributor was required to give notice and an opportunity to cure any default prior to terminating the contract. We affirm. 

After a bench trial, the trial court issued a written order finding the Defendant, Leroy Myers, Jr., not guilty of the charged offense, aggravated assault, but guilty of reckless endangerment with a deadly weapon.  On appeal the Defendant asserts that reckless endangerment is not a lesser-included offense of aggravated assault under the facts of this case and that there was not an implicit amendment to the indictment to include reckless endangerment.  After review, we affirm the trial court’s judgment.

This appeal involves an incarcerated inmate’s filing of a petition for writ of certiorari, claiming that the Tennessee Board of Probation and Parole acted arbitrarily and without material evidence in denying his request for parole. The trial court granted the petition but ultimately affirmed the denial of parole. The petitioner appeals. We affirm.

Defendant, Jonathon Wayne Thompson, was convicted of theft of property valued over $500 but less than $1000. He received a sentence of one year and six months, with 90 days to serve in incarceration on consecutive weekends and the remainder to be served on supervised probation. On appeal, Defendant challenges the sufficiency of the evidence and the trial court’s decision to deny full probation. Upon our review of the record, we affirm the judgment of the trial court.

This is an appeal of an order dismissing a will contest for lack of standing. The Contestants sought to challenge the testator's will, alleging that it was the product of fraud and/or undue influence. The Estate introduced multiple prior wills that appeared to be facially valid and properly executed in which all or some of the Contestants were disinherited. The chancery court found that the Contestants would not benefit if the testator's will was set aside and dismissed the contest for lack of standing. We affirm.

Shane L.B. (“Father”) appeals the judgment of the Juvenile Court for Jefferson County (“the Juvenile Court”) terminating his parental rights to the minor child, Knox C. (“the Child”), after finding and holding that grounds for terminating Father's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6) were proven by clear and convincing evidence and that it was in the Child's best interest for Father's parental rights to be terminated. We find and hold that the evidence in the record on appeal does not preponderate against the Trial Court's findings made by clear and convincing evidence that grounds were proven to terminate Father's parental rights to the Child and that the termination was in the Child's best interest. We, therefore, affirm.

We granted this appeal to determine whether the warrantless blood draw violated the defendant’s right to be free from unreasonable searches and seizures, guaranteed by the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution, and, if so, whether the exclusionary rule applies and requires suppression of the evidence. We conclude that the warrantless blood draw violated the defendant’s federal and state constitutional right to be free from unreasonable searches and seizures. Nevertheless, we adopt the good-faith exception to the exclusionary rule articulated by the United States Supreme Court in Davis v. United States, 564 U.S. 229 (2011), and as a result, hold that any evidence derived from testing the defendant’s blood need not be suppressed because the warrantless blood draw was obtained in objectively reasonable good-faith reliance on binding precedent. On this basis, we affirm the judgment of the Court of Criminal Appeals.

I agree with the Court’s conclusion that the warrantless blood draw violated Ms. Reynolds’ right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution. I dissent from the Court’s decision to excuse these constitutional violations by adopting a good-faith exception to the exclusionary rule. The adoption of this exception for a constitutional violation erodes our citizens’ rights to be free from unreasonable searches and seizures as guaranteed by the United States and Tennessee Constitutions. Therefore, I would hold that the test results of Ms. Reynolds’ warrantless blood draw must be suppressed. Moreover, given the unusual facts of this case, the adoption of a good-faith exception for a constitutional violation based on an officer’s good-faith reliance on binding judicial precedent, as set forth in Davis v. United States, 564 U.S. 229, 241 (2011), is ill-conceived for many reasons. 

Pickup truck driver sued to recover for injuries he allegedly sustained when his truck was rear-ended while he was stopped for traffic on the interstate. His wife asserted that she had suffered from the loss of consortium with and services of her husband. The defendant driver acknowledged responsibility for the collision but disputed that the plaintiffs had proven, by a preponderance of the evidence, that the accident in question caused any injury. The jury found that the collision caused no damage to the plaintiffs. On the jury’s verdict, the trial court entered judgment, awarding the plaintiffs no damages and denying the motion for a new trial. The plaintiffs appeal. We vacate the trial court’s judgment and remand for a new trial on damages alone.

I cannot concur in the majority’s decision. The issue of whether the collision of the vehicles “caused damage to the Plaintiffs” was fairly presented to the jury. The jury rejected the Plaintiffs’ theory that Mr. Kempson was injured in the accident. I would affirm the jury’s verdict in toto. Accordingly, I respectfully dissent from the majority’s decision to remand for a new trial on damages.

A Davidson County jury convicted the Petitioner, James Robert Wilson, of especially aggravated robbery and first degree felony murder, and the trial court sentenced him to an effective sentence of life in prison.  The Petitioner appealed, and this Court affirmed the trial court’s judgments.  State v. James Robert Wilson, No. M2000-00760-CCA-R3-CD, 2002 WL 1050259, at *1 (Tenn. Crim. App., at Nashville, May 24, 2002), perm. app. denied (Tenn. Nov. 12, 2002).  In 2003, the Petitioner unsuccessfully sought post-conviction relief.  James Robert Wilson v. State, M2004-00933-CCA-R3-PC, 2005 WL 1378770, at *1 (Tenn. Crim. App., at Nashville, June 10, 2005), perm. app. denied (Oct. 31, 2005).  In 2016, the Petitioner filed a petition for habeas corpus relief contending that the trial court “constructively amended the indictment in this case” when it charged the jury using language that did not fully comport with the language used by the grand jury when it indicted him.  The habeas corpus court summarily dismissed the petition, and we affirm the habeas corpus court’s judgment.

In this health care liability action, Defendants moved to dismiss based on the Plaintiffs‘ failure to provide the Health Insurance Portability and Accountability Act ("HIPAA") medical authorization required by Tennessee Code Annotated section 29-26-121(a)(2)(E). Based on its determination that the Plaintiffs failed to substantially comply with the foregoing statute, the trial court held that the Plaintiffs were not entitled to an extension of the applicable statutes of limitations and repose under Tennessee Code Annotated section 29-26-121(c) and accordingly concluded that the Plaintiffs‘ claims were time-barred. The trial court also concluded that the Plaintiffs‘ constitutional challenges to the viability of Tennessee Code Annotated section 29-26-121 were without merit. We affirm and remand for further proceedings consistent with this Opinion.

This case involves a trustee's disbursement of funds from two trusts, without authorization of the trusts' respective beneficiaries, in order to pay legal expenses incurred in defending against a prior action filed against the trustee on behalf of the beneficiaries. The trial court had dismissed the prior action with prejudice in an agreed order entered on August 31, 2012, which further provided that the funds at issue would be disbursed by the trustee for the benefit of the beneficiaries. On April 13, 2015, the beneficiaries filed a complaint, alleging that the trustee had violated the terms of the August 2012 order and her fiduciary duty by writing checks against the trust funds in an amount totaling $30,563.16. The trustee filed an answer, asserting that pursuant to Maryland law governing the establishment of the trust accounts, she was entitled to be reimbursed from the trust accounts for legal fees incurred in defense of the prior lawsuit filed on behalf of the beneficiaries and ultimately dismissed. The beneficiaries filed a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the beneficiaries, awarding each beneficiary, respectively, $15,281.58 plus prejudgment interest and attorney's fees. The trustee appeals. Discerning no reversible error, we affirm. Having determined that the trial court did not abuse its discretion by awarding attorney's fees upon the finding that the trustee breached her fiduciary duty, we further determine an award to the beneficiaries of attorney's fees on appeal to be appropriate. We remand for the trial court to determine the amount of reasonable attorney's fees incurred by the beneficiaries during the appellate process.

Defendant, Quincy Terrell Sharpe, was indicted by the Davidson County Grand Jury, along with his co-defendant DeAndre D. Rucker, for premeditated first degree murder.  Defendant and Rucker were tried jointly, and both were convicted as charged.  The trial court sentenced Defendant to a term of life imprisonment.  In this appeal as of right, Defendant contends that the prosecutor committed prosecutorial misconduct during closing argument and that the evidence was insufficient to support his conviction.  Following our review, we conclude that the Defendant is entitled to a reversal of his conviction based on prosecutorial misconduct by the State during closing argument.  Accordingly, we reverse the judgment of the trial court and remand for a new trial.

The defendant, Lamonez Deshaun Thaxton, appeals his Davidson County Criminal Court jury convictions of reckless endangerment and attempted especially aggravated robbery, claiming that the trial court erred by denying the defendant’s motion to exclude evidence, that the evidence was insufficient to sustain his convictions, and that the sentence imposed was excessive.  Discerning no error, we affirm.

The Defendant, Kevin Dean Atkins, appeals the trial court’s order setting aside a plea agreement whereby the Defendant pled guilty to public intoxication and admitted violating the terms of his probation for a prior conviction.  The Defendant filed a motion for permission to seek an interlocutory appeal of the trial court’s order pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, and his motion was granted.  On appeal, the State concedes that the trial court’s order violated the Defendant’s double jeopardy rights.  We agree and accept the State’s concession.  Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

The Defendant, Gregory Scott Barnum, was convicted of Class E felony indecent exposure and received a sentence of two years’ incarceration.  On appeal from his conviction, the Defendant asserts that the trial court erroneously found that he was a “sexual offender” based on his 1998 Kentucky convictions for indecent exposure and thus subject to enhanced punishment under Tennessee’s indecent exposure statute. Upon review, we affirm the judgment of the trial court.

The defendant, Cephus D. Spicer, appeals his Rutherford County Circuit Court jury convictions of aggravated robbery, conspiracy to commit aggravated robbery, and unlawful possession of a firearm on a college campus, claiming that his due process rights were violated by the State’s reading of the indictment to the jury without proper instructions, that the prosecutor’s closing argument was improper, that the State failed to disclose exculpatory evidence, that the evidence was insufficient to sustain his convictions, and that the sentence imposed was excessive.  Discerning no error, we affirm.

This is a termination of parental rights case. The trial court terminated Father’s parental rights on the grounds of substantial noncompliance with a permanency plan and abandonment by willful failure to visit. The trial court also found that termination of Father’s parental rights was in the best interest of the children. Having reviewed the record as it relates to the grounds for termination and the best interests of the children, we conclude that the trial court’s findings are supported by clear and convincing evidence. We, therefore, affirm the judgment of the trial court terminating Father’s parental rights.

Father appeals the termination of his parental rights to his two children. The juvenile court terminated his parental rights on three grounds: abandonment by willful failure to support, failure to provide a suitable home, and persistence of conditions preventing reunification. The court also found clear and convincing evidence that termination of parental rights was in the children’s best interests. After reviewing the record, we conclude that DCS did not meet its burden of proving, by clear and convincing evidence, the grounds of failure to provide a suitable home or persistence of conditions. But, we conclude that there was clear and convincing evidence of willful failure to support and that termination was in the best interests of the children. Therefore, we affirm the termination of parental rights.