APPELLATE COURT OPINIONS

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State of Tennessee v. Chris M. Jones

W2023-00591-CCA-R3-CD

The petitioner, Chris M. Jones, appeals from the summary dismissal of his petition filed
pursuant to the Post-Conviction DNA Analysis Act of 2001, wherein he sought DNA
testing of evidence related to his convictions for second-degree murder and attempted
second-degree murder. After reviewing the record, the parties’ briefs, and the applicable
law, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Chris Craft
Shelby County Court of Criminal Appeals 02/23/24
State of Tennessee v. Wayne Daryl Potee

M2023-00179-CCA-R3-CD

Defendant, Wayne Daryl Potee, pleaded guilty in case numbers 2015-CR-185 and 2015- CR-186 to one count of selling 0.5 grams or more of methamphetamine in a Drug-Free School Zone (“DFSZ”) and one count of selling less than 0.5 grams of methamphetamine in a DFSZ. Defendant received an effective 15-year sentence to serve at 100 percent for his convictions. Defendant subsequently filed a motion for resentencing pursuant to Tennessee Code Annotated section 39-17-432(h)(1), which the trial court denied following two evidentiary hearings. Defendant appealed the trial court’s decision. In his brief to this Court, Defendant acknowledges that he has no right of appeal under Tennessee Rule of Appellate Procedure 3, see State v. Bobo, 672 S.W.3d 299, 302 (Tenn. Crim. App. 2023). He nonetheless asserts that the trial court’s ruling was fundamentally illegal and asks this Court to grant a writ of certiorari. Following a thorough review of the record and applicable law, we deny Defendant’s request for a writ of certiorari and affirm the judgment of the trial court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Forest A. Durard, Jr.
Lincoln County Court of Criminal Appeals 02/23/24
Jaquan Gathing v. State of Tennessee

W2023-00596-CCA-R3-PC

The petitioner, Jaquan Gathing, appeals the denial of his post-conviction petition, arguing
the post-conviction court erred in finding he received the effective assistance of counsel.
After our review of the record, briefs, and applicable law, we affirm the denial of the
petition.

Authoring Judge: Judge J. Ross Dyer
Originating Judge:Judge Lee V. Coffee
Shelby County Court of Criminal Appeals 02/23/24
State of Tennessee v. Ralph Lee Atkins, Jr.

E2023-00368-CCA-R3-CD

The Defendant, Ralph Lee Atkins, Jr., was convicted by a Knox County Criminal Court
jury of second degree murder, a Class A felony. See T.C.A. § 39-13-210 (2018). The
Defendant was sentenced to twenty-two years’ incarceration. On appeal, he contends that
the evidence is insufficient to support his conviction. We affirm the judgment of the trial
court

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge G. Scott Green
Knox County Court of Criminal Appeals 02/23/24
State of Tennessee v. Robert Bevis, Jr. a/k/a Butch Bevis

W2022-01740-CCA-R3-CD

A Dyer County Circuit Court jury convicted the Defendant, Robert Bevis, Jr., of two counts
of attempted first degree premeditated murder and one count of employing a firearm during
the commission of a dangerous felony, and the trial court imposed concurrent sentences of
thirty-five years at eighty-five percent for the attempted murder convictions and a
consecutive ten-year sentence at one hundred percent for the firearm conviction. On
appeal, the Defendant argues: (1) the trial court failed to declare a mistrial in response to
numerous outbursts by the victims’ families; (2) the evidence is insufficient to sustain his
convictions; (3) the trial court erred in overruling the defense’s objection when the
prosecutor misrepresented evidence during closing argument; and (4) the trial court erred
in failing to instruct the jury on voluntary intoxication and attempted first degree murder
without serious bodily injury. After review, we affirm the judgments of the trial court but
remand the case for entry of a corrected judgment in Count 4 to reflect the accurate
conviction offense of employing a firearm during the commission of a dangerous felony.

Authoring Judge: Presiding Judge Camille R. McMullen
Originating Judge:Judge Mark L. Hayes
Dyer County Court of Criminal Appeals 02/23/24
Debbie Lynn Simmons, et al. v. Deborah Matlock Bass, et al.

M2023-00275-COA-R3-CV

Appellees, a married couple at the time, purchased two properties. Appellants, Husband’s adult daughters from a previous relationship, sought imposition of resulting trusts on the respective properties. Appellants, each of whom lived in one of the properties, maintained that they had agreements with their father whereby they would own the properties so long as they paid all expenses thereon. Appellee/Wife disputed such arrangement and maintained that the disputed properties were marital properties. Because of the suspect circumstances surrounding the purchases of the properties and the disputed testimony regarding any agreements by and between Husband and Appellants, Wife argued that the properties were not subject to the imposition of the equitable remedy of resulting trusts. The trial court denied Appellants’ respective petitions to establish resulting trusts, and they appeal. Because Appellants failed to meet the burden of proof to establish resulting trusts, we affirm the trial court’s decision.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Suzanne Lockert-Mash
Houston County Court of Appeals 02/23/24
Anika Berryhill v. Shelby County Government Civil Service Merit Board

W2022-01814-COA-R3-CV

A former Shelby County employee alleges that she was wrongfully terminated by the
County and that the Shelby County Government Civil Service Merit Board (CSMB)
improperly declined to consider her appeal. The CSMB’s decision not to consider her
appeal was based upon its determination that the former employee was administratively
removed from her position, not punitively terminated, and, accordingly, the matter was
beyond its authority. The former employee sought judicial review of the CSMB’s decision
in the Shelby County Chancery Court. The Chancery Court dismissed, concluding that the
CSMB did not err on the merits and that the Chancery Court lacked subject matter
jurisdiction. The former employee appeals to this court. Based upon a lack of subject
matter jurisdiction, we affirm the Chancery Court’s dismissal of the former employee’s
petition for judicial review.

Authoring Judge: Judge Jeffrey Usman
Originating Judge:Chancellor Jim Kyle
Shelby County Court of Appeals 02/22/24
Catina Hope Kestner Lusk v. Brandon Burl Lusk

E2024-00226-COA-T10B-CV

This is an accelerated interlocutory appeal as of right pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee from a circuit court judge’s denial of a motion to recuse. The Appellant moved for recusal based on the judge’s setting a trial date, based on the judge’s having filed a complaint with the Board of Professional Responsibility against the Appellant’s attorney in an unrelated case, and based on criticism of the attorney in an
unrelated case. The judge denied the recusal on the merits and also due to a failure to follow the procedural requirements of Rule 10B. We affirm the trial court’s denial of the motion to recuse.

Authoring Judge: Judge Jeffrey Usman
Originating Judge:Judge Suzanne Cook
Unicoi County Court of Appeals 02/22/24
Wendy C. Coram Et Al v. Jimmy C. Brasfield, M.D. Et Al

E2022-01619-COA-R3-CV

Plaintiffs filed a health care liability action against several defendants. Following a hearing on the defendants’ motions to dismiss, the trial court determined that the plaintiffs failed to substantially comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) and that the action was untimely. The plaintiffs appealed to this Court and, following our review, we reverse.

Authoring Judge: Judge Kristi M. Davis
Originating Judge:Judge John S. McLellan, III
Sullivan County Court of Appeals 02/22/24
State of Tennessee v. Ralph Edward Overstreet, Jr.

M2023-00260-CCA-R3-CD

The Smith County Grand Jury indicted Defendant, Ralph Edward Overstreet, Jr., for burglary, attempted first degree murder, aggravated assault, and resisting arrest. A jury convicted Defendant as charged, and the trial court merged the aggravated assault conviction into the attempted first degree murder conviction. Defendant argues on appeal that: (1) the prosecutor’s previous representation of Defendant created an actual conflict of interest that required disqualification and a new trial; (2) the State violated its discovery obligations by introducing evidence that the State allegedly did not disclose of a prior domestic incident between Defendant and his girlfriend; and (3) the evidence was insufficient to support his conviction for attempted first degree murder. Defendant does not challenge the sufficiency of any other conviction. After hearing oral arguments and reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Brody N. Kane
Smith County Court of Criminal Appeals 02/22/24
Estate of Ella Mae Haire et al. v. Shelby J. Webster et al.

E2022-01657-COA-R3-CV

Decedent’s son, individually and as personal representative of his mother’s estate, sued several of his siblings and decedent mother’s bank. Among other things, the son alleged that the bank breached its duties to the decedent by disbursing funds out of her checking and savings accounts following her death. Eventually, the bank moved for summary judgment, arguing that it was not negligent in its handling of the decedent’s accounts, nor did it breach any contractual duty to either the decedent or her son. The son appeals and, discerning no error by the trial court, we affirm.

Authoring Judge: Judge Kristi Davis
Originating Judge:Chancellor Richard B. Armstrong
Court of Appeals 02/22/24
In Re Kamdyn H. et al.

E2023-00497-COA-R3-PT

This is an appeal of a termination of a mother’s parental rights. The Juvenile Court for Sullivan County (“the Juvenile Court”) terminated the parental rights of Tara C. (“Mother”)to two of her children, Kamdyn H. and Bentyn H. upon finding that the Tennessee Department of Children’s Services (“DCS”) proved by clear and convincing evidence that Mother was mentally incompetent and that it was in the best interest of Kamdyn and Bentyn for Mother’s parental rights to be terminated. Mother has appealed. Upon our review, we affirm the Juvenile Court’s judgment.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge Mark H. Tooey
Sullivan County Court of Appeals 02/22/24
State of Tennessee v. Ruben D. Pimentel

M2023-00599-CCA-R3-CD

In 2005, the Defendant, Ruben D. Pimentel, pled guilty to the offense of first degree murder and accepted a negotiated sentence of imprisonment for life without possibility of parole. Thereafter, he filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He alleged that his sentence was illegal because it violates Tennessee Code Annotated section 40-35-501(h)(2), as amended in 2020, which provides that a defendant may be released from a life sentence after sixty years. The trial court summarily denied the motion, finding that the Defendant’s sentence was not illegal. Upon our review, we respectfully disagree with the Defendant and affirm the trial court’s judgment.

Authoring Judge: Judge Tom Greenholtz
Originating Judge:Judge Larry B. Stanley, Jr.
Warren County Court of Criminal Appeals 02/21/24
Brandi Michelle Rose v. Timothy Elvin Rose

W2023-01445-COA-R3-CV

Appellants, Rose Sawmill, Inc. and Shiloh Golf Course, Inc., have appealed an order of the
Hardin County Chancery Court that was entered on September 14, 2023. We determine
that the September 14, 2023 order does not constitute a final appealable judgment.
Therefore, this Court lacks jurisdiction to consider the appeal. The appeal is dismissed.

Authoring Judge: Per Curiam
Originating Judge:Chancellor Vicki Hodge Hoover
Hardin County Court of Appeals 02/21/24
State of Tennessee v. Justin Daniel Barker

W2022-01631-CCA-R3-CD

A Henry County jury found Defendant, Justin Daniel Barker, guilty of two counts of rape (under alternate theories) and one count of aggravated statutory rape. The trial court imposed an effective sentence of eight and a half years in the Tennessee Department of Correction. On appeal, Defendant argues the trial court erred in admitting testimony related to Defendant’s pending criminal proceedings in another jurisdiction, and he contends the evidence was insufficient to sustain the jury’s verdicts. After review, we conclude the trial court erred in admitting evidence related to the pending criminal proceedings, but such error was harmless. We also conclude the evidence was sufficient to support Defendant’s convictions. Accordingly, we affirm the judgments of the trial court.

Authoring Judge: Judge Matthew J. Wilson
Originating Judge:Judge Donald E. Parish
Henry County Court of Criminal Appeals 02/21/24
Tassi Williams v. Rodney Wayne Williams, Jr.

E2023-00810-COA-R3-CV

This appeal arises from the issuance of an order of protection against the appellant, Rodney Williams, Jr. We, however, have determined that the appellant’s brief is profoundly deficient for it fails to comply with Rule 27(a) of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee in several material respects. Based on the appellant’s failure to substantially comply with Rule 27(a)(6)–(7) of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee, the appellant has waived his right to an appeal. Accordingly, this appeal is dismissed.

Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge Gregory S. McMillan
Knox County Court of Appeals 02/21/24
Ben Smith et al. v. William A. White et al.

M2023-00030-COA-R3-CV

The appellees sold a portion of their property to the appellants. The appellees sued the appellants seeking an easement by necessity. The appellants maintained that Tenn. Code Ann § 54-14-102 and its associated statutes prohibited such an easement. The trial court granted a common law easement by necessity. We agree with the trial court’s determination that the 2020 amendments to Tenn. Code Ann § 54-14-102 and its associated statutes did not change the common law regarding easements by necessity. However, due to the lack of a hearing and the corresponding lack of evidence, the improper use of the trial judge’s visit to the property as a fact-finding mission, and the uncertain procedures used to decide the case, we vacate the trial court’s order and remand this matter to the trial court for further proceedings.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge Michael Wayne Collins
Jackson County Court of Appeals 02/21/24
Farris Lamont Kidd v. State of Tennessee

W2023-00601-CCA-R3-PC

Petitioner, Farris Lamont Kidd, pleaded guilty to five separate charges, and received an effective fourteen-year sentence. Thereafter, Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court denied after a hearing. On appeal, Petitioner argues he received ineffective assistance of counsel. After review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Matthew J. Wilson
Originating Judge:Judge Donald H. Allen
Madison County Court of Criminal Appeals 02/21/24
In Re Pandora G.

M2023-01223-COA-R3-PT

This is a termination of parental rights case. The trial court terminated Appellant/Father’s parental rights on the grounds of abandonment by failure to support, substantial noncompliance with the permanency plan, and failure to manifest an ability and willingness to assume custody, and on its finding that termination of parental rights was in the child’s best interest. Father appeals. Because Appellee abandoned the ground of substantial noncompliance with the permanency plan, we reverse the trial court’s termination of Appellant’s parental rights on that ground. We affirm the trial court’s termination of Appellant’s parental rights on all remaining grounds and on its finding that termination of Appellant’s parental rights is in the child’s best interest.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Sheila Calloway
Davidson County Court of Appeals 02/21/24
Michael White v. Vincent Vantell, Warden

M2023-00967-CCA-R3-HC

A Marshall County jury convicted the Petitioner, Michael White, of five counts of rape in 2005, and the trial court sentenced him to an effective sentence of fifty-five years. Thereafter, the Petitioner filed an application for a writ of habeas corpus. He alleged that the trial court lacked jurisdiction to hear his case because, among other things, the original affidavit of complaint was invalid and that his charges were not supported by probable cause. The habeas corpus court summarily denied the application, finding that the Petitioner failed to state a colorable claim for relief and that he failed to comply with the statutory requirements for requesting the writ. Upon our review, we respectfully affirm the judgment of the habeas corpus court.

Authoring Judge: Judge Tom Greenholtz
Originating Judge:Judge Michael Wayne Collins
Trousdale County Court of Criminal Appeals 02/21/24
Kendall Collier Ex Rel. Chayce C. v. Periculis Roussis, M.D. Et Al.

E2022-00636-COA-R3-CV

This appeal concerns juror misconduct. Chayce Collier (“Chayce”), a minor, by and through his parent and next friend, Kendall Collier (“Plaintiff”), sued Periclis Roussis, M.D. (“Dr. Roussis”), Fort Sanders Perinatal Center, and Fort Sanders Regional Medical Center (“the Hospital”) (“Defendants,” collectively) in the Circuit Court for Knox County (“the Trial Court”) alleging health care liability in Chayce’s delivery. A major issue at trial was whether Dr. Roussis fell below the standard of care by failing to administer epinephrine to Plaintiff when she had an anaphylactic reaction during labor. The jury found for Defendants. However, it emerged that a juror had gone home and looked at the warning on an epipen which said that epinephrine should only be used when the potential benefit justifies the potential risk to the fetus. The juror shared this information with the rest of the jury. Plaintiff filed a motion for a new trial, which the Trial Court first granted and then denied. Plaintiff appeals. Under Tenn. R. Evid. 606(b), jurors may not be asked what effect, if any, that extraneous information had on them. Instead, courts look to the extraneous information itself to determine whether there is a reasonable possibility that it altered the verdict. We hold that there is a reasonable possibility that the extraneous information shared with the jury in this case altered the verdict, and Defendants failed to rebut the presumption of prejudice. The Trial Court applied an incorrect legal standard and thereby abused its discretion in denying Plaintiff’s motion for a new trial. We reverse the judgment of the Trial Court and remand for further proceedings consistent with this Opinion.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge William T. Ailor
Knox County Court of Appeals 02/20/24
In Re Macee M.

E2023-00985-COA-R3-PT

The father and stepmother of Macee M. filed a petition to terminate the mother’s parental rights on three grounds. The trial court found that one ground had been proven, abandonment for failure to support, and that termination of the mother’s parental rights was in Macee’s best interest. Based on these findings, the mother’s parental rights were terminated. The mother appeals. We affirm the termination of her parental rights.

Authoring Judge: Judge Frank G. Clement Jr.
Originating Judge:Chancellor John F. Weaver
Knox County Court of Appeals 02/20/24
In Re Evandor C.

M2022-01697-COA-R3-PT

This appeal arises from a petition to terminate the parental rights of a mother and a father to their son. The trial court found that three grounds for termination existed as to the parents: (1) substantial noncompliance with a permanency plan; (2) persistent conditions; and (3) failure to manifest an ability and willingness to assume custody. The trial court also found that the termination was in the best interest of the child. The mother and the father appeal. We reverse the trial court’s finding that clear and convincing evidence established the ground of persistent conditions. However, we affirm its findings that the remaining grounds were proven as to both parents and that termination was in the best interest of the child.

Authoring Judge: Judge Carma Dennis McGee
Originating Judge:Judge Ronnie J. T. Blevins, II
Marion County Court of Appeals 02/20/24
Frank Reed Et Al. v. Town of Louisville, Tennessee Et Al.

E2023-00438-COA-R3-CV

This appeal involves a decision by the Town of Louisville Board of Zoning Appeals (“BZA”) that was upheld on review by the Blount County Circuit Court (“trial court”). At its May 5, 2020 hearing, the BZA granted appellee William Mattison’s request for a variance to allow him to construct an accessory, non-attached garage on his improved real property, which structure would purportedly exceed the height limit set by town ordinance. The appellants, Frank and Tina Reed, who own property adjacent to Mr. Mattison’s property and who had opposed Mr. Mattison’s request for a variance, filed a petition for writ of certiorari with the trial court on July 5, 2022, seeking review of the BZA’s decision. The trial court conducted hearings on the Reeds’ petition in January and February 2023. On February 27, 2023, the trial court entered a final order affirming the BZA’s decision to grant a variance to Mr. Mattison. The trial court found that there was a rational basis for the BZA’s decision, which was supported by material evidence, and that the BZA had acted within its scope of authority and discretion. The Reeds timely appealed. Determining that there existed no material evidence of any particular characteristic of the real property warranting the grant of a variance, we reverse the trial court’s judgment affirming the BZA’s decision and vacate the BZA’s grant of a variance to Mr. Mattison as illegal and outside the BZA’s authority.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge David R. Duggan
Blount County Court of Appeals 02/20/24
James Williams v. Smyrna Residential, LLC et al. (Dissenting)

M2021-00927-SC-R11-CV

I agree with many of the points made in Justice Lee’s dissenting opinion. I write separately out of concern about the practical implications of the majority’s decision to leave the law so unsettled in an area that touches so many.

Authoring Judge: Chief Justice Holly Kirby
Originating Judge:Judge Bonita J. Atwood
Rutherford County Supreme Court 02/16/24