APPELLATE COURT OPINIONS

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In Re: Donald C., et al

M2014-01327-COA-R3-PT

Mother’s parental rights to her children were terminated on grounds of abandonment by failure to visit, persistence of conditions, and noncompliance with a permanency plan. Mother challenged the ground of abandonment, arguing there was a no contact order in place that prevented her from visiting her children. When the no contact order was put into place, Mother was informed she would be able to visit her children if she passed drug tests and took parenting classes. Mother continued to test positive for illegal drugs and failed to take advantage of services offered by the Department of Children’s Services. We affirm the trial court’s judgment that Mother abandoned her children by failing to visit them and that it is in their best interest to terminate her rights. A petition for custody that may have been pending when Mother’s rights were terminated is part of a different proceeding and does not render the court’s decision to terminate Mother’s rights premature.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge A. Andrew Jackson
Dickson County Court of Appeals 12/30/14
State of Tennessee v. Lashay Nicole Scruggs

W2014-00091-CCA-R3-CD

Lashay Nicole Scruggs (“the Defendant”) appeals from the trial court’s denial of judicial diversion. On appeal, the Defendant argues that the trial court abused its discretion by (1) placing heavy emphasis on charges listed as “pending” in the pre-sentence report but that were actually disposed of prior to the sentencing hearing; (2) placing emphasis on the presence of marijuana in the Defendant’s system when marijuana use was not an element of vehicular manslaughter as charged in this case; and (3) placing emphasis on the need to deter others from driving irresponsibly when there was no evidence of such a need in the record. Upon review, we find that the trial court did not abuse its discretion and affirm the judgment of the trial court.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge J. Weber McCraw
Fayette County Court of Criminal Appeals 12/30/14
In Re V.L.J. et al

E2013-02815-COA-R3-PT

This is a parental termination case. It focuses on the three children of a married couple, D.G.B. (Mother) and D.C.B. (Father), and Mother’s child (V.L.J.) from an earlier relationship. The four children came into the custody of the Department of Children’s Services (DCS) in 2009. Nearly four years later, DCS filed a petition to terminate the rights of the parents. Following a trial, the court granted the petition based upon its finding (1) that multiple grounds for termination exist and (2) that termination is in the best interest of the children. Both findings were said by the trial court to be made by clear and convincing evidence. Mother and Father appeal. We affirm.

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Tammy M. Harrington
Blount County Court of Appeals 12/30/14
George Ernest Diggs v. David Lingo, et al.

W2014-00525-COA-R3-CV

This is an appeal from an order denying a motion to compel arbitration. The beneficiaries of a trust filed this lawsuit against the trustee alleging trustee self-dealing arising from a transaction in which the trustee and his wife purchased certain real property from the trust as tenants by the entirety. The beneficiaries sought to set aside a portion of the sale. The trustee filed a motion to compel arbitration pursuant to an arbitration clause in the trust agreement. The beneficiaries opposed the motion, arguing that they could not be compelled to arbitrate their claims against the trustee’s wife. The trial court agreed and denied the motion. The court found that the trustee’s wife was a necessary party to the resolution of the dispute, but because she was not a party to the trust agreement, there was no enforceable arbitration agreement between her and the beneficiaries. We affirm the decision of the trial court.

Authoring Judge: Judge Brandon O. Gibson
Originating Judge:Judge Donald E. Parish
Henry County Court of Appeals 12/30/14
Cedric Jones, Sr. v. State Farm Fire & Casualty

M2014-00208-COA-R3-CV

Suit for breach of contract to recover on a homeowners policy for losses sustained when policyholder’s home was allegedly burglarized and was allegedly damaged as a result of a storm. Upon defendant’s motion, the trial court granted summary judgment, holding that the insurance company defendant had demonstrated that policyholder could not meet his burden of proof as to any of his claims.  After a thorough review of the record, we discern no error and affirm the judgment of the trial court.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Chancellor Russell T. Perkins
Davidson County Court of Appeals 12/30/14
Antonio Williams v. State of Tennessee

E2014-00419-CCA-R3-PC

Antonio Williams (“the Petitioner”) pleaded guilty to three counts of possession with intent to sell a Schedule II controlled substance within a drug-free zone and agreed to a revocation of probation on a prior sentence. Pursuant to his plea agreement, the Petitioner received a total effective sentence of ten years to be served at 100%. In this appeal from the denial of post-conviction relief, the Petitioner contends that the post-conviction court erred in finding: (1) that his plea was intelligently and voluntarily made; and (2) that trial counsel’s performance was not deficient. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Mary B. Leibowitz
Knox County Court of Criminal Appeals 12/30/14
State of Tennessee v. Angel Geovanna Hurtado

M2014-00180-CCA-R3-CD

The Defendant, Angel Geovanna Hurtado, was convicted by a Davidson County jury of three counts of aggravated child abuse, one count of reckless aggravated assault as a lesser-included offense of aggravated child abuse, and one count of aggravated child neglect.  The trial court imposed an effective sentence of twenty-five years for her convictions.  In this direct appeal, the Defendant contends that (1) the trial court committed plain error by failing to grant a mistrial given the “significant problems that arose during trial revealing the existence of potential new witnesses and exculpatory evidence”; (2) the trial court erred by permitting the State to elicit testimony about and argue that evidence of domestic violence established the Defendant’s guilty knowledge, under a theory of criminal responsibility, of the child abuse and neglect of the victim by her live-in boyfriend; and (3) the evidence was insufficient to support the convictions, including a challenge of material variance between the proof and the State’s election of offenses.  Following our review of the record and the applicable authorities, the judgments of the trial court are affirmed.  However, we must remand for entry of a corrected judgment in count two to reflect the proper conviction of reckless aggravated assault.

Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Mark J. Fishburn
Davidson County Court of Criminal Appeals 12/30/14
State of Tennessee v. Leslie Allen Ware, Jr.

E2013-02855-CCA-R3-CD

The defendant, Leslie Allen Ware, Jr., appeals his Sullivan County Criminal Court jury convictions of conspiracy to possess 26 grams or more of cocaine with intent to sell or deliver, possession of 26 grams or more of cocaine for sale or delivery, maintaining a dwelling where controlled substances are used or sold, facilitation of theft, facilitation of conspiracy to commit robbery, and two counts of criminally negligent homicide. The defendant received an effective sentence of 36 years. He claims on appeal that the sentences imposed by the trial court were excessive. Discerning no error, we affirm the judgments of the trial court.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge R. Jerry Beck
Sullivan County Court of Criminal Appeals 12/29/14
C. Eddie Shoffner v. Tenneseee Consolidated Retirement System

M2014-00070-COA-R3-CV

An individual employed by Claiborne County as Director of Schools was terminated over two years earlier than the employment term set forth in the parties’ contract. The county and the individual entered into another contract (“modified contract”) whereby the individual agreed to work as Safety Coordinator for five months and be compensated in an amount equal to the amount he would have been paid had the prior contract not been terminated. This resulted in a salary increase of nearly $40,000 per month for each of the five months the individual was employed as Safety Coordinator. The modified contract provided that the employee would be paid whether he performed any work or not, and the employee agreed to waive and release any claims he might have against the county. When the employee applied for retirement benefits,the agencyin charge of calculating the amount of benefits did not treat the nearly $40,000 increase in compensation as “earnable compensation” because the additional compensation was not for “services rendered,” as required by the statute. The employee contested this decision, and the administrative law judge (“ALJ”) ruled in favor of the agency, granting the agency’s motion for summary judgment. The employee filed a petition for judicial review, and the trial court affirmed the ALJ’s decision. The employee appeals the trial court’s judgment to this Court, and we affirm.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Chancellor Carol L. McCoy
Davidson County Court of Appeals 12/29/14
Thaddeus Johnson v. State of Tennessee

W2014-00053-CCA-R3-PC

Petitioner, Thaddeus Johnson, was convicted of first degree murder and attempted first degree murder. For these crimes, he received a life sentence and a consecutive twenty-five year sentence. Petitioner timely filed a petition for post-conviction relief in which he alleged that he received ineffective assistance of counsel at trial and on appeal. The post-conviction court denied relief, finding that Petitioner failed to prove his claims by clear and convincing evidence. In this appeal, Petitioner challenges the dismissal of his petition and also alleges ineffective assistance at the post-conviction hearing. After reviewing the parties’ briefs, the record, and applicable law, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Glenn Ivy Wright
Shelby County Court of Criminal Appeals 12/29/14
Gregory Eidson v. City of Portland, et al

M2013-02256-COA-R3-CV

Plaintiff in suit to recover damages for injuries allegedly suffered in the course of his arrest appeals the grant of the motion to dismiss for failure to state a claim filed on behalf of the City and Police Chief and the grant of summary judgment to the police officers who participated in his arrest. In responding to the motions, plaintiff acknowledged that the claims against City, Police Chief and two of the officers should be dismissed; we affirm the dismissal of those claims and parties. The order granting summary judgment to the remaining officer does not state the legal ground therefor or make findings of fact relative thereto; consequently, we vacate the judgment and remand for further proceedings. We reverse the denial of plaintiff’s motion to amend to substitute one of the officers for the defendant named John Doe.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge C. L. Rogers
Sumner County Court of Appeals 12/29/14
Gary Collier v. McEvoy Funeral Home, Inc. et al.

W2014-00061-SC-R3-WC

A funeral director sustained injuries to his shoulder and back while assisting with carrying a casket. His injury was accepted as compensable. Within a few days, he submitted a letter of resignation to his employer. After recovering from his injuries, he filed this action seeking permanent disability benefits. He also sought reconsideration of a previous settlement pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that the employee was not entitled to reconsideration of the earlier settlement and that any award for his later injury was subject to the one and one-half times impairment cap because of his voluntary resignation. The trial court found that the employee did not voluntarily resign, granted the petition for reconsideration, and awarded benefits for the second injury in excess of the cap. The employer appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the trial court.

Authoring Judge: Judge Brandon O. Gibson
Originating Judge:Judge Don R. Ash
Carroll County Workers Compensation Panel 12/29/14
City of Athens Board Of Education et al v. McMinn County, Tennessee et al.

E2013-02758-COA-R3-CV

This litigation is a dispute between the boards of education of the cities of Athens and Etowah (“the City School Boards”) on the one hand and McMinn County (“the County”) over the distribution of tax revenues among the various school systems within the county. Tenn. Code Ann. § 49-3-315(a) (2013) mandates that “[a]ll school funds for current operation and maintenance purposes collected by any county . . . shall be apportioned by the county trustee” among the local education agencies in the county based upon average daily school attendance. Over the years spanning from 1996 to 2011, the County apportioned funds in the account designated “general purpose school fund” to the City School Boards, but did not apportion funds from the County’s “educational capital projects fund.” The County argues that funds appropriated for and spent on school capital projects are not “school funds for current operation and maintenance purposes” under the language of the statute. The trial court agreed and granted the County summary judgment. It dismissed the complaint of the City School Boards. We affirm.

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Lawrence H. Puckett
McMinn County Court of Appeals 12/29/14
Betty Graham v. Crye-Leike Realty Corporation et al.

E2013-01701-COA-R3-CV

At an earlier time, in 2011, Betty Graham had filed a lawsuit arising out of a failed real estate transaction against (1) her real estate agent, Ginny Hall; (2) Crye-Leike Realty Corporation; (3) S&J Southeast Investments, LLC, the potential buyer of her condominium with whom she had unsuccessfully negotiated a contract; and (4) attorney Ellie Hill, her trial court appointed guardian ad litem. The trial court granted the defendants’ Rule 12.02(6) motions to dismiss the complaint for failure to state a claim upon which relief could be granted. Graham appealed, but later voluntarily dismissed her appeal. Following her dismissal, our mandate, see Tenn. R. App. P. 42, 43, was issued on January 4, 2013. On April 26, 2013, Graham, acting pro se, “refiled” a lawsuit that is functionally identical to her first complaint. In her second suit, she relied upon the saving statute, Tenn. Code Ann. § 28-1-105(a) (2000). The trial court dismissed her second complaint on the ground of res judicata. We affirm that dismissal. Furthermore, we conclude that Graham’s suit is frivolous. Hence, this case is remanded to the trial court for a determination of the defendants’ reasonable fees and expenses associated with this appeal.

Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Chancellor Jeffrey M. Atherton
Hamilton County Court of Appeals 12/29/14
State of Tennessee v. Christian Philip Van Camp

E2013-00667-CCA-R3-CD

Defendant, Christian Philip Van Camp, was indicted for driving under the influence, driving while his blood alcohol was in excess of the legal limit, and failing to maintain his proper lane of traffic. Defendant moved to suppress evidence obtained as a result of the traffic stop, arguing that it was not properly supported by either probable cause or reasonable suspicion. After a hearing, the trial court denied his motion. After a bench trial, Defendant was convicted as charged. On appeal, Defendant argues that the trial court erred in failing to suppress the evidence obtained as a result of the unconstitutional seizure of his vehicle. Upon our review of the record, we conclude that the officer had reasonable suspicion to conduct a brief investigatory stop based on information received from a known citizen informant. Therefore, we affirm the judgments of the trial court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Rex H. Ogle
Cocke County Court of Criminal Appeals 12/29/14
In Re: Teven A.

M2013-02519-COA-R3-JV

This appeal arises from the modification of Father’s parenting time and the juvenile court’s allocation of child support obligations. Father petitioned to modify custody or, alternatively, the residential parenting schedule. The juvenile court found that there had been no material change in circumstance and did not modify the primary residential parent designation. However, the court decreased Father’s parenting time and increased his child support obligation. Father appeals the juvenile court’s finding of no materialchange in circumstance, the modification of his parenting time, and the juvenile court’s failure to apply a credit for transportation costs against his child support obligation. Because we find the juvenile court applied an incorrect legal standard and failed to comply with Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment and remand for entry of an order with appropriate findings of fact and conclusions of law.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge Sophia Brown Crawford
Davidson County Court of Appeals 12/29/14
Glyn Terrance Dale, Sr. v. State of Tennessee

E2014-00552-CCA-R3-PC

The Petitioner, Glyn Terrance Dale, Sr., appeals as of right from the Knox County Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends that his trial counsel was ineffective for introducing into evidence at trial two statements the victim made to an investigator from the Department of Children Services (DCS). Following our review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Bob R. McGee
Knox County Court of Criminal Appeals 12/29/14
Nicole Goeser, et al v. Live Holdings Corporation, et al

M2013-02501-COA-R3-CV

Defendant in wrongful death action appeals the grant of a default judgment entered against him on the ground that he did not receive a copy of the motion prior to the hearing and, consequently, could not present a defense. Upon consideration of the entire record, we affirm the judgment in all respects.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Hamilton V. Gayden, Jr.
Davidson County Court of Appeals 12/29/14
In Re Jaden W.

E2014-00388-COA-R3-PT

This is a termination of parental rights case brought by the Tennessee Department of Children’s Services. The trial court terminated the parental rights of both parents on the grounds of severe child abuse and wanton disregard for the welfare of the child. Parents appeal. There is clear and convincing evidence to support the grounds of wanton disregard with respect to both parents and severe child abuse with regard to the father. However, we do not find that there is clear and convincing evidence to support the ground of severe child abuse with regard to the mother. There is clear and convincing evidence that termination of both parents’ rights is in the child’s best interest. We reverse in part, affirm in part, and remand.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Robert G. Lincoln
Washington County Court of Appeals 12/26/14
State of Tennessee v. John Talley

E2014-01313-CCA-R3-CD

Appellant, John Talley, appeals the trial court’s summary denial of his motion to correct illegal sentences, imposed over twenty-eight years ago, filed pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court found it lacked jurisdiction because the sentences have already expired and because the trial court could not determine that the “sentence[s] are illegal.” We determine, because of the broadness of Rule 36.1, the trial court had jurisdiction to consider the motion and that Appellant stated a colorable claim, as currently defined. Accordingly, the judgment of the Criminal Court is remanded for further proceedings consistent with this opinion.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Barry A. Steeleman
Hamilton County Court of Criminal Appeals 12/26/14
John Moran v. United Parcel Service, Inc., et al

M2014-00039-SC-R3-WC

An employee injured his left shoulder in 2005. He returned to work for his employer and settled his workers’ compensation claim. In 2011, he had recurrent symptoms in the shoulder. Eventually, hemade a claimfor benefits, alleging thathehad sustained a new injury. His employer contended that his symptoms were caused by the earlier injury and that he was entitled only to medical care under the previous settlement.  The trial court found that the employee had sustained a new injury and awarded permanent partialand temporary total disability benefits. Theemployerhas appealed. Pursuant to Tennessee Supreme Court Rule 51, the appeal has been referred to the SpecialWorkers’ Compensation Appeals Panel for a hearing and a report offindings of fact and conclusions of law.  We affirm the judgment.

Authoring Judge: Senior Judge Paul G. Summers
Originating Judge:Judge Larry Wallace
Cheatham County Workers Compensation Panel 12/26/14
State of Tennessee v. John Talley - concurring in results

E2014-01313-CCA-R3-CD

I concur in results only, and I write separately in order to express my disagreement with the statement in the lead opinion by Judge Easter that if the sentences have been fully served, “the controversy is moot.” I respectfully submit that this conclusion is erroneous.

Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Barry A. Steelman
Hamilton County Court of Criminal Appeals 12/26/14
Misty Jane Brunelle v. State of Tennessee

E2014-00292-CCA-R3-ECN

Petitioner, Misty Jane Brunelle, was convicted of three counts of aggravated child abuse in relation to broken bones sustained by her infant daughter. Her convictions and sentences were affirmed on appeal. State v. Misty Brunelle, E2006-00467-CCA-R3-CD, 2007 WL 2026616 (Tenn. Crim. App. July 13, 2007), perm. app. denied (Tenn. Oct. 22, 2007) (“Brunelle I”). Petitioner then filed a post-conviction petition, which was denied. This Court affirmed the denial of the post-conviction petition on the basis of ineffective assistance of counsel, but reversed the lower court’s determination that no newly discovered evidence existed. Misty Jane Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545 (Tenn. Crim. App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (“Brunelle II”). Petitioner then filed a petition for writ of error coram nobis, claiming that newly discovered evidence existed which may have resulted in a different outcome had it been presented at trial. After a hearing, the coram nobis court denied the petition. Based upon a thorough review of the law, record, and arguments in this case, we hold that the coram nobis court did not abuse its discretion in denying the petition. Therefore, we affirm the decision of the coram nobis court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge John F. Dugger, Jr.
Greene County Court of Criminal Appeals 12/26/14
State of Tennessee v. Coty Shane Smith

E2014-00490-CCA-R3-CD

Defendant, Coty Shane Smith, pled guilty to one count of second degree murder. The trial court sentenced him to an effective sentence of twenty-five years in the Tennessee Department of Correction. On appeal, Defendant contends that the trial court imposed an excessive sentence by improperly applying an enhancement factor and imposing a sentence that is disproportionate to the sentence received by one of the co-defendants in his case and to sentences received in other second degree murder convictions throughout the state. After a thorough review of the record and the applicable authorities, we affirm the judgment of the trial court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Amy F. Reedy
Monroe County Court of Criminal Appeals 12/26/14
State of Tennessee v. James D. Wooden

E2014-01069-CCA-R3-CD

Appellant, James D. Wooden, appeals the trial court’s summary denial of his motion to correct an illegal sentence, as permitted by Tennessee Rule of Criminal Procedure 36.1, for lack of jurisdiction because the sentences have already expired. Although the trial court had jurisdiction to consider the motion, we determine Appellant has failed to state a colorable claim entitling him to relief and, therefore, affirm the denial of the motion.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Carroll L. Ross
Bradley County Court of Criminal Appeals 12/26/14