APPELLATE COURT OPINIONS

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State of Tennessee v. Letalvis Cobbins, et al. In Re: Gary Christian, et al.

E2013-02726-CCA-WR-CO

Petitioners, the parents of the victims in the underlying criminal cases, sought to intervene in those proceedings for the purpose of challenging the trial court’s order to seal portions of an investigative file of the Tennessee Bureau of Investigation that was identified during the motions for new trial in the underlying cases. Because we conclude that Petitioners have no statutory or constitutional right to access the sealed confidential information in the file, we affirm the trial court’s denial of their request to unseal.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Walter C. Kurtz
Knox County Court of Criminal Appeals 02/04/15
State of Tennessee v. Derrick Dewayne Lyons

M2014-00178-CCA-R3-CD

A Davidson County jury convicted the Defendant, Derrick Dewayne Lyons, of attempted voluntary manslaughter, aggravated assault, theft of property valued over $1,000.00, and evading arrest in a motor vehicle.  For these convictions, the trial court sentenced the Defendant to serve an effective sentence of eighteen years in the Tennessee Department of Correction.  On appeal, the Defendant claims that: (1) the trial court erred when it allowed the State to amend the indictment on the morning of trial; (2) the evidence is insufficient to support his convictions; (3) the State committed “prejudicial prosecutorial misconduct” during its closing argument; (4) the trial court improperly failed to instruct the jury on “mistake of fact” and “use of force”; and (5) the trial court erred when it failed to excuse a juror for cause.  After a review of the record and the foregoing authorities, we affirm the trial court’s judgments and the Defendant’s convictions.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Mark J. Fishburn
Davidson County Court of Criminal Appeals 02/04/15
Yoni Sales Barahona v. State of Tennessee

M2014-00415-CCA-R3-PC

The Petitioner, Yoni Sales Barahona, appeals from the denial of post-conviction relief by the Criminal Court for Davidson County.  He was convicted of aggravated assault and sentenced to ten years’ imprisonment in the Tennessee Department of Correction.  On appeal, the Petitioner argues that he received ineffective assistance of counsel at the appellate level.  Upon review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge J. Randall Wyatt, Jr.
Davidson County Court of Criminal Appeals 02/04/15
State of Tennessee v. Joshua Tyrell Cross

E2014-00963-CCA-R3-CD

The Defendant, Joshua Tyrell Cross, pleaded guilty to attempted rape, and the trial court sentenced him to thirty-one days of time served followed by eight years of probation. The Defendant filed a motion to withdraw his guilty plea, which the trial court denied after a hearing. On appeal, the Defendant contends that: (1) his judgment is void because the information charging him with attempted rape failed to allege each of the required elements of the offense; (2) the factual basis submitted in support of the Defendant’s conviction is insufficient because it did not contain the required culpable mental state; (3) his judgment of conviction should be reversed because there is no record that he was arraigned or that he waived arraignment; and (4) the trial court erred when it denied his motion to withdraw his guilty plea and remand the case for a preliminary hearing. After a thorough review of the record and applicable authorities, we reverse the trial court’s judgment and remand the case for a preliminary hearing on the original charges.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge E. Shayne Sexton
Scott County Court of Criminal Appeals 02/04/15
James Allen Gooch v. State of Tennessee

M2014-00454-CCA-R3-PC

The Petitioner, James Allen Gooch, challenges the denial of his petition for post-conviction relief.  On appeal, the Petitioner argues that he was denied effective assistance of counsel, raising seven grounds to support his claim.  Additionally, he claims that cumulative error necessitates reversal of the post-conviction court.  After review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Robert L. Holloway, Jr.
Originating Judge:Judge Dee David Gay
Sumner County Court of Criminal Appeals 02/04/15
State of Tennessee v. Thomas William Brown

M2013-02327-CCA-R3-CD

Appellant, Thomas William Brown, was convicted by a jury of attempted aggravated burglary and sentenced to four years in the Tennessee Department of Correction.  On appeal, he argues that the trial court should have suppressed his statements to the police immediately after his arrest, that the verdict was contrary to the weight of the evidence, that the trial court erred by allowing the State to present evidence that witnesses identified appellant’s shirt in a “show up” procedure, that the trial court erred by allowing the CAD Operational Report into evidence during the State’s rebuttal proof, and that the trial court erred by denying a special jury instruction request.  Following our careful review of the evidence, we have concluded that the evidence was insufficient to support appellant’s conviction for attempted aggravated burglary and therefore reverse the judgment of the trial court.  Appellant’s charge is dismissed.

Authoring Judge: Judge Roger A. Page
Originating Judge:Judge Robbie T. Beal
Williamson County Court of Criminal Appeals 02/04/15
Jennifer Furnas Coleman v. Marty Alan Coleman

W2011-00585-COA-R3-CV

This is an appeal of attorney’s fees in a post-divorce matter. The mother filed a petition to modify the permanent parenting plan suspend the father’s parenting time with the parties’ two minor children. The mother incurred around $16,000.00 in legal expenses litigating her petition and then changed attorneys. The parties eventually settled the petition with respect to the visitation issues, reserved the issue of attorney’s fees. Finding that the mother’s legal expenses of over $350,000.00 were not reasonable, the  Master recommended that the father only be required to reimburse the mother for approximately $124,000.00. The trial court the award further, awarding the mother approximately $42,000.00. Mother appeals, arguing that the trial court abused its discretion because all of her attorney’s fees were reasonable. Discerning no abuse of discretion, we affirm.

Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge Arnold B. Goldin
Shelby County Court of Appeals 02/04/15
In Re Aalyah P.

W2014-01900-COA-R3-PT

The Notice of Appeal was not timely filed, and we therefore have no jurisdiction to consider this appeal. Consequently, this appeal is dismissed.

Authoring Judge: PER CURIAM
Originating Judge:Judge Robert L. Childers
Shelby County Court of Appeals 02/03/15
In Re Robert C.

M2014-00702-COA-R3-PT

This  is  a  termination  of parental  rights  case.  The  trial  court  terminated Appellant/Father’s parental  rights  on the grounds of:  (1)  abandonment; (2)  substantial  non-compliance  with  the  permanency plan;  and  (3)  persistence  of conditions. Because the grounds for termination of Father’s parental rights are  met by clear and  convincing  evidence,  and there  is  also  clear  and  convincing evidence that termination of Father’s parental rights is in the best interest of the child, we affirm and remand.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Donna Scott Davenport
Rutherford County Court of Appeals 02/03/15
Diana L. Powell, et al v. Penny D. Clark

M2014-01083-COA-R3-CV

This appeal involves a limitation of liability in an insurance policy. Appellant Allstate Insurance Company seeks reduction of its uninsured motorist liability by amounts paid by Appellee insured’s automobile insurance carrier. In light of the legislative intent that offsets should be limited to monies received from legally responsible parties or entities, and the limiting language used in the Allstate policy, we conclude that the trial court correctly denied the offset in this case. Affirmed and remanded.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Robert E. Corlew, III
Rutherford County Court of Appeals 02/03/15
Joy Littleton, et al v. TIS Insurance Services, Inc.

E2014-00938-COA-R3-CV

During a prior lawsuit, a construction company – in exchange for a covenant not to execute against the company’s assets – assigned to the entity that obtained a judgment against it the company’s insurance coverage claims. The plaintiffs in the previous action thereafter assigned those rights to the current plaintiffs to allow them to step into the shoes of the construction company and bring suit against the insurance broker. The trial court entered judgment on the pleadings in favor of the insurance broker on the ground that the current plaintiffs would not be entitled to recover any compensatory damages at trial. The plaintiffs appeal. We reverse.

Authoring Judge: Judge John W. McClarty
Originating Judge:Judge Deborah Stevens
Knox County Court of Appeals 02/03/15
State of Tennessee v. Dewayne Lee Williams

E2014-00964-CCA-R3-CD

The Defendant, Dewayne Lee Williams, appeals the Hamilton County Criminal Court’s order revoking his probation for his convictions for aggravated burglary and vandalism and ordering his effective three-year sentence into execution. The Defendant contends that the trial court abused its discretion because insufficient evidence exists to support the revocation. We affirm the judgment of the trial court.

Authoring Judge: Judge Robert H. Montgomery, Jr.
Originating Judge:Judge Barry A. Steelman
Hamilton County Court of Criminal Appeals 02/03/15
Juastin Rashad Forrest v. Todd Wiggins, Warden

E2014-00978-CCA-R3-HC

The petitioner, Justin Rashad Forrest, appeals the denial of his petition for writ of habeas corpus. On appeal, the petitioner contends that he is entitled to habeas corpus relief because his state sentence is void because the trial courtlacked jurisdiction to impose concurrentstate and federal sentences. He also contends that the State breached the plea agreement that called for concurrent federal and state sentences and that he received ineffective assistance of counsel that prevented him from entering a knowing and voluntary guilty plea. After thoroughly reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgment of the habeas corpus court.

Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Stacy L. Street
Johnson County Court of Criminal Appeals 02/03/15
Frederick Zahn v. Margaret Zahn Logan

M2014-00441-COA-R3-CV

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge James G. Martin, III
Williamson County Court of Appeals 02/02/15
State of Tennessee v. Linzey Danielle Smith

M2013-02818-CCA-R3-CD

Defendant, Linzey Danielle Smith, entered a plea of guilty to the offense of driving while her blood or breath alcohol concentration was 0.08% or more (DUI) in violation of T.C.A. § 55-10-401(2), but explicitly reserved the right to appeal a certified question of law pursuant to Tenn. R. Crim. P. 37(b)(2)(A).  The certified question of law limits this court to the following narrow issue: whether probable cause that Defendant had committed the Class C misdemeanor offense described in T.C.A. § 55-8-123(1) (a driver must maintain a vehicle entirely within a single lane “as nearly as practicable”) authorized a stop of Defendant’s vehicle by a state trooper or, alternatively, whether the trooper had reasonable suspicion, based on specific and articulable facts, that Defendant had committed or was about to commit the Class C misdemeanor offense set forth in T.C.A. § 55-8-123(1).  Based upon the General Assembly’s classification as a criminal offense the failure of a driver to maintain her vehicle totally within a single lane of traffic “as nearly as practicable” and guidance from our supreme court’s decision in State v. Brotherton, 323 S.W.3d 866 (Tenn. 2010), we affirm the judgment of the trial court.

Authoring Judge: Presiding Judge Thomas T. Woodall
Originating Judge:Judge James G. Martin, III
Williamson County Court of Criminal Appeals 02/02/15
State of Tennessee v. Linzey Danielle Smith-Dissenting

M2013-02818-CCA-R3-CD

I respectfully disagree in the reasoning and result reached in the majority opinion.  The majority opinion concludes that our supreme court’s holding in Brotherton is dispositive and requires that this court affirm the defendant’s conviction.  However, in my view, Brotherton is clearly distinguishable from the instant case.

Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge James G. Martin, III
Williamson County Court of Criminal Appeals 02/02/15
Suntrust Bank v. Walter Joseph Burke a/k/a Walter Joseph Burke, Jr.

W2014-01443-COA-R3-CV

This is a garnishment case. Appellee bank served a writ of garnishment on the Appellant realty company for the wages of Appellee’s debtor, Walter Burke. Appellant answered the garnishment stating that Mr. Burke was an independent contractor, and that Appellant owed him no funds at the time of the garnishment. During the six-month period after the garnishment was served, Appellant paid Mr. Burke commissions totaling $10,671.23, but paid no monies pursuant to the garnishment filed by Appellee. Appellee later filed a motion for judgment against Appellant for its failure to honor the garnishment for the statutory six-month period. Appellant responded to the motion, arguing that it was not subject to continuous garnishment because Tennessee Code Annotated Section 26-2-214 only applies to employers. The trial court held that the Appellant was subject to the six-month, continuous garnishment period and awarded Appellee bank judgment in the amount of $2,667.81, representing twenty-five percent of commissions paid to Mr. Burke. Appellant appeals. We reverse and remand.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Karen R. Williams
Shelby County Court of Appeals 02/02/15
Carolyn Ann Farley v. Roger Dale Farley, Sr.

M2014-00814-COA-R3-CV

In this post-divorce action, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent. The trial court found a material change of circumstance but concluded that it was not in the child’s best interest to change the primary residential parent. We find no error in the trial court’s decision and affirm.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge Michael Binkley
Hickman County Court of Appeals 02/02/15
Travelers Casualty And Surety Company of America v. City of South Pittsburg,Tennessee

M2014-00269-COA-R9-CV

In a suit arising out of a construction project at a wastewater treatment facility, the City of South Pittsburg brought an action against an engineering firm and a construction firm for breach of contract, negligence and professional negligence. The insurance company which issued a performance bond covering the project was added as a partyand moved for summary judgment on the ground that the City had not instituted a proceeding to recover under the bond within the two year period specified in the bond for doing so. The insurance company appeals the denial of its motion. Finding no error, we affirm the judgment of the trial court.

Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge J. Curtis Smith
Marion County Court of Appeals 01/30/15
Sandra Lynn Hobbs v. Lisa Hobbs Nottingham, et al.

E2013-002602-COA-R3-CV

The quasi-parties in this matter had their bids accepted at a judicial sale, but they failed to carry out their purchases and close on the properties. After a re-sale was conducted, the trial court charged the quasi-parties with the difference between the amount of the original bids and the amount received for the properties at the re-sale. They were also assessed the expenses resulting from the re-sale. The quasi-parties appeal. We affirm.

Authoring Judge: Judge John W. McClarty
Originating Judge:Chancellor John S. McLellan, III
Sullivan County Court of Appeals 01/30/15
Nathan B. Overton et al. v. Westgate Resorts, LTD., L.P. et al.

E2014-00303-COA-R3-CV

This case involves the propriety of an award of punitive damages in the amount of $600,000. The plaintiffs sued the defendant timeshare developer, seeking to rescind a contract for purchase of a timeshare interest. The plaintiffs alleged, inter alia, that the defendant was guilty of fraud and misrepresentation, as well as violations of the Tennessee Time-share Act and the Tennessee Consumer Protection Act. Following the hearing, the trial court ruled in favor of the plaintiffs and allowed them to rescind the contract, ordering repayment of their purchase money. The trial court found that the defendant had violated the respective statutory provisions and was guilty of fraud and misrepresentation. The trial court thus determined that an award of punitive damages was proper, and following a second hearing regarding the amount of the punitive damage award, set such award at $600,000. The defendant has appealed this award. While we affirm the determination of the trial court that $600,000 represents a reasonable award of punitive damages considering all applicable factors, we must order remittitur of that award to $500,000 in accordance with the statutory cap found in Tennessee Code Annotated § 29-39-104(a)(5).

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Chancellor Telford E. Forgety, Jr.
Sevier County Court of Appeals 01/30/15
State of Tennessee v. Tyrone R. Teasley

M2014-00507-CCA-R3-CD

The Defendant, Tyrone R. Teasley, pleaded guilty before the Circuit Court for Williamson  County in case number II-CR087471 to first offense driving under the influence (DUI), a Class A misdemeanor, driving on a revoked, suspended, or cancelled license, a Class A misdemeanor, and reckless driving, a Class B misdemeanor.  See T.C.A. §§ 55-10-401 (Supp. 2014), 55-50-504 (2012), 55-10-205 (Supp. 2014).  The Defendant also pleaded guilty in case number II-CR017000 to first offense per se DUI, a Class A misdemeanor, resisting arrest, a Class B misdemeanor, and failure to report an accident, a Class C misdemeanor.   See id. §§ 55-10-401 (Supp. 2014), 39-16-602 (2014), 55-10-106 (2012).  The trial court sentenced the Defendant to two consecutive terms of eleven months, twenty-nine days for the DUI convictions to be served on probation after 180 days’ concurrent confinement.  The Defendant also received concurrent sentences of six months for the resisting arrest and the reckless driving convictions to be served on probation after thirty days’ concurrent confinement, of eleven months, twenty-nine days for the driving on a revoked license conviction to be served on probation after 180 days’ concurrent confinement, and of thirty days’ concurrent confinement for failure to report an accident, for an effective sentence of twenty-three months and twenty-eight days with all but 180 days to be served on probation.  The trial court also ordered as a condition of probation that the Defendant “lose” his license for five years.  On appeal, the Defendant contends that the trial court erred by ordering a five-year license suspension.  We reverse the judgments of the trial court and remand for entry of modified judgments reflecting the loss of the Defendant’s driving privilege for two years in compliance with Tennessee Code Annotated section 55-10-404(a)(1)(A) (Supp. 2014).

Authoring Judge: Judge Robert H. Montgomery
Originating Judge:Judge Timothy L. Easter
Williamson County Court of Criminal Appeals 01/30/15
State of Tennessee v. Leon Booker

M2014-00840-CCA-R3-CD

The defendant, Leon Booker, pled guilty to theft over $500, a Class E felony, and theft under $500, a Class A misdemeanor, and was sentenced as a Range III offender to six years for the felony conviction and to eleven months and twenty-nine days for the misdemeanor conviction, to be served consecutively.  On appeal, he argues that the trial court erred in sentencing him as a Range III offender.  After review, we affirm the sentencing decision of the trial court.

Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Stella L. Hargrove
Maury County Court of Criminal Appeals 01/30/15
American Heritage Apartments, Inc. v. The Hamilton County Water and Wastewater Treatment Authority, Hamilton County, Tennessee

E2014-00302-COA-R3-CV

The plaintiff, American Heritage Apartments, Inc. (“American Heritage”), commenced this lawsuit to protest a monthly flat charge in the amount of $8.00 per unit imposed by the defendant, The Hamilton County Water and Wastewater Authority (“the County WWTA”), on all of its sewer customers. The charge was instituted to fund a program designed to repair and refurbish private service laterals, defined as pieces of pipe that connect private property to the sewer lines. American Heritage sought declaratory judgment that the County WWTA, inter alia, had exceeded its authority by imposing an unjust and discriminatory charge. The County WWTA filed a motion to dismiss the complaint, which the trial court initially denied. Upon the County WWTA’s amended motion to dismiss and motion for summary judgment, American Heritage’s motion for partial summary judgment, and supplemental briefs submitted by both parties, the trial court granted summary judgment in favor of the County WWTA. The court found that because the Utility District Law of 1937, Tennessee Code Annotated §§ 7-82-101 to -804, provided an administrative procedure for contesting utility charges, no private right of action was available. The court further ruled that in the alternative, if a private right of action were allowed by this Court on appeal, American Heritage’s complaint could be certified as a class action lawsuit. American Heritage has appealed. Having determined that the trial court erred by applying the Utility District Law of 1937 to a non-utility district water and wastewater treatment authority, we reverse the grant of summary judgment. We affirm the trial court’s ruling regarding the class action certification.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge Jacqueline S. Bolton
Hamilton County Court of Appeals 01/30/15
State of Tennessee v. Chase Nathaniel Martin

E2014-00738-CCA-R3-CD

Defendant, Chase Nathaniel Martin, was indicted by the Monroe County Grand Jury for burglary in August of 2012. Subsequently, he entered a best interest plea of guilty and was sentenced to eight years as a Range II, multiple offender on December 10, 2013. The trial court specified that Defendant could apply for Community Corrections. Defendant filed a motion to reconsider sentencing on January 16, 2014. After the denial of the motion to reconsider and denial of a request for placement in Community Corrections, Defendant appealed. We waive the untimely filing of the notice of appeal and review the challenge to the sentence. After a review, we affirm the sentence.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Amy F. Reedy
Monroe County Court of Criminal Appeals 01/30/15