Mahalet B. Girma v. Haile A. Berhe
M2015-00586-COA-R3-CV
Authoring Judge: Judge Kenny Armstong
Trial Court Judge: Judge J. Mark Rogers

This is a divorce case. Wife appeals the trial court’s order concerning the division of property and award of various fees and expenses. Because the trial court did not enter an order on Wife’s motion for reimbursement of certain fees and expenses, the judgment of the trial court is not final and appealable as of right. Accordingly, we dismiss the appeal.  

Jacqueline Harrison v. Shelby County Board of Education
W2015-01543-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Chancellor Walter L. Evans

This is a termination of employment case. Appellant Shelby County Board of Education appeals the trial court’s decision to reinstate a tenured teacher whose employment was terminated for inefficiency. The trial court found that there was insufficient evidence to support a finding of inefficiency. Discerning no error, we affirm and remand.

State of Tennessee v. Darrel Pathrice McNeal
W2015-00316-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Donald H. Allen

Following a jury trial, the Defendant, Darrel Pathrice McNeal, was convicted of aggravated robbery, a Class B felony, and evading arrest, a Class A misdemeanor. See Tenn. Code Ann. §§ 39-13-402, -16-603(a)(1). On appeal, the Defendant challenges only the sufficiency of the evidence underlying his conviction for aggravated robbery. However, because the Defendant filed an untimely notice of appeal and the interest of justice does not favor waiver of the timely filing requirement in this case, this appeal is dismissed.

Derrick Rice v. State of Tennessee
W2015-00226-CCA-R3-PC
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge J. Robert Carter, Jr.

The Petitioner, Derrick Rice, appeals as of right from the post-conviction court’s denial of his petition for post-conviction relief wherein he challenged his convictions for first degree premeditated murder and attempted first degree murder. In this appeal, the Petitioner contends that he received ineffective assistance of counsel in the following ways: (1) general sessions counsel failed to consult with the Petitioner regarding a plea offer from the State and to explain the consequences of declining that offer; (2) trial counsel failed to investigate and subpoena witnesses; (3) general sessions counsel and trial counsel failed to adequately communicate with the Petitioner; and (4) trial counsel failed to adequately investigate and prepare the case for trial. Discerning no error, we affirm the judgment of the post-conviction court.

In re Chris Highers Bail Bonds, et al.
M2015-00801-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge David M. Bragg

Appellants are ten bail bonding companies that each posted a portion of a defendant’s $1 million bond.  After the defendant failed to appear for trial and absconded from the state, the bond was forfeited.  When the defendant was apprehended almost two years later, some of the Appellants filed separate petitions for exoneration of the forfeited bond.  After a hearing, the trial court denied the petitions.  Upon our review of the record, it appears that three of the Appellants—Neal Watson Bonding, Lucky’s Bonding, and Anytime Bail Bonds—never filed petitions with the trial court; therefore, we dismiss their appeals.  As to the remaining seven Appellants, we affirm the judgment of the trial court.

Timothy Sumner v. Campbell Clinic, PC, et al.
W2015-00580-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert L. Childers

This lawsuit centers on allegations that the Plaintiff received improper medical care at the hands of several Defendants. However, the present appeal concerns only the trial court's dismissal of the Plaintiff's claims against a single Defendant, Dr. Jeffrey Kutsikovich (“Dr. Kutsikovich”), a resident physician employed by the University of Tennessee. The trial court was of the opinion that the Plaintiff's amended complaint stated only “tort medical battery claims” against Dr. Kutsikovich and that these claims were barred by the applicable one-year limitation period. On appeal, the Plaintiff asserts that the trial court erred in classifying his claims and in determining that they were barred by the statute of limitations. Dr. Kutsikovich contends that the trial court's dismissal was proper, not only for the stated grounds, but also due to waiver under Tennessee Code Annotated section 9-8-307(b) and the doctrine of sovereign immunity. Having reviewed the record transmitted to us, we conclude that the Plaintiff waived his claims against Dr. Kutsikovich in this case by asserting a claim against the State under the Tennessee Claims Commission Act. Accordingly, we affirm the trial court's dismissal of Dr. Kutsikovich from this case, albeit for a different reason than held by the trial court.

State of Tennessee v. Angela Faye Daniel
M2015-01073-CCA-R9-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Deanna Bell Johnson

In this interlocutory appeal, the appellant, State of Tennessee, appeals the Williamson County Circuit Court’s order granting a motion to suppress evidence filed by the appellee, Angela Faye Daniel.  The appellant claims that the trial court erroneously concluded that a police officer’s failure to deliver a copy of a search warrant to the appellee was not a “clerical error” under Tennessee Code Annotated section 40-6-108, the Exclusionary Rule Reform Act.  Based upon the oral arguments, the record, and the parties’ briefs, we affirm the order of the trial court.

State of Tennessee v. Jose Lemanuel Hall, Jr.
M2015-00018-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Defendant, Jose Lemanuel Hall, Jr., was convicted of first degree murder and sentenced to life in prison.  On appeal, he argues (1) that the evidence was insufficient to support his conviction; (2) that the trial court erred in admitting evidence regarding his gang affiliation and gang rank; (3) that the trial court erred in admitting photographs; and (4) that the trial court erred by ordering consecutive sentencing.  We affirm the judgment of the trial court.

State of Tennessee v. Anthony Bailey
W2015-00784-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Glenn Wright

The defendant, Anthony Bailey, was convicted by a Shelby County Criminal Court jury of robbery, a Class C felony, and assault, a Class A misdemeanor. He was sentenced by the trial court as a Range I, standard offender to concurrent terms of five years in the workhouse for the robbery conviction and eleven months, twenty-nine days for the assault conviction. On appeal, he argues that the evidence is insufficient to sustain his robbery conviction, the trial court erred by denying his motion to suppress the victim's pretrial and in-court identifications, and the trial court erred by enhancing his sentence and by denying his request for probation. Following our review, we affirm the judgments of the trial court.

State of Tennessee v. Karloss Thirkill
W2015-00456-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Glenn Wright

Following a jury trial, the Defendant, Karloss Thirkill, was convicted of aggravated robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402. The trial court subsequently imposed a ten-year sentence for the conviction. On appeal, the Defendant contends (1) that the trial court erred in admitting a video recording of the crime when the witness “did not have personal knowledge [of the contents of the video] nor was involved in the chain of custody”; and (2) that the evidence was insufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Marico Means
W2015-00989-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Paula L. Skahan

Defendant, Marico Means, appeals his conviction of aggravated robbery and his sentence of eight years and six months at eighty-five percent. He argues that the trial court erred by denying his motion to suppress evidence of the victim's pre-trial identifications and that the trial court erred by considering improper evidence during sentencing. We affirm the judgment of the trial court.

Marlene J. Bidelman-Dye v. James D. Dye
E2014-01891-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jacqueline S. Bolton

In this post-divorce matter, numerous issues arose after the former wife, the primary residential parent, sought to relocate with the minor child. The trial court allowed the wife to relocate with the child to Pennsylvania and adopted her proposed parenting plan with certain modifications. On the issues raised in this appeal, the trial court ruled in the husband's favor. The wife appeals. We affirm.

Lisa Lynn Odom, et al. v. Claiborne County, Tennessee, et. al.
E201402328-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Jon Kerry Blackwood

An “affidavit of complaint” was issued against Lisa Odom for custodial interference. Deputies from the Claiborne County Sheriff's Office visited Ms. Odom for the purpose of taking custody of her child and returning her to Ms. Odom's ex-husband, Scott Odom. Ms. Odom objected to the removal of her child, and William Phipps, Ms. Odom's father, asked to see a warrant prior to the removal of the child. After a prolonged standoff, the deputies called Assistant District Attorney General Amanda Sammons, who explained over a speakerphone that a warrant was not necessary because there was a court order for Ms. Odom to return the child to Mr. Odom. During the course of the phone call, Ms. Odom overheard General Sammons use derogatory language when referring to her. Ms. Odom was ultimately arrested for custodial interference. Nearly a year later, Ms. Odom and Mr. Phipps (collectively the plaintiffs) filed a complaint against General Sammons alleging intentional infliction of emotional distress and civil conspiracy. General Sammons filed a motion to dismiss, which the trial court granted. The plaintiffs appeal. We affirm.

Reginald Rome v. State of Tennessee
W2015-01399-CCA-R3-ECN
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge W. Mark Ward

Petitioner, Reginald Rome, appeals the dismissal of his petition for a writ of error coram nobis which alleged newly discovered evidence. The coram nobis court found that due process principles did not require tolling the statute of limitations and that Petitioner had failed to prove that he was without fault in failing to present this evidence at the proper time. Upon our review, we affirm the judgment of the coram nobis court.

State of Tennessee v. David Reed
W2015-01740-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Roy B. Morgan, Jr.

Defendant, David Reed, appeals the trial court's denial of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant argues that the trial court's failure to award post-judgment jail credit for time he spent incarcerated out-of-state prior to the revocation of his probation renders his sentence illegal. Upon our review of the record and applicable authorities, we affirm the judgment of the trial court.

Kearn Weston v. State of Tennessee
W2015-00460-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner, Kearn Weston, appeals the denial of his petition for post-conviction relief. Petitioner argues that he received ineffective assistance of counsel when trial counsel failed to file a pre-trial motion to dismiss the charge based on the loss of a surveillance video. Upon our review, we affirm the decision of the post-conviction court.

State of Tennessee v. Dwayne Moore
W2014-02432-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Carolyn Wade Blackett

The defendant, Dwayne Moore, was convicted by a Shelby County jury of second degree murder and sentenced by the trial court as a Range I offender to twenty-two years at 100% in the Department of Correction. He raises two issues on appeal: (1) whether the trial court committed reversible error by allowing a police officer to offer improper opinion testimony about the appearance of a gun in a photograph and by admitting the photograph and the gun without a proper chain of custody; and (2) whether the evidence is sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court.

James A. Farley v. Tennessee Department of Safety and Homeland Security
M2014-02479-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This is an appeal from the trial court’s dismissal of a petition for judicial review for lack of subject matter jurisdiction. The petitioner is seeking to recover a motor vehicle he claims to own that was seized due to “illegal alterations to the vehicle’s identification numbers.” It is undisputed that the petitioner was never the registered owner of the vehicle, that he was not in possession of the vehicle when it was seized, and that he did not receive notice of the seizure of the vehicle or the issuance of the notice of forfeiture. More than 60 days after the Tennessee Department of Safety and Homeland Security issued the Order of Forfeiture, which constitutes the Department’s final order, the petitioner filed his petition for judicial review. His primary contention was that the Department of Safety failed to provide him with proper notice of the issuance of forfeiture warrant. The chancery court rejected this contention, concluding that he was not entitled to notice because he was never the registered owner. The court also found the petition for judicial review was untimely filed because administrative orders become final pursuant to Tenn. Code Ann. § 4-5-322(b)(1)(A) if a petition for judicial review is not filed within 60 days from the entry of the order. Concluding that the 60-day limitation period is jurisdictional, the court dismissed the petition for lack of subject-matter jurisdiction. We affirm.

Clayton Keltner, et al v. Estate of Mary Lois Simpkins, et al.
M2014-02023-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Chancellor Robert E. Burch

This appeal involves a dispute arising from the plaintiff’s attempted exercise of an option to purchase a tract of land. In part, the contract provided that “a fair and equitable price for said property will be established at a later date.” The trial court held that the option was not enforceable because it was too vague with respect to price. The plaintiffs appealed. We affirm. 

State of Tennessee v. Christopher Scottie Itzol-Deleon - Dissent
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Mark J. Fishburn

Defendant argues on appeal that dual convictions for attempted aggravated sexual battery in Count 1 and rape of a child in Count 3, both stemming from the Lemonade Mouth incident, violate due process because they a part of a “single continuous criminal episode.”  Defendant asks this Court to utilize the five-factor test adopted by the supreme court in State v. Barney, 986 S.W.2d 545, 548 (Tenn. 1999).  The State, on the other hand, argues that the analysis in Barney is no longer controlling law because the supreme court relied on cases which have since been abrogated.  Because I believe the issue is more properly one of double jeopardy, I respectfully dissent.

State of Tennessee v. Christopher Scottie Itzol-Deleon
M2014-02380-CCA-R3-CD
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Mark J. Fishburn

The Defendant, Christopher Scottie Itzol-Deleon, was found guilty by a Davidson County Criminal Court jury of attempted aggravated sexual battery, a Class C felony, four counts  of aggravated sexual battery, a Class B felony, and three counts of rape of a child, a Class A felony. See T.C.A. §§ 39-13-504 (2014) (aggravated sexual battery), 39-13-522 (2010,  2014) (rape of a child), 39-12-101 (2014) (criminal attempt).  He received an effective forty-year sentence.  On appeal, the Defendant contends that (1) the evidence is insufficient to establish the element of penetration for rape of a child in Counts 3 and 4, (2) the trial court erred in allowing separate convictions for attempted aggravated sexual battery and rape of a child in Counts 1 and 3 and for rape of a child in Counts 4 and 5, (3) the court erred in permitting testimony regarding the Defendant’s excessive drinking, (4) the court erred in admitting a letter written by the victim to her mother, (5) the court erred in not redacting a portion of the Defendant’s statement to the police, (6) the court erred in admitting the victim’s school photograph, (7) the court erred in sentencing the Defendant as a Range II offender relative to his rape of a child convictions, and (8) the judgment in Count 6 contains a clerical error.  We merge Count 1, attempted aggravated sexual battery, with Count 3, rape of a child.  Although we affirm the convictions, we remand the judgments for Counts 1 and 3 for entry of amended judgments reflecting merger of the offenses.  We also modify the Defendant’s sentences relative to Counts 3, 4, and 5 to twenty-five years in each count at 100% service.  Finally, we remand the judgment in Count 6 for the correction of clerical errors.

In re K.J.G.
E2015-00087-COA-R3-PT
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Douglas T. Jenkins

This is a termination of parental rights case. The trial court found clear and convincing evidence of grounds for terminating the parental rights of R.P.G. II, (father) to K.J.G. (the child). By the same quantum of proof, the court found that termination was in the child‘s best interest. Father appeals. We hold that the trial court‘s final judgment does not include or incorporate written findings of fact justifying its decision as required by Tenn. Code Ann. § 36-1-113(k) (2014). For this reason, we vacate the trial court‘s judgment and remand for further proceedings consistent with this opinion.

In re K.J.G. - Dissenting
E2015-00087-COA-R3-PT
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Douglas T. Jenkins

D. MICHAEL SWINEY, C.J., dissenting.
I respectfully dissent from the majority’s decision in this case. I cannot agree with the majority as to the issue of what constitutes written findings of fact and conclusions of law sufficient to satisfy the requirements of ...

State of Tennessee v. Gerald Davis Thomas
E2014-01157-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge E. Eugene Eblen

The Defendant, Gerald Davis Thomas, was convicted by a Loudon County jury of one count of first degree premeditated murder. The trial court sentenced the Defendant to life imprisonment, which was to be served consecutively to a separate federal sentence. In this appeal, the Defendant raises the following issues for our review:  (1) whether the evidence is sufficient to sustain his conviction for first degree premeditated murder; (2) whether the State engaged in improper closing arguments; (3) whether the trial court erred in allowing expert testimony regarding a forensic ballistic match; (4) whether the admission of the victim’s autopsy report violated his right of confrontation; (5) whether the State failed to produce potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) whether trial counsel was ineffective; and (7) whether the trial court erred in denying his motion for additional DNA testing.Upon our review, we dismiss without prejudice the Defendant’s claim of ineffective assistance of counsel.  We also remand this matter to the trial court for entry of an order for additional DNA testing; specifically, the interior of the FUBU pants alleged to have been worn by the Defendant on the night the victim was killed and the substance recovered from underneath the victim’s nails.  In all other respects, we affirm the judgments of the trial court.

Wendy W. Rose v. Lisa Bushon, et al.
E2015-00644-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge William T. Ailor

Wendy Rose filed suit alleging, among other things, breach of contract and misrepresentation by defendants Lisa Bushon and Innovative Risk Management, LLC. Later, on October 13, 2014, plaintiff filed a notice of “voluntary nonsuit” in the trial court.  She also faxed the notice to opposing counsel.  A hearing on a pending motion to disqualify the plaintiff’s counsel had been previously scheduled for October 14.  The hearing was held as scheduled.  Plaintiff, assuming that the case was concluded with the filing of her notice, did not appear at the hearing.  On October 20, 2014, the trial court entered an order granting plaintiff a voluntary nonsuit and dismissing the case without prejudice.  Defendants filed a motion to modify or amend the order of dismissal.  On December 17, 2014, the trial court entered an order disqualifying plaintiff’s counsel and awarding defendants attorney’s fees of $7,779.  We hold that Tenn. R. Civ. P. 41.01 grants plaintiff the free and unrestricted right to take a voluntary nonsuit.  Accordingly, we hold that the trial court erred in ordering the disqualification of counsel and awarding attorney’s fees after plaintiff filed the notice of voluntary dismissal and the trial court entered an order of dismissal.  We reverse the trial court’s judgment, which disqualified plaintiff’s counsel and awarded attorney’s fees to defendants.