Charles F. "Frank" Holland and Mary Lou Holland, et al. v. City of Memphis
Upon determining that the order appealed in this matter is not a final judgment, we dismiss this appeal for lack of jurisdiction. |
Shelby | Court of Appeals | |
David Hammond v. State of Tennessee
A Madison County Circuit Court jury convicted the petitioner, David Hammond, of rape, and he was sentenced to twelve years in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-conviction court denied the petition, and the petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court. |
Madison | Court of Criminal Appeals | |
State of Tennessee v. Lorenzo McLemore, III and Melissa Denise Gaines
The Defendant-Appellant, Lorenzo McLemore, III, was indicted by the Davidson County Grand Jury for three counts of attempted first degree murder, one count of especially aggravated burglary, and one count of employment of a firearm during the commission of a dangerous felony. During the first phase of McLemore’s bifurcated trial, he was convicted of three counts of attempted voluntary manslaughter, a Class D felony, and the trial court declared a mistrial on the especially aggravated burglary count. During the second phase, the jury found McLemore guilty of employment of a firearm during the attempt to commit a dangerous felony, a Class C felony. The trial court imposed concurrent sentences of four years at thirty percent for the three convictions for attempted voluntary manslaughter and a consecutive sentence of six years at one hundred percent for the conviction for employment of a firearm during the attempt to commit a dangerous felony, for an effective sentence of ten years. On appeal, McLemore argues that the evidence was insufficient to support his conviction for employment of a firearm during the attempt to commit a dangerous felony and that the trial court committed plain error in bifurcating his trial. The other Defendant Appellant, Melissa Denise Gaines, McLemore’s mother, was indicted by the Davidson County Grand Jury for three counts of attempted first degree murder and employment of a firearm during the commission of a dangerous felony. She was subsequently found guilty of three counts of reckless endangerment, a Class A misdemeanor, and the trial court dismissed the firearm charge because the reckless endangerment convictions did not qualify as a dangerous felony for the firearm charge. Gaines argues on appeal that the evidence was insufficient to support her convictions for reckless endangerment. Upon review, we affirm the trial court’s judgments. |
Montgomery | Court of Criminal Appeals | |
Neal Lovlace and Norma Jean Lovlace v. Timothy Kevin Copley and Beth Copley
This is a modification of child visitation case, involving grandparent visitation. The Appellant grandparents appeal the trial court’s order, denying their request for more visitation with the minor child, as well as the failure of the trial court to find the Appellee Mother guilty of all alleged incidents of civil contempt. In the posture of Appellees, the mother and her husband (the child’s adoptive father) argue that the Appellants are not entitled to any visitation. We conclude that in modification of grandparent visitation cases, if the parent is the movant, his or her burden is to show, by a preponderance of the evidence, that there has been a material change in circumstance affecting the child’s best interest. However, where the movant is the non-parent, we hold that the grandparent visitation statute provides that the burden is on the non-parent to show, by a preponderance of the evidence, that there has been a material change in circumstance that would present a substantial risk of harm to the child if modification is denied. Because the trial court incorrectly applied the best interest standard, we vacate its order modifying the visitation arrangement. We also conclude that the trial court did not abuse its discretion in finding the mother in civil contempt on five counts; however, we conclude that the award of attorney’s fees for that contempt is not clear as to what portion, if any, of those fees was expended for prosecution of the contempts, and what portion, if any, was expended in pursuit of the Appellees’ attempt to modify the visitation order. Therefore, we also vacate the award of attorney’s fees and remand for an award of those fees associated only with the prosecution of the contempts. Vacated in part, affirmed in part, and remanded. |
Hickman | Court of Appeals | |
Neal Lovlace and Norma Jean Lovlace v. Timothy Kevin Copley and Beth Copley - Concur and Partial Dissent
I concur with the result reached in this case, but I disagree with some of the reasoning and therefore write separately. |
Hickman | Court of Appeals | |
Neal Lovlace and Norma Jean Lovlace v. Timothy Kevin Copley and Beth Copley - Concur and Partial Dissent
I agree with much of the majority’s well reasoned analysis in this case. However, in some respects, I would use different reasoning to reach the same result, and so must file this separate concurrence. In some other respects, I disagree with the result reached by the majority and so must partially dissent. These are discussed below. |
Hickman | Court of Appeals | |
State of Tennessee v. Robert Fusco
Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of especially aggravated kidnapping, which were merged, and one count of each of the following offenses: conspiracy to commit aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn. Code Ann.§§ 39-12-101,-12-103,-13-202,-13-304,-13-305, -13-402, -13-403, & -14-403. The trial court determined that the Defendant was a Range II, multiple offender for sentencing purposes and imposed an effective 65-year sentence. In this appeal as of right, the Defendant raises the following issues: (1) whether the trial court erred in failing to charge the lesser-included offense of attempted especially aggravated kidnapping; (2) whether the assistant district attorney general committed prosecutorial misconduct during closing argument; (3) whether the evidence is insufficient to support his convictions for especiallyaggravated kidnapping,conspiracyto commit aggravated robbery,and conspiracy to commitaggravated kidnapping;(4) whether his dual convictions for especiallyaggravated kidnapping and attempted aggravated robbery violate due process concerns because the restraint of the victim was not beyond that necessary to complete the robbery; (5) whether the trial court erred bynot merging his two conspiracy convictions because the offenses were the object of the same agreement; (6) whether the trial court erred by using certain out-ofstate convictions to enhance his sentencing range; and (7) whether his sentence was excessive.Following our review, we remand this case to the Montgomery County Circuit Court for the entry of corrected judgments to reflect merger of the Defendant’s conspiracy convictions. In all other respects, we conclude that there is no reversible error in the judgments of the trial court and affirm. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Lynn Gary Fryer
The appellant, Lynn Gary Fryer, pled guilty in the Madison County Circuit Court to aggravated assault, for which he was given a seven-year probationary sentence. Thereafter, he trial court revoked the appellant’s probation and ordered him to serve his sentence in confinement. On appeal, the appellant challenges the trial court’s revocation of his probation. Upon review, we affirm the judgment of the trial court. |
Madison | Court of Criminal Appeals | |
Criss Williams v. State of Tennessee
After his conviction for second degree murder was upheld on appeal, Petitioner, Criss Williams, sought post-conviction relief on the basis of ineffective assistance of counsel, the trial court’s alleged improper jury instructions, and the trial court’s alleged misapplication of enhancement factors. See State v. Criss Williams, No. W1999-00823-CCA-R3-CD, 2001 WL 278111, at *1 (Tenn. Crim. App., at Jackson, Mar. 9, 2001), perm. app. denied, (Tenn. June 18, 2001). The parties waived a hearing on the post-conviction petition and submitted the petition on the record. The post-conviction court determined that Petitioner failed to prove that he received ineffective assistance of counsel and, therefore, denied post-conviction relief. On appeal, we determine that the issue of whether the trial court should have charged lesser included offenses has been waived because it was not raised on direct appeal. We further determine Petitioner has failed to prove that trial counsel’s failure to object to the absence of instructions on lesser included offenses and appellate counsel’s failure to raise the issue on appeal was prejudicial to his case or amounted to ineffective assistance of counsel. Accordingly, the judgment of the post-conviction court is affirmed. |
Shelby | Court of Criminal Appeals | |
Mike Settle v. David Osborne, Warden
Petitioner, Mike Settle, appeals the habeas corpus court’s dismissal of his petition for habeas corpus relief in which he claimed that he was entitled to habeas corpus relief because his plea agreement and sentences for crimes committed in 1999 in Madison County are void because his sentence for escape was ordered to be served concurrently to a federal sentence in violation of Tennessee Rule of Criminal Procedure 32(c)(3). Petitioner failed to follow the mandatory procedural requirements for the valid filing of a petition for the writ of habeas corpus. Therefore, we affirm the judgment dismissing the habeas petition. |
Morgan | Court of Criminal Appeals | |
Charles Edward Graham v. State of Tennessee
A Knox County jury convicted Petitioner, Charles Edward Graham, of reckless aggravated assault, tampering with evidence, possession of marijuana, and failure to provide proof of financial responsibility, and the trial court sentenced him to an effective sentence of twentyseven years. State v. Charles Edward Graham, No. E2005-02937-CCA-R3-CD, 2008 WL 199851, at *1, *4 (Tenn. Crim. App., at Knoxville, Jan. 24, 2008), perm. app. denied, (Tenn. Sep. 15, 2008). Petitioner was unsuccessful on appeal to this Court. Id. at *1. Petitioner subsequently filed a petition for post-conviction relief arguing that trial counsel rendered ineffective assistance of counsel. After a hearing, the post-conviction court denied the petition. Petitioner now appeals this denial. We determine that the post-conviction court’s denial was proper because trial counsel did not coerce or unduly influence Petitioner with regard to his decision not to testify at trial; trial counsel was employing a reasonable trial tactic by not requesting jury instructions on any lesser included offenses; and trial counsel was not deficient with regard to attempting to obtain a plea bargain. Therefore, we affirm the denial of the petition. |
Knox | Court of Criminal Appeals | |
In Re: Robert Sadler Bailey
This appeal arises from an action for criminal contempt. The trial court granted Defendant’s motion upon determining Defendant’s right to a speedy trial was violated. The State appeals. We affirm. |
Shelby | Court of Appeals | |
Tracy Thomas Hepburn v. State of Tennessee
The Petitioner, Tracy Thomas Hepburn, was convicted of twenty-four counts of burglary, three counts of attempted burglary, fourteen counts of misdemeanor vandalism, eight counts of felony vandalism, ten counts of misdemeanor theft, and three counts of felony theft. The trial court sentenced him to an effective sentence of 100 years in the Tennessee Department of Correction (“TDOC”). This Court affirmed the Petitioner’s convictions and sentence, and the Tennessee Supreme Court denied permission to appeal on January 13, 2011. State v. Tracy Thomas Hepburn, No. M2008-01979-CCA-R3-CD, 2010 WL 2889101 (Tenn. Crim. App., at Nashville, July 23, 2010) perm. app. denied (Tenn. January 13, 2011). The Petitioner filed a petition for post-conviction relief in which he alleged that: (1) his convictions were based on a coerced confession; (2) his convictions were based on a violation of the privilege against self-incrimination; and that (3) he received the ineffective assistance of counsel. The post-conviction court summarily dismissed the petition, finding that the Petitioner failed to state a colorable claim. The Petitioner appealed, and, on appeal, both parties agree that the post-conviction court erred and that the case should be reversed and remanded. After a thorough review of the record and applicable authorities, we agree with the parties that the petition for post-conviction relief raises a colorable claim. We, therefore, reverse and remand to the post-conviction court for proceedings consistent with this opinion. |
Wilson | Court of Criminal Appeals | |
Brian Douglas Spivey v. David N. King et al.
The plaintiff Brian Douglas Spivey (“the Plaintiff”) alleges that the defendants, his former business partners, David N. King and Anthony G. Brown (collectively “the Defendants’), engaged in a conspiracy, and, pursuant to that conspiracy, took actions that include forcing him into bankruptcy and harassing him in the bankruptcy case, expelling him from a business entity, defaming him, and initiating unwarranted criminal charges that were dismissed. The Defendants filed a motion to dismiss asserting that this was simply an attempt to relitigate issues that had been determined in the Plaintiff’s bankruptcy and in a chancery court case the Defendants had pursued. They also filed a motion for sanctions. It turns out that the bankruptcy court did not issue its opinion until after the complaint in this case was filed and that the chancery court action was stayed as to the Plaintiff as a result of his bankruptcy filing. The trial court dismissed the complaint in an order that states that the dismissal was for “failure to state a claim.” The trial court also awarded sanctions against the Plaintiff and his attorney. The Plaintiff appeals. We affirm that part of the judgment dismissing the claims related to forcing the Plaintiff into bankruptcy and harassing him in bankruptcy as well as the claims related to expelling him from the business entity. We vacate that part of the judgment dismissing claims related to defamation and the allegedly unwarranted criminal prosecution. We also vacate that part of the judgment sanctioning the Plaintiff and his attorney. |
Knox | Court of Appeals | |
State of Tennessee v. Antwan Deemeek Hudson
Appellant, Antwan Deemeek Hudson, was convicted by a Sullivan County Jury of two counts of rape of a child. The trial court sentenced him to two, concurrent sentences of twenty-five years. On appeal, Appellant argues that the evidence was insufficient to support his convictions, the trial court erred in allowing a doctor to testify as to a statement made to him by the victim’s parents, and the trial court erred in excluding Appellant’s testimony regarding the results of a medical test. After a thorough review of the record, we conclude that Appellant’s argument regarding the sufficiency of the evidence is actually a plea for this Court to reweigh the evidence, which we are precluded from doing. In addition, we conclude that the evidence is more than sufficient to support his convictions. We also conclude that the statement made by the parents to the doctor was erroneously allowed into evidence under an exception to the hearsay rule, but the error was harmless. Due to errors on the judgment forms, we remand for the correction of the judgment forms to reflect that Count 1 and Count 3 will run concurrently to each other. In all other respects, the judgments are affirmed. |
Sullivan | Court of Criminal Appeals | |
Gary Paul v. Dennis Watson and Darlene Watson d/b/a Double D Lawn Care and Landscaping
This case involves an alleged oral contract for landscaping work. The homeowner paid a |
Benton | Court of Appeals | |
State of Tennessee v. Bethany Jean O'Donnell
The defendant, Bethany Jean O’Donnell, appeals the Sullivan County Circuit Court’s revocation of her probationary sentence. Pursuant to a negotiated plea agreement to multiple charges, the defendant was sentenced to five consecutive terms of eleven months and twentynine days, to be served on supervised probation. A violation warrant was subsequently issued and, at the following hearing, the defendant acknowledged that she had committed the violation. The trial court then found the defendant to be in violation of the terms and conditions of her probation and ordered that the remainder of her sentence be served in confinement. On appeal, the defendant contends that the decision was error and, further, that the court erroneously concluded that she would not be entitled to good conduct credits when serving her misdemeanor sentences at seventy-five percent. Because we conclude no error has occurred and because the case holds no precedential value, we affirm the ruling of the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. |
Sullivan | Court of Criminal Appeals | |
Eagles Landing Development, LLC v. Eagles Landing Apartments, LP, et al.
This is a breach of contract case. Following a bench trial, the trial court awarded Appellee Developer the remaining balance due under a Development Agreement that was entered by and between Appellee and the Appellants, a partnership and its limited liability partners, for construction of an apartment complex. Appellants contend that Appellee was not entitled to final payment because the general partner, who is not a party to this appeal, had not funded the development fees that were contemplated under a Partnership Agreement, to which Appellee was not a party. Specifically, Appellants argue that the payment under the Development Agreement is contingent upon satisfaction of the funding requirements specified in the Partnership Agreement. We conclude that the conditions precedent under the Development Agreement were met, and that the Appellee was, therefore, entitled to its full fee under the Development Agreement. The trial court assessed judgment against the limited liability partners and the partnership. Under the Tennessee Revised Uniform Partnership Act, Appellants’ status as limited partners protects them from liability for the debts of the partnership. Appellee contends that it is a third-party beneficiary under the Partnership Agreement and may, therefore, have judgment against the limited partners who were parties to that agreement. We conclude that the third-party beneficiary issue is waived and that the trial court erred in entering judgment against the limited partners. Affirmed in part, reversed in part, and remanded. |
Shelby | Court of Appeals | |
State of Tennessee v. Dennis Lee Rose
A Sullivan County Criminal Court Jury convicted the appellant, Dennis Lee Rose, of first degree premeditated murder and two counts of aggravated assault. The trial court sentenced him to concurrent sentences of life for the murder conviction and three years for each of the aggravated assault convictions. On appeal, the appellant contends that (1) the evidence is insufficient to support the convictions; (2) the trial court erred by admitting evidence of prior bad acts under Rule 404(b), Tennessee Rules of Evidence; (3) the trial court erred by refusing to allow the defense to use the prosecutor’s notes for impeachment and by refusing to allow the defense to make an offer of proof regarding the State’s failure to provide the notes to the defense before trial; (4) the trial court erred by refusing to allow the defense to present surrebuttal testimony; and (5) the appellant’s convictions for premeditated murder and one count of aggravated assault violate double jeopardy. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court |
Sullivan | Court of Criminal Appeals | |
State of Tennessee v. Dennis Wayne Brewer
The defendant, Dennis Brewer, was convicted by a Madison County jury of DUI and DUI per se. He then pled guilty to DUI, third offense, a Class A misdemeanor. The trial court merged the convictions and sentenced him to eleven months and twenty-nine days in the county jail, with a minimum of nine months to serve prior to release into a rehabilitative program. The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain his conviction. Following our review, we affirm the judgment of the trial court. |
Madison | Court of Criminal Appeals | |
State of Tennessee v. Lester Paul Doyle
The defendant, Lester Paul Doyle, pled guilty in the Hardin County Circuit Court to three counts of aggravated burglary based on offenses he committed while serving a community corrections sentence for drug convictions in a prior case. At the sentencing hearing, the trial court revoked the defendant’s community corrections sentence in the drug case and sentenced the defendant to serve concurrent terms of four years in the Department of Correction in the aggravated burglary case, with the aggravated burglary sentences to be served consecutively to the sentences in the drug case. The defendant now appeals the trial court’s sentencing determinations, arguing that his community corrections sentence in the drug case should not have been revoked and that the trial court should have sentenced him to some form of alternative sentencing in the aggravated burglary case. He does not challenge the trial court’s order of consecutive sentencing. Following our review, we affirm the sentencing determinations of the trial court but remand for correcting clerical errors and the entry of corrected judgment forms to reflect that the aggravated burglary sentences in case number 9354 are to be served consecutively to the drug sentences in case number 9201. |
Hardin | Court of Criminal Appeals | |
Shree Krishna, LLC d/b/a Quizno's Classic Subs v. Broadmoor Investment Corp.
This case involves the breach of a commercial lease. The plaintiff leased property from the defendant for a franchise restaurant. The lease granted the plaintiff options to renew for two additional lease periods. The parties’ agreement with the franchisor provided that the lease and the options were assignable, and that the landlord’s consent to the assignment could not be unreasonably withheld. The plaintiff sought to assign the lease and the renewal options to a third party. The defendant landlord refused to consent to the assignment and attempted to negotiate a new lease with the prospective assignee on different terms. After the assignee withdrew its offer to purchase the plaintiff’s franchise, the plaintiff agreed to sell it to the assignee for a reduced price. The plaintiff then filed this lawsuit against the defendant landlord for breach of contract, alleging that it unreasonably withheld consent to the original proposed assignment. After a bench trial, the trial court held in favor of the plaintiff. The defendant landlord now appeals. We affirm, finding that the evidence supports the trial court’s conclusion that the defendant landlord unreasonably withheld consent in order to extract an economic concession or improve the landlord’s economic position. |
Madison | Court of Appeals | |
State of Tennessee v. Glyn Dale
The appellant, Glyn Dale, appeals the Knox County Criminal Court’s ordering him to serve concurrent twenty-five-year sentences for two convictions of rape of a child. On appeal, the appellant contends that his sentences are excessive. Based upon the record and the parties’ briefs, we affirm the judgments of the trial court. |
Knox | Court of Criminal Appeals | |
Marie Akins v. Whirlpool Corporation
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation 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. Marie Akins (“Employee”) alleges that she developed carpal tunnel syndrome in her left wrist while employed as a factory worker by Whirlpool Corporation (“Employer”), prior to the closure of Employer’s plant in August 2008. Employer denies that Employee’s carpal tunnel syndrome in her left wrist was caused by her employment with it. The trial court found that Employee’s left-wrist carpal tunnel syndrome was not caused by her employment with Employer and that Employer therefore is not liable for this injury. Employee has appealed, contending both that the evidence preponderates against the trial court’s finding and that Employer is estopped from denying liability based on delay in the diagnosis of Employee’s carpal tunnel syndrome in her left wrist. We affirm the trial court’s judgment. |
Rutherford | Workers Compensation Panel | |
Tammy L. Lee v. Dura Operating Corporation, et al
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation 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. Tammy L. Lee (“Employee”) alleges that she suffered an injury to her cervical spine while she was employed as a factory worker by Dura Operating Corporation (“Employer”). Employer denies that Employee’s cervical spine injury was caused by her employment with Employer. The trial court determined that Employee’s cervical spine condition was a work-related aggravation of her pre-existing degenerative disc disease. The trial court awarded Employee temporary total benefits from November 8, 2007, to February 8, 2008. Finding that Employee had not been able to return to work, the trial court refused to apply the statutory cap and awarded Employee permanent partial disability benefits of 69% to the body as a whole, three times her anatomical impairment rating of 23% to the body as a whole. Finding that the evidence preponderates against the trial court's determination of causation, we reverse the trial court’s judgment. |
Lawrence | Workers Compensation Panel |