This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme
Court of Tennessee, filed by Agness McCurry (“Petitioner”), seeking to recuse the judge
in this case involving post-divorce parenting issues. Having reviewed the petition for
recusal appeal filed by Petitioner, and finding no error, we affirm.
The Petitioner’s original and untimely petition for post-conviction relief was dismissed on the merits because all his claims were either waived or previously determined. Thereafter, the Petitioner filed a second petition alleging that the statute of limitations for his first petition should have been tolled due to his then mental incompetency. The post-conviction court dismissed the second petition, finding that the Petitioner was not mentally incompetent. On appeal, we conclude that, because the Petitioner’s first petition was resolved on the merits, any second or subsequent petition is barred, and any issue regarding the timely filing of the first petition is immaterial. Accordingly, we respectfully affirm the judgment of the post-conviction court.
This appeal involves an issue of arbitration. The trial court entered an order declining to
approve for entry the defendants’ proposed notice of intent to arbitrate and order to compel
arbitration. The defendants appeal. We dismiss the appeal.
Davidson
Court of Appeals
In Re: Braylin T. M2022-01256-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Amy V. Hollars
This is a termination of parental rights case. The mother appeals the trial court’s order terminating her parental rights, arguing that it is not in the child’s best interest for her rights to be terminated. For the reasons discussed herein, we affirm.
This action concerns the dismissal of the plaintiff’s claims against his former attorney for breach of contract, malpractice, and violation of the Tennessee Consumer Protection Act. We affirm.
The issue presented is whether a civil service merit board acts arbitrarily or capriciously
by not allowing an employee to ask questions in a termination hearing about more lenient
discipline imposed on other civil service employees. A Shelby County Fire Department
employee was fired based on his participation in an altercation involving a firearm at a
political rally and his dishonesty during the subsequent investigation. He appealed his
termination to the Shelby County Civil Service Merit Board. During the hearing, the Board
did not allow the employee’s counsel to ask questions about discipline imposed on other
Fire Department employees. The Board affirmed the employee’s termination for just cause.
The employee appealed, and the trial court affirmed. The Court of Appeals reversed,
holding that the Board’s decision to exclude the questions about other discipline was
arbitrary and unreasonable, and remanded the case for consideration of such evidence.
Under the narrow standard of review provided in the Uniform Administrative Procedures
Act, we hold that the Board did not act arbitrarily or capriciously by declining to consider
evidence of discipline imposed on other employees. We reverse the Court of Appeals’
judgment and affirm the judgment of the trial court.
This appeal concerns breach of contract. In 2012, Michael F. Thomas (“Thomas”),
president and owner of CCW Systems, Inc. (“CCW”), completed and signed an open
account application (“the Application”) with Ken Smith Auto Parts (“Ken Smith”). The
one page Application provided that Thomas would personally guarantee all invoices due
to Ken Smith, which sold auto parts to CCW. Later on, CCW became delinquent and
dissolved. In 2017, Ken Smith filed a civil warrant against Thomas in the General Sessions
Court for Hamilton County. This followed two unsuccessful attempts to serve Thomas on
previous civil warrants. The General Sessions Court ruled in favor of Ken Smith. Thomas
appealed to the Circuit Court for Hamilton County (“the Trial Court”). The Trial Court
granted partial summary judgment in favor of Ken Smith, holding that Thomas was
personally liable for CCW’s debt. After a bench trial, the Trial Court found, inter alia, that
the four-year statute of limitations had not expired on Ken Smith’s breach of contract claim
because, in 2013, Thomas promised to pay the debt which served to renew the statute of
limitations. Thomas appeals to this Court. We affirm.
The Defendant, Kristopher Johnson, was convicted by a Knox County Criminal Court jury
of two counts of facilitation of first degree felony murder, a Class A felony; two counts of
criminally negligent homicide, a Class E felony; two counts of aggravated robbery, a Class
B felony; tampering with evidence, a Class C felony; aggravated burglary, a Class C
felony; and aggravated assault, a Class C felony. See T.C.A. §§ 39-11-403 (2018)
(facilitation), 39-13-202(a)(2) (2018) (subsequently amended) (first degree felony murder),
39-13-212(a) (2018) (criminally negligent homicide), 39-13-402 (2018) (aggravated
robbery), 39-16-503 (2018) (tampering with evidence), 39-14-403 (2018) (repealed and
replaced by § 39-13-1003) (aggravated burglary), 39-13-102 (Supp. 2017) (subsequently
amended) (aggravated assault). The court merged the criminally negligent homicide
convictions with the facilitation of first degree felony murder convictions. The court
sentenced the Defendant, a Range II offender, to thirty years for each of the counts of the
facilitation of first degree felony murder, eighteen years at 85% for each of the counts of
aggravated robbery, ten years for tampering with evidence, ten years for aggravated
burglary, and ten years for aggravated assault. The court imposed partially consecutive
sentencing, with an effective sentence of seventy years. On appeal, the Defendant contends
that: (1) the evidence is insufficient to support his convictions for the homicide and robbery
offenses, (2) the court erred in allowing the State to introduce evidence of the Defendant’s
street gang affiliation, (3) he was denied his fundamental right to cross-examine two
witnesses, (4) the court erred in ruling that a witness’s statement was hearsay, (5) the court
erred in determining that no violation of Tennessee Rule of Evidence 615 regarding
sequestration of witnesses occurred, (6) cumulative trial errors require reversal, and (7) the
court erred in its application of a sentencing enhancement factor. We affirm the judgments
of the trial court.
The trial court dismissed Appellant’s action for aggravated perjury for failure to state a claim under Tennessee Rules of Civil Procedure 12.02(6); the trial court dismissed Appellant’s action for spoliation of evidence as barred by the doctrine of res judicata.The trial court also assessed sanctions against Appellant’s attorney pursuant to Rule 11 of the Tennessee Rules of Civil Procedure.Discerning no error, we affirm.
This appeal arises from a series of civil actions between a tenant and its landlord. The first
action resulted in a ruling that the landlord was “merely a sham or dummy corporation”
and “the alter ego” of its sole shareholder. See Dog House Investments, LLC v. Teal
Properties, Inc., et al., 448 S.W.3d 905, 911 (Tenn. Ct. App. 2014). The second action
resulted in a settlement agreement that entitled the prevailing party in future lease disputes
to an award of related attorney’s fees. The third and present action commenced in 2017
with each party suing the other on various grounds in different courts. Following a
consolidation of the pending actions, the case was tried by a jury, which ruled in favor of
the tenant, Dog House Investments, LLC, (“Dog House”) on the merits. Thereafter, Dog
House filed a motion to recover its attorney’s fees and costs as the prevailing party pursuant
to the 2014 settlement agreement, and the trial court awarded Dog House $292,168.84 in
attorney’s fees and costs. This appeal followed. The sole issue on appeal is the amount of
the attorney’s fees awarded. Finding no abuse of discretion, we affirm. Because Dog House
is also entitled to recover the reasonable and necessary attorney’s fees it incurred in
successfully defending this appeal, we remand for further proceedings consistent with this
opinion.
In this divorce action, the trial court distributed the parties’ marital assets and debts,
fashioned a parenting plan naming the mother primary residential parent and providing
the father with fifty-five annual days of co-parenting time, and set the father’s child
support obligation. The father has appealed. Discerning no reversible error, we affirm
the trial court’s judgment. Deeming this to be a frivolous appeal, we grant the mother’s
request for reasonable attorney’s fees and costs incurred on appeal and remand this issue
to the trial court for a determination regarding the amount.
This is a breach of contract action between a lender, borrower, and guarantor on a promissory note. When the borrower ceased payment on the promissory note and the borrower and guarantor failed to cure the default, the lender commenced this action against the borrower and the guarantor. After extensive discovery, the lender passed away, and the personal representatives of the lender’s estate were substituted as the party plaintiffs. The estate filed a motion for summary judgment based on two grounds. The first ground was that in their discovery responses, the defendants admitted that they failed to remit payments as required by the promissory note. Second, the defendants’ discovery responses denied that the defendants had any facts or evidence upon which to support the affirmative defenses that the lender violated the doctrine of good faith and fair dealing and/or that the note was unenforceable. The defendants filed a response in opposition to the summary judgment motion, supported by the affidavit of the president of both defendants. Relying on the affidavit, the defendants asserted, for the first time, that neither defendant was ever liable for the debt because the lender had never remitted the loan proceeds to the borrower. The trial court ruled that the bulk of the affidavit was inadmissible on three grounds. First, it found the officer’s testimony regarding conversations with the deceased lender inadmissible under the Dead Man’s Statute, Tennessee Code Annotated § 24-1-203. Second, it found certain statements were directly contradictory to previous discovery responses, so the court accordingly rejected the evidence under the Cancellation Rule. Third, it found the business records the affiant referenced in his affidavit but did not produce failed to satisfy the best evidence rule. After considering the statement of undisputed facts, discovery responses, and the defendants’ admissions, the trial court concluded that the material facts were undisputed and that the estate was entitled to judgment as a matter of law. Accordingly, it granted the estate’s motion and awarded a judgment for the outstanding principal and interest totaling $260,710.00 and $12,445.28 in attorneys’ fees and expenses. The defendants appealed. We affirm.
In a prior appeal involving this case, this Court vacated the trial court’s decision to require
the Appellants herein to interplead funds, but we otherwise affirmed the trial court’s
actions, including the dismissal of the underlying case. Following our remand for further
proceedings consistent with the appellate opinion, such as the collection of costs, the trial
court ruled, notwithstanding our prior affirmance of the case’s dismissal, that the case
“shall be Dismissed With Prejudice” but upon the payment of $300,000.00 into the registry
of the court. The trial court further dismissed, without prejudice, a petition to enforce an
attorney’s lien that plaintiff’s former attorneys had attempted to get the trial court to
adjudicate in the present litigation. Because this Court’s prior opinion affirmed the trial
court’s previous dismissal, thus ending the underlying case, we conclude that the trial
court’s efforts to condition dismissal of the case on remand was in error. Regarding the
petition for enforcement of an attorney’s lien, the issue raised for our review on appeal is
whether the trial court should have transferred the matter to another court division as
opposed to dismissing the petition without prejudice. For the reasons stated herein, we
discern no error with the trial court’s disposition on that issue.
Appellant seeks to appeal a decision regarding a Criminal Injuries Compensation Act claim
on the small claims docket of the Tennessee Claims Commission. Because appeals of
decisions from the small claims docket are prohibited by Tenn. Code Ann. § 9-8-403(a)(2),
the chancellor granted the Claims Commission’s motion to dismiss. We affirm.
In this divorce case, Wife/Appellant appeals the trial court’s: (1) pre-trial rulings
concerning certain entities; (2) denial of her motions for leave to amend the complaint for
divorce; (3) pre-trial procedural rulings; (4) evidentiary rulings; (5) designation of
Husband/Appellee as the primary residential parent and parent with sole decision-making
authority over the parties’ child; (6) child support award; (7) alimony award; (8) denial of
retroactive temporary support; and (9) denial of her request for attorney’s fees. Wife also
asks this Court to award her attorney’s fees incurred in this appeal. For the reasons
discussed below, we vacate in part, reverse in part, and affirm in part. Wife’s request for
appellate attorney’s fees is denied.
A mother obtained an order of protection against her son in general sessions court. The
son appealed to circuit court. Through the parties’ inaction, the case languished for more
than five years, leading to the circuit court dismissing the case. In response, the son filed
various motions and documents seeking restoration of the case to the docket and further
relief, which resulted in a hearing and additional orders being entered by the circuit court.
Through these orders, the circuit court ruled in accordance with the son’s position that the
order of protection was no longer in effect and had not been in effect for years. The circuit
court also concluded that, given the parties’ inaction and because the case had become
moot, dismissal rather than restoration to the docket was appropriate. The son appealed.
We conclude that for purposes of this appeal the case is moot.
Davidson
Court of Appeals
In Re Khloe B. M2022-01013-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Larry B. Stanley
This is the second appeal involving the termination of a mother’s parental rights to this
child. Following a bench trial, the court found that clear and convincing evidence existed
to support termination but failed to identify any specific statutory section in support of its
decision. We vacated the trial court’s decision and remanded for sufficient findings of fact
and conclusions of law. Upon remand, the court offered additional findings of fact and
conclusions of law before ultimately holding that the evidence presented established the
following statutory grounds of termination: (1) abandonment and (2) failure to manifest an
ability and willingness to care for the child. The court also found that termination of the
mother’s rights was in the best interest of the child. We now affirm the court’s ultimate
termination decision.
The Defendant, Charles Hollon, has been charged with second degree murder through the
delivery of fentanyl pursuant to Tennessee Code Annotated section 39-13-210(a)(3). In
this interlocutory appeal, the issue is whether the State must prove beyond a reasonable
doubt that the Defendant knew the substance being unlawfully distributed or delivered was
fentanyl or carfentanil. In a proposed jury instruction, the trial court held that it did, but
we respectfully disagree. Instead, we hold that the State may satisfy this element by
proving beyond a reasonable doubt that (i) the defendant disregarded a substantial and
unjustifiable risk that the substance delivered to the user was fentanyl or carfentanil; and
(ii) the defendant’s disregard of that risk constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances as viewed from the
defendant’s standpoint. Accordingly, we respectfully vacate the trial court’s order and
remand the case for further proceedings.
Marion
Court of Criminal Appeals
In Re Azhianne G. E2022-00223-COA-R3-PT
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Darryl Edmondson
This case involves the termination of a mother’s parental rights. The trial court’s order
concluded that the child at issue was a victim of severe abuse perpetrated by the mother
and that termination of her parental rights was in the child’s best interest. The mother now
appeals. Having carefully reviewed the record, we affirm.
This appeal concerns the trial court’s decision to dismiss an action under Tennessee Rule
of Civil Procedure 34A.02 and the doctrine of unclean hands. The plaintiff is a Certified
Registered Nurse Anesthetist who alleges that she was harassed and discriminated against
while working for the defendant, a prominent physician group in Memphis, Tennessee. The
trial court found that dismissal was warranted because the plaintiff “willfully deleted text
messages from her personal electronic devices after being placed on notice regarding her
preservation obligations, resulting in the deletion, and therefore spoliation, of critical
evidence that cannot be recovered.” This appeal followed. We conclude that the doctrine
of unclean hands does not apply in this case because the plaintiff’s misconduct relates to
the litigation as a whole, not to her claims. Nonetheless, we also conclude that the trial
court did not exceed its discretion by dismissing the case as a sanction for the plaintiff’s
intentional spoliation of evidence under Rule 34A.02.
This appeal arises from a breach of contract case that concerned whether the contract at
issue lacked consideration due to an illusory promise. Specifically, the terms of the
contract provided that the plaintiff would produce as many programs “as is feasible.” The
parties filed competing motions for summary judgment. The claims commission granted
the State of Tennessee’s motion for summary judgment finding that the contract between
the parties was devoid of consideration due to an illusory promise and was therefore
unenforceable. Additionally, the claims commission denied the plaintiff’s motion for
summary judgment as to liability and denied the plaintiff’s motion for summary judgment
as to damages finding that the issue was moot. The plaintiff appeals. We affirm.
The Defendant, Harrison Alexander Mason, was convicted in the Fayette County Circuit
Court of three counts of rape of a child, three counts of aggravated sexual battery, and one
count of solicitation of a minor and received an effective sentence of fifty-seven years in
confinement. On appeal, the Defendant contends that the trial court committed plain error
by failing to exclude statements made by the victim during her forensic interviews pursuant
to Tennessee Rule of Evidence 404(b); that the trial court committed plain error by giving
a “vague” curative instruction and waiting until the final jury charge to give the instruction;
and that the trial court’s errors require reversal of the convictions under the cumulative
error doctrine. Based upon the oral arguments, the record, and the parties’ briefs, we affirm
the judgments of the trial court.
I concur in the majority’s opinion regarding piercing the corporate veil and fraudulent conveyance. I disagree with the majority’s opinion regarding punitive damages. The plaintiff’s argument on this issue is certainly not robust, but I think the intention was simply to rely primarily on the argument regarding fraudulent conveyance to also support the claim for punitive damages. In other words, I read the plaintiff’s brief as arguing that the evidence of an intentional transfer of money to the individual defendants supports both the claim of fraudulent conveyance and punitive damages. Regarding questions of waiver, we should not “exalt form over substance.” Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Moreover, “the doctrine of waiver generally exists to prevent litigants from raising issues to which their opponents have no opportunity to respond.” Jackson v. Burrell, No. W2018-00057-COA-R3-CV, 2019 WL 237347, at *7 (Tenn. Ct. App. Jan. 16, 2019) (Stafford, J., dissenting). Here, the defendants have been on notice for the entirety of this case that plaintiff seeks punitive damages. For these reasons, I would not consider the issue waived.
In this divorce case, the wife appeals the trial court’s division of the parties’ marital estate,
while also challenging the amount of the trial court’s award to her of alimony in futuro.
Although the husband contends that the trial court’s division of the marital estate was
equitable, he also raises a challenge to the alimony award, albeit one that submits that the
decision to award any alimony to the wife was in error. For the reasons discussed herein,
we affirm the trial court’s division of the marital estate, modify the alimony award, and
award the wife appellate attorney’s fees for defending against the husband’s raised issue.
This is an appeal from the granting of a directed verdict on limited issues in a jury trial. At the conclusion of the plaintiff’s proof, the defendant moved for and was granted a directed verdict as to the issues of piercing the corporate veil, fraudulent conveyance, and punitive damages. The trial then continued as to a breach of contract claim asserted by the plaintiff, and the jury ultimately returned a verdict in the plaintiff’s favor. The plaintiff now appeals, arguing that the trial court’s ruling on the motion for directed verdict was in error. Having reviewed the record transmitted to us on appeal, we reverse the trial court’s grant of a directed verdict as to the issues of piercing the corporate veil and fraudulent conveyance, but we affirm as to the issue of punitive damages.
