Maria Amezcua v. Samuel Amezcua
In this post-divorce proceeding, Father appeals a judgment for child support arrearages and award of attorney’s fees to Mother. Finding that the court erred in its determination of the amount of arrearages, we reverse the judgment and remand for further proceedings. The award of attorney’s fees is affirmed. |
Davidson | Court of Appeals | |
Allstate Insurance Company v. Diana Lynn Tarrant et al. - Dissent
We granted the Tenn. R. App. P. 11 application in this case to determine whether an insured,who requested replacementinsurancecoverageonhispersonalandbusiness vehicles in order to reduce his premiums, is entitled to more coverage than that provided in his new personal policy when he failed to read the amended policy declarations and to notify the insurance company that he desired different coverage on one of his vehicles. Applying settled legal principles to the essentially undisputed facts of this case, I would hold that the insured accepted the new coverage by failing to review the amended policy declarations and to give the insurance company timely notice that the coverage was less than he desired. |
Sevier | Supreme Court | |
James Edward Bassham v. Tennessee Department of Correction et al.
Petitioner, an inmate in the custody of the Tennessee Department of Correction, housed at Morgan County Correctional Complex in Wartburg, Tennessee, filed a petition for writ of certiorari in the Wayne County Chancery Court seeking review of the prison disciplinary proceedings for his conviction for the disciplinary offense of “violation of state law” while incarcerated at South Central Correctional Center in Clifton, Tennessee. Based upon the filing of an Inmate Affidavit filed pursuant to Tennessee Code Annotated § 41-21-801 et seq., a certified copy of his Inmate Trust Fund Account and a Uniform Civil Affidavit of Indigency, the trial court filed an Order allowing filing on pauper’s oath. Upon motion of respondents, the court was advised that Petitioner falsely stated that he had no income from anysource. Pursuant to Tennessee Code Annotated § 41-21-804, the trial court dismissed the petition upon the finding that the inmate’s affidavit of indigency was false. We affirm. |
Wayne | Court of Appeals | |
Donna Leigh Pearson v. State of Tennessee
In two separate cases, the Petitioner, Donna Leigh Pearson, pled guilty to burglary and theft of over $1000. The trial court sentenced her to ten years on each count, to be served in the Tennessee Department of Correction at 45%, and, because the Petitioner committed one offense while released on bond for the other offense, the trial court ordered consecutive sentences. The Petitioner filed a petition for post-conviction relief, and the post-conviction court dismissed the petition but granted the Petitioner the opportunity to seek a delayed appeal of her sentence. On appeal, the Petitioner contends that: (1) she received the ineffective assistance of counsel; (2) her guilty pleas were not knowingly and voluntarily entered; and (3) the trial court erred when it sentenced her. After a thorough review of the record and applicable authorities, we affirm the post-conviction court’s dismissal of her petition and we affirm her sentence. |
Davidson | Court of Criminal Appeals | |
Donna Leigh Pearson v. State of Tennessee - Concur
I concur with the majority opinion in result only for the reason that the post-conviction trial court erred by granting Petitioner a delayed appeal as to her sentence. The post-conviction trial court filed a fifteen-page order of disposition of the post-conviction petition, setting forth in detail its findings of fact and conclusions of law. I have carefully reviewed this order and have found no findings of fact by the post-conviction trial court which support the granting of post-conviction relief to Petitioner to the extent of granting a delayed appeal of the sentence imposed upon her. In fact, I find the term “delayed appeal” mentioned only in the order’s introduction, (“The Court, however, shall grant Petitioner the opportunity to seek a delayed appeal as to her sentence.”) and in its conclusion (“The Court, however, shall grant Petitioner the opportunity to seek a delayed appeal as to her sentence.”). No reasons are provided for the granting of the delayed appeal. The proof at the post-conviction hearing was that trial counsel informed Petitioner that he would not be representing her on appeal of her sentence, but that he informed her she was entitled to an appeal of the sentence. Furthermore,the record reflects that trial counsel was retained to represent Petitioner in the trial court, but had not been retained to represent her on appeal. Petitioner filed a pro se “Notice of Appeal,” but on the advice of the inmate “law clerks” at the correctional facility, she voluntarily dismissed her appeal. There is nothing in the post-conviction trial court’s comments from the bench following the hearing, or in its order on the post-conviction petition, setting forth any deficiency by the trial counsel, or, obviously, any resulting prejudice to Petitioner as a result of deficient representation by trial counsel regarding appeal of the sentence. It appears from the record that the post-conviction court gratuitously granted Petitioner a delayed appeal with no constitutional basis found to grant such relief. Trial counsel may have provided deficient representation ;if so,Petitioner may have been prejudiced thereby. However,the post-conviction court made no factual findings to either support or reject these conclusions. Accordingly, I would reverse that portion of the order granting a “delayed appeal” and affirm the dismissal of the Petition for post-conviction relief. |
Davidson | Court of Criminal Appeals | |
Steven Ray Thacker v. State of Tennessee
A Lake County jury convicted the Petitioner, Steven Ray Thacker, of first degree murder and sentenced him to death. On direct appeal, the Tennessee Supreme Court affirmed both the conviction and sentence. See State v. Thacker, 164 S.W.3d 208 (Tenn. 2005). The Petitioner filed a pro se petition for post-conviction relief, and the post-conviction court appointed counsel. Following an evidentiary hearing, the post-conviction court dismissed the petition. On appeal, the Petitioner contends that: (1) he received the ineffective assistance of counsel during his trial; (2) he received the ineffective assistance of counsel on appeal; (3) the sentence of death violates his constitutional rights; (4) the aggravating circumstances of his case do not preclude a finding that he was prejudiced by his trial counsel’s performance; and (5) he is entitled to post-conviction relief based upon the cumulative effect of counsel’s errors. After a thorough review of the record and applicable authorities, we affirm the post conviction court’s judgment. |
Dyer | Court of Criminal Appeals | |
Metropolitan Government of Nashville and Davidson County, et al. v. BFI Waste Services, LLC, et al.
After Metro’s waste-to-energy facility was damaged/destroyed by fire, Metro and the facility’s insurer filed suit against Defendants. Prior to trial, Defendants’ expert was precluded from testifying regarding the facility’s value, its condition prior to the fire, and the alleged pre-fire plans to discontinue its operation. A jury returned a verdict in favor of Plaintiffs, and Defendants appeal. On appeal, Defendants challenge the exclusion of certain evidence, the jurycharge regarding damages, and an adverse inference juryinstruction given as a sanction against Defendants. Additionally, Plaintiffs challenge the denial of prejudgment interest. We affirm the trial court in all respects. |
Davidson | Court of Appeals | |
State of Tennessee v. Sean Nauss, Alias
The Defendant, Sean Nauss, alias, appeals as of right from the trial court’s denial of judicial diversion following his guilty plea to three counts of statutory rape, a Class E felony. Following a sentencing hearing, the court imposed a sentence of three years’ probation. The Defendant contends that the trial court erred in denying his application for judicial diversion because the applicable factors weigh heavily in favor of diversion. After a review of the record, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. |
Knox | Court of Criminal Appeals | |
In Re: Fridrich E.T.W.
George R.W., Jr. (“Father”) appeals the termination of his parental rights with respect to his minor son, Fridrich E.T.W. (DOB: Aug. 27, 2008) (“the Child”). The Department of Children’s Services (“DCS”) had filed a petition seeking to terminate both parents’ rights after the Child was taken into custody pursuant to an emergency protective order. He was subsequently adjudicated dependent and neglected as a result of being subjected to severe child abuse. As to Father, DCS pursued termination on the sole ground of severe child abuse. Father did not appear at trial. At the start of the trial, his counsel moved for a continuance based in part on counsel’s assertion that Father had advised her that he wished to effectuate a voluntary surrender of his parental rights. The trial court denied the motion and the hearing proceeded in Father’s absence. The court terminated Father’s rights based upon its finding that the sole ground for termination was established and that termination was in the best interest of the Child, both findings said by the court to be made by clear and convincing evidence. Father appeals. We affirm. |
Anderson | Court of Appeals | |
Amber Brazilian Export Resources, Inc., DBA Amber International V. Crown Laboratories, Inc. et al.
Amber Brazilian Export Resources, Inc., doing business as Amber International (“the Plaintiff”), filed this action against Crown Laboratories, Inc. and Jeffrey A. Bedard (collectively “the Defendants”) to collect a debt owed on an “open account.” The liability of Mr. Bedard is based upon a personal guaranty of Crown’s obligation. The Defendants admit that something is owed on the account but deny the amount and further deny that Mr. Bedard signed the guaranty in a personal capacity. The Plaintiff filed a motion for summary judgment supported by the affidavit of its president, which the Defendants opposed with the affidavit of Mr. Bedard in which he states that he signed the guaranty in a representative capacity. He also disputes the amount due as stated in the Plaintiff’s affidavit. The trial court granted the Plaintiff’s motion. The Defendants appeal. We affirm that part of the judgment holding Mr. Bedard liable on the guaranty and vacate that part of the judgment setting the amount owed because there is a genuine issue of material fact as to the amount. |
Washington | Court of Appeals | |
Farmers Mutual of Tennessee v. Jennifer Atkins
This is an interlocutory appeal from the denial of summary judgment. Appellant insurance company sought a declaratory judgment that Appellee was precluded from recovering under her home owner’s insurance policy due to her failure to submit to an examination under oath. The insurance company moved for summary judgment, arguing that the failure to submit to an examination under oath was the nonoccurrence of a condition precedent to recovery under the policy, as outlined in Spears v. Tennessee Farmers Mut. Ins. Co., 300 S.W.3d 671 (Tenn. Ct. App. 2009). Appellee responded that she had not failed to submit to an examination and argued that, under Talley v. State Farm Fire & Cas. Co., 223 F.3d 323 (6th Cir. 2000), the insurance company must prove prejudice in order to preclude recovery. The trial court denied summary judgment, citing material factual disputes and noting, without deciding, the divergence of opinion regarding the condition precedent issue. Accordingly, the trial court granted an interlocutory appeal for this Court to determine the applicable law. This Court granted the interlocutory appeal; however, upon further review, we have determined that this issue is not properly before us. Accordingly, we vacate the grant of the interlocutory appeal, remand to the trial court for further proceedings and dismiss the appeal. |
Monroe | Court of Appeals | |
James Wesley Osborne v. State of Tennessee
James Wesley Osborne (“the Petitioner”) filed a “petition for delayed post-conviction relief” on August 12, 2008, regarding his October 1999 conviction of first degree murder. A hearing was held to determine if the Petitioner was entitled to have the applicable statute of limitations tolled. The post-conviction court determined that he was not and dismissed the petition as untimely. This appeal followed. Upon our careful review of the record, we affirm the judgment of the post-conviction court. |
Jefferson | Court of Criminal Appeals | |
Orlando Fields v. Corrections Corporation of America et al.
An inmate at the South Central Correctional Facility in Clifton, Wayne County, Tennessee, filed this Petition for Writ of Certiorari to challenge the decision of the prison grievance board and that of the Commissioner. All of the respondents filed motions to dismiss the petition on several grounds including that Petitioner failed to comply with Tenn. Code Ann. § 41-21-805, that decisions bya prison grievance boards are not reviewable under a common law writ of certiorari, and Petitioner failed to comply with Tenn. Code Ann. § 41-21-806(b). The trial court dismissed the petition as to all respondents. We affirm. |
Wayne | Court of Appeals | |
Robes P. Jean Philippe a/k/a Johnny Ralone et al. v. Jhuliana Lopez et al.
The appellants have filed notices of appeal from a final judgment purportedly entered on February 25, 2011. Because the appellants did not file their notices of appeal with the trial court clerk within the time permitted by Tenn. R. App. P. 4(a), we dismiss the appeal. |
Davidson | Court of Appeals | |
Johnny Wayne Beard v. State of Tennessee
The petitioner, Johnny Wayne Beard, appeals the denial of his petition for post-conviction relief from his rape of a child conviction, arguing he received the ineffective assistance of counsel which caused him to enter an unknowing and involuntary guilty plea. After review, we affirm the lower court’s denial of post-conviction relief. |
Tipton | Court of Criminal Appeals | |
Sate of Tennessee v. Gregory Keith Wiggins and Robert Brown
The Defendant, Gregory Keith Wiggins, pled guilty to theft of property valued over $500, a Class E felony, evading arrest creating a risk of death or injury, a Class D felony, and driving on a revoked license, eleventh offense, a Class A misdemeanor. He was sentenced as a Range II multiple offender to concurrent terms of three years’ confinement for theft and four years’ confinement for evading arrest. He was sentenced to a consecutive term of eleven months, twenty-nine days’ confinement for driving on a revoked license for an effective sentence of four years, eleven months, twenty-nine days. The Defendant, Robert Brown, pled guilty to theft of property valued under $500, a Class A misdemeanor. He was sentenced to eleven months, twenty-nine days’ confinement. Each Defendant reserved a certified question of law related to their seizure by law enforcement officers. The Defendant Wiggins also appeals the trial court’s sentencing determinations. We affirm the judgments of the trial court. |
Williamson | Court of Criminal Appeals | |
Mary D. Cole v. Marvin Windows of Tennessee
An employee sustained a compensable injury to her hand and elbow. Employee’s authorized treating physician assigned an impairment rating of 1% to both her right and left arms. The employee’s evaluating physician assigned 16% impairment to her right arm and 15% to her left arm. Due to the disparity between the physician’s ratings, the parties selected a physician from the Medical Impairment Registry (“MIR”) who assigned 5% impairment to each of the employee’s arms. The trial court based its award of disability benefits on the MIR physician’s rating. The employee has appealed, contending that she successfully rebutted the statutory presumption of correctness given to the MIR physician’s rating. We affirm the trial court’s ruling. |
Lauderdale | Workers Compensation Panel | |
State of Tennessee v. Greta Cooper
Appellant, Greta Cooper, was indicted along with two codefendents for multiple counts of theft of property and forgery. After a jury trial, Appellant was convicted of eight counts of theft of property valued over $500, three counts of theft of property valued over $1,000, one count of theft of property valued over $10,000, and twelve counts of forgery. As a result of the convictions, Appellant was sentenced to an effect sentence of three years, to be served as six months in confinement followed by six years on probation. After the denial of a motion for new trial, Appellant appealed. On appeal, she asserts that the trial court improperly excluded a statement made by the victim to law enforcement that he gave Appellant the money which was the subject of her theft convictions. We determine that Appellant failed to properly raise the issue in a motion for new trial. Therefore, the issue is waived absent a showing of plain error. After a review of the record, we decline to review the issue for plain error because the trial court did not breach a clear and unequivocal rule of law. Specifically, we agree with the trial court’s determination that the statement made by Lonzia Taylor was not admissible as a statement against interest because it was made under circumstances which render it unreliable. Accordingly, the judgment is affirmed. |
Campbell | Court of Criminal Appeals | |
State of Tennessee v. Darius J. Hunt
Defendant-Appellant, Darius J. Hunt, appeals from the Knox County Criminal Court’s order revoking his probation. Hunt pled guilty to one count of possession of half a gram or more of cocaine with intent to sell. He received a suspended sentence of eight years following one year of confinement. On appeal, Hunt claims that the trial court abused its discretion in revoking his probation and in ordering him to serve the sentence in confinement. Upon review, we affirm the judgment of the trial court. |
Knox | Court of Criminal Appeals | |
In Re Izaiah J. et al.
The trial court terminated father’s parental rights to his daughter. We affirm because there was clear and convincing evidence to support the trial court’s decision. |
Putnam | Court of Appeals | |
In The Matter of: The Estate of Mary Isabel Gentry, Deceased
Appellant filed a motion to set aside an order that purported to settle a dispute concerning the real estate in a decedent’s estate. The court denied the motion; Appellant contends this was error. The parties announced their agreement to settle the dispute in open court. An order, titled “Agreed Order,” was subsequently entered but it was not signed by Appellant’s counsel; moreover, Appellant filed an objection to the entry of the order prior to it being approved by the court. The transcript of the agreement announced in court reveals that the so-called “Agreed Order” does not contain a material condition to the fulfillment of the agreement, that Appellant “is going to be borrowing money in order to come up with the funds necessary to offset that and pay these amounts to these other two individuals, so that’s part of the agreement.” We find the denial of Appellant’s motion to set aside the so-called Agreed Order causes an injustice to Appellant; accordingly, we reverse the denial of Appellant’s Rule 59.04 motion to set aside the November 3, 2010 Agreed Order. The trial court also found that performance under the agreement was not a legal impossibility, meaning that Appellant could obtain the requisite loan. We have determined the evidence preponderates against this finding because Appellant demonstrated that, due to the current appraised value of the property, she is unable to obtain the requisite financing. Accordingly, we reverse and remand for further proceedings consistent with this opinion to the extent necessary to complete the administration of the decedent’s estate. |
Dickson | Court of Appeals | |
Equity Mortgage Funding, Inc. of Tennessee et al. v. Joe Bob Haynes
The issue in this case is which of two deeds of trust has priority. Deed of trust A was executed before deed of trust B was executed; A was also registered before B was registered, but after B was executed. We affirm the chancellor’s decision that A has priority over B and that equitable estoppel does not apply to change this result. |
Wilson | Court of Appeals | |
Laundries, Inc. v. Coinmach Corporation v. Carla Moyer, et al.
Plaintiff filed an action to recover $150,000 due on a promissory note executed in conjunction with the purchase of its assets. Defendant admitted that it had not paid the full amount of the promissory note but denied that the amount was due, and asserted a counterclaim contending, inter alia, that the plaintiff had breached the asset purchase agreement, committed misrepresentation and not disclosed material facts with respect to the transaction, had fraudulently induced defendant to close on the transaction, and that plaintiff had been unjustly enriched. Plaintiff filed a motion for dismissal and for judgment on the pleadings, which the trial court granted. Defendant appeals. Finding that the causes of actions asserted in defendant’s counterclaim failed to state a claim for relief, we affirm the dismissal of the counterclaim. We reverse the grant of the motion for judgment on the pleadings and remand the case for further proceedings. |
Davidson | Court of Appeals | |
Shaun L. Tyus v. Pugh Farms, Inc., et al.
This appeal arises from injuries Plaintiff sustained after being assaulted by a co-worker while working for the Defendants. Plaintiff filed a complaint against the Defendants alleging vicarious liability for the assault committed by the co-worker, and liability for the negligent hiring, supervision, and retention of the co-worker, and liability for negligent and intentional infliction of emotional distress. Subsequently, the trial court granted summary judgment in favor of the Defendants after concluding that they owed no duty to Plaintiff and that the assault was not within the co-worker’s scope of employment. Thereafter, Plaintiff filed a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure and a motion to recuse. The trial court granted the Rule 60.02 motion, denied the motion to recuse, and Plaintiff appealed. After reviewing the record, we affirm in part, reverse in part, and remand for further proceedings. |
Dyer | Court of Appeals | |
Casey E. Bevans v. Rhonda Burgess et al.
Prospective buyer who signed real estate sales contract sued seller, seller’s real estate agent and broker, and the actual buyers for breach of contract, violation of the Tennessee Consumer Protection Act, and specific performance. The trial court granted summary judgment in favor of the defendants on the ground that there was no enforceable contract. We affirm. |
Wilson | Court of Appeals |