The Petitioner, Tyler D. Bolton, appeals the Washington County Criminal Court’s denial of his petition for post-conviction relief from his guilty-pleaded convictions for possession of twenty-six grams or more of methamphetamine with intent to sell, unlawful possession of a firearm, and two counts of aggravated burglary. On appeal, the Petitioner argues that the post-conviction court erred by denying his motion in limine to exclude jail call recordings from the post-conviction hearing. The Petitioner also argues that the post-conviction court erred by denying relief on his claims alleging that he received the ineffective assistance of trial counsel by trial counsel’s failing to adequately investigate the Petitioner’s mental health history and request a mental health evaluation prior to advising him to accept a plea offer. We affirm the judgment of the post-conviction court.
Washington
Court of Criminal Appeals
In Re Liberty T. E2022-00307-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor Douglas T. Jenkins
In this case involving a petition to terminate the mother’s parental rights to her child and
to allow the petitioners to adopt the child, the trial court determined that one statutory
ground for termination had been proven by clear and convincing evidence. However, the
trial court further determined that the petitioners had failed to establish clear and
convincing evidence that termination of the mother’s parental rights was in the child’s
best interest. The trial court accordingly dismissed the petition and remanded to the
juvenile court’s protective jurisdiction. The petitioners have appealed the best interest
determination, and the mother has raised an issue regarding the statutory ground. We
affirm the trial court’s finding as to the statutory ground of failure to support. However,
having determined that under the facts of this case the trial court erred in applying the
statutory best interest factors applicable to the initial termination petition rather than
those applicable to the amended petition, we reverse the trial court’s best interest finding
and remand for reconsideration applying the amended best interest factors contained in
Tennessee Code Annotated § 36-1-113(i) (Supp. 2022).
The plaintiffs, Martina and Eddie Smith (“Buyers”), filed suit in the Madison County
Circuit Court (“Trial Court”) regarding their purchase of a piece of real property from the
defendant, Donna Jean Walker (“Seller”). Buyers alleged intentional misrepresentation,
negligent misrepresentation, and failure to disclose the presence of mold within the home.
The Trial Court granted summary judgment in favor of Seller. Buyers previously filed an
appeal to this Court regarding the grant of summary judgment. During that appeal, this
Court held that the Trial Court had not provided a sufficient basis for granting Seller’s
motion for summary judgment and remanded for entry of a new order explaining its
reasoning. Thereafter, the Trial Court entered a revised order providing detailed reasoning
for its grant of summary judgment in favor of Seller on each of Buyers’ claims against her.
Buyers timely appealed the revised order to this Court. During this second appeal, Buyers
filed essentially the same brief as in the previous appeal despite entry of the Trial Court’s
revised order following remand. Because Buyers failed to address the revised order in their
appellate brief and failed to cite to the record submitted to this Court in this appeal, Buyers
waived their issues for appeal by failing to comply with Tenn. R. App. P. 27 and Tenn. Ct.
App. R. 6. We, therefore, affirm the judgment of the Trial Court in its entirety.
Madison
Court of Appeals
State of Tennessee v. Frank M. Green M2021-01438-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Cheryl A. Blackburn
The Defendant, Frank M. Green, was convicted by a Davidson County Criminal Court jury of rape in Counts 1 and 3 and assault by extremely offensive or provocative physical contact in Counts 2 and 4 and was acquitted of the charge of aggravated kidnapping in Count 5. The Defendant filed a post-trial motion for judgment of acquittal as to the rape conviction in Count 3 and the assault conviction in Count 4. The trial court denied this motion but merged Count 3 with Count 1 and merged Count 4 with Count 2. Following a sentencing hearing, the trial court imposed a sentence of ten years for each of the rape convictions and a sentence of eleven months and twenty-nine days for each of the assault convictions and ordered the rape and assault convictions served concurrently, for an effective sentence of ten years. On appeal, the Defendant argues: (1) the State’s faulty election of offenses led the trial court to provide erroneous and misleading jury instructions, which undermined the integrity of the jury’s verdict; (2) the evidence is insufficient to sustain the convictions in count 3 for rape and count 4 for assault; and (3) the convictions in Counts 2 and 4 reflect the incorrect offense class and sentence. Because the State failed to demonstrate beyond a reasonable doubt that errors regarding the election, the charge, and the supplemental jury instructions were harmless, we reverse the Defendant’s convictions and remand the case for a new trial on the offenses of rape in Counts 1 and 3 and the offenses of assault by extremely offensive or provocative physical contact in Counts 2 and 4.
Davidson
Court of Criminal Appeals
W. David Hall v. Zora Humphrey E2022-00405-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson
Trial Court Judge: Chancellor Clarence E. Pridemore, Jr.
This is a conservatorship action initiated by University of Tennessee Medical Center with
respect to one of its patients. The trial court granted the hospital’s petition for
conservatorship based in part on a physician’s affidavit and medical examination report
attached to its petition. The respondent has appealed, arguing that the trial court erred by
considering the physician’s affidavit and report, by denying her motion for a continuance,
and by finding clear and convincing evidence that she was disabled and in need of a
conservator. Given that no party introduced the physician’s affidavit and report into
evidence, we conclude that the trial court erred by considering these documents as
evidence. We further conclude that the trial court’s final judgment is deficient due to its
dearth of factual findings. We therefore vacate the trial court’s judgment appointing a
conservator for the respondent and remand for a new hearing on the petition.
I agree with the majority’s conclusion that the State’s election of the offenses was flawed and that the trial court erred in instructing the jury pursuant to the State’s faulty election. Cf. State v. Ellis, 89 S.W.3d 584, 596 (Tenn. Crim. App. 2000) (“[B]ecause the election requirement is ‘fundamental, immediately touching the constitutional rights of an accused,’ a trial court has a duty even absent a request by the defendant to ensure the timely election of offenses by the State and to properly instruct the jury concerning the requirement of a unanimous verdict.” (quoting Burlison v. State, 501 S.W.2d 801, 804 (Tenn. 1973)). I part ways with the majority regarding the remedy to which the Defendant is entitled for the double jeopardy issue which resulted from the State’s flawed election and the court’s reliance upon the election in its jury instructions.
Davidson
Court of Criminal Appeals
State of Tennessee v. Michael Mosley M2022-00441-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton
Michael Mosley, Defendant, claims the evidence was insufficient to support his conviction of attempted aggravated assault, that the trial court erred by not requiring the State to make an election as to the precise definition of serious bodily injury for which a conviction was being sought, and that the trial court erred by denying Defendant’s request for two special jury instructions. Discerning no error, we affirm the judgment of the trial court.
This appeal concerns a father’s continued failure to remit payment for his child support
obligation. Following the mother’s contempt petitions, the trial court determined the
father’s current child support obligation and arrearage amount and awarded the mother her
attorney fees. The father appeals arguing that the trial court lacked subject matter
jurisdiction, erred in awarding the mother attorney fees, and erred in setting the arrearage
payment amount. We affirm the trial court’s rulings on these issues.
A Sumner County jury convicted the defendant, Steven Lamont Anderson, of unlawful possession of a firearm after being convicted of a felony involving violence and unlawful possession of a handgun by a convicted felon, for which he received an agreed-upon sentence of twelve years in confinement. On appeal, the defendant contends the evidence presented at trial was insufficient to support his convictions. The defendant also argues the trial court erred in denying his motion to suppress and in sentencing the defendant as a Range II offender. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court.
Sumner
Court of Criminal Appeals
State of Tennessee v. Marlon Jackson W2022-01288-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey, Jr.
The Defendant, Marlon Jackson, appeals the trial court’s revocation of his three-year
probationary sentence for attempted possession of methamphetamine with the intent to sell
or deliver. The trial court revoked the Defendant’s probation after determining that he
materially violated his probation sentence for engaging in criminal activity and being
charged with new offenses. On appeal, the Defendant asserts that the trial court abused its
discretion when it revoked his probation because the evidence to support the violation was
“inconclusive, contradictory, and based upon unreliable hearsay.” After review, we
conclude that the record supports the trial court’s finding that the Defendant violated the
terms of his probation sentence.
Shelby
Court of Criminal Appeals
State of Tennessee v. Fredrick Munn W2022-00675-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge James M. Lammey, Jr.
Fredrick Munn, Defendant, appeals from the Shelby County Criminal Court’s order
revoking his probation and ordering him to serve his original three-year sentence in
confinement. Upon review, we reverse the judgment of the trial court and remand for a
new revocation hearing.
This appeal arises from a health care liability action. The plaintiffs filed their complaint
against a physician and a surgical practice after the expiration of the statute of limitations,
relying on the 120-day extension under Tennessee Code Annotated section 29-26-121(c).
However, the physician was not employed by the surgical practice during the treatment at
issue but was employed by a governmental entity that was not named as a defendant. Both
the physician and the surgical practice filed motions to dismiss, which were ultimately
treated as motions for summary judgment due to consideration of matters outside the
pleadings. Afterward, the plaintiffs filed a motion for leave to amend their complaint to
substitute parties. Pursuant to section 29-20-310(b) of the Tennessee Governmental Tort
Liability Act, the trial court found that the plaintiffs had to sue the governmental entity in
order to sue the physician individually. The court found that the motion for leave to amend
the complaint was futile because the statute of limitations had run as to any claim against
the governmental entity. The court explained that any claim against the governmental
entity would be time-barred even if it related back to the date of the filing of the complaint.
The court further explained that the plaintiffs relied on the 120-day extension contained in
section 29-26-121(c) when they filed their complaint and that the extension did not apply
to any potential claim against the governmental entity because they failed to provide presuit
notice to it. The court also noted that the plaintiffs unduly delayed seeking to amend
their complaint despite being explicitly informed before filing their complaint who the
physician did and did not work for. Additionally, the court found that the surgical practice
was not involved in the treatment at issue and did not employ the physician or any of the
medical providers involved. Thus, the court found that the surgical practice negated an
essential element of the plaintiffs’ claim against it and demonstrated the evidence was
insufficient to establish such a claim. Accordingly, the court granted the defendants’
motions and denied the plaintiffs’ motion for leave to amend the complaint to substitute
parties. The plaintiffs appeal. We affirm.
Madison
Court of Appeals
Mark Clayton v. Joseph Dixon et al. M2021-00521-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle
Property owner sued owners of an adjacent property for damages allegedly caused by the installation of a pipe culvert. The plaintiff alleged that, due to improper installation, the pipe culvert obstructed the downstream flow of water and caused the plaintiff’s property to flood. Both sides filed cross-motions for summary judgment. The trial court granted summary judgment to the adjacent property owners based on the statute of repose for defective improvements to real property. We conclude that the statute of repose could not be asserted by the adjacent property owners. So we reverse the grant of summary judgment.
Defendant, Mark Eric Howard, was convicted after a jury trial of second degree murder, a
Class A felony, and sentenced to twenty-five years in confinement. On appeal, Defendant
argues that the evidence was insufficient to support his conviction for second degree
murder. After a thorough review of the record, we affirm the judgment of the trial court.
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.
