APPELLATE COURT OPINIONS

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In Re Allainah B.

M2020-01381-COA-R3-PT

Cara S. and Bradley S. (together, “Petitioners”) sought termination of the parental rights of Austin B. (“Father”) as to Father’s daughter, Allainah B. (the “Child”).  Following a bench trial, the Juvenile Court for Franklin County (the “trial court”) found four statutory bases for termination of Father’s parental rights and further concluded that termination was in the Child’s best interest.  Father appealed to this Court.  We conclude that the trial court’s decision should be affirmed as to three statutory grounds for termination and vacated as to the fourth ground.  We also conclude that termination of Father’s parental rights is in the Child’s best interest.  The ultimate holding of the trial court is therefore affirmed. 

Authoring Judge: Judge Kristi M. Davis
Originating Judge:Judge Thomas C. Faris
Franklin County Court of Appeals 09/29/21
In Re Kyler C. Et Al.

M2020-01366-COA-R3-PT

In this second appeal of the termination of a mother’s and father’s rights to their children, we consider the best interest of four children.  In the previous appeal, we affirmed that clear and convincing proof established the existence of severe abuse and therefore constituted a ground for termination. On remand, the trial court made appropriate findings and determined that it was in the children’s best interest for the rights of the mother and father to be terminated.  On appeal, we conclude that the evidence establishes that termination is in the children’s best interest. Accordingly, we affirm.

Authoring Judge: Judge Andy D. Bennett
Originating Judge:Judge William Riley Anderson, III
Grundy County Court of Appeals 09/29/21
In Re Isabella M., Et Al.

M2020-01616-COA-R3-PT

This action involves the termination of a mother’s parental rights to her minor children. Following a bench trial, the trial court found that clear and convincing evidence existed to establish the following statutory grounds of termination: (1) substantial noncompliance with the permanency plan; (2) the persistence of conditions which led to removal; and (3) failure to manifest an ability and willingness to care for the children. The court also found that termination was in the best interest of the children. We affirm the trial court.

Authoring Judge: Judge John W. McClarty
Originating Judge:Judge Ken Witcher
Macon County Court of Appeals 09/29/21
F & M Bank v. George Raymond Fleming, Jr.

M2020-01086-COA-R3-CV

Appellant debtor appeals the trial court’s decision to find certain affirmative defenses waived, to deny his motion to continue the summary judgment hearing in order to conduct discovery, and to grant summary judgment to the defendant bank. Discerning no reversible error, we affirm.

Authoring Judge: Presiding Judge J. Steven Stafford
Originating Judge:Judge Ross H. Hicks
Montgomery County Court of Appeals 09/28/21
In Re Layton W.

M2021-00084-COA-R3-PT

For a second time, a father appeals the termination of his parental rights to his child. On remand after the first appeal, the trial court determined that there were two statutory grounds for terminating the father’s parental rights and that termination was in the child’s best interest. We conclude that the record contains clear and convincing evidence to support one ground for termination: incarceration under a sentence of at least ten years when, at sentencing, the child was under the age of eight. But, because the trial court’s order lacks sufficient findings regarding the child’s best interest, we vacate and remand.

Authoring Judge: Judge W. Neal McBrayer
Originating Judge:Judge Justin C. Angel
Franklin County Court of Appeals 09/28/21
In Re Raiden H. Et Al.

E2021-01105-COA-R3-PT

The appellant filed a motion to accept late-filed notice of appeal. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Authoring Judge: Per Curiam
Originating Judge:Judge Daniel G. Boyd
Hawkins County Court of Appeals 09/28/21
State of Tennessee v. Terry Lee Gilbreath

E2020-00971-CCA-R3-CD

A Monroe County jury convicted the Defendant of rape of a child, and the trial court sentenced him to forty years of incarceration. On appeal, the Defendant contends that: (1) the trial court erred when it did not suppress electronic evidence against him; (2) the evidence is insufficient to sustain his conviction; (3) the prosecutor’s closing argument was improper; and (4) the trial court erred when it denied his motion for a new trial. After review, we affirm the trial court’s judgment.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Andrew Mark Freiberg
Monroe County Court of Criminal Appeals 09/28/21
State of Tennessee v. Venessa Baston

E2021-00187-CCA-R3-ECN

The petitioner, Venessa Baston, through counsel, appeals from the Morgan Criminal Court’s judgment summarily dismissing her petition for a writ of error coram nobis. The State has filed a motion to affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s position is well-taken and affirm the judgment of the trial court.

Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Michael S. Pemberton
Morgan County Court of Criminal Appeals 09/28/21
Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 Et Al.

M2020-01285-COA-R3-CV

This case involves claims of malicious prosecution and civil conspiracy.  The trial court dismissed the claims pursuant to Tennessee Rule of Civil Procedure 12.02(6), determining that the plaintiff could not prove that the underlying criminal prosecution had terminated in his favor, a necessary element of a malicious prosecution claim.  Regarding the civil conspiracy claim, the court determined that the conspiracy claim was only actionable if the underlying tort were actionable.  Having found that the malicious prosecution claim could not stand, the court concluded that the conspiracy claim had to be dismissed as well.  The plaintiff timely appealed.  Based upon the applicable standard of review, we conclude that the trial court erred in dismissing the plaintiff’s claims, and we accordingly reverse the judgment of dismissal and remand this matter to the trial court for further proceedings.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge Darrell Scarlett
Rutherford County Court of Appeals 09/28/21
Bethany Shelton v. Hobbs Enterprises, LLC, Et Al.

M2020-01220-SC-R3-WC

Bethany Shelton (“Employee”) filed a petition for benefit determination against Hobbs Enterprises, LLC (“Employer”) alleging an injury to her right shoulder suffered in a work- related accident on August 26, 2017. She sought temporary total, permanent partial, and continued medical benefits. Following the issuance of a dispute certification notice, Employer moved for summary judgment on the basis the only medical testimony, from the Employee’s treating orthopedic surgeon, Dr. Sean Kaminsky, was insufficient as a matter of law to establish causation. The Court of Workers’ Compensation Claims (the “trial court”) denied the motion and denied Employer’s motion to reconsider. Employer sought an expedited appeal before the Workers’ Compensation Appeals Board, but then sought and was granted a dismissal of that appeal. A trial was held, after which the trial court denied Employee’s claim on the ground she had failed to meet her burden to establish her right shoulder injury arose primarily out of and in the course and scope of her employment with Employer. Employee filed a motion to reconsider, which the trial court denied. She appealed directly to the Supreme Court. The 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 pursuant to Tennessee Supreme Court Rule 51. We affirm the judgment of the Court of Workers’ Compensation Claims.

Authoring Judge: Senior Judge Don R. Ash
Originating Judge:Judge Joshua Davis Baker
Workers Compensation Panel 09/27/21
In Re Ryat M.

M2020-00156-COA-r3-JV

In this dependency and neglect case, the juvenile court found the child dependent and neglected and awarded custody to Appellees, maternal grandparents. Appellant/father failed to timely perfect an appeal of the juvenile court’s final order in the dependency and neglect matter. However, father filed a petition to set aside or vacate the same, which the juvenile court denied. On appeal, the circuit court accepted jurisdiction over the dependency and neglect matter, and conducted a de novo hearing; however, the circuit court denied hearing as to “other issues,” including father’s petition to set aside or vacate order. We conclude that the circuit court lacked jurisdiction to review the dependency and neglect petition; as such, we vacate the circuit court’s order on dependency and neglect for lack of jurisdiction. Because there is a question as to whether father’s notice of appeal concerning his motion to set aside or vacate order conferred jurisdiction on the circuit court to review that motion, we vacate the portion of the circuit court’s order wherein it determined that it would hear no other issues on appeal. We remand to the circuit court for determination of whether father perfected an appeal of the juvenile court’s order denying his motion to set aside or vacate order. If the circuit court determines that father perfected the appeal, then the circuit court should proceed with de novo review of father’s motion.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Clara W. Byrd
Macon County Court of Appeals 09/27/21
Carolyn Diane Long v. Steven Lawrence Long

E2020-01350-COA-R3-CV

Following a bench trial in this divorce action, the trial court entered an order in October 2018, granting the parties a divorce and distributing the marital estate. Upon the wife’s appeal, this Court vacated the trial court’s distribution of marital property and remanded, directing the trial court to make sufficient findings of fact and conclusions of law, pursuant to Tennessee Rule of Civil Procedure 52.01, concerning the classification and valuation of various real estate and real estate partnership assets. Following an evidentiary hearing on remand, the trial court entered a final order in September 2020. Noting that the parties had stipulated that the wife’s interests in a realty company and two property partnerships were separate property, the trial court found that the wife’s partnership interest in a fourth realty enterprise at issue was marital property and also found that several specific realty assets were marital property. The trial court determined its valuation of each property or property interest and, pursuant to the factors provided in Tennessee Code Annotated § 36-4-121(c), set forth what it found to be an equitable distribution of the marital property. Wife has appealed.

Authoring Judge: Judge Thomas R. Frierson, II
Originating Judge:Judge Larry Michael Warner
Cumberland County Court of Appeals 09/27/21
Kelvin DeWayne Golden v. State of Tennessee

W2020-01617-CCA-R3-PC

After being convicted of aggravated sexual battery, Kelvin Dewayne Golden, Petitioner, appealed his conviction and sentence. State v. Kelvin Dewayne Golden, No. W2018- 01477-CCA-R3-CD, 2019 WL 3412527, at *1 (Tenn. Crim. App. July 20, 2019), perm. app. denied (Tenn. Oct. 14, 2019). They were affirmed on appeal. Id. He subsequently sought post-conviction relief on the basis of ineffective assistance of counsel. The postconviction court denied relief after a hearing. Petitioner appeals. After a thorough review, we affirm the judgment of the post-conviction court.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Roy B. Morgan, Jr.
Madison County Court of Criminal Appeals 09/24/21
Sentry Select Insurance Company v. Tennessee Farmer's Mutual Insurance Company, Et Al.

M2020-00110-COA-R3-CV

This is an action to declare the rights and responsibilities of Sentry Select Insurance Company (“Sentry”) and Tennessee Farmer’s Mutual Insurance Company (“Farmer’s Mutual”). At issue is the meaning of the “other insurance” clauses in the respective policies—whether one of the carriers is the primary insurer or whether the coverage should be prorated. When the insured filed claims against both carriers for a loss in excess of one million dollars in farm equipment, each carrier insisted the other was the primary insurer. Following a hearing on cross motions for summary judgment, the trial court reasoned that the two-year gap between the insured’s purchase of the Sentry policies and subsequent purchase of the Farmer’s Mutual policy demonstrated that the Sentry policies were intended to be primary, and the Farmer’s Mutual policy was intended to be excess, “particularly in light of the clear unambiguous language of the [Farmer’s Mutual] ‘Other Insurance’ clause.” Thus, the court granted summary judgment in favor of Farmer’s Mutual and this appeal followed. Having realized, as other courts have, that “other insurance” clauses are problematic, in that, they have elevated hair splitting and nit picking to a new art form, and having done some hair splitting and nit picking ourselves, we affirm the trial court but on other grounds. Reading the Sentry and Farmer’s Mutual “other insurance” clauses together, we have determined that the Sentry policies were intended as primary and the Farmer’s Mutual policy was intended as excess. Accordingly, we affirm the trial court’s ruling that Sentry is the primary carrier.

Authoring Judge: Presiding Judge frank G. Clement, Jr.
Originating Judge:Judge John D. Wootten, Jr.
Macon County Court of Appeals 09/24/21
Christina Brooke Tigart v. Charles Shannon Tigart

M2020-01146-COA-R3-CV

Appellant/Father and Appellee/Mother’s Marital Dissolution Agreement (“MDA”) and agreed permanent parenting plan (“PPP”) were incorporated into the final decree of divorce. In the PPP, the parties agreed to an upward deviation in Father’s child support obligation. Mother subsequently petitioned the trial court to modify the parenting plan, to hold Father in contempt for failing to comply with certain provisions of the MDA, and to award her attorney’s fees and costs under the MDA. The trial court initially modified the PPP to lower Father’s child support obligations to comport with the child support guidelines; however, the trial court later granted Mother’s Tennessee Rule of Civil Procedure 59 motion to alter or amend the judgment and reinstated the original upward deviation. The trial court denied Mother’s petition for contempt and her request for attorney’s fees. For the reasons discussed herein, we vacate the trial court’s denial of Mother’s contempt petition and reverse the trial court’s denial of Mother’s request for attorney’s fees and costs under the MDA. The trial court’s orders are otherwise affirmed.  

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Ted A. Crozier
Montgomery County Court of Appeals 09/24/21
State of Tennessee v. William C. Austin, Jr.

W2020-01428-CCA-R3-CD

Defendant, William C. Austin, Jr., appeals from his guilty plea and resulting conviction for driving as a motor vehicle habitual offender (“MVHO”), for which he received a sentence of four years and six months. Defendant does not challenge the other convictions or sentences he received as a result of his guilty plea. On appeal, Defendant argues that after his arrest, but before his guilty plea and sentencing, the Tennessee Legislature amended the Motor Vehicle Habitual Offenders Act and that as a result of the amendment he was entitled to the lesser penalty under the criminal savings statute of Tennessee Code Annotated section 39-11-112 with respect to his conviction for driving as a MVHO. After a review, we agree with Defendant. As a result, we reverse and remand the judgment of the trial court with respect to Defendant’s conviction for driving as a MVHO. We remand the matter for entry of sentences in Counts 2 and 3. The remaining convictions and sentences are affirmed.

Authoring Judge: Judge Timothy L. Easter
Originating Judge:Judge Donald H. Allen
Henderson County Court of Criminal Appeals 09/24/21
In Re Artemas A., et al.

W2021-00058-COA-R3-PT

This appeal involves a petition to terminate parental rights to four children. The juvenile court found by clear and convincing evidence that six grounds for termination were proven: (1) abandonment by failure to support; (2) abandonment by failure to provide a suitable home; (3) substantial noncompliance with the permanency plan; (4) persistent conditions; (5) severe child abuse; and (6) failure to manifest an ability and willingness to assume legal and physical custody or financial responsibility of the children. The juvenile court also found that termination was in the best interests of the four children. Only the mother appeals. We affirm.

Authoring Judge: Judge Carma Dennis McGee
Originating Judge:Judge John W. Whitworth
Benton County Court of Appeals 09/24/21
State of Tennessee v. Ariana Elizabeth Major

M2020-01142-CCA-R3-CD

The State of Tennessee appeals the Montgomery County Circuit Court’s order granting the Defendant’s motion to suppress evidence recovered during the search of her car.  On appeal, the State contends that the trial court erred because the police dog performed a reliable “free air sniff,” which resulted in probable cause to search the Defendant’s car.  We dismiss the appeal because the State is not entitled to an appeal as of right pursuant to Tennessee Rule of Appellate Procedure 3(c) because the record fails to reflect that the trial court dismissed the relevant indictment counts. 

Authoring Judge: Judge Robert H. Montgomery Jr.
Originating Judge:Judge Jill Bartee Ayers
Montgomery County Court of Criminal Appeals 09/24/21
State of Tennessee v. Rodger Dale Prince and Amanda Beaty

E2019-02058-CCA-R3-CD

A Morgan County jury convicted Defendant Rodger Dale Prince (“Defendant Prince”) and Defendant Amanda Beaty (“Defendant Beaty”) of first degree felony murder in the perpetration of aggravated child abuse and first degree felony murder in the perpetration of aggravated child neglect. Additionally, the jury convicted Defendant Beaty of aggravated child endangerment. The trial court imposed an effective life sentence with the possibility of parole for Defendant Prince’s convictions and an effective life sentence with the possibility of parole plus fifteen years for Defendant Beaty’s convictions. On appeal, the defendants assert that: (1) the trial court erred when it allowed the State to amend the indictment; (2) the evidence was insufficient to support their felony murder convictions; and (4) the trial court erred when it failed to grant a mistrial based upon improper testimony. Defendant Beaty also asserts that the trial court erred when it admitted into evidence instances of prior abuse. After review, we affirm the trial court’s judgments and remand for correction of the judgments consistent with this opinion.

Authoring Judge: Judge Robert W. Wedemeyer
Originating Judge:Judge Jeffery Hill Wicks
Morgan County Court of Criminal Appeals 09/23/21
Jeffrey Wayne Hughes v. State of Tennessee

M2020-00531-CCA-R3-PC

The Petitioner, Jeffrey Wayne Hughes, entered open guilty pleas to one count of theft of $250,000 or more, one count of theft of $10,000 or more but less than $60,000, and six counts of money laundering, and he received an effective twenty-seven-year sentence. He filed a petition for post-conviction relief, asserting that his pleas were involuntary because the aggregation of the theft offenses violated the prohibition on ex post facto laws and asserting that he received ineffective assistance of counsel. The post-conviction court denied relief, and he appeals. We conclude that the Petitioner’s pleas were not involuntary because there was no ex post facto violation and that he has not established that he received ineffective assistance of counsel. Accordingly, we affirm the denial of relief.  

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge Russell Parkes
Lawrence County Court of Criminal Appeals 09/23/21
Masterfit Medical Supply v. Samuel Bada D/B/A Primecare, D/B/A New Primecare

W2020-01709-COA-R3-CV

This is an appeal from a trial court’s grant of summary judgment. In a dispute involving unpaid invoices for medical supplies, the trial court ruled in favor of the appellee, finding that the appellant was personally liable for the indebtedness. In so doing, the trial court relied upon the unpaid invoices that were previously found to be admitted by the court pursuant to Rule 36.01 of the Tennessee Rules of Civil Procedure after the appellant failed to respond to the appellee’s request for admission. The appellant now appeals. Based on the record on appeal, we affirm the trial court’s grant of summary judgment.

Authoring Judge: Judge Arnold B. Goldin
Originating Judge:Judge Kyle C. Atkins
Madison County Court of Appeals 09/23/21
James Dominic Stevenson v. State of Tennessee

M2020-00134-CCA-R3-PC

The Petitioner, James Dominic Stevenson, was convicted by a jury of attempted first degree murder, three counts of aggravated assault, and reckless endangerment with a deadly weapon after he shot his ex-girlfriend in her car in the presence of her child. His aggravated assault convictions were merged into the attempted first degree murder conviction, and he received an effective twenty-seven-year sentence. The Petitioner filed for post-conviction relief, asserting that he received ineffective assistance from his trial counsel, and his petition was denied after a hearing. On appeal, we affirm the denial of post-conviction relief.  

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge M. Wyatt Burk
Marshall County Court of Criminal Appeals 09/23/21
State of Tennessee v. Homer Alson Maddin, III

M2020-00795-CCA-R3-CD

A jury convicted the Defendant, Homer Alson Maddin, III, of four counts of aggravated rape in 2004, and the trial court sentenced him to concurrent terms of twenty-five years in confinement. After discovering in 2020 that it mistakenly marked the Defendant as a violent offender rather than a multiple rapist on the judgment forms in counts two through four, the trial court entered an order amending the judgment forms under Tennessee Rule of Criminal Procedure 36. On appeal, the Defendant argues that the trial court failed to provide proper notice under Rule 36 and that his classification as a violent offender was not a clerical error. After review, we affirm the judgment of the trial court.

Authoring Judge: Presiding Judge John Everett Williams
Originating Judge:Judge Steve R. Dozier
Davidson County Court of Criminal Appeals 09/23/21
In Re Kaisona B., et al.

W2020-01308-COA-R3-PT

This is a termination of parental rights case. Appellant/Mother appeals the trial court’s termination of her parental rights to the two minor children on the grounds of: (1) abandonment by failure to provide a suitable home, Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (2) substantial non-compliance with the requirements of the permanency plans, Tenn. Code Ann. § 36-1-113(g)(2); (3) persistence of the conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3)(A); and (4) failure to manifest an ability and willingness to assume custody, Tenn. Code Ann. §36-1-113(g)(14). Appellant/Father appeals the termination of his parental rights on the grounds of: (1) substantial non-compliance with the requirements of the permanency plans; and (2) failure to manifest an ability and willingness of ability to assume custody. Both Mother and Father also appeal the trial court’s determination that termination of their respective parental rights is in the children’s best interest. Discerning no error, we affirm.

Authoring Judge: Judge Kenny Armstrong
Originating Judge:Judge Jason L. Hudson
Dyer County Court of Appeals 09/23/21
Jennifer King v. Delfasco, LLC Et Al.

E2020-01038-COA-R3-CV

This appeal concerns an alleged violation of Tenn. Code Ann. § 50-1-304, the Tennessee Public Protection Act (“TPPA”), as well as common law retaliatory discharge. Jennifer King (“King”), a former shipping and receiving coordinator for Delfasco, LLC, a company that manufactures defense-related products, sued Delfasco, LLC and related entity Delfasco Finance, LLC (“Delfasco” collectively) in the Circuit Court for Greene County (“the Trial Court”) alleging she was wrongfully fired for refusing to share with Delfasco owner Jack Goldenberg (“Goldenberg”) her government-issued password to the Department of Defense (“DOD”) Wide Area Workflow (“WAWF”) system. King had consulted a DOD representative who advised her not to reveal her password. After a trial, the Trial Court found in favor of King and awarded her damages. Delfasco appeals, arguing among other things that King was not asked to perform an illegal act. King raises her own issues concerning damages. We find, inter alia, that the evidence does not preponderate against the Trial Court’s factual findings, and we leave undisturbed the Trial Court’s credibility determinations.

Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge Beth Boniface
Greene County Court of Appeals 09/22/21