Demetry Michele Allen v. Harry Lee Allen Jr.
W2012-00541-COA-R3-CV
The question presented by this appeal is which parent should be named the primary residential parent of the parties’ minor child. The trial court named Appellee Mother primary residential parent. Appellant Father appeals. Discerning no error, we affirm and remand.
Authoring Judge: Judge J. Steven Stafford
Originating Judge:Chancellor James F. Butler |
Madison County | Court of Appeals | 04/03/13 | |
State of Tennessee v. Telly Lamont Booker
E2011-01915-CCA-R3-CD
The defendant, Telly Lamont Booker, appeals from his Knox County Criminal Court jury convictions of possession with intent to sell or deliver .5 grams or more of cocaine in a school zone, evading arrest, and unlawful possession of a weapon. In this appeal, he contends that the trial court erred by admitting evidence of his previous convictions, by permitting a police officer to testify as an expert witness on the habits of individuals involved in the illegal drug trade, and by refusing to provide a requested jury instruction. Discerning no error, we affirm.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Bob R. McGee |
Knox County | Court of Criminal Appeals | 04/03/13 | |
In Re: Taliah L.B.
E2012-02102-COA-R3-PT
This is a termination of parental rights case in which Custodial Parents sought termination of Mother’s parental rights to the Child. The trial court granted the termination petition, finding that Mother willfully failed to support and visit the Child and that termination was in the best interest of the Child. Mother appeals. We affirm the decision of the trial court.
Authoring Judge: Judge John W. McClarty
Originating Judge:Judge Jacqueline Schulten Bolton |
Hamilton County | Court of Appeals | 04/02/13 | |
State of Tennessee v. Olivia Kathleen Epps
M2012-01104-CCA-R3-CD
The Defendant, Olivia Kathleen Epps, pleaded guilty to first offense driving under the influence, a Class A misdemeanor. See T.C.A. § 55-1-401 (2010). She was sentenced as a Range I, standard offender to eleven months and twenty-nine days, all suspended but forty-eight hours. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the traffic stop that led to her arrest. We affirm the judgment of the trial court./p>
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge David M. Bragg |
Rutherford County | Court of Criminal Appeals | 04/02/13 | |
Cleo Henderson v. Dwight Barbee, Warden
W2012-02051-CCA-R3-HC
The Petitioner, Cleo Henderson, appeals the Circuit Court of Lauderdale County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.
Authoring Judge: Judge Camille R. McMullen
Originating Judge:Judge Joe H. Walker III |
Lauderdale County | Court of Criminal Appeals | 04/02/13 | |
In Re: Hayley T. et al
M2012-00690-COA-R3-JV
The mother of two minor children appeals the order placing her children and a stepdaughter in the custody of the Department of Children’s Services and limiting her to supervised visitation following a determination that the mother’s husband severely sexually abused another child in the home and the determination that the children were dependent and neglected. We affirm.
Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge L. Craig Johnson |
Coffee County | Court of Appeals | 04/02/13 | |
Michael Thacker v. State of Tennessee
W2012-01835-CCA-R3-HC
The Petitioner, Michael Thacker, appeals the Circuit Court of Hardeman County’s denial of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion and affirm the judgment of the trial court.
Authoring Judge: Judge Alan E. Glenn
Originating Judge:Judge Joe H. Walker III |
Hardeman County | Court of Criminal Appeals | 04/02/13 | |
State of Tennessee ex rel Kathlene Waldo v. Jennifer Waldo
E2011-02677-COA-R3-CV
This is an appeal by a mother from the juvenile court’s judgment finding her in civil contempt for failure to pay child support and incarcerating her until she paid $400 toward the arrearage to purge the contempt. Finding the evidence inadequate to support a finding that the mother had the ability to pay child support when it was due or that she had the ability to pay $400 at the time of the hearing in order to purge the sentence, we reverse.
Authoring Judge: Judge John W. McClarty
Originating Judge:Judge Dennis W. Humphrey |
Roane County | Court of Appeals | 04/02/13 | |
H.A.S. v. H.D.S.
E2012-01233-COA-R3-JV
Lillian (“the Child”) is the offspring of H.A.S. (“Father”) and H.D.S. (“Mother”). The parties were never married to each other. They entered into two mediated agreements regarding Father’s co-parenting time with the Child. The agreements were never presented to or approved by a court. The parties followed the agreements for a time but conflicts developed and Father filed a petition seeking review and modification of the agreements. He asserted that there had been a material change in circumstances and that he should be awarded primary custody of the Child. Following a bench trial, the court found and approved the mediated agreements as being in the Child’s best interest. The court further determined that there had been no change in circumstances warranting a change in custody; but the court did find and hold that Father’s co-parenting time should be revised. Father appeals. We affirm.
Authoring Judge: Presiding Judge Charles D. Susano, Jr.
Originating Judge:A. Benjamin Strand, Jr. |
Jefferson County | Court of Appeals | 04/01/13 | |
In Re: Maria B.S., et al
E2012-01295-COA-R3-PT
Matthew V. and Carlene V. (“the Foster Parents”) filed a petition in the Circuit Court for Knox County (“the Trial Court”) seeking to terminate the parental rights of Lewis S. (“Father”), father to the minor twin children Maria B. S. and Anna J. S. (“the Children”). After a trial, the Trial Court terminated Father’s parental rights to the Children after finding that grounds for termination pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(1), (g)(3), and (g)(9) had been proven by clear and convincing evidence, and that clear and convincing evidence had been shown that it was in the Children’s best interest for Father’s parental rights to be terminated. We affirm as modified.
Authoring Judge: Judge D. Michael Swiney
Originating Judge:Judge Wheeler Rosenbalm |
Knox County | Court of Appeals | 04/01/13 | |
James Richard Lening v. State of Tennessee
M2012-01630-CCA-R3-PC
The petitioner, James Richard Lening, appeals the denial of his petition for post-conviction relief from his 2008 Davidson County Criminal Court jury convictions of aggravated burglary, aggravated assault, felony vandalism, and aggravated criminal trespass, claiming that he was denied the effective assistance of counsel at trial. Discerning no error, we affirm.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 04/01/13 | |
Clarence Nesbit v. State of Tennessee
W2009-02101-CCA-R3-PD
Petitioner, Clarence Nesbit, was convicted by a Shelby County Criminal Court jury of first degree murder and sentenced to death. He sought post-conviction relief, and the post-conviction court vacated the death sentence and granted a new sentencing hearing, which the State has not appealed. The post-conviction court denied Petitioner relief from his first degree murder conviction. On appeal, Petitioner contends that the post-conviction court erred by denying his claim that he received the ineffective assistance of counsel during the guilt phase of the trial. We affirm the judgment of the post-conviction court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Chris Craft |
Shelby County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. Marcie Lynn Pursell, aka Marcie Pursell Frazier
M2011-00286-CCA-R3-CD
The Defendant, Marcie Lynn Pursell, was found guilty by a Davidson County Criminal Court jury of three counts of aggravated child abuse, Class A felonies. See T.C.A. § 39-15-402 (2006) (amended 2009, 2011, 2012). She was sentenced as a Range I, standard offender to three concurrent terms of fifteen years’ confinement. On appeal, she contends that the evidence is insufficient to support her convictions and that the trial court erred by not allowing her to present evidence that she consented to a polygraph examination. We affirm the judgments of the trial court.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge J. Randall Wyatt, Jr. |
Davidson County | Court of Criminal Appeals | 03/28/13 | |
Jim Ferguson v. Middle Tennessee State University
M2012-00890-COA-R3-CV
This appeal involves an employee’s claim of retaliation for engaging in protected activity. The plaintiff employee filed a lawsuit against his employer, the defendant university, asserting several claims of employment discrimination under state and federal statutes. Subsequently, in a second lawsuit against the university, the plaintiff employee asserted that he suffered adverse job actions after he filed his charge of discrimination with the federal Equal Employment Opportunity Commission and the first discrimination lawsuit. The alleged adverse job actions included making the employee perform tasks that resulted in physical injuries. The lawsuits were consolidated and, after an eight-day jury trial, the jury awarded the employee $3 million in compensatory damages on the retaliation claim only. The defendant university appeals. We hold that, to prove a claim of retaliation for engaging in protected activity, the plaintiff was required to present material evidence to the jury that the decisionmaker, his supervisor at the university, was aware of the plaintiff’s protected activity when she took the adverse job actions against the plaintiff. The plaintiff employee presented no material evidence at trial of such knowledge by his supervisor at the relevant time. Accordingly, we reverse the trial court’s judgment and remand for entry of an order dismissing the plaintiff employee’s complaint.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Judge John D. Wootten |
Rutherford County | Court of Appeals | 03/28/13 | |
Clarence Nesbit v. State of Tennessee - Dissenting
W2009-02101-CCA-R3-PD
I respectfully disagree with the majority’s conclusion that the numerous deficiencies in counsel’s performance failed to prejudice the Petitioner cumulatively in his right to a fair proceeding and failed to call into question the reliability of the jury’s verdict. I agree with the majority’s conclusions regarding counsel’s deficiencies except its conclusion that counsel were not deficient in their pretrial investigation and trial preparation. The majority concludes that because the trial began one year and seven months after the Petitioner was indicted, counsel “would not have had time or resources to conduct the investigation performed by post-conviction counsel after the trial.” Although the majority is correct in noting the length of time it took for all the relevant witnesses to be found and presented at the post-conviction hearing, I simply cannot agree that counsel did not have adequate time to investigate and prepare for the trial.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge Chris Craft |
Shelby County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. NV Sumatra Tobacco Trading Company
M2010-01955-SC-R11-CV
This appeal concerns whether Tennessee courts may exercise personal jurisdiction over an Indonesian cigarette manufacturer whose cigarettes were sold in Tennessee through the marketing efforts of a Florida entrepreneur who purchased the cigarettes from an independent foreign distributor. From 2000 to 2002, over eleven million of the Indonesian manufacturer’s cigarettes were sold in Tennessee. After the manufacturer withdrew its cigarettes from the United States market, the State of Tennessee filed suit against the manufacturer in the Chancery Court for Davidson County,alleging that the manufacturer had failed to pay into the Tobacco Manufacturers’ Escrow Fund as required by Tenn. Code Ann. §§ 47-31-101 to -103 (2001 & Supp. 2012). The parties filed cross-motions for summary judgment, and the trial court dismissed the suit for lack of personal jurisdiction over the Indonesian manufacturer. The Court of Appeals reversed, granted the State’s motion for summary judgment, and remanded the case to the trial court to determine the applicable fines. State ex rel. Cooper v. NV Sumatra Tobacco Trading Co., No. M2010-01955-COA-R3-CV, 2011 WL 2571851 (Tenn. Ct. App. June 28, 2011). We find that, under the Due Process Clause of the Fourteenth Amendment, Tennessee courts lack personal jurisdiction over the Indonesian manufacturer. We therefore reverse the decision of the Court of Appeals and dismiss the case for lack of personal jurisdiction pursuant to Tenn. R. Civ. P. 12.02(2).
Authoring Judge: Justice William C. Koch, Jr.
Originating Judge:Chancellor Carol L. McCoy |
Davidson County | Supreme Court | 03/28/13 | |
Alma B. Long v. Raymond G. Creekmore
E2012-01453-COA-R3-CV
This appeal concerns Mother’s reservation of a life estate in property she conveyed to Son pursuant to a warranty deed. After the initial conveyance in 1983, Son resided on the property for years before renting the property to others. Mother prohibited the use of the property by certain tenants, who complied with her demand to vacate. In 2008, Mother objected to the current tenant’s occupation and filed suit to enforce her right to possession of the property. The trial court dismissed the suit, finding that the claim was barred by a ten-year statute of limitations. Mother appeals. We reverse the grant of summary judgment and remand for proceedings consistent with this opinion.
Authoring Judge: Judge John W. McClarty
Originating Judge:Chancellor Billy J. White |
Campbell County | Court of Appeals | 03/28/13 | |
Philander Butler v. State of Tennessee
W2012-01512-CCA-R3-CO
The petitioner, Philander Butler, appeals the summary dismissal of his petition for the writ of error coram nobis which challenged his 1989 and 1990 guilty pleas to sale of a controlled substance, possession of a controlled substance with intent to sell, and attempted possession of a controlled substance with the intent to sell. The trial court dismissed the petition on grounds: (1) that it was filed outside the applicable statute of limitation; and (2) that the petition failed to state a cognizable claim. On appeal, he contends that the dismissal was erroneous. The petitioner also contends that the court erred in summarily dismissing his “Motion to Alter or Amend Judgment Pursuant to Rule 59.04 and Motion to Set Aside Judgment Pursuant to Rule 60.02(2)-(3).” Following review of the record we discern no error and affirm the dismissal of the petition and motion.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge James Lammey |
Shelby County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. NV Sumatra Tobacco Trading Company - Dissent
M2010-01955-SC-R11-CV
In November of 1998, a number of American tobacco manufacturers and a majority of the states and territories of the United States, including Tennessee, reached a settlement in litigation over tobacco-related healthcare costs. The terms of the settlement permit the tobacco manufacturers that were involved in the litigation to withhold a portion of their liability under the settlement terms based upon loss of market share in a participating state, unless the state enacts a “qualifying statute” requiring manufacturers not party to the litigation to either participate in the settlement or pay an amount into a designated escrow fund based upon annual cigarette sales. The underlying purpose of requiring non-participating manufacturers to either join in the settlement or pay into the escrow fund is to assure “a level playing field” for all manufacturers selling cigarettes in the participating states and territories. In consequence, Tennessee adopted a qualifying statute, the Tennessee Tobacco Manufacturers’ Escrow Fund Act of 1999 (“Escrow Fund Act”), Tenn. Code Ann. §§ 47-31-101 to -103 (2001 & Supp. 2012), which requires “[a]ny tobacco product manufacturer selling cigarettes to consumers within the state of Tennessee” after May 26, 1999, to either become a party to the existing settlement agreement or make specified payments into a “qualified escrow fund.” Id. § 47-31-103(a).
Authoring Judge: Chief Justice Gary R. Wade
Originating Judge:Chancellor Carol L. McCoy |
Davidson County | Supreme Court | 03/28/13 | |
Damien Clark v. State of Tennessee
W2011-02168-CCA-R3-PC
Following a jury trial, Petitioner, Damien Clark, was convicted of second degree murder. This court affirmed the judgment of conviction in State v. Damien Clark, W2007-00651-CCA-R3-CD, 2009 WL 890886 (Tenn. Crim. App. April 1, 2009), perm. app. denied (Tenn. Aug. 17, 2009). Petitioner filed a timely petition for post-conviction relief. Following an evidentiary hearing, the petition was dismissed. Petitioner appeals, asserting that he is entitled to post-conviction relief because his trial counsel rendered ineffective assistance of counsel. We affirm the judgment of the post-conviction court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge J. Robert Carter |
Shelby County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. Jim George Conaser
M2012-00304-CCA-R3-CD
The Defendant, Jim George Conaser, contends (1) that the evidence presented at trial was insufficient to support his conviction for harassment and (2) that the trial court’s imposition of consecutive sentencing was improper. After a review of the record and the applicable authorities, we conclude that the evidence is sufficient to support the Defendant’s harassment conviction and that the trial court did not abuse its discretion in ordering the sentence from that conviction to run consecutively to a prior, unserved sentence.
Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge Cheryl A. Blackburn |
Davidson County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. Neil Vader
M2011-02394-CCA-R3-CD
Following a jury trial, Defendant, Neil Vader, was convicted of driving in violation of a motor vehicle habitual offender (MVHO) order, driving under the influence of an intoxicant (DUI), violation of the implied consent law, and driving on a revoked driver’s license. Defendant waived a jury trial to determine the number of his prior DUI convictions. The trial court found that Defendant had three prior DUI convictions and was guilty of DUI fourth offense. The trial court sentenced Defendant to serve one year and nine months for counts one and two and eleven months and twenty nine days for count three. All of Defendant’s sentences were ordered to run consecutively. The trial court merged count four, driving on a revoked driver’s license, with violation of a MVHO order. On appeal, Defendant raises the following issues: (1) the trial court erred in excluding testimony offered as extrinsic evidence of a prior inconsistent statement to impeach a witness; (2) the prosecuting attorney engaged in misconduct during closing arguments; and (3) the cumulative effect of the trial court’s evidentiary error and prosecutorial misconduct constitutes reversible error. After thorough review, we affirm the judgments of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge Robert Crigler |
Marshall County | Court of Criminal Appeals | 03/28/13 | |
Laura Nicole Harbin v. Casey Parker Jones
W2012-01474-COA-R3-CV
This appeal involves a post-divorce order of protection. Several years after the parties’ divorce in another state, the appellant mother obtained an order of protection against the appellee father in a Tennessee general sessions court, to restrict his contact with her and the parties’ minor child. The parties’ out-of-state divorce decree was enrolled in the Tennessee chancery court, where the mother also sought a continued order of protection, contempt relief, and modification of the parties’ parenting arrangement. All matters, including the general sessions order of protection, were consolidated in the Tennessee chancery court. The chancery court held a hearing on the order of protection. It declined to extend the order of protection and dissolved it. All other matters before the chancery court remained pending. The mother filed a notice of appeal to this Court. We hold that the dissolution of the order of protection, with other matters still pending, is not a final and appealable judgment. We dismiss the appeal for lack of appellate jurisdiction, and remand to the chancery court.
Authoring Judge: Judge Holly M. Kirby
Originating Judge:Judge Kenny W. Armstrong |
Shelby County | Court of Appeals | 03/28/13 | |
State of Tennessee v. Lewis Green
W2011-02593-CCA-R3-CD
The defendant, Lewis Green, appeals the trial court’s decision to deny his request for alternative sentencing and judicial diversion. The defendant pled guilty to seven counts of possession of cocaine with intent to sell and one count of possession of marijuana with intent sell. He received an effective five-year sentence for the convictions. Following a hearing, the trial court ordered that the sentences be served in incarceration and denied the defendant’s request for judicial diversion. Following review of the record, we affirm the sentencing decisions of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Lee V. Coffee |
Shelby County | Court of Criminal Appeals | 03/28/13 | |
State of Tennessee v. John Allen Hessmer
M2012-01079-CCA-R9-CD
The Defendant, John Allen Hessmer, appeals pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The trial court denied the Defendant’s request to proceed pro se during his pretrial hearings on the charges of aggravated burglary, arson of a structure, arson of personal property or real estate, harassment, and stalking. We reverse the judgment of the trial court and remand the case to the Criminal Court for Wilson County
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge David E. Durham |
Wilson County | Court of Criminal Appeals | 03/28/13 |