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Posted by: Tanja Trezise on Jul 30, 2020

In this divorce proceeding, the wife appeals the trial court’s division of the marital estate and the amount of income set for the husband in determining his child support obligation. We find no reversible error in the court’s division of the marital assets and debts and the amount of Husband’s monthly income it set for the purpose of calculating child support; accordingly, we affirm.

Posted by: Tanja Trezise on Jul 30, 2020

In this declaratory judgment action, the plaintiff filed a complaint in the Carter County Chancery Court (“trial court”) seeking an easement over improved real property located in Carter County. The plaintiff and his wife had originally conveyed the servient estate primarily at issue to the co-defendants, their son and daughter-in-law, in 2010. Following the 2010 conveyance, the plaintiff and his wife retained ownership of two adjoining parcels of land, which included their residence and were separated from the servient estate by an adjoining tract of real property that was owned by a third co-defendant, their great niece. The plaintiff and his wife also owned an “island” tract, consisting of approximately 18.4 acres of unimproved real property surrounded by the waters of the Watauga River and connected to the servient estate by a bridge that the plaintiff had built in the 1980s. The plaintiff’s wife died in 2014. In April 2018, the plaintiff filed a complaint seeking declaratory judgment that a permanent easement appurtenant existed, either by prior use, estoppel, or necessity, for the island tract, as the dominant estate, across the great niece’s property and the servient estate. Alternatively, the plaintiff claimed that he was entitled to an easement for ingress and egress, pursuant to Tennessee Code Annotated § 54-14-101 et seq. (2008), because the island tract was essentially “landlocked” by the servient estate. Following a bench trial, the trial court found that no permanent easement existed. Noting that the great niece had filed no responsive pleading and had not appeared for trial despite having received notice, the trial court entered a default judgment against her as to all issues that may have been raised concerning her interests. Upon further finding that the plaintiff was entitled to an easement by necessity, the trial court granted a twelve-foot easement to the plaintiff around the perimeter of the servient estate and across the great niece’s property for ingress and egress to the bridge leading to the island tract. The trial court denied the plaintiff’s request to locate the easement through the front yard of the servient estate. The great niece subsequently filed motions to alter or amend the final judgment and set aside the default judgment against her, both of which the trial court denied following a hearing. The plaintiff and the great niece have appealed. Discerning no reversible error, we affirm.

Posted by: Tanja Trezise on Jul 30, 2020

A sheriff’s office demoted an employee for failing to follow official policies and procedures during an arrest. The employee appealed to the civil service merit board. After a hearing, the board found the employee had neglected his duty as the ranking officer at the scene of the arrest. But the board modified the disciplinary action to a 30- day suspension and ordered the employee’s reinstatement to his former rank. The employee then sought judicial review. The chancery court determined that the board’s decision was arbitrary and capricious and modified the disciplinary sanction. We conclude that the board’s decision was not arbitrary and capricious. So we reverse.

Posted by: Tanja Trezise on Jul 29, 2020

PER CURIAM. Chandar A. Snow, a pro se federal prisoner, appeals the district court’s order denying his motion for a sentence reduction pursuant to the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. As set forth below, we AFFIRM the district court’s order.

Posted by: Tanja Trezise on Jul 29, 2020

KAREN NELSON MOORE, Circuit Judge. Jessica Wilson and Susan Allan (collectively, “Plaintiffs”) received unwanted calls to their cell phones from Pennsylvania Higher Education Assistance Agency (“PHEAA”) regarding their student-loan debt. They claim that those calls violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). The TCPA contains an autodialer ban, which generally makes it a finable offense to use an automatic telephone dialing system (“ATDS”) to make unconsented-to calls or texts. The question in this case is whether, as a matter of statutory interpretation, the Avaya autodialer system that PHEAA uses to make collection-related calls qualifies as an ATDS.

Although it is clear from the text of the autodialer definition under § 227(a) that a device that generates and dials random or sequential numbers qualifies as an ATDS, it is not clear whether a device like the Avaya system—that dials from a stored list of numbers only—qualifies as an ATDS. Fortunately, related provisions clear up any ambiguity. We hold that the plain text of § 227, read in its entirety, makes clear that devices that dial from a stored list of numbers are subject to the autodialer ban. We accordingly AFFIRM the district court’s grant of summary judgment for Plaintiffs.

Posted by: Tanja Trezise on Jul 29, 2020

Carroll Dean Yocum (“Defendant”) appeals the trial court’s full revocation of his probationary sentence and the imposition of his sentence in confinement. Defendant claims the trial court abused its discretion and argues his probation should be reinstated. Following a thorough review, we conclude that the trial court did not abuse its discretion. The judgment of the trial court is affirmed.

Posted by: Tanja Trezise on Jul 29, 2020

The Defendant, Mark Steven Treuchet, was convicted after a jury trial of second degree murder, a Class A felony, and sentenced to seventeen years, six months’ incarceration. See Tenn. Code Ann. § 39-13-210. In this appeal as of right, the Defendant contends that (1) the trial court erred by denying his motion to disqualify the district attorney’s office; (2) the evidence was insufficient to sustain his conviction; (3) the court erred by excluding police testimony regarding the victim’s state of mind; (4) the court erred by admitting a portion of the Defendant’s police statement referring to a prior bad act; and (5) the court erred by giving a jury instruction on transferred intent and by declining to give jury instructions on private arrest and defense of a business. Following our review, we affirm the judgment of the trial court.

Posted by: Tanja Trezise on Jul 29, 2020

The Defendant, Warren Smith, was convicted by a jury of sexual battery, for which he received a three-year sentence as a Range II, multiple offender. On appeal, the Defendant argues that there was insufficient evidence to support his conviction because the victim’s testimony was incredible and the State failed to establish that the touching was intentional and committed for a sexual purpose. After review, we conclude that the trial court committed reversible error in constructively amending the indictment in its charge to the jury and that the Defendant’s conviction must be reversed and the case remanded for a new trial.

Posted by: Tanja Trezise on Jul 29, 2020

A McNairy County jury convicted the Defendant-Appellant, Joseph Jason Qualls, of aggravated sexual battery and three counts of violating the sex offender registry, for which he received an effective sentence of twenty years’ imprisonment. On appeal, the sole issue presented for our review is whether the evidence is sufficient to support his conviction of aggravated sexual battery. Upon review, we affirm the judgment of the trial court.

Posted by: Tanja Trezise on Jul 29, 2020

The Defendant, Josiah Nixon, was convicted by a Houston County Circuit Court jury of sale of methamphetamine, a Class C felony. See T.C.A. § 39-17-434 (2018). He received a sentence of six years’ confinement. On appeal, the Defendant contends that (1) the evidence does not support his conviction, (2) the trial court erred in allowing a “still-frame” image from a video recording into evidence, and (3) the trial court erred by sentencing the Defendant to six years’ confinement. We affirm the judgment of the trial court.


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