Court Opinions

Format: 06/24/2017
Format: 06/24/2017
Brenda Ramsey v. Cocke County, Tennessee, Et Al.
E2016-02145-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Richard R. Vance

In this wrongful death action, the decedent’s mother filed suit alleging that the county emergency communications district and the city police department refused to send help when the plaintiff called to report that her daughter was making suicidal threats and that, as a result, her daughter committed suicide later the same night. The trial court granted summary judgment in favor of the defendants on the ground that the decedent’s suicide constituted an intervening, superseding cause. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applies. We, therefore, reverse the trial court’s grant of summary judgment and remand for further proceedings.

Cocke County Court of Appeals 06/23/17
Phillip Neal Kennedy v. Jane Kennedy
M2016-01635-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Michael W. Binkley

This post-divorce appeal concerns the father’s petition to modify the residential schedule in an agreed parenting plan. Following a hearing, the trial court found that a material change in circumstances necessitated a change in the schedule. The court modified the plan by awarding the father additional co-parenting time. The court also entered a new child support order and directed the mother to remit payment for retroactive child support and the father’s attorney fees. The mother appeals. We affirm.

Williamson County Court of Appeals 06/23/17
The Metropolitan Government of Nashville And Davidson County v. Delinquent Taxpayers As Shown On The 2006 Real Property Tax Records, et al
M2016-02220-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Chancellor Claudia Bonnyman

Delinquent taxpayer appeals the denial of his Tenn. R. Civ. P. 60.02(3) motion to set aside a 2009 final decree confirming a tax sale of his property as void on due process grounds. Having determined that the doctrine of collateral estoppel precluded the delinquent taxpayer from relitigating the issue of notice, we affirm.

Davidson County Court of Appeals 06/23/17
William B. Gatlin v. State of Tennessee
M2016-00824-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge F. Lee Russell

Petitioner, William B. Gatlin, appeals the denial of his petition for post-conviction relief. Petitioner alleges that the jury at his original trial was subjected to an improper outside influence, thereby violating his Sixth Amendment right to an impartial jury. Petitioner also contends that the post-conviction judge was disqualified and should have recused himself because he had also presided as the trial judge in Petitioner’s original trial. Upon our review of the record and applicable authorities, we affirm the judgment of the post-conviction court.

Marshall County Court of Criminal Appeals 06/23/17
J.P.Morgan Chase Bank, N.A. v. Gary Eldon Finley, et al
M2016-01178-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor J. B. Cox

A bank filed a complaint to reform a Deed of Trust to correct a scrivener’s error in the legal description of a parcel of property in order to foreclose on the property. While the litigation was pending, the mortgagors conveyed title to the property to a third party, who claimed to be a bona fide purchaser for value without notice. The trial court concluded that the third party did not qualify as a bona fide purchaser because he was aware of the bank’s litigation when he obtained title to the property. We affirm the trial court’s judgment.

Marshall County Court of Appeals 06/22/17
Christopher Mimms v. State of Tennessee
M2016-01016-CCA-R3-HC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John D. Wootten, Jr.

The Petitioner, Christopher Mimms, appeals the summary dismissal of his petition for writ of habeas corpus by the Trousdale County Criminal Court. On appeal, the Petitioner argues that his drug-related convictions are void because the trial court amended the indictment without his consent. Upon review, we affirm the judgment of the habeas corpus court.

Trousdale County Court of Criminal Appeals 06/22/17
State of Tennessee v. Daniel Inmon
M2016-00596-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Royce Taylor

Pro se Defendant, Daniel Inmon, was indicted by the Rutherford County grand jury with four counts of educational neglect, Tennessee Code Annotated sections 49-6-3001 to -3006, a class C misdemeanor, for failing to cause his four children to attend school for a period of seventeen days. He was subsequently convicted as charged and sentenced to thirty days supervised probation for each count, to be served consecutively. On appeal, the Defendant argues that the evidence was insufficient to sustain his convictions. Upon our review, we affirm the judgments of the trial court.

Rutherford County Court of Criminal Appeals 06/22/17
State of Tennessee v. Robert G. Thornton, Jr.
M2015-01895-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge James G. Martin, III

Following a jury trial in Hickman County Circuit Court, Defendant, Robert G. Thornton, Jr., was convicted of two counts of rape. The trial court merged the convictions and sentenced Defendant to twelve years in the Department of Correction to be served at 100%. On appeal, Defendant argues: (1) that the trial court improperly refused to strike a juror for cause; (2) that the trial court erred by denying his motion for a mistrial; (3) that the evidence was not sufficient to support his rape convictions; and (4) that his sentence is excessive. After a thorough review of the record, we affirm the judgments of the trial court.

Hickman County Court of Criminal Appeals 06/22/17
Jerry Faerber, Et Al. v. Troutman & Troutman, P.C., Et Al.
E2016-01378-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Don R. Ash

Appellees entered into a contract for the purchase of an undeveloped lot in a planned unit development. Appellants, an attorney and his law firm, prepared closing documents, including a warranty deed and settlement statement. The warranty deed included language that the property was unencumbered, and the settlement statement provided for payoff of the first mortgage and for the purchase of title insurance. Appellees later discovered that Appellants had failed to procure release of the first lien and had also failed to procure title insurance. The property was foreclosed, and Appellees filed suit against Appellants for negligent misrepresentation and violation of the Tennessee Consumer Protection Act. The trial court found Appellees liable on these claims. We concluded that the Tennessee Consumer Protection Act does not apply to Appellants, who were engaged in the practice of law in the preparation of the closing documents. Accordingly, we reverse the trial court’s award of attorney fees and costs pursuant to the Tennessee Consumer Protection Act. The trial court’s order is otherwise affirmed.

Campbell County Court of Appeals 06/22/17
Terry Joe McBroom v. Kelly Loretta Folkers McBroom
W2016-01276-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Chancellor Jim Kyle

In this divorce case, Terry Joe McBroom appeals the trial court’s award of alimony in futuro to Kelly Loretta Folkerts McBroom in the amount of $980 per month for three years or until Husband began drawing his retirement pension. The trial court ordered that once Husband began drawing his pension, which the parties agree will happen no later than April of 2019, the amount of spousal support will be reduced to $720. The court further ruled that Husband’s support obligation would cease when Wife began drawing Social Security benefits. Finding no abuse of discretion, we affirm.

Shelby County Court of Appeals 06/21/17
In Re: Skylar P., Et Al.
E2016-02023-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Kurt A. Benson

Mother appeals the trial court’s decision to terminate her parental rights to two children on the grounds of: (1) abandonment by failure to provide a suitable home; (2) abandonment by willful failure to provide support; (3) substantial noncompliance with the requirements of the permanency plans; and (4) persistence of conditions that precipitated the children’s removal from Mother’s custody. The trial court found by clear and convincing evidence that termination of Mother’s parental rights was in the best interest of the children. We reverse in part and affirm in part.

Bradley County Court of Appeals 06/21/17
In Re Jase P.
E2016-02519-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Timothy E. Irwin

This appeal arises from the termination of a father’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition against Anthony G. (“Father”) in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to terminate Father’s parental rights to his son, Jase P. (“the Child”). Father had been incarcerated and unable to parent the Child since the Child’s birth. After a trial, the Juvenile Court terminated Father’s parental rights on the grounds of wanton disregard and various grounds coming under the putative father statute at Tenn. Code Ann. § 36-1- 113(g)(9)(A). Father appeals. We affirm all grounds for termination found against Father. We further affirm that termination of Father’s parental rights is in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court in its entirety.

Knox County Court of Appeals 06/21/17
State of Tennessee v. Michael Eugene Jones
M2016-02277-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judg F. Lee Russell

The Appellant, Michael Eugene Jones, pled guilty in the Marshall County Circuit Court to selling one-half gram or more of a Schedule II controlled substance, a Class B felony. Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court ordered that the Appellant serve ten years in confinement. On appeal, the Appellant contends that the length of his sentence is excessive and that the trial court erred by not sentencing him to community corrections. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Marshall County Court of Criminal Appeals 06/21/17
Tracy Lynn Hallums v. Bruce Alan Hallums
M2016-00396-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge John Thomas Gwin

In this divorce action, the trial court awarded alimony in futuro and attorney’s fees to Wife; Husband appeals both awards. Concluding that the court did not make adequate findings as to whether rehabilitative or transitional alimony was feasible, we vacate the award of alimony in futuro and remand for further consideration of the nature and duration of the alimony award; we affirm the trial court’s award of attorney’s fees to Wife; and we decline to award attorney’s fees to either party for the appeal.

Wilson County Court of Appeals 06/21/17
John F. Pinkard, M.D. v. HCA Health Services of Tennessee, Inc. D/B/A Summit Medical Center
M2016-01846-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Joseph P. Binkley, Jr.

We granted this interlocutory appeal to determine whether Tenn. Code Ann. § 68-11-272(c)(1) of the Healthcare Quality Improvement Act (“HCQIA”), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. Plaintiff, a physician whose medical staff privileges were terminated by Summit Medical Center, sued the hospital, alleging, inter alia, that it acted in bad faith and with malice during the peer review process. Following a lengthy discovery process, the hospital filed a motion for summary judgment asserting, inter alia, that Plaintiff’s anticipated evidence was confidential, privileged, and inadmissible under the HCQIA because it was derived from the activity of a Quality Improvement Committee (“QIC”). At the same time, the hospital filed a motion in limine to exclude all records of quality improvement activity pursuant to the evidentiary privilege under Tenn. Code Ann. § 68-11-272(c)(1). After ascertaining that Plaintiff intended to rely on QIC evidence, the trial court ruled that the peer review privilege could not be waived, and that Tenn. Code Ann. § 68-11-272(c)(1) violated the separation of powers provisions because it deprived the court of its inherent authority to make evidentiary decisions affecting “the heart of this case.” This Tenn. R. App. P. Rule 9 interlocutory appeal followed. We agree with the trial court’s ruling that the privilege cannot be waived. However, we disagree with the trial court’s ruling that Tenn. Code Ann. § 68-11-272(c)(1), as applied to the facts of this case, violates the separation of powers provisions in the Tennessee Constitution. This is because the General Assembly created the evidentiary privilege to effectuate one of its powers, the enactment of legislation that promotes the safety and welfare of our citizens. To that end, the primary concern of the challenged legislation is not to create court rules, but to promote candor within a hospital’s quality improvement process to ensure effective evaluation measures. Furthermore, Tenn. Code Ann. § 68-11-272(c)(2) provides an “original source” exception to the privilege whereby documents not produced specifically for use by a QIC, and are otherwise available from original sources, are both discoverable and admissible into evidence even if the information was presented during a QIC proceeding. Thus, the privilege is reasonable and workable within the framework of - 2 - evidentiary rules already recognized by the judiciary. For these reasons, we reverse and remand for further proceedings.

Davidson County Court of Appeals 06/21/17
State of Tennessee v. George Martin Zickefoose
E2016-01845-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Tammy M. Harrington

The Defendant, George Martin Zickefoose, pleaded guilty to vandalism valued between $1,000 and $10,000, theft of property valued between $1,000 and $10,000, and burglary, with the trial court to determine the sentences. At the sentencing hearing, the trial court ordered concurrent four-year sentences for each count for an effective four-year sentence in the Tennessee Department of Correction. The Defendant appeals, asserting that the trial court erred when it denied him an alternative sentence. After review, we affirm the trial court’s judgments.

Blount County Court of Criminal Appeals 06/20/17
State of Tennessee v. Christopher Collier
W2016-01231-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James M. Lammey

A Shelby County jury convicted the Defendant, Christopher Collier, of theft of property valued at $1,000 or more but less than $10,000, and the trial court sentenced the Defendant to twelve years of incarceration as a persistent offender. On appeal, the Defendant challenges the sufficiency of the evidence. Upon reviewing the record and the applicable law, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/20/17
State of Tennessee v. Montreal Portis Robinson
W2016-01949-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Kyle Atkins

The Defendant, Montreal Portis Robinson, was convicted by a Madison County Circuit Court jury of aggravated robbery, a Class B felony, and robbery, a Class C felony. He was sentenced to eight years for the aggravated robbery conviction and three years for the robbery conviction, to be served consecutively in the Tennessee Department of Correction for an effective term of eleven years. On appeal, the Defendant challenges the sufficiency of the evidence convicting him of aggravated robbery and the trial court’s imposition of consecutive sentences. After review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 06/20/17
Charles Bradford Stewart v. State of Tennessee
M2015-02449-CCA-R3-PC
Authoring Judge: Presiding Judge Thomas T. Woodall
Trial Court Judge: Judge John H. Gasaway, III

The State appeals from the post-conviction court’s grant of post-conviction relief to Petitioner, Charles Bradford Stewart. Petitioner was convicted of vehicular assault and originally sentenced to serve twelve years as a career offender, with split confinement of one year in jail and eleven years in community corrections. The State appealed the sentence on the basis that community corrections was erroneously granted. This court reversed and remanded. State v. Charles B. Stewart, No. M2010-01948-CCA-R3-CD, 2011 WL 4794942, at *1 and *3 (Tenn. Crim. App. Oct. 11, 2011). Upon remand the trial court sentenced Petitioner to serve the entirety of the twelve-year sentence by incarceration. This Court affirmed. State v. Stewart, 439 S.W.3d 906, 907-08 (Tenn. Crim. App. 2013). Petitioner timely filed, pro se, a petition for post-conviction relief. Counsel was appointed, and Petitioner subsequently filed a “corrected” petition. Following an evidentiary hearing, the post-conviction court granted relief. After review, we reverse the judgment of the post-conviction court and reinstate the judgment of conviction.

Montgomery County Court of Criminal Appeals 06/20/17
State of Tennessee v. Stephen W. Jaco
M2016-00634-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Larry J. Wallace

A Humphreys County jury convicted the Defendant, Stephen W. Jaco, of driving under the influence (DUI) and unlawfully possessing a firearm while under the influence of alcohol. The trial court sentenced him to eleven months and twenty-nine days for each conviction to be served concurrently and on probation, after serving four days in jail. The trial court fined the Defendant $350 for his DUI conviction. On appeal, the Defendant challenges the sufficiency of the evidence for his DUI conviction, the trial court’s imposition of a fine, the trial court’s failure to join all charges in one indictment, and the trial court’s denial of his motion to dismiss based on double jeopardy principles. We conclude that the trial court erred in imposing the fine for the Defendant’s DUI conviction, and we reverse the trial court’s imposition of the fine and remand the matter for the empaneling of a jury to fix the fine. The trial court’s judgments are otherwise affirmed.

Humphreys County Court of Criminal Appeals 06/20/17
James Russell, et al. v. Transco Lines, Inc., et al.
E2015-02509-SC-R3-WC
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge James E. Lauderback

The issue in this workers’ compensation appeal is whether a Tennessee trial court had subject matter jurisdiction over a workers’ compensation claim.  James and Elizabeth Russell, residents of Johnson City, Tennessee, were employed by Transco Lines, Inc. (“Employer”), an Arkansas company headquartered in Russellville, Arkansas.  The Russells, who were team truck drivers, were injured on July 5, 2013, in a motor vehicle accident near Shreveport, Louisiana.  Employer and its insurer, Triangle Insurance Company (“Insurer”), accepted the Russells’ workers’ compensation claims as compensable and paid benefits under Arkansas law.  In October 2013, the Russells, through their counsel, filed a Request for Benefit Review Conference with the Tennessee Department of Labor.  No additional action occurred in Tennessee, and benefits continued to be paid according to Arkansas law.  After the administrative process was exhausted, the Russells filed this action in the Circuit Court for Washington County against Employer and Insurer, requesting compensation benefits under the workers’ compensation laws of Tennessee.  Employer argued that the trial court did not have subject matter jurisdiction over the claim and that even if it had jurisdiction, the Russells had made an election of remedies and were precluded from pursuing benefits in Tennessee.  The trial court ruled for the Russells, holding that it had subject matter jurisdiction and that the Russells had not made an election of remedies.  The trial court awarded Mr. Russell 65% permanent partial disability and Ms. Russell 85% permanent partial disability.  Employer and Insurer appealed.  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 trial court.

Washington County Workers Compensation Panel 06/20/17
Western Farm Products, LLC, Inc. v. Sumner County, TN , et al
M2015-02003-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Joe H. Thompson

A property owner who wished to construct and operate a quarry sought a declaratory judgment that a Sumner County Zoning Resolution, which was alleged to exclude quarrying and mining activities, is unconstitutional and in violation of the Tennessee zoning enabling statutes. A group of adjoining property owners were permitted to intervene in the proceeding, and the court granted summary judgment to the county and adjoining property owners. The property owner now appeals. We find that the evidence relied upon by the property owner does not establish that the ordinance at issue prohibits all quarrying activities and affirm the trial court’s judgment.

Sumner County Court of Appeals 06/19/17
State of Tennessee v. Deangelo Taylor
W2016-00718-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge W. Mark Ward

The defendant, Deangelo Taylor, appeals his Shelby County Criminal Court jury convictions of second degree murder and attempted aggravated robbery, claiming that the trial court erred by admitting certain witness testimony and that the evidence was insufficient to support his convictions. Discerning no error, we affirm.

Shelby County Court of Criminal Appeals 06/16/17
State of Tennessee v. Marcus Puckett
W2016-00353-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge John Campbell

The defendant, Marcus Puckett, appeals his Shelby County Criminal Court jury conviction of driving under the influence (“DUI”), claiming that the trial court erred by permitting the State to play the video recording of the defendant’s traffic stop in its entirety in violation of his constitutional rights. Discerning no error, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 06/16/17
Ronald Stringer v. Alecia Stringer
M2016-01314-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Philip E. Smith

This post-divorce case concerns parental relocation.  Mother, the primary residential parent, sought to relocate to Texas, citing an employment offer.  Father objected to the relocation, arguing that the move had no reasonable purpose and that Mother’s real purpose for relocating is to be closer to her boyfriend. The trial court denied mother’s request to relocate based on mother’s perjury in the trial court’s presence and on the finding that the real purpose of mother’s proposed move is to be closer to her boyfriend. We reverse the trial court’s decision because we determine that father failed to carry his burden of proof.

Davidson County Court of Appeals 06/16/17