Court Opinions

Format: 04/18/2019
Format: 04/18/2019
Steven Williams v. Gateway Medical Center, Et Al. - Concurring In Part and Dissenting In Part
M2018-00939-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ross H. HIcks

I concur fully in this Court’s affirmance of the dismissal of Mr. Williams’s claims based on his failure to substantially comply with the requirements of Tennessee Code Annotated § 29-26-121(a)(2)(E). I write separately solely to express my opinion that prior precedent from this Court would mandate dismissal not only for Mr. Williams’s failure to describe the records to be disclosed on his medical authorization form but for the omission of an expiration date as well.

Montgomery County Court of Appeals 04/18/19
Steven Williams v. Gateway Medical Center, Et Al. - Concurring In Part and Dissenting In Part
M2018-00939-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Ross H. Hicks

I concur in the result of the majority’s opinion insofar as it affirms the dismissal of the action on the basis, set forth in Section V, that Dr. Johnson was not an employee of Gateway Medical Center and, consequently, did not have access to Ms. Williams’ medical record. I concur with the holding in Section IV A that the omission of an expiration date on the HIPPA authorization was insignificant and did not keep the form from being substantially compliant with Tennessee Code Annotated section 29-26-121(a)(2)(E). I respectfully disagree with the holding in Section IV B that the failure of Mr. Williams to check the box to authorize access to specific medical records makes the authorization non-compliant. In my opinion, the purpose of the authorization form is to allow the recipient to receive the records pertinent to the case, thus serving as a bypass to the normal procedures for discovery governed by the Tennessee Rules of Civil Procedure. Consistent with the letter and spirit of the discovery rules, any deficiency in the authorization forms that limit the recipient’s ability to obtain the pertinent records should be addressed in accordance with Rule 26.       

Montgomery County Court of Appeals 04/18/19
Steven Williams v. Gateway Medical Center, Et Al.
M2018-00939-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Jude Ross H. Hicks

In this health care liability action, the trial court dismissed the plaintiff’s claims for failure to substantially comply with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E) upon determining that the plaintiff’s pre-suit notice failed to include a HIPAA-compliant medical records authorization. The trial court found that the medical records authorizations provided by the plaintiff failed to include a “[d]escription of information to be used or disclosed” and an expiration date. The trial court further determined that these deficiencies prejudiced the defendants from mounting a defense because they were unable to obtain the relevant medical records. As a result, the plaintiff’s claims were dismissed without prejudice. The plaintiff timely appealed. We consider the plaintiff’s omission of an expiration date insignificant. The HIPAA form provided by the plaintiff failed to substantially comply with the statute because it did not include a description of the information to be used or disclosed, thereby causing prejudice to the defendants. We, therefore, affirm the trial court’s dismissal of the plaintiff’s claims.  

Montgomery County Court of Appeals 04/18/19
State of Tennessee v. Markeith Chapale Pulliam
E2018-00434-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Barry A. Steelman

The Defendant, Markeith Chapale Pulliam, appeals the trial court’s revocation of his community corrections sentence, arguing that the court abused its discretion both in revoking his community corrections and ordering him to serve the balance of his sentence in the Department of Correction. After thorough review, we affirm the judgment of the trial court.

Hamilton County Court of Criminal Appeals 04/17/19
James Dellinger v. State of Tennessee
E2018-00135-CCA-R3-ECN
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge David Reed Duggan

Petitioner, James Dellinger, appeals the trial court’s summary dismissal of his petition seeking to invalidate the sentence of death imposed for his conviction of first degree murder. The petition sought error coram nobis relief pursuant to Tennessee Code Annotated section 40-26-105, asserted that his sentence of death is an illegal sentence to be corrected pursuant to Tennessee Rule of Criminal Procedure 36.1, and that he is entitled to relief by “any other remedy that at common law exists.” After review, we affirm the judgment of the trial court.

Blount County Court of Criminal Appeals 04/17/19
State of Tennessee v. Ladarius Lockhart
W2018-00051-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Chris Craft

The Defendant, Ladarius Lockhart, was convicted of two counts of rape. The trial court merged the convictions and imposed a nine-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support the convictions and that the prosecutor made improper statements during closing arguments. Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/17/19
State of Tennessee v. Krystal Gail Jenkins
E2018-01335-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Andrew M. Freiberg

The Defendant, Krystal Gail Jenkins, appeals the trial court’s revocation of her probation, arguing that the court abused its discretion in not considering all alternative sentences to incarceration and ordering her to serve the balance of her original sentence in the Department of Correction. After thorough review, we affirm the judgment of the trial court.

Bradley County Court of Criminal Appeals 04/17/19
State of Tennessee v. Shane Todd
W2018-00215-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Clayburn Peeples

After a consolidated jury trial, the defendant, Shane Todd, was convicted of three counts of rape of a child and two counts of solicitation of a minor in case numbers 19425 and 19450. Tenn. Code Ann. §§ 39-13-522, -528. On appeal, the defendant argues the trial court erred in denying his motion for a new trial, claiming the jury was exposed to improper outside influence. The defendant also contends the evidence was insufficient to support his convictions and the trial court’s sentencing determinations resulted in an excessive forty-year sentence. Upon our review, we affirm the judgments of the trial court but note, in sentencing the defendant in case number 19450, the trial court interchanged the sentence terms on the judgment forms for counts one and two as ordered at the sentencing hearing. Therefore, we remand the case to the trial court for the entry of amended judgment forms as to counts one and two in case number 19450.

Gibson County Court of Criminal Appeals 04/17/19
In Re: Jaxx M.
E2018-01041-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford, P.J., W.S.
Trial Court Judge: Judge Frank V. Williams, III

This appeal involves the termination of a mother’s parental rights to her son. The trial court found that all grounds alleged in the petition had been proven and that termination was in the best interest of the child. We reverse the trial court’s ruling as to two grounds for termination but otherwise affirm the order terminating Mother’s parental rights.

Roane County Court of Appeals 04/17/19
Thomas N. Allen v. Shawn Phillips, Warden
W2018-01736-CCA-R3-HC
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge R. Lee Moore, Jr.

The pro se petitioner, Thomas N. Allen, appeals the denial of his petition for writ of habeas corpus by the Lake County Circuit Court, arguing the trial court erred in summarily dismissing the petition. The petitioner asserts his indictment was defective for failing to cite the correct statutory provision, the trial court erred by giving erroneous jury instructions, and the indictment was illegally amended during trial, entitling the petitioner to habeas corpus relief. Following our review, we affirm the habeas court’s dismissal of the petition as the petitioner has failed to show he is entitled to relief.

Lake County Court of Criminal Appeals 04/17/19
Citizens Tri-County Bank v. Russell R. Goodman, ET Al.
M2018-00958-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jeffrey F. Stewart

This appeal involves a boundary dispute. Following a trial in the Grundy County Chancery Court, the chancellor held that the boundary between the parties would be the boundary depicted on a survey introduced by the Defendants. Having reviewed the record transmitted to us on appeal, we affirm.

Grundy County Court of Appeals 04/17/19
Dayle Ward, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2018-00633-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Chancellor Claudia Bonnyman

In this certiorari review of a decision of the Board of Zoning Appeals of the Metropolitan Government of Nashville and Davidson County, the Appellants challenge the Board’s grant, as authorized by ordinance and state and federal law, of an accommodation from the zoning requirements applicable to property owned by a church, on which it sought to build 22 micro-homes to house the homeless. Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion. The Appellants also argue that the project did not meet the standards for the accommodation set by the state and federal laws. The trial court upheld the decision of the Board. Upon our review, we conclude that material evidence supports the Board’s decision and that the decision is not contrary to law, and is not arbitrary or capricious; accordingly, we affirm the judgment of the trial court.

Davidson County Court of Appeals 04/17/19
Christopher Lee Shaw v. State of Tennessee
M2017-02379-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Cheryl A. Blackburn

Christopher Lee Shaw, Petitioner, appeals the Davidson County Criminal Court’s denial of post-conviction and error coram nobis relief from his convictions of possession of more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free zone, evading arrest while operating a motor vehicle, and possession of drug paraphernalia, for which he received an effective sentence of fifteen years in the Tennessee Department of Correction. On appeal, Petitioner contends that he is entitled to post-conviction relief because he was denied the effective assistance of counsel. Specifically, he contends that trial counsel failed to: (1) adequately investigate Adrian Wilkerson; (2) obtain funds to retain a fact investigator to investigate Mr. Wilkerson and an expert witness in undercover narcotics investigations; (3) inform Petitioner that two additional witnesses made out-of-court identifications of Petitioner driving the white Nissan SUV; (4) file a pretrial motion to suppress a suggestive single photographic identification and tainted in-court identification; and (5) ensure a unanimous jury verdict for Petitioner’s conviction in Count 1 of the
indictment—possession of more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free zone—by filing a motion for bill of particulars, requesting an election of offenses, and challenging the jury instruction to raise an issue of a unanimous verdict. Petitioner further asserts that the trial court improperly determined that the petition for writ of error coram nobis was time-barred, asserting that he was entitled to due process tolling of the statute of limitations. Following a thorough review, we affirm the trial court’s denial of post-conviction and error coram nobis relief.

Davidson County Court of Criminal Appeals 04/17/19
Kerry Gray v. Saint Francis Hospital-Bartlett, Inc. a/k/a Tenet HealthSystem Bartlett, Inc., et al.
W2018-00836-COA-R9-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Robert Samual Weiss

This Tenn. R. App. P. 9 appeal arises from a wrongful death, healthcare liability action filed by the plaintiff on behalf of his deceased wife and her heirs-at-law against two hospitals and numerous healthcare providers. The dispositive issue is whether the pre-suit notices and HIPAA releases the plaintiff sent to one set of healthcare providers on December 17, 2015, and the separate pre-suit notices and HIPAA releases the plaintiff sent to a different set of healthcare providers on December 22, 2015, substantially complied with Tennessee Code Annotated § 29-26-121(a)(2)(D) and (E). If so, the commencement of the initial action in 2015 as to both sets of healthcare providers and the refiling of the action in 2017 pursuant to Tennessee’s saving statute were both timely. If not, the plaintiff’s claims as to all defendants are barred by the statute of limitations. The plaintiff’s now-deceased wife had outpatient hernia surgery at Saint Francis Hospital-Bartlett, Inc. (“St. Francis”). Five days later, she was admitted to Methodist Hospital University (“Methodist”) following several days of altered mental status with auditory and visual hallucinations where she was examined, treated, and released only to return to Methodist three days later. Following an exploratory laparotomy and other examinations and treatments, she died at Methodist a week later. The plaintiff timely sent pre-suit notices to the St. Francis providers; however, the notices only identified the St. Francis providers as potential defendants and provided HIPAA authorizations that allowed the St. Francis providers to obtain medical records, but only from the other St. Francis providers. Moreover, the pre-suit notices did not identify any Methodist providers as potential defendants. Five days later, the plaintiff sent pre-suit notices to numerous Methodist providers, which only identified the Methodist providers as potential defendants and which provided HIPAA authorizations that allowed the Methodist providers to obtain medical records, but only from the other Methodist providers. Thereafter, and relying on the 120-day extension of the statute of limitations available under § 121(c), the plaintiff filed a single wrongful death, healthcare liability action naming both hospitals and all of the healthcare providers as co-defendants. The defendants filed Tenn. R. Civ. P. 12.02(6) motions to dismiss, arguing that the plaintiff was not entitled to rely on the 120-day extension because he did not substantially comply with the pre-suit notice requirements of § 121(a)(2)(D) and (E). Before the trial court could rule on the motion, the plaintiff voluntarily dismissed his action. Then, relying on Tennessee Code Annotated § 28-1-105(a), Tennessee’s saving statute, the plaintiff refiled the action. The defendants responded by filing Rule 12.02(6) motions to dismiss, arguing that the original action and the refiled action were both time-barred because the plaintiff failed to substantially comply with § 121(a)(2)(D) and (E) prior to commencing the original action. The trial court denied the motion, ruling that the plaintiff substantially complied with the pre-suit notice statute in the original action and was thus entitled to rely on the extension under § 121(c). This Tenn. R. App. P. 9 interlocutory appeal followed. Having determined that the plaintiff did not substantially comply with the pre-suit notice requirements of § 121, we reverse and remand with instructions to dismiss all claims as barred by the statute of limitations.

Shelby County Court of Appeals 04/16/19
State of Tennessee v. Granvil Johnson
M2018-01257-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Cheryl Blackburn

A Davidson County jury convicted the Defendant, Granvil Johnson, of evading arrest, and the trial court sentenced the Defendant to eleven years in the Tennessee Department of Correction. On appeal, the Defendant contends that the trial court abused its discretion when it sentenced him and that he received the ineffective assistance of counsel at his sentencing hearing. After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Davidson County Court of Criminal Appeals 04/16/19
Ralph Ray v. State of Tennessee
E2018-01044-CCA-R3-PC
Authoring Judge: Judge Robert H. Montgomery, Jr.
Trial Court Judge: Judge Sandra Donaghy

The Petitioner, Ralph Ray, appeals the Bradley County Criminal Court’s denial of his petition for post-conviction relief from his 2016 conviction for second degree murder and his twenty-five-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

Bradley County Court of Criminal Appeals 04/16/19
State, ex rel., Department of Transportation v. William H. Thomas, Jr.
W2018-01541-COA-R10-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Walter L. Evans

The trial court reinstated its previous ruling that had been reversed on appeal because a “change in the controlling law” occurred that justified departure from the law of the case doctrine. Because we conclude that no change in controlling law occurred to allow the trial court to avoid application of the law of the case doctrine, we reverse the order of the trial court and remand for further proceedings before a different trial judge.

Shelby County Court of Appeals 04/15/19
Chris Whitney v. First Call Ambulance Service, Et Al.
M2018-01155-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

This is an appeal from the trial court’s grant of summary judgment dismissing a plaintiff-employee’s THRA and TPPA claims against two separate corporate entities—both of which the employee claimed were his employer. As to the employee’s THRA claim, the trial court found that the evidence of harassment and discriminatory conduct was not so severe or pervasive so as to establish a hostile work environment. As to the employee’s TPPA claim, the trial court found that the employer had a valid, non-discriminatory reason for termination. Additionally, the trial court found that the employee failed to establish that one of the entities was his employer for purpose of liability under either the THRA or the TPPA. Finding that the employee presented sufficient evidence to raise a genuine issue of disputed material fact as to both his THRA and TPPA claims against both entities, we vacate the trial court’s order and remand the case to the trial court.

Davidson County Court of Appeals 04/15/19
State of Tennessee v. David Mack Brewer
W2018-00241-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge Charles C. McGinley

Defendant, David Mack Brewer, was indicted by the Hardin County Grand Jury with one count of DUI per se, one count of DUI, and one count of possession of a loaded handgun while under the influence of an intoxicant. Defendant filed a motion to suppress all “evidence, specifically including any alcohol test results, firearm, statements and field sobriety tasks results, acquired, observed and/or seized by any and all law enforcement officers, . . . by means of a warrantless entry, search, seizure and arrest of the Defendant’s person, breath, acts, conduct, statements and vehicle . . . on April 26, 2016.” An evidentiary hearing was held. The trial court narrowed the issues during the hearing to the sole issue of whether there was an unlawful warrantless arrest. The trial court determined that the warrantless arrest for the misdemeanor of DUI was unlawful and granted the motion to suppress on that basis. The State subsequently announced it could not prosecute without the evidence which had been suppressed and moved to dismiss the indictment as a result of the suppression ruling. The trial court dismissed the charges, and the State filed a timely notice of appeal of the trial court’s suppression of the evidence. After oral argument and the review of the record and the parties’ briefs, we reverse the judgment of the trial court, reinstate the indictment, and remand for further proceedings in the trial court.

Hardin County Court of Criminal Appeals 04/15/19
State of Tennessee v. Eric Dewayne Wallace
W2018-00171-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Eric Dewayne Wallace, appeals the Shelby County Criminal Court’s dismissal of his motion to correct an illegal sentence. The State has filed a motion requesting that this court affirm the lower court’s denial of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Because the Defendant has failed to establish that his sentence is illegal, we conclude that the State’s motion is well-taken. Accordingly, we affirm the summary dismissal of the motion.

Shelby County Court of Criminal Appeals 04/15/19
Mike Settle v. State of Tennessee
W2018-01527-CCA-R3-ECN
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Kyle Atkins

The Petitioner, Mike Settle, appeals the trial court’s dismissal of his petition for writ of error coram nobis in which he challenged his 2001 guilty plea for especially aggravated kidnapping. Because coram nobis relief is not available to challenge guilty pleas, we affirm the trial court’s judgment pursuant to Court of Criminal Appeals Rule 20.

Madison County Court of Criminal Appeals 04/15/19
State of Tennessee v. Anterrio Chambers
W2018-01423-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge J. Robert Carter, Jr.

The Defendant, Anterrio Chambers, was convicted of attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony. He received an effective thirty-one-year sentence. On appeal, the Defendant challenges the sufficiency of the evidence supporting his convictions, the trial court’s failure to charge misdemeanor reckless endangerment as a lesser-included offense of attempted first degree murder, and the trial court’s imposition of partial consecutive sentences. Upon reviewing the record and the applicable law, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 04/15/19
State of Tennessee v. Donte Lavon Green
W2018-00092-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Donald H. Allen

The Defendant, Donte Lavon Green, was charged with narcotics offenses after drugs were discovered during a “protective sweep” of his motel room and subsequently seized pursuant to a search warrant. The trial court denied the Defendant’s motion to suppress the evidence, and a jury convicted him of possession with intent to sell 0.5 grams or more of cocaine, possession with intent to deliver 0.5 grams or more of cocaine, possession with intent to sell 14.175 grams or more of marijuana, possession with intent to deliver 14.175 grams or more of marijuana, and possession of drug paraphernalia. The Defendant challenges the sufficiency of the evidence and the denial of his motion to suppress. After a thorough review of the record, we conclude that the evidence is sufficient to support the convictions and that the Defendant is not entitled to the suppression of the evidence, which was seized pursuant to a search warrant not challenged on appeal. Accordingly, we affirm the trial court’s judgments.

Madison County Court of Criminal Appeals 04/15/19
Gregory J. Lammert, ET Al. v. Auto-Owners (Mutual) Insurance Company
M2017-02546-SC-R23-CV
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Chief Judge Waverly D. Crenshaw, Jr.

The United States District Court for the Middle District of Tennessee has submitted a certified question of law pursuant to Tennessee Supreme Court Rule 23 regarding the interpretation of two insurance policies: “Under Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation?”’ Based on Tennessee law regarding the interpretation of insurance contracts, we conclude that the language in the policies is ambiguous and must be construed in favor of the insured parties. Therefore, we answer the district court’s question in the negative: The insurer may not withhold a portion of repair labor as depreciation.

Supreme Court 04/15/19
Jerry Coleman v. Armstrong Hardwood Flooring Company ET AL.
W2017-02498-SC-R3-WC
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Allen Phillips

In this appeal from the judgment of the Court of Workers’ Compensation Claims, the employer and its insurer argue that the employee did not establish by a preponderance of the evidence that his injury arose primarily out of the course and scope of his employment, and that the employee’s physician expert did not use an appropriate method to opine on the impairment rating for the employee’s right ear. Discerning no error, we affirm.

Workers Compensation Panel 04/12/19