Court Opinions

Format: 06/22/2018
Format: 06/22/2018
Melissa Martin, Et Al. v. Rolling Hills Hospital, LLC, Et Al.
M2016-02214-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Michael Binkley

This is an appeal in a health care liability action from the dismissal of the action for Plaintiffs’ failure to comply with Tennessee Code Annotated section 29-26-121(a)(2)(E) when they failed to provide the Defendants with HIPAA compliant authorizations for release of medical records. The trial court held that, as a result of the failure, Plaintiffs were not entitled to an extension of the one-year statute of limitations for bringing suit and the action was barred. Plaintiffs appeal. Upon our review, we find that Plaintiffs substantially complied with the requirements of section 29-26-121 and that the Defendants have not shown that they were prejudiced by the deficiencies in the authorizations; accordingly, we reverse the decision of the trial court and remand the case for further proceedings. 

Williamson County Court of Appeals 06/22/18
In Re Joshua E., Et Al.
N2017-01184-COA-R3-JV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Sheila Calloway

Tabitha B. (“Mother”), represented by counsel, appeals the May 31, 2017 order of the Juvenile Court for Davidson County (“the Trial Court”). Mother’s brief on appeal fails to comply in any meaningful way with Tenn. R. App. P. 27. We, therefore, find that Mother has waived her issues on appeal.

Davidson County Court of Appeals 06/22/18
Jimmy Earl McClure v. Christopher Shawn Cole, Et Al.
M2017-00187-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Larry B. Stanley, Jr.

Personal injury action arising out of accident between a pickup truck and a dump truck hauling materials for a company that paved roadways. The pickup truck driver sued the driver of the dump truck and the paving company to recover for injuries he sustained in the accident. The trial court granted the paving company’s motion for summary judgment, holding that the driver of the dump truck was an independent contractor and that the paving company was not liable for the dump truck driver’s negligence. The injured driver appeals. Upon a thorough review of the record, we affirm the grant of summary judgment.

Warren County Court of Appeals 06/22/18
David R. Smith v. The Tennessee National Guard
M2016-01109-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Thomas W. Brothers

In 2014, the General Assembly enacted a statute waiving Tennessee’s sovereign immunity for claims brought against the State pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 to 4335 (“USERRA”). The waiver of sovereign immunity became effective on July 1, 2014, and applied to USERRA claims “accruing on or after” that date. After passage of the statute, the plaintiff brought a USERRA claim against the defendant, an entity of the State, but his claim was based on facts that occurred prior to August 8, 2011. The trial court dismissed the claim, explaining that the claim accrued prior to July 1, 2014, and remained barred by sovereign immunity. The Court of Appeals reversed, holding that the claim accrued on July 1, 2014, when the plaintiff gained a judicial remedy by the enactment of the statute waiving sovereign immunity. We conclude that the claim accrued prior to July 1, 2014, and remains barred by sovereign immunity. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

Davidson County Supreme Court 06/22/18
State of Tennessee v. Ashley Juvinall
E2017-01906-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Rex Henry Ogle

The Defendant, Ashley Juvinall, pleaded guilty to theft of property valued over $1,000, theft of property valued over $500 but less than $1,000, theft of property valued under $500, and fraudulent use of a credit card in exchange for an effective sentence of four years, eleven months, and twenty-nine days to be served on supervised probation. A probation violation warrant was issued alleging multiple violations and, after a hearing, the trial court revoked the Defendant’s probation sentence, ordering that she serve her sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked her probation sentence. After review, we affirm the trial court’s judgment.

Sevier County Court of Criminal Appeals 06/22/18
Charles Montague v. Michael D. Kellum
E2017-02526-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge James E. Lauderback

A man convicted of multiple criminal offenses sued his former criminal defense attorney for legal malpractice, and the trial court granted the defendant’s motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in dismissing his legal malpractice action. Because the plaintiff failed to establish a necessary element of his claim for criminal legal malpractice—namely, exoneration—we affirm the trial court’s decision.

Washington County Court of Appeals 06/22/18
State of Tennessee v. Brian Allen Spears
E2017-01458-CA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge Don R. Ash

The Defendant, Brian Allen Spears, appeals as of right from the Sevier County Circuit Court’s judgment revoking his community corrections sentence and ordering the Defendant to serve the remainder of his sentence in confinement. The Defendant argues that the trial court abused its discretion in ordering the sentence served in confinement. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court.

Sevier County Court of Criminal Appeals 06/22/18
State, ex rel., Sharon Denise Townsend v. Eric Wayne Williamson
W2017-01290-COA-R3-JV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Special Judge Nancy P. Kessler

Appellant/Father appeals the trial court’s order, charging Appellant with $23,663.54 in child support arrearage. Specifically, Appellant asserts that he is entitled to certain credits against the arrearage. Discerning no error, we affirm and remand.

Shelby County Court of Appeals 06/22/18
In Re: Kylea K.
E2017-02097-COA-R3-PT
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge John C. Rambo

This appeal involves the termination of a father’s parental rights. The trial court found that grounds existed to terminate parental rights based on a prior adjudication of severe child abuse and abandonment by willful failure to visit and support. The trial court also found, by clear and convincing evidence, that termination was in the best interest of the child. The father appeals. We vacate the trial court’s finding regarding one ground for termination but otherwise affirm the order terminating parental rights

Washington County Court of Appeals 06/21/18
Donald Douglas Wright v. Angel Sims Wright
M2018-00792-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Philip E. Robinson

The appellant has filed a notice of appeal from an order denying her motion to alter or amend. Because the motion to alter or amend was not timely filed and the court has already dismissed the appellant’s prior appeal from the underlying judgment as untimely, we dismiss the appeal for lack of jurisdiction.

Davidson County Court of Appeals 06/21/18
State of Tennessee v. Harley Crosland - Dissent
M2017-01232-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Joseph Woodruff

Believing that it is not a forced interpretation of Tennessee Code Annotated section 40-35-402(b)(1) to provide the State an avenue for appeal and thus convey appellate jurisdiction, I respectfully dissent.

Lewis County Court of Criminal Appeals 06/21/18
State of Tennessee v. Harley Crosland
M2017-01232-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph Woodruff

In this appeal, the State challenges the trial court’s application of the general savings statute to the Defendant’s theft conviction, which occurred prior to the amendment of the theft statute, see T.C.A. §§ 39-14-103 (2014) (theft); 39-14-105 (2014) (amended 2017). Because no appeal as of right lies for the State pursuant to Tennessee Rule of Appellate Procedure 3 or Tennessee Code Annotated section 40-35-402, this court lacks jurisdiction to review this issue. Accordingly, we dismiss this appeal. We nevertheless detect errors in the judgment and remand for entry of a corrected judgment to reflect a Class A misdemeanor consistent with the amended theft statute.

Lewis County Court of Criminal Appeals 06/21/18
State of Tennessee v. Lorenzoe Wilson
M2017-02084-CCA-R3-CD
Authoring Judge:
Trial Court Judge:

Lorenzoe Wilson (“the Defendant”) appeals the trial court’s revocation of his community corrections sentence and the imposition of his sentence of confinement, claiming that the trial court abused its discretion in finding that he violated the terms of alternative sentencing and that he should have been reinstated to community corrections. After a review of the record and applicable law, we conclude that the trial court did not abuse its discretion. The judgment of the trial court is affirmed.

Robertson County Court of Criminal Appeals 06/21/18
In Re: Estate Of Andrew Thomas Peery, Jr.
E2017-00603-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Michael A. Gallegos

The brother of a decedent filed a petition to admit to probate a purported holographic will. The decedent’s widow protested. After a hearing, the trial court ruled that the document was not a holographic will and that the decedent had died intestate. The brother appeals. We affirm. 

Blount County Court of Appeals 06/21/18
In Re Estate of Alys Harris Lipscomb
W2016-00881-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Karen D. Webster

The administrator of an estate appeals the trial court’s award of attorney fees to a beneficiary in a contempt action filed by him against the beneficiary. We reverse, holding that the trial court abused its discretion in its award of attorney fees because the fees awarded did not inure to the benefit of the estate.

Shelby County Court of Appeals 06/21/18
Gillis Elliot v. Mike Robbins, Et Al.
E2017-01440-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Elizabeth C. Asbury

This appeal arises from an action where the plaintiff sought to reform a deed that did not transfer a disputed acre of property to him. The plaintiff alleged that a mutual mistake had occurred and that both plaintiff and defendants had intended for the disputed acre to be sold. The trial court held that the mutual mistake existed and that the error was clear and convincing enough to allow for reformation of the deed. The defendants appeal. We affirm the decision of the trial court.

Claiborne County Court of Appeals 06/21/18
Roderick Dewayne Crosby v. State of Tennessee
M2017-01482-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Mark J. Fishburn

A Davidson County jury convicted the Petitioner, Roderick Dewayne Crosby, of four counts of aggravated kidnapping, three counts of aggravated robbery, one count of burglary, one count of aggravated assault, and one count of possession of a firearm during the commission of a dangerous felony, and the Petitioner received an effective sentence of thirty-four years. On appeal, this court affirmed the judgments. See State v. Roderick Dewayne Crosby, No. M2014-00914-CCA-R3-CD, 2015 WL 4197613, at *1 (Tenn. Crim. App., at Nashville, July 13, 2015), perm. app. denied (Tenn. Oct. 15, 2015). The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of counsel. After review, we affirm the post-conviction court’s judgment.

Davidson County Court of Criminal Appeals 06/21/18
In Re Seth Mc. Et Al.
M2017-02562-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Michael Meise

A mother of four children had her parental rights terminated based on the grounds of abandonment by failure to support, abandonment by failure to provide a suitable home, abandonment by wanton disregard, substantial noncompliance with permanency plans, severe child abuse, and persistence of conditions. Mother appealed the trial court’s judgment. We affirm the termination of her rights as to all grounds other than abandonment by failure to support, abandonment by failure to provide a suitable home, and persistence of conditions.

Dickson County Court of Appeals 06/20/18
Angela Michelle Newberry v. Jeremy Mack Newberry
E2017-00340-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge W. Neil Thomas, III

In this post-divorce case, Angela Michelle Newberry appeals the trial court’s modification of the permanent parenting plan. She challenges the trial court’s decision to change the designation of primary residential parent from her to her former spouse, Jeremy Mack Newberry. She also attacks the court’s decree reducing her co-parenting time. We hold that father failed to meet his burden of establishing a material change in circumstances affecting the children’s well-being, as required by Tenn. Code Ann. § 36- 6-101(a)(2)(B) (2017). Consequently, we reverse the trial court’s judgment and reinstate the parenting plan as originally agreed to by the parties and ordered by the court in the final divorce judgment.

Hamilton County Court of Appeals 06/20/18
Joseph Kantrell Norris v. State of Tennessee
M2017-01006-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Joseph Woodruff

The Petitioner, Joseph Kantrell Norris, appeals from the denial of post-conviction relief by the Williamson County Circuit Court. In this appeal, he argues that he received ineffective assistance of counsel. Upon our review, we affirm the judgment of the postconviction court.

Williamson County Court of Criminal Appeals 06/20/18
State of Tennessee v. Howard P. Fisher
M2017-00975-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Monte Watkins

Following a bench trial, the Defendant, Howard P. Fisher, was convicted of aggravated assault and criminal trespass, for which he received a ten-year sentence and a $50 fine, respectively. On appeal, the Defendant argues (1) that the evidence was insufficient to support his conviction of aggravated assault; (2) that the trial court erred in granting the State a continuance for sentencing; and (3) that the trial court erred in denying his ineffective assistance of counsel claim. Upon review, we affirm the judgments of the trial court.

Davidson County Court of Criminal Appeals 06/20/18
In Re: Amynn K.
E2017-01866-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Robert D. Philyaw

This is a termination of parental rights case involving the parental rights of the father, William K. (“Father”), to his minor child, Amynn K. (“the Child”), who was four years of age at the time of trial. The Child was born in 2013 to Father and Amanda S. (“Mother”). In April 2013, the Hamilton County Juvenile Court (“trial court”) granted temporary legal custody of the Child to the Tennessee Department of Children’s Services (“DCS”). The Child was immediately placed in foster care, where he has remained since that date. Following a hearing, the trial court entered an order on June 24, 2013, adjudicating the Child dependent and neglected due to Mother’s abandonment of the Child at the hospital following his birth. On August 23, 2016, DCS filed a petition to terminate the parental rights of Mother and Father. Following a bench trial, the trial court terminated Father’s parental rights to the Child upon determining by clear and convincing evidence that Father had (1) abandoned the Child through conduct exhibiting wanton disregard for the welfare of the Child prior to Father’s incarceration, (2) failed to substantially comply with the requirements of the permanency plans, and (3) failed to manifest an ability and willingness to personally assume custody of and financial responsibility for the Child. The court also found clear and convincing evidence that termination of Father’s parental rights was in the best interest of the Child. Father has appealed. Discerning no reversible error, we affirm.

Hamilton County Court of Appeals 06/20/18
Edward Wilson v. State of Tennessee
E2017-02232-CCA-R3-PC
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Bobby R. McGeei

The Petitioner, Edward Wilson, pled guilty to possession of heroin with the intent to sell, possession of cocaine with the intent to sell, and possession of marijuana with the intent to sell and to five misdemeanors, which consisted mainly of traffic offenses, in exchange for an agreed-upon effective sentence of twenty years of imprisonment as a Range II, multiple offender. He filed a timely post-conviction petition asserting that his trial counsel provided ineffective assistance by failing to inform him that he was pleading guilty to multiple offenses and by failing to litigate a motion to suppress. The postconviction court denied relief, finding that the Petitioner had failed to establish either deficiency or prejudice. After a thorough review of the record, we affirm the judgment of the post-conviction court.

Knox County Court of Criminal Appeals 06/20/18
State of Tennessee v. Kentrell Lebron Lindsey
E2017-01542-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Sandra Donaghy

The Defendant, Kentrell Lebron Lindsey, appeals the trial court’s order requiring him to serve in confinement his effective six-year sentence for his guilty-pleaded convictions of possession of dihydrocodeinone, a Schedule III controlled substance, with the intent to sell or deliver; possession of oxycodone, a Schedule II controlled substance, with the intent to sell or deliver; and possession of a firearm with the intent to go armed during the commission of a dangerous felony. The trial court found that Tennessee Code Annotated section 39-17-1324(e), which required that the Defendant serve his three-year sentence for the firearm conviction in confinement and consecutively to his sentences for the drug convictions, rendered the Defendant statutorily ineligible for probation for his drug convictions. We conclude, and the State concedes, that the trial court erred in finding the Defendant statutorily ineligible for probation for his drug convictions. Accordingly, we reverse the trial court’s denial of probation for the drug convictions and remand the case for the trial court to consider the Defendant’s suitability for probation on his three-year sentences for the drug convictions. The trial court’s judgments are otherwise affirmed.

Bradley County Court of Criminal Appeals 06/20/18
State of Tennessee v. Lisa Edwards
E2017-01709-CCA-R9-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Scott Green

Following the denial of her application for pretrial diversion, the defendant, Lisa Edwards, petitioned the Knox County Criminal Court for a writ of certiorari. The trial court denied the petition for writ of certiorari but granted the defendant’s request for an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. Because we find no abuse of discretion, we affirm the denial of pretrial diversion in this case.

Knox County Court of Criminal Appeals 06/19/18