Court Opinions

Format: 12/16/2018
Format: 12/16/2018
State of Tennessee v. Breyon Bates
W2017-01930-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Roy B. Morgan, Jr.

The Defendant, Breyon Bates, was convicted by a Madison County Circuit Court jury of possession of .5 grams or more of cocaine with the intent to deliver, a Class B felony; simple possession of cocaine, a Class A misdemeanor; and resisting arrest and criminal impersonation, both Class B misdemeanors. The trial court merged the simple possession count into the possession with intent to deliver count and sentenced the Defendant as a Range II, multiple offender to concurrent terms of 18 years for the felony cocaine conviction and six months for each of the misdemeanor convictions, for an effective term of 18 years in the Department of Correction, to be served consecutively to the sentence for an offense for which the Defendant was on probation at the time he committed the instant offenses. On appeal, the Defendant challenges the sufficiency of the evidence in support of his felony conviction and argues that the trial court erred by not charging the jury with casual exchange under Tennessee Code Annotated section 39-17-419. Following our review, we affirm the judgments of the trial court.

Madison County Court of Criminal Appeals 11/29/18
State of Tennessee v. Martrice Thomas
W2017-02489-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge Chris Craft

On September 21, 2017, the Defendant, Martrice Thomas, was convicted of first-degree premeditated murder. The trial court sentenced her to life imprisonment in the Department of Correction. The Defendant argues on appeal that the evidence is insufficient to sustain her conviction. After thorough review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Merrico Jackson
W2017-01782-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge James M. Lammey

The Defendant, Merrico Jackson, was convicted by a Shelby County Criminal Court jury of first degree premeditated murder and sentenced to life imprisonment. On appeal, the Defendant argues that the trial court erred in: (1) denying his request for a continuance; (2) failing to exclude a witness statement written on the back of a photograph array due to a discovery violation; (3) ruling that photographs of text messages and the call log from the Defendant’s phone were properly authenticated; and (4) excluding testimony about alleged witness intimidation by the State. After review, we affirm the judgment of the trial court.

Shelby County Court of Criminal Appeals 11/29/18
State of Tennessee v. Marcus Williams
W2018-00498-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

On March 2, 2018, the Defendant, Marcus Williams, was convicted of two counts of identity theft; two counts of theft of property over $500 but less than $1000; one count of fraudulent use of a credit/debit card over $1000 but less than $10,000; and two counts of fraudulent use of a credit/debit card over $500 but less than $1000. He was sentenced as a Range II, multiple offender to a total effective sentence of twenty-four years, to be served consecutively to a prior twenty-year sentence, for a combined total of forty-four years. On appeal, the Defendant asserts that there is insufficient evidence to sustain his convictions and that the trial court abused its discretion in denying his motion to sever the offenses. After thorough review, we dismiss this appeal.

Shelby County Court of Criminal Appeals 11/29/18
State, ex rel., Shem Peter Malmquist v. Danielle Nicolosi Malmquist
W2017-00893-COA-R3-JV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Dan H. Michael

In this post-divorce dispute, the mother, a California resident, asked the court to modify a Tennessee child support order. At the hearing before the magistrate, the mother agreed to a voluntary dismissal without prejudice. But later she asked the juvenile court for a rehearing. At the request of both parties, the juvenile court then directed the magistrate to hold another hearing on the mother’s motion. At the new hearing, the magistrate denied the mother’s request to testify by telephone. And, because no one present was ready to proceed, the magistrate also dismissed the notice of rehearing. On appeal, the mother argues that she was entitled to testify by telephone under the Uniform Interstate Family Support Act and the Americans with Disabilities Act. We conclude that the Uniform Interstate Family Support Act did not apply to her request to modify a Tennessee child support order. We further conclude that the record does not support her claim under the Americans with Disabilities Act. So we affirm.

Shelby County Court of Appeals 11/29/18
Susan R.Templeton v. Macon County, Tennessee, Board of Education
M2017-02544-COA-R3-CV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge John D. Wootten, Jr.

A 62-year-old former employee of the Macon County School System sued the Board of Education on the grounds of age discrimination and retaliation under the Tennessee Human Rights Act. She alleged that her supervisor, the school principal, made age related discriminatory remarks and demoted her after she complained about a co worker’s repeated, sexually explicit comments. In its answer, the Board of Education contended that the re-assignment was a lateral transfer and was justified by nondiscriminatory reasons. The trial court summarily dismissed the complaint finding, inter alia, that Plaintiff failed to establish a prima facie case of age discrimination or retaliation, and that the Board produced undisputed evidence of legitimate, nondiscriminatory reasons for transferring Plaintiff. We respectfully disagree, having concluded that Plaintiff identified and produced evidence to establish a prima facie case for both claims and to create a genuine issue of fact concerning whether the Board’s stated reasons are pretexts for discriminatory or retaliatory animus. For these reasons, the Board was not entitled to summary judgment. Accordingly, we reverse and remand for further proceedings.

Macon County Court of Appeals 11/29/18
In Re Jeromia W.
W2017-02529-COA-R3-PT
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Special Judge Harold W. Horne

This action involves the termination of a father’s parental rights to his minor child. Following a bench trial, the court found that clear and convincing evidence existed to support the statutory grounds of abandonment for failure to support and wanton disregard for the child’s welfare; substantial noncompliance with the permanency plan; and failure to manifest an ability and willingness to personally assume responsibility for the child. The court further found that termination was in the best interest of the child. We affirm.

Shelby County Court of Appeals 11/29/18
State of Tennessee v. Jewel Moses Bess
M2017-01519-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge David M. Bragg

A Rutherford County grand jury indicted the defendant, Jewel Moses Bess, with first degree murder for the death of his wife, the victim. Following trial, a jury found the defendant guilty as charged, and the trial court imposed a sentence of life imprisonment. On appeal, the defendant challenges the trial court’s evidentiary rulings allowing testimony of the victim’s intent to end their marriage and the defendant’s prior physical abuse of his son. After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Rutherford County Court of Criminal Appeals 11/29/18
Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.- Dissent
W2017-02211-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Donald H. Allen

I respectfully dissent from the majority’s decision in this case. I disagree with the majority’s assertion that “the argument that diagnosis codes cannot be the standard upon which an emergency is determined for purposes of payment does not somehow make common issues predominate regarding the claims for which a $50.00 cap provision is operative.” I would reverse the trial court as I believe that common issue predominates over all individual issues in this case.

Madison County Court of Appeals 11/29/18
Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.
W2017-02211-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Donald H. Allen

This interlocutory appeal pursuant to Tennessee Code Annotated section 27-1-125 follows the trial court’s denial of a motion for class action certification. The proposed class consists of various physicians and health care professionals who are participating providers in the Defendants’ insurance networks and who provide medical services in the emergency departments of hospitals. The central contention is that the class members’ contracts with the Defendants were breached when the fee for certain services was capped at a $50.00 rate. The trial court ultimately concluded that certification of the class was improper and held, among other things, that the plaintiff had not demonstrated that common issues in the case predominated over individual ones. For the reasons stated in this Opinion, we affirm the trial court’s denial of class certification.

Madison County Court of Appeals 11/29/18
In Re Steven W. Et Al.
M2018-00154-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Special Judge Alan Edward Calhoun

This is a termination of parental rights case, focusing on Steven W., Jr. (“Steven”); Joseph W.; Jorrie W.; Lyric W.; and Timothy W., the minor children (“the Children”) of Tabbitha S. (“Mother”) and Steven W. (“Father”). The Children were taken into protective custody by the Tennessee Department of Children’s Services (“DCS”) on August 14, 2015, upon investigation into allegations of inadequate supervision, lack of stable housing, child abuse, substance abuse, and domestic violence concerns. The Davidson County Juvenile Court (“trial court”) subsequently adjudicated the Children dependent and neglected as to both parents in an order entered May 16, 2016. On March 3, 2017, DCS filed a petition to terminate the parental rights of Mother and Father to the Children. Following a bench trial, the trial court granted the petition as to both parents in an order entered on December 28, 2017. As pertinent to this appeal, the trial court found that statutory grounds existed to terminate Mother’s parental rights upon its finding by clear and convincing evidence that (1) Mother had abandoned the Children by willfully failing to financially support them, (2) Mother had abandoned the Children by exhibiting behavior prior to her incarceration that demonstrated wanton disregard for the Children’s welfare, (3) Mother had failed to substantially comply with the reasonable responsibilities and requirements of the permanency plans, (4) the conditions leading to the Children’s removal from Mother’s home persisted, and (5) Mother had failed to manifest an ability and willingness to personally assume custody or financial responsibility for the Children. The trial court further found by clear and convincing evidence that termination of Mother’s parental rights was in the Children’s best interest. Mother has appealed. Having determined that DCS failed to present clear and convincing evidence that Mother’s failure to financially support the Children was willful, we reverse the trial court’s finding on that ground. We affirm the trial court’s judgment terminating Mother’s parental rights to the Children in all other respects.

Davidson County Court of Appeals 11/28/18
Roy Franks, et al. v. Tiffany Sykes, et al.
W2018-00654-COA-R3-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Judge Kyle Atkins

This appeal concerns two separate plaintiffs’ claims under the Tennessee Consumer Protection Act (“TCPA”), alleging that the filing of undiscounted hospital liens violated the TCPA by “[r]epresenting that a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law.” The trial court dismissed one plaintiff’s claim based on the pleadings due to the plaintiff’s failure to bring a claim under the Hospital Lien Act and dismissed another plaintiff’s claim for improper venue. We affirm in part as modified, reverse in part, and remand for further proceedings.

Madison County Court of Appeals 11/28/18
Raymond Bertuccelli Et Al. v. Carl Mark Haehner Et Al.
E2017-02068-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Jean A. Stanley

Appellants appeal the trial court’s order granting Appellees’ motion for summary judgment “as to all remaining issues” asserted by Appellants in their complaint. In its order granting summary judgment, the trial court failed to state the legal grounds on which it granted summary judgment on the remaining claims as required by Tennessee Rule of Civil Procedure 56.04. In the absence of such grounds, this Court cannot make a meaningful review of the trial court’s decision. We, therefore, vacate the trial court’s final order and remand the case for further proceedings. Vacated and remanded.

Washington County Court of Appeals 11/28/18
Linda Owens v. Hamilton County, Tennessee, Et Al.
E2017-02395-COA-R3-CV
Authoring Judge: Judge Kenny Armstrong
Trial Court Judge: Judge Pamela A. Fleenor

Taxpayer brought action against the county and the purchaser at the delinquent tax sale alleging the sale of her property was void due to the lack of notice of the delinquent tax sale proceeding. The trial court denied the motion for summary judgment filed by the taxpayer and dismissed taxpayer’s complaint in its entirety. Taxpayer appeals. Because the county never effectuated proper service on taxpayer, we reverse the trial court’s decision and remand with instructions that the trial court void the sale of taxpayer’s property and declare taxpayer the fee simple owner

Hamilton County Court of Appeals 11/28/18
State of Tennessee v. Matthew Reynolds, Alphonso Richardson, Cynthia Dianne Skipper, and Derek Vicchitto
M2017-00169-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jill Bartee Ayers

For their involvement in the death of the victim, Shirley Beck, the defendants, Matthew Reynolds, Alphonso Richardson, Cynthia Dianne Skipper, and Derek Vicchitto, were charged with one count of first degree murder (count one), one count of felony murder (count two), three counts of aggravated sexual battery (counts three, four, and five), and one count of especially aggravated kidnapping (count six). The trial court dismissed the three aggravated sexual battery counts against all four defendants before a jury convicted them of especially aggravated kidnapping. Additionally, in counts one and two, Defendants Reynolds and Richardson were convicted of first degree murder and felony murder as charged, Defendant Skipper was convicted of two counts of the lesser-included offense of criminally negligent homicide, and Defendant Vicchitto was convicted of two counts of the lesser-included offense of facilitation of second degree murder. The trial court merged each of the defendants’ convictions in counts one and two and imposed various sentences to each defendant. For Richardson’s convictions, the trial court imposed a life sentence plus twenty-five years which he challenges as excessive on appeal. Richardson, Reynolds, and Skipper challenge the sufficiency of the evidence supporting their convictions, both Richardson and Reynolds argue the trial court erred in instructing the jury, and Vicchitto challenges the trial court’s evidentiary ruling denying character evidence offered from his mother at trial. After our review, we affirm the evidence was sufficient to support the defendants’ convictions, conclude the trial court properly sentenced Richardson, and determine the trial court did not err in instructing the jury or in denying character evidence on behalf of Vicchitto. However, in merging each of the defendants’ convictions in counts one and two, the trial court failed to impose a sentence for the merged conviction. Therefore, we remand the case to the trial court for sentencing and the entry of completed judgment forms as to counts one and two for each defendant.

Montgomery County Court of Criminal Appeals 11/28/18
Hartford Caualty Insurance Company v. Comanche Construction, Inc., et al. v. Andrea Blackwell, et al.
W2017-02118-COA-R9-CV
Authoring Judge: Judge Brandon O. Gibson
Trial Court Judge: Senior Judge Robert E. Lee Davies

This case involves a dispute between workers’ compensation insurance carriers concerning liability for benefits paid to an injured employee. The plaintiff filed a declaratory judgment action seeking indemnity for benefits voluntarily paid to the employee on the theory that the employee was actually a loaned servant, which shifted liability to the defendant borrowing employer. The defendant filed a motion for summary judgment asserting that the undisputed facts could not establish a claim for implied indemnity. We granted this Rule 9 interlocutory appeal to consider whether the trial court improperly denied the motion. After our thorough review, we affirm the trial court’s decision to deny the motion for summary judgment and remand for further proceedings.

Dyer County Court of Appeals 11/28/18
Randall Turner v. State of Tennessee
E2018-00520-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Don W. Poole

The petitioner, Randall Turner, appeals the denial of his petition for post-conviction relief, which petition challenged his 2001 guilty-pleaded convictions of first degree murder, aggravated kidnapping, and aggravated robbery. Discerning no error, we affirm.

Hamilton County Court of Criminal Appeals 11/28/18
Jennifer Parks v. Rebecca A. Walker, M.D. et al. - dissenting
E2017-01603-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kristi Davis

I respectfully dissent from the majority’s decision in this case. I disagree with the majority’s holding “that the medical authorizations in this case do not substantially comply with the provisions of Tenn. Code Ann. § 29-26-121.” I would reverse the Trial Court as I believe the medical authorizations do substantially comply.

Knox County Court of Appeals 11/28/18
Jennifer Parks v. Rebecca A. Walker, M.D. et al.
E2017-01603-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Kristi Davis

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that plaintiff failed to substantially comply with the requirements of the notice statute by failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss. Plaintiff appeals. We affirm.

Knox County Court of Appeals 11/28/18
Blount Memorial Hospital v. Eric Glasgow
E2018-01242-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Telford E. Forgerty, Jr.

The Notice of Appeal in this case indicates that the appellant, Eric Glasgow, is appealing from a final judgment entered on June 8, 2018. However, the order entered on June 8, 2018, simply removes the case from the Trial Court’s active trial docket, subject to being re-activated to the active docket upon proper petition and/or application by any interested party. As such, we lack jurisdiction to consider this appeal.

Sevier County Court of Appeals 11/28/18
Lindsey Bailey Harmon (Jean) v. Richard Bradley Harmon
W2017-02452-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Mary L. Wagner

Mother/Appellant sought to relocate from Memphis, Tennessee to Chattanooga, Tennessee with the parties’ minor child. Father/Appellee opposed the relocation. The Circuit Court for Shelby County granted Father’s petition in opposition of the relocation, finding that (1) the parties were spending substantially equal time with the child, and (2) the proposed relocation was not in the child’s best interest. From this decision Mother appeals. Discerning no error, we affirm.

Shelby County Court of Appeals 11/27/18
Anupam Singla v. Anupam Garg Singla
M2017-01278-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor Joseph A. Woodruff

Anupam Singla (“Husband”) appeals the May 23, 2017 final order and judgment of the Chancery Court for Williamson County (“the Trial Court”), which, among other things, awarded Anupam Garg Singla (“Wife”) a divorce on the ground of inappropriate marital conduct, found that Husband had dissipated marital assets, divided the marital property, awarded Wife rehabilitative alimony and alimony in futuro, and entered a Permanent Parenting Plan for the parties’ minor child. Husband raises issues regarding the awards of alimony, the finding that he dissipated marital assets, and whether the distribution of marital assets was equitable. We find and hold that the Trial Court did not err in finding that Husband had dissipated marital assets, but we modify the finding to reflect that Husband dissipated only $73,010 in marital assets. We further find and hold that the Trial Court did not err in awarding Wife rehabilitative alimony and alimony in futuro, and that the Trial Court did not err in its division of the marital assets. We, therefore, affirm.

Williamson County Court of Appeals 11/27/18
In Re Karisah N. Et Al.
M2018-00555-COA-R3-PT
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge William M. Locke

Mother appeals the termination of her parental rights, arguing that termination was not in the children’s best interest. We conclude that clear and convincing evidence supports both the grounds for termination found by the trial court and the trial court’s best interest determination. Affirmed. 

Warren County Court of Appeals 11/27/18
Joel Foust et al. v. Hank Douglas, Jr. et al.
E2017-01403-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Rex H. Ogle

Suit brought by a hospital security guard and his wife to recover for injuries he sustained when a patient whom he was guarding attacked him; the patient was intoxicated and had been handcuffed to a hospital bed by the security guard. At the instruction of the hospital’s patient care coordinator, the security guard removed the handcuffs; a short while later the patient attacked the guard, injuring him. The suit alleged that the hospital was negligent in breaching various duties, which led to the guard’s injuries. The hospital moved for summary judgment, arguing it did not owe a duty to the security guard; the trial court agreed and granted the motion. The security guard appeals. Upon our review, we have determined that the undisputed facts show that the hospital voluntarily assumed a duty of care to the security guard and, consequently, reverse the judgment and remand the case for further proceedings.

Cocke County Court of Appeals 11/27/18
R.S. Blair Schievelhud et al. v. E.L. Parker, III et al.
E2018-01926-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge David R. Duggan

This is an appeal from a final order dismissing a civil action on grounds that the proceeding was barred by the running of the applicable statute of limitations. The final order of dismissal was entered on August 27, 2018. The Notice of Appeal was not filed with the Appellate Court Clerk until October 23, 2018. Because the Notice of Appeal was not timely filed, we have no jurisdiction to consider this appeal.

McMinn County Court of Appeals 11/27/18