Court Opinions

Format: 09/15/2019
Format: 09/15/2019
Corporate Flight Management, Inc. v. Talaviation, S.A. Et Al.
M2018-01492-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Barry R. Tidwell

The issue in this appeal is whether the Tennessee court had personal jurisdiction over the Defendant. A Luxemburg company contracted with a French citizen to provide the citizen with a certain number of flight hours on the company’s private jets; the contract provided that, if the company did not have a jet available, it would procure a private jet from a third party. After providing a jet for the citizen to travel from Luxemburg to Turks and Caicos, the company did not have a jet available to return the citizen to his home, so the company engaged a charter aircraft company based in Tennessee to fly the citizen home in one of the Tennessee company’s jets. When the Luxemburg company did not pay for the flight, the Tennessee company filed this breach of contract action against the Luxemburg company and the French citizen in Rutherford County Chancery Court. The French citizen moved to dismiss the action against him on the ground that the Tennessee court lacked personal jurisdiction over him; the motion was granted. The Tennessee company appeals, contending that the court had personal jurisdiction over the French citizen because the Luxemburg company acted as the citizen’s agent and its contacts with Tennessee were thereby imputed to him for jurisdictional purposes. We conclude that the trial court correctly determined that it did not have personal jurisdiction over the French citizen and accordingly affirm the judgment granting the motion to dismiss.  

Rutherford County Court of Appeals 08/28/19
James Bostic, Jr. v. State of Tennessee
M2018-01369-CCA-R3-PC
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve Dozier

The petitioner, James Bostic, Jr., appeals the denial of his petition for post-conviction relief, which petition challenged the revocation of the community corrections placement for his 2014 guilty-pleaded conviction of the sale of cocaine. In this appeal, the petitioner claims entitlement to post-conviction relief on grounds that he was deprived of the effective assistance of counsel at the community corrections revocation hearing. Discerning no error, we affirm.

Davidson County Court of Criminal Appeals 08/28/19
State of Tennessee v. Nathaniel A. Rhodes
M2018-00136-CCA-R3-CD
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge Brody N. Kane

The Defendant-Appellant, Nathaniel A. Rhodes, entered guilty pleas to one count of TennCare fraud in case number 15-CR-1060 and to one count of sale of Alprazolam in case number 15-CR-1061, with the trial court to determine the range, length, and manner of service of his sentences following a sentencing hearing. See Tenn. Code Ann. §§ 71-5-2601(a)(5)(A), 39-17-417. Thereafter, the trial court imposed two consecutive ten-year sentences in confinement. On appeal, Rhodes argues that the trial court imposed an excessive sentence. After reviewing the record in this case, we affirm the judgment of the trial court but remand the case for entry of corrected judgments as specified in this opinion.

Wilson County Court of Criminal Appeals 08/28/19
State of Tennessee v. Rickey Driver
W2018-02114-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Weber McCraw

A Fayette County jury convicted the defendant, Rickey Driver, of violating the requirements of the sexual offender registry due to his failure to report during 2016. The trial court imposed a six-year sentence which was suspended after 120 days of service. On appeal, the defendant challenges the sufficiency of the evidence supporting his conviction. Following our review of the record and pertinent authorities, we affirm the judgment of the trial court.

Fayette County Court of Criminal Appeals 08/27/19
State of Tennessee v. Trenton Ray Forrester
W2018-01947-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Donald H. Allen

The defendant, Trenton Ray Forrester, aggrieved of his Henderson County Circuit Court jury convictions of aggravated burglary and theft of property valued at more than $1,000 but less than $2,500, appeals, challenging the sufficiency of the convicting evidence and the propriety of the fully-incarcerative, six-year effective sentence. We affirm both the conviction and the accompanying sentence. Because, however, the trial court failed to consider the defendant’s ability to pay when setting the amount of restitution, we reverse the restitution order and remand the case for a new restitution hearing.

Henderson County Court of Criminal Appeals 08/27/19
Lexon Insurance Company v. Windhaven Shores, Inc., Et Al.
M2017-00959-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

In this appeal arising from a suit on an indemnity agreement, the indemnitee plaintiff moved for summary judgment. In response, one of the named indemnitors claimed that she could not determine if the signature on the agreement was hers. Another named indemnitor claimed that he was not sure if the signature on the agreement was his but conceded that it could be. And neither purported indemnitor recalled signing the indemnity agreement. The trial court determined that there was no genuine issue of material fact and granted summary judgment. On appeal, the purported indemnitors claim that, because the authenticity of their signatures was in dispute, summary judgment was improper. Alternatively, if summary judgment was appropriate on the issue of liability, the purported indemnitors claim that the trial court erred in its award of damages by including certain unpaid bond premiums and attorney’s fees. We affirm.   

Davidson County Court of Appeals 08/27/19
Jonathon D. Brown v. State of Tennessee
M2018-02055-CCA-R3-PC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Jill Bartee Ayers

Petitioner, Jonathon D. Brown, was convicted by a Robertson County jury of aggravated rape, especially aggravated kidnapping, and theft of property over the value of $1,000, for which he received an effective sentence of sixty years’ incarceration. Petitioner filed for post-conviction relief, which was denied following an evidentiary hearing. Petitioner appeals, asserting that he received ineffective assistance of counsel based on trial counsel’s failure to adequately meet with Petitioner given the severity of the charges and trial counsel’s failure to secure a land survey to “further buttress his venue argument.” After a thorough review, we affirm the judgment of the post-conviction court.

Robertson County Court of Criminal Appeals 08/27/19
In Re Khloe B. Et Al.
E2018-02265-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor John C. Rambo

Kristin B. (“Mother”) appeals the judgment of the Washington County Chancery Court (“Trial Court”) terminating her parental rights to the children, Khloe B. and Madison B. (“the Children”). Upon petition of Matthew B. (“Father”) and Amanda B. (“Stepmother”) (collectively, “Petitioners”), the Trial Court found that Mother had abandoned the Children by her actions exhibiting wanton disregard for the Children’s welfare and that termination of Mother’s parental rights was in the Children’s best interest. The Trial Court, therefore, terminated Mother’s parental rights to the Children. Discerning no error, we affirm.

Washington County Court of Appeals 08/26/19
Troy Love v. Andre McDowell Et Al.
E2019-00177-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Chancellor Elizabeth C. Asbury

This appeal involves a suit seeking partition of property owned by multiple individuals. The trial court dismissed the suit for failure to join an indispensable party. For the following reasons, we vacate the trial court’s order of dismissal and remand the case for further proceedings.

Union County Court of Appeals 08/26/19
In Re Jayda S.
E2019-00395-COA-R3-PT
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

Mother appeals the trial court’s order terminating her parental rights. Concluding that the record contains clear and convincing evidence to support the trial court’s findings of a ground for termination and that termination is in the child’s best interest, we affirm.

Hamilton County Court of Appeals 08/26/19
C.Bruce Batten v. Community Trust and Banking Company Et Al. - Dissent in Part
E2017-00279-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

This appeal arises from the trial court’s reconsideration and granting of summary judgment motions that had initially been denied by another judge. We affirm the judgment of the trial court.

Hamilton County Court of Appeals 08/26/19
C.Bruce Batten v. Community Trust and Banking Company Et Al. - Dissent in Part
E2017-00279-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

I concur in the majority opinion’s result with regard to Batten’s entitlement to the severance package and with regard to the award of attorney’s fees to Bank. However, I must dissent from the majority’s conclusion that the trial court correctly granted summary judgment to Attorney Edge on Batten’s negligent misrepresentation claim. As discussed by the majority, the alleged representation at issue in this case was that Attorney Edge was unaware of anything that would affect Batten’s ability to receive his negotiated severance benefits if he tendered his resignation in December 2009. According to Batten, Attorney Edge’s representation was false because Attorney Edge was at that time aware of several facts that could undermine Batten’s ability to receive the severance package.

Hamilton County Court of Appeals 08/26/19
Solomon Menche v. White Eagle Property Group, LLC, et al. - Dissent
W2018-01336-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Chancellor JoeDae L. Jenkins

I respectfully dissent from the majority’s decision to affirm the trial court’s award of attorney’s fees and expenses to the defendants following the entry of an agreed order granting a voluntary nonsuit to the plaintiff.

Shelby County Court of Appeals 08/26/19
Solomon Menche v. White Eagle Property Group, LLC, et al.
W2018-01336-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor JoeDae L. Jenkins

Plaintiff/Appellant brought suit against Defendants/Appellees over various business disputes. During the course of the discovery process, the trial court granted three motions to compel against Plaintiff, twice reserving Defendants’ request for attorney’s fees. Eventually, Defendants moved for discovery sanctions against Plaintiff, asking the trial court to award Defendants the attorney’s fees and expenses related to prosecuting the three motions to compel as well as the motion for sanctions. Shortly after the third motion to compel was granted, however, Plaintiff requested a voluntary nonsuit pursuant to Rule 41.01. Because Defendants’ motion for partial summary judgment was pending, the Defendants were required to agree to the nonsuit. The trial court granted the nonsuit based on Defendants’ consent, but later held a hearing on the Defendants’ motion for sanctions and awarded the Defendants their attorney’s fees and expenses. Plaintiff appealed to this Court. Discerning no reversible error, we affirm.

Shelby County Court of Appeals 08/26/19
State of Tennessee v. Antonious Johnson and Rodney Williams
W2018-01125-CCA-R3-CD
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge W. Mark Ward

The Defendants, Antonious Johnson and Rodney Williams, were convicted by a Shelby County Criminal Court jury of first degree felony murder, aggravated burglary, and employment of a firearm during the commission of a dangerous felony, and Defendant Johnson was additionally convicted of aggravated robbery and theft of property valued at more than $1000. Defendant Johnson received a sentence of life imprisonment plus nine years, while Defendant Williams received a life sentence. On appeal, the Defendants argue that the trial court improperly admitted the victim’s testimony and that the evidence is insufficient to sustain their convictions. Additionally, Defendant Johnson argues that he is entitled to relief based on cumulative error, while Defendant Williams argues that the trial court committed plain error in admitting a photograph of him at the crime scene and that his life sentence is cruel and unusual because he was a juvenile at the time of the offense. After thorough review, we affirm the judgments of the trial court.

Shelby County Court of Criminal Appeals 08/23/19
Brian Lee Webb v. State of Tennessee
W2018-01664-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Charles C. McGinley

Petitioner, Brian Lee Webb, appeals from the denial of his petition for post-conviction relief. Because Petitioner failed to establish that he received ineffective assistance of counsel, we affirm the judgment of the post-conviction court.

Benton County Court of Criminal Appeals 08/23/19
State of Tennessee Ex Rel. Herbert H. Slatery, III, Attorney General And Reporter v. HRC Medical Centers, Inc., Et Al.
M2017-02559-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Senior Judge Donald R. Ash

This is an action brought by the State of Tennessee pursuant to the Tennessee Consumer Protection Act, Tennessee Code Annotated section 47-18-101, et seq., and seeking judicial dissolution, pursuant to Tennessee Code Annotated section 48-24-301, of HRC Medical Centers, Inc., a for-profit corporation operating approximately 50 hormone replacement therapy centers. The State alleged, inter alia, that the corporation’s advertising for its hormone replacement therapy was deceptive, and sought restitution for consumers. Also sued were the owners of HRC and their spouses; it is alleged that those defendants, as recipients of some of the assets of HRC, are personally liable for violations of the Uniform Fraudulent Transfer Act, Tennessee Code Annotated sections 66-3-305(a) and 66-3-306(a). The defendants filed motions to dismiss, for summary judgment, and to remand the case to the Division of Health Related Boards of the Tennessee Department of Health; all of the motions were denied. The State moved for summary judgment on the issue of liability under the Consumer Protection Act and, after the motion was granted, on the issue of damages. In granting the second motion, the trial court entered an award of $18,141,750, based upon the median amount paid by consumers for the hormone therapy treatment. The defendants appeal, raising issues related to the trial court’s denial of their motion for remand, motions to dismiss, and motions for summary judgment; they also appeal the grant of summary judgment to the State. Upon a thorough review of the record, we affirm the judgment.  

Davidson County Court of Appeals 08/23/19
State of Tennessee v. Sean Angelo Davenport
E2018-01273-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Sandra Donaghy

A jury convicted Defendant, Sean Angelo Davenport, of first degree premeditated murder, and Defendant was sentenced to life. On appeal, Defendant argues that (1) the evidence was insufficient for a rational juror to have found him guilty of first degree premeditated murder; (2) the trial court erred by instructing the jury on flight; (3) the trial court erred by failing to give Defendant’s requested jury instruction on spoliation; (4) the trial court erred by admitting evidence of Defendant’s prior bad acts; and (5) the trial court erred by failing to order a mistrial when, during deliberations, the jury asked if Defendant had access to their personal information. After a thorough review of the facts and applicable case law, we affirm.

Bradley County Court of Criminal Appeals 08/23/19
In Re Brianna B., Et Al.
M2019-00446-COA-R3-PT
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Stella L. Hargrove

This is the second appeal in a case in which the mother of two children appeals the termination of her parental rights to the children. In the first appeal, this Court vacated the trial court’s holdings with respect to the grounds for termination and the determination that termination of the mother’s rights was in the children’s best interest; we remanded the case for the court to make additional factual findings and conclusions of law. On remand, the trial court considered the record and its previous order and entered an order in which it declined to make additional findings, and held “that its ruling is correct and is more than sufficient to find by clear and convincing evidence, that one or more statutory grounds for termination exist, and further, that termination is in the best interest of Lizzie, the remaining minor child.” Upon consideration of the record, we vacate the order entered following the remand from the prior appeal and remand the case for entry of an order that makes the factual findings and conclusions of law previously ordered by this Court.

Maury County Court of Appeals 08/23/19
State of Tennessee v. Charles E. Mason, Jr.
E2018-01310-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge James L. Gass

The Defendant, Charles E. Mason, Jr., pled guilty to four counts of aggravated assault and one count of aggravated stalking charged in three separate indictments and received an aggregate sentence of twenty years to be served on probation. The trial court found the Defendant in violation of his probation for three convictions of aggravated assault and for aggravated stalking and ordered him to serve these sentences in confinement. The Defendant appeals, asserting that the trial court erred in revoking his probation and that the trial court erred by not including graduated sanctions under Tennessee Code Annotated section 40-28-304 when it reinstated his probation approximately six months prior to the instant violation. We conclude that the trial court did not abuse its discretion in revoking the Defendant’s probation and that the issue regarding graduated sanctions has been waived. We affirm the trial court’s judgment.

Cocke County Court of Criminal Appeals 08/23/19
State of Tennessee v. Mohamed A. Almahmmody
M2018-01274-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Angelita Blackshear Dalton

A jury convicted Mohamed A. Almahmmody, Defendant, of one count of first degree premeditated murder and three counts of aggravated assault. The trial court sentenced Defendant to a total effective sentence of life plus six years. On appeal, Defendant argues that the trial court erred in denying his motion to suppress evidence obtained from his cell phone as a result of an invalid search warrant and that the trial court erred in declining to provide a special jury instruction on self-defense in the killing of an innocent bystander. After a thorough review of the facts and applicable case law, we affirm.

Davidson County Court of Criminal Appeals 08/23/19
In Re: Petition To Stay The Effectiveness of Formal Ethics Opinion 2017-F-163
M2018-01932-SC-BAR-BP
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge:

The Tennessee District Attorneys General Conference (“TNDAGC”) filed with this Court a petition to vacate Formal Ethics Opinion 2017-F-163 (“Opinion”) issued by the Board of Professional Responsibility (“Board”) regarding ethical considerations for prosecutors under Rule 3.8(d) of the Tennessee Rules of Professional Conduct. The TNDAGC also requested that the Court stay the effectiveness of the Opinion pending review. This Court determined that a full and deliberate review of the issues was necessary and granted a stay of the effectiveness of the Opinion. Based on our review, we decline to interpret a prosecutor’s ethical duty under Rule 3.8(d) as being more expansive than one’s legal obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, or that “timely” disclosure of the material should be interpreted as “as soon as reasonably practicable.” Accordingly, we vacate Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility. We also take this opportunity to interpret Rule 3.8(d) as coextensive in scope with a prosecutor’s legal obligations under Brady and its progeny, as explained in this opinion.

Supreme Court 08/23/19
Carolyn Diane Long v. Steven Lawrence Long
E2018-1868-COA-R3-CV
Authoring Judge: Judge Charles D. Susano, Jr.
Trial Court Judge: Judge Larry M. Warner

This divorce case involves the trial court’s classification and division of the separate and marital property of the parties. The trial court did not place a valuation on any of the property that was contested, nor did it refer to or make any findings regarding the factors provided by the governing statute, Tenn. Code Ann. § 36-4-121 (2017). We vacate the trial court’s order and remand with instructions to make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01.

Cumberland County Court of Appeals 08/23/19
Carl Short Ex Rel. Allison Hope Short v. Metro Knoxville HMA, LLC Et AL.
E2018-02292-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge William T. Ailor

This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.

Knox County Court of Appeals 08/23/19
Carl Short Ex Rel. Allison Hope Short v. Metro Knoxville HMA, LLC, Et Al. - Dissent
E2018-02292-COA-R3-CV
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge William T. Ailor

I respectfully dissent from the majority’s decision to reverse the trial court’s dismissal of this action. I believe that the trial court properly relied on this Court’s majority opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV, 2018 WL 6242461 (Tenn. Ct. App. Nov. 28, 2018), perm. app. denied (Tenn. Mar. 27, 2019), as an analogous case. The trial court found that the plaintiff, Carl Short (“Plaintiff”), had failed to substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) (Supp. 2018), which provides that written pre-suit notice shall include a HIPPA-compliant medical authorization “permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Inasmuch as the authorizations in the instant action authorize each defendant to disclose medical records to the other named medical providers but do not authorize each provider to request the other providers’ records, I conclude that, as in Parks, Plaintiff’s authorizations are “not sufficient to enable defendants to obtain plaintiff’s medical records” and are therefore not substantially compliant with the statute. See Parks, 2018 WL 6242461, at *3.

Knox County Court of Appeals 08/23/19