Opinions

Tony Thomas v. State of Tennessee
W2022-00851-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Tony Thomas, appeals the Shelby County Criminal Court’s denial of
post-conviction relief. On appeal, Petitioner argues that the post-conviction court erred in
denying relief. Finding that the issues presented for our review are without merit, waived,
previously determined, or a combination thereof, we affirm the judgment of the postconviction
court.

Deshun Hampton v. State of Tennessee
W2022-01473-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Petitioner, Deshun Hampton, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of counsel and that his guilty plea was
not knowingly and voluntarily entered. Based on our review, we affirm the judgment of
the post-conviction court.

Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.
M2021-00174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Anne C. Martin

Plaintiff appeals the trial court’s decision to dismiss its class action allegations against two defendants on the basis of collateral estoppel. Specifically, the trial court ruled that while a prior determination that Appellant was not entitled to class action certification was not a final judgment on the merits, due to a dismissal of that case without prejudice, the ruling was “sufficiently firm” to have preclusive effect, citing the Restatement (Second) Of Judgments. Because Tennessee law requires a final adjudication on the merits for a judgment to be entitled to preclusive effect, we reverse.

Christine L. Manion Et Al. v. The Baldini, Pryor, and Lammert Partnership
M2022-00384-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Joseph A. Woodruff

The owners of certain real property sought a prescriptive easement over the parking lot of an adjacent neighbor. The trial court granted the prescriptive easement over the entirety of the neighbor's parking lot. The neighbor appealed. Discerning that the record contains clear and convincing evidence of all the requirements for a prescriptive easement, we affirm. We modify the trial court's judgment, however, by limiting the scope of easement to the route followed when the route was first established. 

State of Tennessee v. Anthony Terrell Brown
M2022-00729-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Dee David Gay

Anthony Terrell Brown, Defendant, was convicted by a jury in the Robertson County Circuit Court of first degree premeditated murder. He received a sentence of life in prison without parole. On appeal, Defendant contends the trial court erred when the presiding circuit court judge appointed, by interchange, a trial judge from an adjoining district to try the case, and that the evidence is insufficient to support his conviction. After review, we affirm the judgment of the trial court.

George Gary Ingram v. Dr. Michael Gallagher, Et Al.
E2020-01222-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care
liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among
others, Dr. Michael Gallagher ("Dr. Gallagher') and Chattanooga-Hamilton County
Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants,"
collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole
defendant. He thus removed the other defendants, including Erlanger, from the lawsuit.
Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer,
Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter
or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff s
claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021
WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court,
holding that the Trial Court erred in denying Plaintiff s motion to revise the order of
dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed
this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his
amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act
("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack
of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in
granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

Denise Phillips Jones v. Kelvin Dominic Jones
M2022-00624-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Robert E. Lee Davies

This appeal arises from a divorce. Prior to the marriage, the parties signed an antenuptial agreement that included a provision whereby Husband’s son from a prior marriage would be entitled to one-fourth of the value of the marital property upon divorce. During proceedings in the trial court, Husband filed a petition to hold Wife in criminal contempt. The trial court dismissed Husband’s petition for contempt, granted Husband a divorce on the uncontested ground of adultery, found the provision regarding Husband’s son to be unenforceable, and equitably divided the parties’ marital property. The trial court also declined to award Husband his requested discretionary fees. Primarily based on Husband’s failure to follow briefing requirements, we affirm the trial court’s judgment on all issues.

Madeline Luckett Nolan v. Gregory Stewart Nolan
W2021-01018-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Rhynette N. Hurd

The circuit court, finding that Father committed twenty-one counts of criminal contempt,
imposed a jail sentence and awarded Mother attorney’s fees. Father appeals, arguing that
the court’s holding violates the prohibition against double jeopardy, that the evidence is
insufficient to support thirteen of the counts, and that the court erred in awarding attorney’s
fees. We conclude that double jeopardy is not implicated in the findings of contempt and
that Father has not presented an argument entitling him to relief regarding the attorney’s
fees award. However, because the evidence is insufficient to support the finding of
contempt on Counts 9, 16, 36, and 40, we reverse the circuit court’s finding of contempt
on these counts. In addition, we conclude that Count 12 must be vacated because the
factual predicate of the trial court’s findings appears to potentially rest upon an unsupported
basis. The remaining 16 counts are affirmed and the case is remanded for further
proceedings.

In Re N.M.
E2022-01398-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This appeal arises from the termination of a mother’s parental rights to her minor child
upon the juvenile court’s finding by clear and convincing evidence of the statutory grounds
of abandonment by failure to provide a suitable home, abandonment by failure to visit,
abandonment by failure to support the child, abandonment by wanton disregard for the
child’s welfare, substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody of the
child.1 The juvenile court further found that termination of the mother’s parental rights
was in the child’s best interest. Discerning no error, we affirm.

Save Our Fairgrounds et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee et al.
M2021-00074-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Citizens sought to stop the construction and operation of a soccer stadium at The Fairgrounds Nashville. The plaintiffs advanced a plethora of legal theories in support of their claims that the soccer development violated the Metro Charter. After a month-long trial, the court dismissed the plaintiffs’ claims with prejudice. On appeal, the plaintiffs raise two issues: (1) whether the trial court’s orders were final; and (2) whether the court erred in ruling that the Metro Charter did not require a public referendum before any demolition and new development could occur at the Fairgrounds. We conclude that the court’s orders were final. But, because the challenged demolition and construction have already happened, we dismiss this appeal as moot.

Kim Williams v. The Lewis Preservation Trust Et Al.
E2022-01034-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Melissa Thomas Willis

In 2012, Robert and Elizabeth Ann Lewis created a revocable trust and transferred thereto
their rental property business as well as real estate. Several years later, after Robert was
deceased and Elizabeth had become incapacitated, one of the Lewis’ sons, acting as
Elizabeth’s attorney-in-fact, created a new trust with terms different from that of the
original. A different Lewis sibling, Kim Williams, disputed the son’s authority to create
the second trust pursuant to both the terms of the original trust and his power of attorney.
Kim Williams claimed, inter alia, that the son breached several fiduciary duties in creating
the second trust. Following discovery and an unsuccessful mediation, the Chancery Court
for Rhea County (the “trial court”) denied Ms. Williams’ motion for summary judgment
and granted the defendants’ cross-motion for summary judgment. Ms. Williams appeals.
Having reviewed the record and arguments of the parties, we conclude that the trial court’s
ruling is affirmed in part, reversed in part, and vacated in part, and the case remanded for
further proceedings.

Abigail Lynn Sevigny v. Warren Maxwell Sevigny
M2022-00953-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip R. Robinson

In this post-divorce dispute, the wife filed a petition for criminal contempt. After testimony was heard, the parties announced in broad terms that they had reached a settlement. Thereafter, the parties could not agree on the terms of the settlement. At a hearing on the husband’s motion requesting approval of his proposed order, the court dismissed the petition on grounds of double jeopardy. We have determined that the trial court erred in dismissing the case and remand for further proceedings.

In Re Trust of Nellie B. Fontanella
M2022-01822-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This is an appeal from an order requiring a trustee to provide an updated accounting to a beneficiary at the beneficiary’s expense. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

State of Tennessee v. Justin L. Stegall
W2022-00628-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Donald H. Allen

Defendant was convicted of a single count of aggravated sexual battery, and the trial court
imposed a sentence of eight years as a Range I offender to be served in confinement. On
appeal, Defendant argues that the evidence was insufficient to support his conviction and
that the trial court erred by admitting the video recording of the minor victim’s forensic
interview. Following our review of the entire record and the parties’ briefs, we reverse
Defendant’s conviction and remand this case for a new trial.

State of Tennessee v. Dashun Shackleford
E2020-01712-SC-R11-CD
Authoring Judge: Chief Justice Roger A. Page
Trial Court Judge: Judge Steven Wayne Sword

This appeal concerns the criminal gang-enhancement statute, Tennessee Code Annotated
section 40-35-121, and specifically what is required in an indictment to sufficiently plead
and provide notice under the statute. Dashun Shackleford (“Defendant”) was arrested for
aggravated robbery as to four individuals in September 2016, along with his friend and
fellow gang member, Jalon Copeland. Defendant’s indictment contained twenty counts:
four alternative counts each of aggravated robbery against four victims and four
corresponding counts of criminal gang offense enhancement. The gang-enhancement
statute requires the State to give notice in separate counts of the indictment of the
enhancement applicable under the statute. The indictment also alleged that Defendant was
a “Crips” gang member and listed the convictions of fifteen alleged fellow Crips members
to prove Defendant’s gang had a “pattern of criminal gang activity,” as also required by
the gang-enhancement statute. A Knox County jury convicted Defendant as charged. The
trial court merged the aggravated robbery convictions into four counts and imposed a total
effective sentence of twenty years to be served at eighty-five percent. In this case, the
gang- enhancement conviction increased Defendant’s aggravated robbery convictions from Class
B felonies to Class A felonies. Defendant appealed, arguing, among other things, that the
evidence at trial was insufficient to support his gang-enhancement conviction. The Court
of Criminal Appeals agreed, taking particular issue with the allegation in the indictment
that Defendant and the other gang members listed therein were plain Crips. In the
gang-enhancement phase of trial, the proof established that the majority of the gang members
listed in the indictment, including Defendant, were members of several different subsets of
the Crips gang, with only one of the listed men identified as a plain Crip. The intermediate
court concluded that the State failed to prove that Defendant’s subset gang had engaged in
a pattern of criminal gang activity and failed to comply with the notice requirements of the
gang-enhancement statute. In doing so, the court also, sua sponte, determined that a fatal
variance existed between the indictment and proof at trial. The Court of Criminal Appeals,
therefore, reverted Defendant’s aggravated robbery convictions to a classification lower in
the absence of the gang enhancement. After review, we conclude that the Court of Criminal
Appeals erred in its decision. The gang-enhancement statute is worded broadly and does
not require the State to specify in the indictment a criminal defendant’s gang subset nor
that the defendant is in the same gang subset as the individuals whose criminal activity
establishes the gang’s “pattern of criminal gang activity.” Defendant waived all other issues
by failing to properly raise them before the trial court or on appeal. Therefore, the decision
of the Court of Criminal Appeals is reversed and the trial court’s judgments are reinstated.

State of Tennessee v. Halley O'Brien Thompson
W2022-01535-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Kyle C. Atkins

A Madison County Circuit Court jury found the Defendant, Halley OBrien Thompson,1
guilty of aggravated sexual battery. The trial court sentenced the Defendant to fourteen
years in the Tennessee Department of Correction. On appeal, the Defendant contends that
the trial court erred by allowing an investigator to testify that it was common for child
victims to delay reporting allegations of sexual assault. He also argues that the State
presented improper prosecutorial argument during its rebuttal closing argument. Upon
review, we respectfully disagree and affirm the trial court’s judgment.

Knox Community Development Corporation v. William G. Mitchell
E2023-00714-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Charles A. Cerny Jr.

This is an appeal from a final order entered on January 17, 2023, in the Knox County
General Sessions Court (“Trial Court”). The Notice of Appeal filed by the appellant
incorrectly sought review in this Court instead of the circuit court. Furthermore, the Notice
of Appeal was not filed until May 12, 2023, more than ten days after entry of the Trial
Court’s judgment from which the appellant seeks to appeal. Because the Notice of Appeal
was untimely and was filed in the wrong court, we have no jurisdiction to consider this
appeal. We also determine that transferring the appeal to the correct court would be futile.

John Benbow v. L&S Family Entertainment, LLC, Et Al.
M2022-00491-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joe Thompson

This case concerns claims of negligence against several people and entities for allegedly serving alcohol to and/or failing to protect a 20-year-old man who died in a car accident while intoxicated. John D. Benbow (“Plaintiff”), individually and as next of kin to his son, Jacob N. Benbow, deceased, filed a wrongful death action in the Sumner County Circuit Court (“the Trial Court”) against the defendants, L&S Family Entertainment, LLC d/b/a Strike & Spare (“L&S”); JPZ, LLC d/b/a Silverado Rivergate Sports Bar & Grill (“Silverado’s”); 1 Rancho Cantina, LLC (“Rancho Cantina”); Jody D. McCutchen; Brandi McCutchen; and Brenon D. McCutchen (“the McCutchens”). Certain of the defendants filed motions for summary judgment. The Trial Court granted summary judgment for Rancho Cantina, L&S, Brandi, and Jody. 2 However, the Trial Court denied summary judgment for Brenon.3 Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment to Jody because Plaintiff failed to create any genuine issue of material fact that Jody took charge of Jacob. However, we reverse the Trial Court’s grants of summary judgment to Rancho Cantina, L&S, and Brandi, as genuine issues of material fact exist with respect to Plaintiff’s claims against those parties. We observe that the standard is comparative fault, not contributory negligence. Whether Jacob was at least 50% at fault for comparative fault purposes is a question not properly resolvable at this summary judgment stage under the facts of this case. We thus affirm, in part, and reverse, in part. We remand to the Trial Court for further proceedings consistent with this Opinion.

Dan E. Durell v. State of Tennessee
E2022-01541-CCA-R3-HC
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Steven Wayne Sword

Dan E. Durell, Petitioner, appeals from the summary dismissal of his habeas corpus
petition, in which he claimed his convictions were void because the State withheld
exculpatory evidence during sentencing; the State misrepresented facts to the trial court
that were relied upon in sentencing; and his convictions violate double jeopardy. After a
thorough review of the record and the applicable law, we affirm the judgment of the habeas
court.

State of Tennessee v. Ryan Monroe Allen
E2022-00437-CCA-R3-CD

The pro se Defendant, Ryan Monroe Allen, appeals his jury convictions for second degree
murder and abuse of a corpse, and his resulting effective forty-year sentence. On appeal,
the Defendant argues as follows: (1) the trial court erred by denying the Defendant’s
motion to continue or, in the alternative, to proceed pro se that was made at the start of
trial, thus, forcing the Defendant to proceed to trial with an attorney who had a conflict of
interest; (2) the trial court erred by admitting evidence of the Defendant’s prior bad acts in
violation of Tennessee Rule of Evidence 404(b), and the prosecutor explicitly defied the
trial court’s pretrial 404(b) ruling during opening statements; (3) the trial court erred by
failing to address pretrial the Defendant’s motion to dismiss the abuse of a corpse charge
due to insufficient proof of venue or, in the alternative, to sever the two offenses; (4) the
evidence was insufficient to support the Defendant’s convictions; (5) the trial court erred
by not excusing a juror who indicated that she might have known the spouse of someone
who assisted with the investigation; (6) the trial court erred by denying the Defendant’s
motion for a mistrial made because the State failed to disclose prior to trial that two
witnesses were going to testify to having seen certain evidence in the Defendant’s
residence; (7) the trial court erred by denying the Defendant’s motion to recuse made on
the ground that the trial court was holding court proceedings without the Defendant present
and was biased against the Defendant; (8) the Defendant’s sentence was out-of-range and
illegal because he was not provided with the State’s notice of its intention to seek enhanced
punishment; (9) the State’s case was based on perjured and recanted testimony; and (10)
the State committed prosecutorial misconduct by suppressing certain pieces of evidence.
Following our review of the record and applicable authorities, we affirm the judgments of
the trial court.

State of Tennessee v. Undray Luellen
W2022-01489-CCA-R3-Cd
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Jennifer Fitzgerald

The petitioner, Undray Luellen, appeals the denial of his Rule 36.1 motion to correct an
illegal sentence, asserting that his sentence is illegal because the trial court imposed
consecutive sentences without stating its reasons on the record. Upon our review of the
record and applicable law, we affirm the judgment of the trial court.

State of Tennessee v. Frederick D. DeBerry
W2022-01530-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge J. Weber McCraw

The petitioner, Frederick D. DeBerry, appeals from the Fayette County Circuit Court’s summary dismissal of his pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1.  Based on our review of the record, the parties’ briefs, and the applicable law, we conclude that the petitioner’s appeal is untimely, the interest of justice does not mandate waiver of the untimely notice, and therefore, the appeal should be dismissed.

Mike Snodgrass v. AHA Mechanical Contractors, LLC
W2022-00105-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Robert Samual Weiss

Plaintiff, Defendant’s former employee, filed suit under the Fair Labor Standards Act
alleging that he had suffered a loss of overtime wages. The trial court entered a judgment
denying Plaintiff any recovery. For the reasons stated herein, we conclude that the trial
court’s findings are insufficient. Although under the specific circumstances presented here
we would generally remand the case to allow the trial court an opportunity to more clearly
state its findings, as well as offer specific findings and conclusions in reference to the
appropriate legal standards, the judge who tried this case is no longer on the bench.
Accordingly, we are compelled to vacate the judgment and remand for a new trial on the
question of whether Defendant improperly denied Plaintiff overtime pay.

Clayton D. Richards v. Vanderbilt University Medical Center
M2022-00597-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Thomas W. Brothers

This appeal concerns a complaint for health care liability. Although Tennessee Code Annotated section 29-26-121(c) provides for an extension of the applicable statutes of limitations in health care liability actions when pre-suit notice is given, it also specifies that “[i]n no event shall this section operate to shorten or otherwise extend the statutes of limitations or repose applicable to any action asserting a claim for health care liability, nor shall more than one (1) extension be applicable to any [health care] provider.” After a prior lawsuit was voluntarily dismissed without prejudice, Plaintiff provided new pre-suit notice and refiled in reliance on the Tennessee saving statute and an extension under Tennessee Code Annotated section 29-26-121(c). The trial court dismissed the refiled complaint with prejudice, however, holding, among other things, that Plaintiff could not utilize the statutory extension in his refiled action because he had already utilized a statutory extension in the first lawsuit. For the reasons discussed herein, we affirm the trial court’s dismissal of Plaintiff’s lawsuit.

Clayton D. Richards v. Vanderbilt University Medical Center - Concurring
M2022-00597-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Thomas W. Brothers

Although I ultimately agree with the majority’s conclusion, I write this separate concurrence to express my concerns with the result in this case.