Tennessee Administrative Office of the Courts

Appellate Court Opinions

Format: 04/23/2019
Format: 04/23/2019
David B. Starkey v. Wells Fargo Bank, N.A.
M2018-00049-COA-R3-CV

After receiving notice of foreclosure proceedings, a homeowner filed suit against the bank challenging the bank’s authority to foreclose, demanding verification of the debt, and asserting multiple causes of action against the bank. The bank counterclaimed for slander of title, breach of contract, and declaratory judgment and injunctive relief. In response to the bank’s motion for summary judgment, the trial court determined that the bank was the holder in due course of the promissory note and the deed of trust and granted the bank summary judgment on all claims asserted by the homeowner and on the bank’s claims for breach of contract and for declaratory and injunctive relief. The bank subsequently moved forward with a foreclosure sale and purchased the homeowner’s property. The trial court then held two hearings on damages and awarded the bank a total of $194,554.23 in damages, which consists of the balance due on the loan, rent due after the foreclosure, and attorney fees and litigation expenses. On appeal, the homeowner raises numerous issues regarding the damages awarded to the bank. Finding no merit in the issues raised by the homeowner, we affirm the decision of the trial court.

Rutherford County Court of Appeals 04/23/19
Joe Logan Diffie v. Theresa Crump Diffie
M2018-00267-COA-R3-CV

In this divorce action, the husband contends the trial court erred in the division of marital property in awarding 60% of the marital estate to the wife and 40% to the husband, and in its decision to award the wife all four types of alimony. The wife takes issue with the amount of alimony awarded to her, and both parties seek attorney’s fees on appeal. We affirm the award of alimony in solido. As for the awards of alimony in futuro and transitional alimony, an award of alimony must be based on the factors known at the time of the hearing, Ford v. Ford, 952 S.W.2d 824, 829-30 (Tenn. Ct. App. 1996); however, the trial court considered the husband’s “speculative income,” that being what he might earn in the future, in setting the amount of alimony in futuro and transitional alimony. Accordingly, we reverse the amounts awarded for in futuro and transitional alimony and remand to the trial court to make additional findings of fact and conclusions of law to determine the wife’s need for each category of alimony and the husband’s ability to pay based upon the relevant factors and facts known at the time of the divorce, and enter judgment accordingly. We vacate the award of rehabilitative alimony because it was not requested, and there is no competent evidence to support an award of rehabilitative alimony. Moreover, because we have affirmed the finding that the wife is entitled to receive transitional alimony, which should be awarded only when rehabilitation is not necessary, see Tenn. Code Ann. § 36–5–121(d)(4), she may not be awarded rehabilitative alimony. Additionally, we decline the husband’s request to recover his attorney’s fees on appeal but grant the wife’s request and remand this issue for the trial court to award the fees and expenses she incurred on appeal that were reasonable and necessary. 

Williamson County Court of Appeals 04/23/19
State of Tennessee v. Lindsey S. Seymour
M2018-01008-CCA-R3-CD

Lindsey S. Seymour, Defendant, pled guilty to two counts of aggravated statutory rape, and her case was deferred pursuant to Tennessee Code Annotated section 40-35-313. After successfully completing the terms of judicial diversion, Defendant moved to be discharged from probation and to have the indictments against her dismissed. On May 1, 2017, the trial court entered an Agreed Order that “discharged and dismissed” all indictments in Case Number 9614 “with prejudice.” Section 4 of the Agreed Order provided that “Defendant shall be removed from the sexual offender registry” (“SOR”). Approximately two and a half months after the agreed order was entered, the trial court, in error, allowed the Tennessee Bureau of Investigation (“TBI”) to intervene, and the trial court vacated Section 4. At the time the motion to intervene was filed, the order dismissing all charges against Defendant with prejudice was final, and there was no pending action in which the TBI could intervene. Additionally, the trial court had neither subject matter jurisdiction over Defendant’s criminal case nor personal jurisdiction over Defendant at that time. Therefore, there is no criminal case for this court to review, and Defendant does not have an appeal as of right under Tennessee Rule of Appellate Procedure 3(b). We therefore dismiss the appeal.

Fentress County Court of Criminal Appeals 04/22/19
Frances Brooks v. Royce Bates
E2017-02011-COA-R3-CV

Royce Bates (“Defendant”) appeals the judgment of the Circuit Court for Hancock County (“the Trial Court”) awarding Francess Brooks (“Plaintiff”) a judgment against Defendant in a breach of contract action. Defendant raises issues regarding whether the Trial Court erred in not dismissing the case because the amounts were owed to Hugh G. Brooks Industries, LLC and not to Plaintiff and whether the Trial Court erred in not dismissing the case based upon Plaintiff’s alleged lack of standing to sue for a debt owed to the now deceased Hugh G. Brooks. We find and hold that Defendant waived his issues by not presenting them to the Trial Court. We, therefore, affirm the Trial Court’s judgment.

Hancock County Court of Appeals 04/22/19
State of Tennessee v. Charles Montague
E2018-01549-CCA-R3-CD

Defendant, Charles Montague, appeals the trial court’s summary denial of his motion to suspend the balance of his sentences. Because the trial court stated no basis for its denial of the motion, we review de novo. Nevertheless, Defendant’s motion is devoid of a basis for relief under Tennessee Code Annotated section 40-35-306(c), and the motion was filed approximately twenty-four years too late for consideration under Tennessee Rule of Criminal Procedure 35. We affirm the judgment of the trial court.

Washington County Court of Criminal Appeals 04/22/19
State of Tennessee v. Jamichael Dewayne Keith
E2018-00851-CCA-R3-CD

On December 4, 2017, the Defendant, Jamichael Dewayne Keith, pleaded guilty to possession of more than 0.5 grams of methamphetamine, a Schedule II controlled substance, with intent to sell, and attempted possession of heroin, a Schedule I controlled substance, with intent to sell. The trial court imposed concurrent sentences of eight years of incarceration for the methamphetamine charge and six years of incarceration for the heroin charge. The Defendant argues on appeal that the trial court erred in denying his request for probation. After thorough review, we affirm the sentencing decision of the trial court.

Knox County Court of Criminal Appeals 04/22/19
Steven Williams v. Gateway Medical Center, Et Al.
M2018-00939-COA-R3-CV

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

Montgomery County Court of Appeals 04/18/19
Steven Williams v. Gateway Medical Center, Et Al. - Concurring In Part and Dissenting In Part
M2018-00939-COA-R3-CV

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

Montgomery County Court of Appeals 04/18/19
Steven Williams v. Gateway Medical Center, Et Al. - Concurring In Part and Dissenting In Part
M2018-00939-COA-R3-CV

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

Montgomery County Court of Appeals 04/18/19
State of Tennessee v. Antonio Henderson
W2018-00669-CCA-R3-CD

The Defendant, Antonio Henderson, was convicted of especially aggravated robbery, attempted second degree murder, two counts of attempted aggravated robbery, aggravated assault, and employing a firearm during the commission of or attempt to commit a dangerous felony. The trial court imposed partial consecutive sentences for an effective sentence of forty-one years. This court previously affirmed the Defendant’s convictions but remanded the case to the trial court because the trial court failed to make findings specifying the basis upon which it relied in imposing partial consecutive sentences. On remand, the trial court issued an order articulating its reasoning for imposing consecutive sentences. The Defendant now appeals, arguing that the trial court erred in failing to grant him a new evidentiary hearing and in imposing consecutive sentences. Upon review of the record and applicable law, we affirm the trial court’s judgments.

Shelby County Court of Criminal Appeals 04/18/19
State of Tennessee v. Robert (Bob) George Keast
W2018-00559-CCA-R3-CD

The Defendant, Robert (Bob) George Keast, was convicted by a Benton County Circuit Court jury of domestic assault, a Class A misdemeanor, and was sentenced to eleven months and twenty-nine days, suspended to supervised probation after service of thirty days. On appeal, he argues that the evidence is insufficient to sustain his conviction and that the trial court erred in excluding proof of the victim’s prior arrest. After review, we affirm the judgment of the trial court.

Benton County Court of Criminal Appeals 04/18/19
Christopher Lee Shaw v. State of Tennessee
M2017-02379-CCA-R3-PC

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

Davidson County Court of Criminal Appeals 04/17/19
Dayle Ward, Et Al. v. Metropolitan Government Of Nashville And Davidson County, Tennessee, Et Al.
M2018-00633-COA-R3-CV

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

Davidson County Court of Appeals 04/17/19
Citizens Tri-County Bank v. Russell R. Goodman, ET Al.
M2018-00958-COA-R3-CV

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

Grundy County Court of Appeals 04/17/19
Thomas N. Allen v. Shawn Phillips, Warden
W2018-01736-CCA-R3-HC

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

Lake County Court of Criminal Appeals 04/17/19
In Re: Jaxx M.
E2018-01041-COA-R3-PT

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

Roane County Court of Appeals 04/17/19
State of Tennessee v. Shane Todd
W2018-00215-CCA-R3-CD

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

Gibson County Court of Criminal Appeals 04/17/19
State of Tennessee v. Krystal Gail Jenkins
E2018-01335-CCA-R3-CD

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

Bradley County Court of Criminal Appeals 04/17/19
State of Tennessee v. Ladarius Lockhart
W2018-00051-CCA-R3-CD

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

Shelby County Court of Criminal Appeals 04/17/19
James Dellinger v. State of Tennessee
E2018-00135-CCA-R3-ECN

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

Blount County Court of Criminal Appeals 04/17/19
State of Tennessee v. Markeith Chapale Pulliam
E2018-00434-CCA-R3-CD

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

Hamilton County Court of Criminal Appeals 04/17/19
Ralph Ray v. State of Tennessee
E2018-01044-CCA-R3-PC

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

Bradley County Court of Criminal Appeals 04/16/19
State of Tennessee v. Granvil Johnson
M2018-01257-CCA-R3-CD

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

Davidson County Court of Criminal Appeals 04/16/19
Kerry Gray v. Saint Francis Hospital-Bartlett, Inc. a/k/a Tenet HealthSystem Bartlett, Inc., et al.
W2018-00836-COA-R9-CV

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

Shelby County Court of Appeals 04/16/19
Gregory J. Lammert, ET Al. v. Auto-Owners (Mutual) Insurance Company
M2017-02546-SC-R23-CV

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

Supreme Court 04/15/19