Appellate Court Opinions

Format: 04/17/2021
Format: 04/17/2021
REGINALD M. YOUNGER v. KIBREAB KIDANE OKBAHHANES
E2020-00429-COA-R10-CV

This appeal arises from a personal injury action. The plaintiff filed this action more than one year after the vehicle collision from which the cause of action accrued. The defendant filed a motion for summary judgment, arguing that the plaintiff’s action was untimely. The plaintiff filed a response arguing that the statute of limitations for personal injury actions was extended to two years, pursuant to Tennessee Code Annotated § 28-3-104(a)(2), due to the traffic citation issued to the defendant for failure to exercise due care in violation of section 55-8-136 as a result of the vehicle collision. The Trial Court found that section 28- 3-104(a)(2) was applicable to extend the statute of limitations to two years because the defendant had been charged with a criminal offense and a criminal prosecution had been commenced against him. Discerning no error, we affirm.

Roane County Court of Appeals 01/28/21
Nathaniel J. Lee v. Amber F. Lee
E2019-01653-COA-R3-CV

In this appeal from a final decree of divorce, Husband challenges the trial court’s division of the marital estate and the award of alimony in futuro. He also raises issues concerning the court’s denial of his request to rescind a mediated settlement agreement and to pay the alimony in solido award in installments. Discerning no abuse of discretion, we affirm.

Washington County Court of Appeals 01/28/21
STATE OF TENNESSEE v. CRAIG DAGNAN
M2020-00152-CCA-R3-CD

Craig Dagnan, Defendant, violated the conditions of probation, and the trial court revoked his probation but ordered his probation reinstated after eleven months and twenty-nine days’ incarceration. Defendant was granted a furlough from jail to attend an inpatient drug and alcohol program. After being dismissed from the inpatient program, Defendant failed to report back to jail and absconded. He was charged with escape, and a revocation warrant was issued. He was apprehended in Georgia and returned to Tennessee. Following a hearing, the trial court revoked Defendant’s probation and ordered Defendant to serve the balance of his six-year sentence. Discerning no error, we affirm.

Marion County Court of Criminal Appeals 01/28/21
STATE OF TENNESSEE v. CRAIG DAGNAN- Concurring
M2020-00152-CCA-R3-CD

I concur fully with the conclusion reached by the majority that there was overwhelming evidence to support the trial court's decision to revoke Defendant's probation and to order Defendant to serve the balance of his six-year sentence in incarceration. I write separately to simply express my belief that once a determination is made that a defendant has violated the conditions of his or her probation, neither an additional hearing not any additional findings are statutorily mandated of a trial court to determine the manner in which the original sentence should be served.1 Thus, there is no opportunity for an abuse of discretion when a "second exercise of discretion" is not required by either sections 40-35-310 or 40-35-311 of Tennessee Code Annotated.

Marion County Court of Criminal Appeals 01/28/21
Rania Anwar Al Qaisi v. Diab Mahmoud Alia
M2020-00390-COA-R3-CV

This appeal arises from a divorce proceeding after a short-term marriage. The husband challenges the trial court’s decisions regarding his parenting time, the calculation of his income, and its award of alimony to the wife. We affirm.

Court of Appeals 01/28/21
State of Tennessee v. Baldomero Galindo
E2020-00556-CCA-R3-CD

A Knox County jury convicted the defendant, Baldomero Galindo, of first degree murder, for which he received a sentence of life imprisonment. In this delayed appeal, the defendant argues the trial court erred in denying his motion for mistrial following the late disclosure of several discovery materials in violation of Brady v. Maryland, 373 U.S. 83 (1963). After reviewing the record and considering the applicable law, we affirm the judgment of the trial court.

Knox County Court of Criminal Appeals 01/27/21
STATE OF TENNESEE v. JAVIAN JAKEIL HAWKINS
M2019-01020-CCA-R3-CD

The Defendant, Javian Jakeil Hawkins, appeals from his twenty-five-year sentence imposed for his second degree murder conviction, contending that the trial court abused its discretion by imposing the maximum in-range sentence and by denying his motion to reduce sentence pursuant to Tennessee Rule of Criminal Procedure 35. Following our review, we affirm; however, we remand for correction of a clerical error on the judgment form.

Montgomery County Court of Criminal Appeals 01/27/21
Lori Ann Amacher v. Stanley Dwight Amacher
M2019-02251-COA-R3-CV

This is a divorce case. Appellant Wife appeals the trial court’s division of property, arguing that the court erred in: (1) classifying the appreciation of her separate property as marital property; (2) excluding from the marital estate certain real property that Husband transferred to his father; (3) not finding that Husband dissipated the marital estate; and (4) inequitably dividing the estate. Wife argues that alimony in solido should have been granted in light of the inequitable division and that she should have been awarded her attorney’s fees. Wife also requests attorney’s fees incurred in this appeal. We affirm the trial court’s exclusion of the transferred property from the marital estate. We also conclude that Wife failed to prove dissipation by a preponderance of the evidence. However, we vacate the property division and remand for additional findings of fact with respect to the appreciation of Wife’s separate property, and for a reconsideration of the property division. The reconsideration of the property division necessitates a reconsideration of alimony; thus, we vacate the trial court’s denial of alimony in solido and remand for proceedings consistent with this opinion. We award Wife’s attorney fees for this appeal.

Franklin County Court of Appeals 01/27/21
Raun Swafford v. Caprice Wofford
E2020-01571-COA-R3-CV

The appellee, Ruan Swafford (“Appellee”), filed a motion to dismiss this appeal alleging that the notice of appeal was not timely filed. Because the notice of appeal was not timely filed, this Court lacks jurisdiction to consider this appeal.

Hamilton County Court of Appeals 01/27/21
Tina Vaughn v. DMC-Memphis, LLC
W2019-00886-COA-R3-CV

Plaintiff filed a claim in general sessions court for injuries she allegedly received when she fell in standing water on the defendant’s premises. Judgment was rendered in favor of the defendant, and the plaintiff appealed to circuit court. The defendant then filed a motion for summary judgment arguing that it owed no duty to the plaintiff and that she was at least 50% at fault for her injuries. In support, the defendant relied on plaintiff’s testimony from the trial in general sessions court. The circuit court granted the motion for summary judgment, and plaintiff again appealed. We vacate the judgment of the trial court.

Shelby County Court of Appeals 01/27/21
STATE OF TENNESSEE v. JAMES EARL GORDON
M2019-01729-CCA-R3-CD

The Pro Se Defendant, James Earl Gordon, appeals the trial court’s summary denial of his motion to correct an illegal sentence, pursuant to Tennessee Rule of Criminal Procedure 36.1, in which he argues that he received ineffective assistance of counsel and raises various constitutional issues. After thorough review, we affirm the denial of the motion.

Williamson County Court of Criminal Appeals 01/27/21
Franklin Real Estate Group, Inc. v. Spero Dei Church
M2019--1691-COA-R3-CV

A real estate broker filed a complaint against a client alleging that the client breached the parties’ brokerage agreement by purchasing a property and not paying a commission to the broker.  The client filed a motion for summary judgment asserting that the brokerage agreement was void for vagueness because one of its provisions was illogical.  The trial court disagreed with the client after concluding that any confusion was due to a simple drafting error.  The trial court reformed the brokerage agreement to reflect the parties’ intentions and determined that the client breached the brokerage agreement as reformed. The trial court then, sua sponte, granted summary judgment to the real estate broker.  We affirm.

Davidson County Court of Appeals 01/27/21
Curtis Keller v. State of Tennessee
W2019-01652-CCA-R3-ECN

The Petitioner, Curtis Keller, appeals the summary dismissal of his petition for writ of error coram nobis, in which he sought relief from his convictions for three counts of especially aggravated kidnapping, three counts of aggravated robbery, four counts of attempted aggravated robbery, aggravated burglary, and intentionally evading arrest in a motor vehicle. The Petitioner seeks coram nobis relief related to an undiscovered report matching his DNA to DNA from a ski mask used during the home invasion that led to his convictions. The Petitioner asserts he is entitled to due process tolling and a hearing. We conclude that because there is no reasonable basis to conclude that the evidence might have led to a different outcome, the trial court did not err in dismissing the petition without a hearing, and we affirm the judgment.

Shelby County Court of Criminal Appeals 01/27/21
State of Tennessee v. Jack Edward Thomas
E2020-00044-CCA-R3-CD

The Defendant, Jack Edward Thomas, pled guilty to arson and received a five-year sentence, with one year of incarceration to be followed by four years of probation. Following a hearing, the trial court ordered restitution in the amount of $4,320, with the Defendant to make installment payments of $90 per month. The Defendant appeals the restitution award, arguing that the State failed to present sufficient evidence of the victim’s pecuniary loss because the victim’s testimony was uncertain and unreliable. The Defendant also asserts that the judgment form erroneously reflects a restitution award of $7,000, which was the victim’s total pecuniary loss as determined by the trial court, because it exceeded the total amount the trial court found that the Defendant was able to pay in $90 per month installments for four years ($4,320). After reviewing the record, we conclude that the State introduced inadequate proof regarding the valuation of the loss. Accordingly, we reverse and remand for a new restitution hearing. The Defendant’s alternative argument regarding correction of the judgment form is rendered moot, though it does have merit.

McMinn County Court of Criminal Appeals 01/26/21
Clarissa Bidwell, Ex Rel James Bidwell Et Al. v. Timothy A. Strait MD Et Al.
E2018-02211-SC-R11-CV

James Bidwell filed this health care liability action individually and on behalf of his deceased wife, Clarissa Bidwell, and her estate against Drs. Timothy Strait and Jeffrey Colburn (“the physician Defendants”) and the entities he believed to be their employers—The Neurosurgical Group of Chattanooga, P.C., EmCare Inc., and Envision Healthcare Corporation.  Mr. Bidwell timely provided pre-suit notice to the named defendants and timely filed his lawsuit.  Mr. Bidwell did not provide Chattanooga-Hamilton County Hospital Authority (“Erlanger”) with pre-suit notice, nor did he name Erlanger as a defendant.  Furthermore, Dr. Strait and Dr. Colburn did not provide Mr. Bidwell written notice of Erlanger as their correct employer within thirty days of receiving pre-suit notice.  See Tenn. Code Ann. § 29-26-121(a)(5).  Dr. Strait answered Mr. Bidwell’s complaint, denying the allegations made against him and asserting that he was employed by Erlanger at all relevant times.  Dr. Colburn similarly answered, denying the allegations made against him and that either EmCare Inc. or Envision Healthcare Corporation was his employer.  Drs. Strait and Colburn then moved for summary judgment arguing that, pursuant to the Governmental Tort Liability Act, no judgment could be rendered against them because Mr. Bidwell had failed to name as a defendant their actual employer, Erlanger.  See Tenn. Code Ann. § 29-20-310(b).  Within ninety days of Dr. Strait’s and Dr. Colburn’s answers, Mr. Bidwell filed two motions for leave to amend his complaint to add Erlanger as a defendant.  Mr. Bidwell relied on Tennessee Code Annotated section 20-1-119, which provides a plaintiff with a ninety-day “grace period” within which to amend a complaint when comparative fault “is or becomes an issue,” and section 29-26-121(a)(5), which he argued required the physician Defendants to notify him of Erlanger within thirty days of receiving pre-suit notice.  The trial court granted Dr. Strait’s and Dr. Colburn’s motions for summary judgment, finding that Mr. Bidwell’s motions to amend were futile because he had not provided Erlanger with pre-suit notice.  Mr. Bidwell appealed, and the Court of Appeals vacated the trial court’s orders granting summary judgment and remanded the case for further proceedings.  Dr. Strait and Dr. Colburn subsequently filed an application for permission to appeal with this Court.  We hold that, although the physician Defendants failed to comply with section Tennessee Code Annotated 29-26-121(a)(5), the statute provides no remedy for noncompliance, and their noncompliance does not constitute extraordinary cause sufficient to excuse Mr. Bidwell’s failure to provide Erlanger with pre-suit notice.  However, we additionally hold that Dr. Strait’s and Dr. Colburn’s answers sufficiently asserted Erlanger’s comparative fault.  Therefore, Mr. Bidwell was entitled to amend his complaint to name Erlanger as a defendant pursuant to section 20-1-119, so long as he amended his complaint and caused process to issue to Erlanger within ninety days of Dr. Strait’s answer—the first answer alleging Erlanger’s fault.  Because section 20-1-119 applied, Mr. Bidwell was not obligated to provide Erlanger with pre-suit notice under Tennessee Code Annotated section 29-26-121(c).  We conclude that, because the record on appeal reflects that Mr. Bidwell failed to file an amended complaint and cause process to issue, he is not entitled to amend his complaint to add Erlanger as a defendant.  Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals on the grounds stated herein and reinstate the trial court’s orders granting the physician Defendants’ motions for summary judgment and denying the Plaintiff’s motions to amend. 

Hamilton County Supreme Court 01/26/21
Clarissa Bidwell, Ex Rel James Bidwell Et Al. v. Timothy A. Strait MD Et Al. - Concurring In Part, Dissenting In Part
E2018-02211-SC-R11-CV

I agree with the majority that the Defendants, Dr. Timothy Strait and Dr. Jeffrey Colburn, are entitled to summary judgment. It is a harsh and unfortunate result. The Defendants did not comply with the notice requirement of Tennessee Code Annotated section 29-26-121(a)(5) and gained a tactical advantage which allowed them to win this case. While I agree with the result, I disagree that the Defendants sufficiently alleged comparative fault in their answers so that the Plaintiff had ninety days to amend his complaint under Tennessee Code Annotated section 20-1-119.

Hamilton County Supreme Court 01/26/21
Clarissa Bidwell, Ex Rel James Bidwell Et Al. v. Timothy A. Strait MD Et Al. - Concurring Separately
E2018-02211-SC-R11-CV

I concur in the well-reasoned majority opinion but write separately on the issue of “extraordinary cause” to excuse failure to give pre-suit notice under Tennessee Code Annotated section 29-26-121(b) (“The court has discretion to excuse compliance with this section only for extraordinary cause shown.”).

Hamilton County Supreme Court 01/26/21
Devin Torquin Watkins v. State of Tennessee
E2020-00090-CCA-R3-PC

The Petitioner, Devin Torquin Watkins, appeals the denial of his petition for postconviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of counsel. Following our review, we affirm the judgment of the postconviction court denying the petition.

Knox County Court of Criminal Appeals 01/26/21
Charles Hampton v. State of Tennessee
W2019-01372-CCA-R3-PC

The Petitioner, Charles Hampton, appeals the denial of post-conviction relief from his conviction for first degree premeditated murder, arguing (1) the post-conviction court erred in refusing to consider an expert’s testimony, (2) trial counsel was ineffective in failing to seek the suppression of the Petitioner’s statements to police, and (3) his mandatory life sentence as a juvenile offender is unconstitutional because it is the “functional equivalent” of life without parole. After review, we affirm the judgment of the
post-conviction court.

Shelby County Court of Criminal Appeals 01/26/21
Michael Bland v. State of Tennessee
W2020-00454-CCA-R3-PC

Michael Bland, Petitioner, was indicted for and convicted of first-degree murder. Petitioner received a life sentence. This Court affirmed Petitioner’s conviction and sentence on direct appeal, and our supreme court denied further appellate review. State v. Michael Bland, No. W2014-00991-CCA-R3-CD, 2015 WL 3793697, *1 (Tenn. Crim. App. June 16, 2015), perm. app. denied (Tenn. Oct. 15, 2015). Petitioner filed a petition for post-conviction relief in which he raised claims of ineffective assistance of counsel. After an evidentiary hearing, the post-conviction court denied relief. Finding no error, we affirm the judgment of the post-conviction court.

Shelby County Court of Criminal Appeals 01/26/21
State of Tennessee v. Floyd Antonius Taylor
W2020-00103-CCA-R3-CD

Defendant, Floyd Antonius Taylor, was indicted for two counts of delivery of a Schedule II controlled substance of .5 grams or more, with the second count occurring within a drug-free zone. The counts were severed, and Defendant received a jury trial on Count 2. The jury found Defendant guilty as charged. Count 1 was subsequently dismissed. Defendant received a fifteen-year sentence. Defendant filed a motion for new trial, which the trial court denied. Defendant filed a notice of appeal and argues that certain evidence was inadmissible under Tennessee Rule of Evidence 404(b) and that the evidence was insufficient to sustain his convictions. After a thorough review of the record, we affirm the judgment of the trial court.

Tipton County Court of Criminal Appeals 01/26/21
Colonial Pipeline Company v. TN State Board Of Equalization
M2020-00247-COA-R12-CV

An interstate pipeline company filed this direct appeal from a decision of the Tennessee Board of Equalization rejecting the company’s claims for equalization relief. Having considered the company’s arguments that Tenn. Code Ann. § 67-5-501(10)(B)(iii) has been inconsistently applied, we affirm the Board’s decision.  

Court of Appeals 01/25/21
In Re Azariah R. et al.
E2020-01034-COA-R3-PT

This appeal concerns the termination of a mother’s parental rights. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Cocke County (“the Juvenile Court”) seeking to terminate the parental rights of Shauntel C. (“Mother”) to her minor children Azariah R. and Ahleigha C. (“Azariah” and “Ahleigha” respectively; “the Children” collectively). After a hearing, the Juvenile Court entered an order terminating Mother’s parental rights to the Children. Mother appeals, arguing that the Juvenile Court erred in its best interest determination by failing to account for her improvements over the course of the case. Although we reverse the ground of failure to visit, we affirm the grounds of substantial noncompliance with the permanency plan and failure to manifest an ability and willingness to assume custody. We also affirm the Juvenile Court’s best interest determination, finding Mother’s improved efforts in some areas to be real but insufficient. We thus affirm, in part, and reverse, in part, resulting in our affirming the termination of Mother’s parental rights to the Children.

Cocke County Court of Appeals 01/25/21
In Re Investigation Of Law Solutions Chicago, LLC
M2020-00411-COA-R3-CV

The trial court granted the Tennessee Attorney General’s petition seeking to compel the respondent corporation, Law Solutions Chicago LLC d/b/a UpRight Law (“UpRight”), to provide information regarding the identities of consumers who had paid for but allegedly not received UpRight’s services. In so ruling, the trial court determined that the attorney general had established that UpRight’s practices, if proven, would likely constitute violations of the Tennessee Consumer Protection Act. The trial court also determined that the information sought was not protected by the attorney-client privilege. UpRight has appealed. Discerning no reversible error, we affirm the trial court’s ruling.

Davidson County Court of Appeals 01/22/21
Darla Jo Adams Audirsch v. Griffin Lynn Audirsch
M2020-00279-COA-R3-CV

The Appellant, who is the former spouse of the Appellee, appeals the trial court’s denial of his motion for “Rule 60” relief seeking residential time with the Appellee’s child. There is no dispute that the Appellant has been excluded as the father of the child based upon DNA testing he requested. Discerning no error on the part of the trial court, we affirm its judgment.

Moore County Court of Appeals 01/22/21