Jeffery Smith and Brenda K. Smith v. Methodist Hospitals of Memphis, et al.
W2011-00054-COA-R3-CV
This lawsuit originated as a medical malpractice action that was filed against the Hospital and other defendants in 2000. The trial court granted summary judgment in favor of the Hospital on the medical malpractice claim in 2003 because Plaintiffs had failed to come forward with competent testimony from a medical doctor regarding causation. Thereafter, Plaintiffs filed a supplemental complaint to allege that the Hospital had tortiously interfered with the Plaintiffs’ contract with a nurse expert witness. The trial court granted summary judgment in favor of the Hospital on this claim in 2010. Plaintiffs appealed. We affirm the trial court’s order granting summary judgment on the issue of tortious interference with contract, but we reverse the trial court’s order granting summary judgment on the medical malpractice claim and remand for further proceedings.
Authoring Judge: Presiding Judge Alan E. Highers
Originating Judge:Judge Kay S. Robilio |
Shelby County | Court of Appeals | 08/31/12 | |
In Re: Weston T. R.
M2012-00580-COA-R3-PT
Father has a son who was placed in the custody of his maternal grandmother when he was ten months old because Mother was deceased and Father was incarcerated. Grandmother filed a petition for termination of Father’s parental rights. Following a hearing the trial court determined Father had abandoned his child as that term is defined by Tenn. Code Ann. §361-102(1)(A)(iv) and that it was in the child’s best interests for Father’s parental rights to be terminated. Father has been incarcerated for all but five months of the child’s life and has engaged in conduct that exhibits his wanton disregard for his son’s welfare. The child has no meaningful relationship with Father due to Father’s life choices, which have resulted in repeated arrests and periods of incarceration. We agree with the trial court that Father has abandoned his child and that it is in the child’s best interest for Father’s parental rights to be terminated. We therefore affirm the trial court’s judgment.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Betty Adams Green |
Davidson County | Court of Appeals | 08/31/12 | |
State of Tennessee v. Bobby Lewis Smith
M2010-02077-CCA-R3-CD
The defendant, Bobby Lewis Smith, was convicted by a Clay County jury of delivery of a schedule III controlled substance, a Class D felony. He was subsequently sentenced, as a Range III offender, to serve nine years in the Department of Correction. On appeal, he contends: (1) that the evidence is insufficient to support the verdict; (2) that the trial court erred in allowing admission of a videotape in violation of the Confrontation Clause and authentication rules; and (3) that ordering service of the nine-year term resulted in an excessive sentence. Following review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge David Patterson |
Clay County | Court of Criminal Appeals | 08/31/12 | |
State of Tennessee v. David Dwayne Bell
E2011-01241-CCA-R3-CD
The defendant was indicted on one count of driving under the influence (DUI) and one alternative count of driving with a blood alcohol content of .08 or higher. Prior to trial, the defendant filed a motion to suppress certain evidence obtained by the police on the grounds that the defendant was arrested without probable cause. The trial judge granted this motion and ultimately dismissed both counts. On appeal, the State argues that the trial court erred by determining that the arresting officer did not have probable cause. After reviewing the record and the arguments of the parties, we conclude that the trial court committed no error and affirm its judgment accordingly.
Authoring Judge: Judge John Everett Williams
Originating Judge:Judge Rex Henry Ogle |
Sevier County | Court of Criminal Appeals | 08/31/12 | |
Doris Hinkle, et al. v. Kindred Hospital, et al.
M2010-02499-COA-R3-CV
The widow of a man who suffered a devastating injury while undergoing a medical procedure in the defendant hospital filed suit against the hospital and the doctor who ordered the procedure, claiming medical malpractice, failure to obtain informed consent, and battery. The defendant hospital filed a motion for summary judgment, and the defendant doctor filed a motion to dismiss, both arguing that the plaintiff’s malpractice claims had to be dismissed because she failed to strictly comply with requirements of the Medical Malpractice Act, specifically Tenn. Code Ann. § 29-26-121 (a)(1) (60-day notice) and §29-26-122(a) (certificate of good faith). The trial court granted both motions in part and denied them in part. We reverse the trial court’s dismissal of the medical malpractice claims against both defendants as well as the related claims. We also reverse the trial court’s dismissal of the claim against the defendant doctor for failure to obtain the patient’s informed consent, but we affirm its dismissal of the medical battery claim against the defendant doctor.
Authoring Judge: Presiding Judge Patricia J. Cottrell
Originating Judge:Judge Thomas W. Brothers |
Davidson County | Court of Appeals | 08/31/12 | |
State of Tennessee v. Eric Lebron Hale
M2011-02138-CCA-R3-CD
A Marion County Circuit Court jury convicted the defendant, Eric Lebron Hale, of aggravated robbery, and the trial court imposed a sentence of 17 years’ incarceration. In this appeal, the defendant challenges the sufficiency of the convicting evidence and contends that the jury instructions provided by the trial court resulted in an improper constructive amendment to the indictment, that a fatal variance existed between the indictment and the proof adduced at trial, that the trial court erred by admitting the testimony of a certain witness, that the trial court committed errors in juryinstructions granted and refused, and that the cumulative effect of the errors deprived him of the right to a fair trial. Because the evidence was insufficient to support the defendant’s conviction of aggravated robbery as it was charged in the indictment, and because the jury instructions on the offense of aggravated robbery resulted in an improper constructive amendment of the indictment, and because a fatal variance existed between the indictment and proof adduced at trial, the defendant’s conviction of aggravated robbery is reversed. In its stead we impose a conviction of the lesser included offense of theft of property valued at $500 or less and remand the case to the trial court for a sentencing hearing on the newly-imposed misdemeanor conviction.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Thomas W. Graham |
Marion County | Court of Criminal Appeals | 08/31/12 | |
Steven James Rollins v. State of Tennessee
E2010-01150-CCA-R3-PD
The Petitioner, Steven James Rollins, filed a petition seeking post-conviction relief from his convictions of first degree premeditated murder, first degree felony murder, and especially aggravated robbery. The post-conviction court denied Petitioner relief on all grounds related to the guilt phase of the trial but granted a new sentencing hearing on the grounds of ineffective assistance of counsel. The State is not challenging the grant of a new sentencing hearing. The Petitioner appeals the post-conviction court’s ruling denying relief as to the guilt phase of the trial. On appeal, the Petitioner contends that a biased juror served on his jury, that he received the ineffective assistance of counsel because his trial attorneys failed to voir dire potential jurors properly, and that his mental retardation exempts him from the death penalty. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the Petitioner was denied his constitutional rights to a fair and impartial jury and that he received the ineffective assistance of counsel. Therefore, the Petitioner’s convictions are reversed, and the case is remanded to the trial court for a new trial.
Authoring Judge: Judge Norma McGee Ogle
Originating Judge:Judge R. Jerry Beck |
Sullivan County | Court of Criminal Appeals | 08/31/12 | |
Brenda Holliman v. State of Tennessee
W2011-01071-CCA-R3-CO
A Shelby County jury convicted petitioner, Brenda Holliman, of first degree murder and conspiracy to commit first degree murder. The trial court sentenced her to life imprisonment without the possibility of parole. Subsequently, she filed the instant petition for a writ of error coram nobis, claiming that a co-defendant recanted statements he made at his guilty plea hearing and that the recantation constitutes newly discovered evidence. The coram nobis court summarily dismissed the petition based on the statute of limitations. Following our review, we reverse the judgment of the coram nobis court and remand the matter for an evidentiary hearing.
Authoring Judge: Judge Roger A. Page
Originating Judge:Judge W. Otis Higgs Jr. |
Shelby County | Court of Criminal Appeals | 08/31/12 | |
Doris Hinkle, et al. v. Kindred Hospital, et al. - CONCUR/DISSENT
M2010-02499-COA-R3-CV
I concur with the majority’s decision in all respects, except the decision to affirm the dismissal of the medical battery claim against Dr. Nguyen pursuant to Tenn. R. Civ. P. 12.02(6).
Authoring Judge: Judge Richard H. Dinkins
Originating Judge:Judge Thomas W. Brothers |
Davidson County | Court of Appeals | 08/31/12 | |
Danny E. Iloube, Sr. v. Don M. Cain
W2011-02460-COA-R3-CV
This action arises from an automobile accident. The trial court granted Defendant’s motion for a directed verdict on Plaintiff’s claim for damages for medical expenses at the close of proof. The jury returned a verdict in favor of Defendant on Plaintiff’s claim for pain and suffering and loss of earning capacity. On appeal, Plaintiff asserts the trial court erred by granting the directed verdict on his claim for medical expenses. We reverse and remand for further proceedings.
Authoring Judge: Judge David R. Farmer
Originating Judge:Judge Robert Samuel Weiss |
Shelby County | Court of Appeals | 08/30/12 | |
State of Tennessee v. Brandon Sean Sutton
E2011-00398-CCA-R3-CD
A Jefferson County jury convicted appellant, Brandon Sean Sutton, of first degree murder, and he received a sentence of life without the possibility of parole. On appeal, appellant argues that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred when it admitted certain photographs; (3) emotional displays from the victim’s family violated his right to a fair trial; (4) the evidence did not support the sentence of life without parole; (5) the victim impact evidence was improper; and (6) the trial judge did not follow proper procedure when selecting the manner in which he removed alternate jurors. After reviewing the record, the parties’ briefs, and the applicable law, we affirm the judgment of the trial court.
Authoring Judge: Judge Roger A. Page
Originating Judge:Judge O. Duane Slone |
Jefferson County | Court of Criminal Appeals | 08/30/12 | |
William Glenn Rogers v. State of Tennessee
M2010-01987-CCA-R3-PD
The capital Petitioner, William Glenn Rogers, appeals as of right from the post-conviction court’s order denying his initial and amended petitions for post-conviction relief challenging his merged first degree murder conviction and death sentence for the killing of nine-year-old Jacqueline Beard, as well as his convictions for especially aggravated kidnapping, rape of a child, and two counts of criminal impersonation. The Petitioner received an effective sentence of forty-eight (48) years’ imprisonment for his non-capital offenses. On appeal, the Petitioner claims that the post-conviction court erred in denying relief because defense counsel provided ineffective assistance in both the trial and appellate proceedings related to these convictions and sentences and because multiple other constitutional violations call into question the validity of these convictions and sentences. After a careful and laborious review of the record, we affirm the denial of post-conviction relief.
Authoring Judge: Judge Jeffrey S. Bivins
Originating Judge:Judge John H. Gasaway, III |
Montgomery County | Court of Criminal Appeals | 08/30/12 | |
Anna Parker, Administrator of Estate of Wanda Faye Dobbs, Deceased et al. v. Portland Nursing & Nursing Rehab et al.
M2011-02633-COA-R9-CV
In this action, the plaintiff has attempted to assert claims for ordinary negligence and medical malpractice against nursing home defendants by filing two separate actions and then seeking to consolidate the cases or to amend the complaint to assert both types of claims in one case. The first complaint filed only asserted claims for ordinary negligence against the nursing home defendants. Sixty days after having given the statutory notice to the healthcare providers of her intent to file medical malpractice claims, the plaintiff commenced a separate action against the same nursing home defendants and an additional defendant, a physician who treated the nursing home patient, by filing a complaint for medical malpractice. Upon motions of the nursing home defendants, the trial court refused to consolidate the cases, dismissed the medical malpractice claims against the nursing home defendants upon the ground of a prior suit pending, and denied the plaintiff’s motion to amend the complaint in the first case to add claims for medical malpractice against the nursing home defendants. Having determined that the plaintiff complied with Tennessee Code Annotated § 29-26121(a) by giving the requisite 60 days notice to the medical providers and that the statute of limitations had not run, we have concluded that the trial court erred in denying the plaintiff’s Tennessee Rule of Civil Procedure 15.01 motion to amend the complaint. Accordingly, we reverse and remand with instructions to grant the plaintiff’s motion to amend the complaint for ordinary negligence against the nursing home defendants thus allowing the plaintiff to assert medical malpractice claims against the nursing home defendants and for further proceedings consistent with this opinion.
Authoring Judge: Judge Frank G. Clement, Jr.
Originating Judge:Judge C. L. Rogers |
Sumner County | Court of Appeals | 08/30/12 | |
State of Tennessee v. Jonathan Curtis Austin
E2011-01389-CCA-R3-CD
Defendant, Jonathan Austin, was indicted by the Greene County Grand Jury for one count of aggravated assault, a Class C felony. Following a jury trial, Defendant was convicted as charged. On appeal, Defendant argues that the evidence at trial was insufficient to support his conviction. After a careful review of the record, we affirm the judgment of the trial court.
Authoring Judge: Judge Thomas T. Woodall
Originating Judge:Judge John F. Dugger, Jr. |
Greene County | Court of Criminal Appeals | 08/30/12 | |
State of Tennessee v. Harold Bernard Schaffer
W2010-01854-CCA-R3-CD
Harold Bernard Schaffer (“the Defendant”) was convicted by a jury of first degree felony murder. The trial court subsequently sentenced the Defendant to life imprisonment. In this direct appeal, the Defendant contends that (1) the trial court erred in denying his motion to dismiss the indictment; (2) the trial court erred in denying his motion to suppress evidence; (3) the State engaged in prosecutorial misconduct during closing argument; and (4) the evidence is not sufficient to support his conviction. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgment.
Authoring Judge: Judge Jeffrey S. Bivins
Originating Judge:Judge R. Lee Moore |
Dyer County | Court of Criminal Appeals | 08/30/12 | |
Ready Mix, USA, LLC v. Jefferson County, Tennessee
E2010-00547-SC-R11-CV
The plaintiff, a producer of construction aggregates, acquired property with proven reserves for mining and quarrying operations. Afterward, Jefferson County enacted a comprehensive zoning ordinance limiting the use of the property to agricultural purposes. Before the passage of the ordinance, the plaintiff undertook various activities designed to establish business operations. When the county issued a stop work order, the plaintiff, without first receiving a decision from the county’s board of zoning appeals, filed a declaratory judgment action arguing that the portion of the property not previously subject to zoning qualified as a pre-existing non-conforming use, protected by Tennessee Code Annotated section 13-7-208 (1992). After concluding that the plaintiff was not required to exhaust its administrative remedies, the trial court ruled that the business activities on the property were “in operation” at the effective date of the ordinance for purposes of grandfather protection under section 137-208. Because the Court of Appeals held that the plaintiff had failed to exhaust its administrative remedies, the judgment was set aside. We hold that the trial court, under these circumstances, did not err by ruling that the plaintiff was not required to exhaust the administrative remedies. We further hold that the evidence does not preponderate against the trial court’s finding that the plaintiff had established operations sufficient to qualify for protection under Tennessee Code Annotated section 13-7-208.
Authoring Judge: Justice Gary R. Wade
Originating Judge:Senior Judge Jon Kerry Blackwood |
Jefferson County | Supreme Court | 08/30/12 | |
Ready Mix, USA, LLC v. Jefferson County, Tennessee - Concur
E2010-00547-SC-R11-CV
I concur with the Court’s conclusion that the evidence does not preponderate against the trial court’s finding that Ready Mix, USA, LLC’s activities on its property established pre-existing use and, therefore, qualify for protection under Tenn. Code Ann. § 13-7-208 (2011). I base my decision entirely on our prior precedents construing Tenn. Code Ann. § 13-7-208 without any consideration, directly or indirectly, of the diminishing assets doctrine.
Authoring Judge: Justice William C. Koch, Jr.
Originating Judge:Senior Judge Jon Kerry Blackwood |
Jefferson County | Supreme Court | 08/30/12 | |
State of Tennessee v. Curtis Harper
W2011-00371-CCA-R3-CD
The Defendant, Curtis Harper, was found guilty by a Shelby County Criminal Court jury of attempt to commit second degree murder, a Class B felony, employing a firearm during the commission of a felony, a Class C felony, and two counts of aggravated assault, a Class C felony. See T.C.A. §§ 39-13-210(a)(1) (2010), 39-12-101(a) (2010), 39-17-1324 (Supp. 2008) (amended 2009), 39-13-102(a)(1)(A) (2006) (amended 2009, 2010, 2011). The trial court merged the aggravated assault convictions into the attempted second degree murder conviction, and sentenced the Defendant as a Range I, standard offender to twelve years’ confinement for attempted second degree murder and six years for employing a firearm during the commission of a felony. The trial court ordered the sentences to be served consecutively, for an effective eighteen-year sentence. On appeal, the Defendant contends that the evidence is insufficient to support his conviction for attempted second degree murder. We affirm the Defendant’s convictions, but we vacate the aggravated assault and attempted second degree murder judgments and remand the case for entry of a corrected judgment reflecting the merger of the aggravated assault convictions into the conviction for attempted second degree murder.
Authoring Judge: Presiding Judge Joseph M. Tipton
Originating Judge:Judge James M. Lammey Jr. |
Shelby County | Court of Criminal Appeals | 08/29/12 | |
State of Tennessee v. Kendell Edward Johnson
M2011-00792-CCA-R3-CD
The Defendant, Kendell Edward Johnson, appeals from his jury conviction for second degree murder, for which he received a fifteen-year sentence. In this direct appeal, the Defendant argues (1) that the trial court erred by admitting the redacted recording of a conversation between the Defendant and his father made at the police station following the Defendant’s arrest on an unrelated charge, (2) that the trial court erred by permitting the irrelevant testimony of the victim’s brother, and (3) that the evidence was insufficient to support his conviction. After a thorough review of the record and the applicable authorities, we affirm the judgment of the trial court.
Authoring Judge: Judge D. Kelly Thomas, Jr.
Originating Judge:Judge J. Randall Wyatt, Jr. |
Davidson County | Court of Criminal Appeals | 08/29/12 | |
City of Memphis, A Municipal Corporation for the Use and Benefit of Memphis Light Gas and Water v. Tandy J. Gilliland Family, L.L.C., et al
W2011-01611-COA-R3-CV
This is a condemnation case. The trial court granted summary judgment in favor of Appellees, the landowners, finding that Appellant MLGW's attempted condemnation was not necessary. The evidence clearly establishes that MLGW had the right to take, and that the taking was for a public purpose. Therefore, the burden fell to Appellees to show that MLGW’s taking was arbitrary or capricious. The evidence contained in the record does not establish that the taking was arbitrary or capricious with the result being that the condemnation is “conclusive upon the court.” Because the court considered necessity and location in contravention of MLGW’s condemnation power, we reverse the grant of summary judgment and remand to the trial court.
Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge James F. Russell |
Shelby County | Court of Appeals | 08/29/12 | |
State of Tennessee v. Roger Weems Harper
M2010-01626-CCA-R3-CD
Appellant, Roger Harper, was convicted by a Montgomery County jury of evading arrest. The trial court sentenced Appellant as a Range I, standard offender to three years and six months. The trial court set the sentence to run consecutivelyto a five-year diversion sentence imposed under Tennessee Code Annotated section 40-35-313 that Appellant was serving from another case. On appeal, Appellant argues that the trial court erred because: (1) the jury failed to specify that it found the aggravating factors required to find Appellant guilty of a Class D felony and furthermore, the trial court sentenced Appellant as if the conviction was a Class D felony; (2) Appellant’s sentence is excessive due to the presence of mitigating factors that the trial court failed to find; and (3) the trial court erred in imposing consecutive sentencing. We have reviewed the record on appeal and conclude that the trial court committed no error. However, the judgment form must be corrected to reflect that Appellant was convicted of the Class D felony. Therefore, we affirm Appellant’s conviction and sentence but remand for the trial court to enter a corrected judgment.
Authoring Judge: Judge Jerry L. Smith
Originating Judge:Judge Michael R. Jones |
Montgomery County | Court of Criminal Appeals | 08/29/12 | |
Lori Anne Yattoni-Prestwood v. John Stewart Prestwood
E2011-01967-COA-R3-CV
This is a divorce case that focuses on the parties’ debt and the issue of attorney’s fees. The trial court dissolved the marriage of Lori Anne Yattoni-Prestwood (“Wife”) and John Stewart Prestwood (“Husband”). During their brief time together, the parties accumulated only debt, no assets. Husband’s liability for the parties’ debts was discharged in bankruptcy. In considering the issue of property division and allocation of debt, the trial court found that expenditures made by Wife to and for Husband’s benefit, both before and during the marriage, were “gifts” to him; accordingly, the court declined to treat the after-marriage payments as marital obligations. Instead, the court decreed that each party would be responsible for that party’s “own respective liabilities.” Wife appeals and contends that the trial court erred in failing to properly classify and equitably divide the marital debt and in denying, after first approving, her request for an award of attorney’s fees. She also seeks an award of her fees for legal work on appeal. We modify the judgment as it pertains to the parties’ debt in a way that results in an alimony in solido award to Wife. As additional alimony in solido, we award Wife her reasonable attorney’s fees for work at the trial court level. We further grant Wife’s request for an award of her attorney’s fees incurred for work on appeal as further alimony in solido. In all other respects, the judgment is affirmed.
Authoring Judge: Judge Charles D. Susano, Jr.
Originating Judge:Judge Jacqueline S. Bolton |
Hamilton County | Court of Appeals | 08/29/12 | |
State of Tennessee v. Mauricio Morales
M2010-01236-CCA-R3-CD
The defendant, Mauricio Morales, appeals his Davidson County Criminal Court jury convictions of three counts of rape of a child, one count of aggravated sexual battery, and one count of aggravated burglary, claiming that the evidence was insufficient to support his convictions, that the trial court erred by admitting certain evidence, that the trial court erred in its instructions to the jury, and that the 100-year effective sentence is excessive. Discerning no error, we affirm the judgments of the trial court.
Authoring Judge: Judge James Curwood Witt, Jr.
Originating Judge:Judge Monte Watkins |
Davidson County | Court of Criminal Appeals | 08/29/12 | |
Sapinder Singh v. Larry Fowler Trucking, Inc.
W2011-01986-COA-R3-CV
This case arises from an accident involving two semi-trucks. The truck owned by Appellee trucking company rear-ended the truck driven by Appellant, causing injury to Appellant’s back. Litigation ensued and the Appellee filed a motion in limine to exclude portions of Appellant’s medical expert’s testimony concerning Appellant’s possible future need for surgery and the costs thereof. The trial court granted the motion, and Appellant appeals. Discerning no error, we affirm
Authoring Judge: Judge J. Steven Stafford
Originating Judge:Judge Roger A. Page |
Henderson County | Court of Appeals | 08/29/12 | |
State of Tennessee v. Charles E. Lowe-Kelley
M2010-00500-SC-R11-CD
A defendant was sentenced following his conviction on two counts of first degree murder and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a motion requesting a new trial and withdrew as counsel. The motion contained no specific grounds for relief. The trial court appointed replacement counsel. Several months later, replacement counsel amended the motion for new trial to allege specific grounds for relief. The trial court denied the amended motion for new trial. The Court of Criminal Appeals held that the original motion for new trial was a nullity because it contained no grounds for relief and that the trial court therefore did not have jurisdiction to permit the amendment of the motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s specific grounds for relief as waived. We hold that the original motion for new trial met the requirements of Tennessee Rule of Criminal Procedure 33 despite its failure to allege specific grounds for relief and that the trial court retained jurisdiction to permit the amendment of the motion. The cause is remanded to the Court of Criminal Appeals to consider the defendant’s appeal of the denial of his amended motion for new trial.
Authoring Judge: Justice Janice M. Holder
Originating Judge:Judge Stella Hargrove |
Maury County | Supreme Court | 08/28/12 |