APPELLATE COURT OPINIONS

Appellant, Donna Sue Mrozowski, pled nolo contendere to a Class B vehicular homicide charge stemming from an incident in which she drove her car off a highway, killing a pedestrian. Appellant and the State agreed to an eight year sentence but left the manner of service to be determined by the trial court. After a hearing, the court denied Appellant's request for alternative sentencing. Appellant now appeals, and we affirm.

A man receiving outpatient treatment from a psychiatrist shot and killed his wife and himself. Patient's daughter filed wrongful death actions on behalf of her mother and her father and a negligence action on her own behalf. The trial court granted summary judgment with respect to the wrongful death claim on behalf of the mother and the individual claim of the daughter. The wrongful death claim on behalf of father was voluntarily dismissed. We have concluded that Tenn. Code Ann. _ 33-3-206 does not apply in this case and that the trial court erred in granting summary judgment with respect to mother's and daughter's negligence claims.

The Defendant, James H. Saint, Jr., was convicted of six counts of aggravated sexual battery, a Class B felony. See Tenn. Code Ann. _ 39-13-504(b). The trial court, applying the 2005 Amendments to our Sentencing Act, originally sentenced the Defendant to serve sixty-six years in the Department of Correction. On his first appeal, however, we reversed his sentences and remanded his case for resentencing under the 1989 Act. See State v. Saint, 284 S.W.3d 340, 348 (Tenn. Crim. App. 2008). Following a resentencing hearing, held on May 14, 2009, the trial court again sentenced the Defendant as a Range I, standard offender to eleven years for each of his six convictions, those sentences to be served consecutively to one another, for a total effective sentence of sixty-six years in the Department of Correction. On this appeal, the Defendant contends that the trial court erred in setting the length of his sentences and in ordering him to serve them consecutively. After our review, we affirm the judgments of the trial court.

The petitioner, Melvin S. Nettles, appeals the denial of post-conviction relief by the Davidson County Criminal Court. In 2007, he pled guilty to sale of less than 0.5 grams of cocaine, a Class C felony. Pursuant to a plea agreement, he received a twelve year sentence to be served on community corrections. He was also assessed a fine of $2,000. The trial court subsequently found that the petitioner violated his community corrections' sentence and ordered confinement. On appeal, the petitioner challenges the denial of his petition for post-conviction relief, claiming: (1) his guilty plea was not knowing and voluntary; and (2) he received ineffective assistance of counsel. Upon review, we affirm the judgment of the post-conviction court.

The Defendant, Barbara Ann Riggs, was found guilty by a Knox County jury of theft of property valued at $10,000 or more but less than $60,000, a Class C felony. See T.C.A. __ 39-14-103; -105(4). The trial court imposed a Range I, six-year sentence to be served on probation consecutively to a one-year sentence in another case and set the amount of restitution at $28,600.95. In this appeal, the Defendant argues that the evidence was insufficient to support her conviction, that the trial court erred in enhancing her sentence based upon enhancement factors that were not found by a jury to exist beyond a reasonable doubt, and that the court erred in awarding restitution for attorney's fees and accountant's fees the victim incurred as a consequence of the crime. We affirm the judgment of the trial court.

After being indicted by the Gibson County Grand Jury, Petitioner, Clarence Edward Spinks, pled guilty on May 7, 2007, to three offenses. He was sentenced to an eight-year sentence, and the trial court ordered that sentence to be served consecutively to a previously-imposed sentence. On January 21, 2009, Petitioner filed a petition for post-conviction relief. The post-conviction court conducted a hearing to determine whether the petition was timely. Petitioner admitted that the petition was filed more than a year after the statute of limitations had run. The post-conviction court dismissed the petition based upon the statute of limitations. On appeal, Petitioner argues that the post-conviction court erred in dismissing his petition. After a thorough review of the record, we affirm the post-conviction court’s dismissal of the petition.

Haley Mariah Anderson and Macey Elizabeth Anderson ("the Children") by next friend and father, Mac Todd Anderson ("Father"), sued Paul E. Stanton, Jr. ("Stanton"), Hal Knight ("Knight"), Deborah Defrieze ("Defrieze"), d/b/a East Tennessee State University, University School ("University School") (or collectively "Defendants"), and the Washington County Board of Education seeking, in part, to prevent University School from withdrawing the Children from enrollment in University School due to alleged actions of the Children's mother, Treda Anderson ("Mother"). Defendants filed a motion for summary judgment. TheTrial Court held a hearing on Defendants' motion for summary judgment, entered an order granting Defendants summary judgment, and certified the order as final pursuant to Tenn. R. Civ. P. 54.02. The Children appeal to this Court the grant of summary judgment primarily raising an issue regarding procedural due process. We affirm.

James L. Hill ("the defendant"), in order to accommodate his son, Shannon Hill, co-signed a note to First Peoples Bank of Tennessee ("the Bank") in the amount of $50,500 ("the small note"). Shannon later approached the Bank about a larger loan for his pizza business. As a consequence, the small note was combined with two other notes. The Bank made a loan in the amount of $294,764.65 under a new note ("the big note") but required a personal guaranty from the defendant as security. Unbeknownst to the Bank, the guaranty Shannon produced was a forgery. Shannon was later killed and, still later, his pizza business defaulted on the big note. The Bank initially filed this action against the defendant on the sole basis of the guaranty. The Bank later amended its complaint to allege that the big note was a renewal of the small note and that the defendant remained liable on the small note. The primary issue for trial was whether the small note was renewed or whether it was satisfied with the proceeds from the big note. On the morning of trial, when the Bank's witnesses appeared, the chancellor announced that he was acquainted with several of the Bank's witnesses. The defendant made an oral motion seeking recusal of the chancellor. The court denied the motion and the case proceeded to a bench trial. After trial, the court entered a judgment in favor of the Bank which included the attorney's fees of the Bank. The defendant appeals. The Bank asks for its attorney's fees incurred on appeal. We affirm that part of the judgment which awards principal and interest, but vacate the award of attorney's fees claimed in the amount of $25,125 and remand for a determination of a reasonable fee. Additionally, we hold that the Bank is entitled, under the note, to recover reasonable attorney's fees incurred on appeal and remand for a determination of a reasonable appellate fee.

R. L. Ayers operates several apartment complexes, some individually and some in his capacity as the general partner of the limited partnerships, Bluff Springs Apartments, Ltd., and Village Apartment, Ltd. As a consequence of these interests, he maintained several bank accounts with Peoples Bank of the South. This litigation focuses on seven of those accounts. Ayers has admitted – and in fact has pleaded guilty – to defrauding Peoples and two other local banks by “kiting” checks. It is undisputed that Peoples sustained substantial losses when the other banks discovered the scheme and dishonored checks, leaving Peoples holding several hundred thousand dollars worth of bad checks; however, the precise amount of the loss is in dispute. In August 2003, Peoples froze the accounts that had been opened by Ayers, but, with one exception, waited until September 29, 2006, to offset the monies in those accounts against its losses. Ayers, Bluff Springs and Village (collectively “the Plaintiffs”) filed this action asking for a declaration that Peoples wrongfully converted the funds in the seven accounts and violated the contracts under which the funds were deposited. The Plaintiffs also sought punitive damages. Peoples coupled its answer with a counterclaim. In its counterclaim, Peoples alleged that, after giving the Plaintiffs all credits to which they were due, it was left holding $429,300 in bad checks; it demanded a judgment for that sum. After a bench trial, the court held that Peoples only had a right of setoff against two accounts owned by Ayers individually. The court held that Peoples did not have a right of setoff against the accounts owned by the entities or the one opened in Ayers’ name for tenant deposits. However, the trial court found in favor of Peoples on its counterclaim and awarded it a judgment against Ayers in the amount of $429,221.65, subject to certain credits to be given. Initially, the trial court awarded both Peoples and the Plaintiffs prejudgment interest at the rate of 10%. On Peoples’ post-trial motion, the court cut the interest rate to 1%. Peoples appeals, arguing, primarily, that the three-year statute of limitations applicable to conversion claims bars all of the Plaintiffs’ claims. The Plaintiffs raise their own issuesincluding a challenge to (1) the trial court’s refusal to order the return of funds held in accounts designated for a special purpose, (2) the trial court’s reduction of pre-judgment interest on a post-trial motion, and (3) the amount of damages awarded on the counterclaim. We affirm.

The Petitioner, Michael V. Morris, was convicted by a Davidson County Criminal Court jury of aggravated robbery, a Class B felony. He was sentenced as a Range III, career offender to thirty years at sixty percent in the Tennessee Department of Correction. He filed a pro se petition for habeas corpus relief in the Hickman County Circuit Court, which was summarily dismissed. On appeal, the Petitioner argues that his judgment is void because it violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); because, alternatively, the trial court improperly sentenced him under the 2005 amended sentencing act without a waiver, which resulted in a violation of ex post facto prohibitions; and because the trial court erred in classifying him as a career offender. Upon review, we affirm the judgment summarily dismissing the petition for writ of habeas corpus.

W. Curtis Jordan sued his former attorney, Charles Clifford, alleging breach of contract, fraudulent conversion of property, and violation of the Tennessee Consumer Protection Act ("the TCPA"). The case proceeded to a jury trial. At the close of Jordan's proof, the court dismissed the consumer protection claim based upon its holding that the TCPA did not apply to the providing of professional services by an attorney. As to the remaining claims, the jury returned a verdict in favor of Jordan for breach of contract and awarded him $2,500 in damages. On appeal, Clifford contends that the trial court erred in entering a judgment on the breach of contract claim and in failing to award him the attorney's fees he incurred in defending the consumer protection claim. We affirm.

This case arises from a petition to enroll and modify a foreign decree on child visitation and support. Appellant/Father petitioned the Circuit Court at Shelby County to enroll and modify an Arkansas decree. Mother/Appellee contested the petition, alleging that she was still a resident of Arkansas, so that Arkansas retained exclusive, continuing subject matter jurisdiction. The trial court found that the Uniform Interstate Family Support Act was applicable, and also found that Mother was still residing in Arkansas so as to bar subject matter jurisdiction in favor of the Tennessee court. Because the case involves a petition to modify both child visitation and child support, we conclude: (1) that both the Uniform Interstate Family Support Act, and the Uniform Child Custody Jurisdiction and Enforcement Act are applicable,(2) that the trial court erred in finding that the Mother was residing in Arkansas at the commencement of this action, and (3) the Tennessee Court has jurisdiction to modify the Arkansas decree on child support and custody, and (4) that the trial court erred in dismissing Father’s petition to enroll, and modify the Arkansas decree. Reversed and remanded.

Developer sought approval to construct a planned development containing retail and office uses on property zoned in an agricultural district. The municipal planning commission recommended that the town’s board of commissioners deny the application for several reasons. Following a public hearing, the board of commissioners voted to deny the application based upon the recommendation of the municipal planning commission. The developer then brought a common law certiorari action, alleging that the board acted arbitrarily and illegally in denying its application. The trial court found that the board’s decision was based upon substantial and material evidence and dismissed the developer’s petition. The developer appeals. We affirm.

I concur in the judgment and in the reasoning of all but Sections III and IV.B of the majority’s opinion. In Section III, the majority holds that “the first step” in addressing whether to apply the peer review privilege set forth in Tennessee Code Annotated section 63-6-219(e) “is to determine whether the subject matter of the underlying proceeding is within the subject matter covered by the statute.” In Section IV.B, the majority relies on the rationale developed in Lee Medical, Inc. v. Beecher, ___ S.W.3d ___ (Tenn. 2010), observing “that the privilege in [section] 63-6-219(e) applies only to peer review proceedings regarding a physician’s professional conduct, competence, and ability to practice medicine.” The majority determines “that some, but not all, of the functions of the Quality Review Committee [at Cleveland Community Hospital] were peer review proceedings involving the professional conduct, competence, and ability to practice medicine of the physicians on the hospital’s medical staff.”

While the majority’s narrow interpretation of the statutory peer review privilege has appeal, I cannot reconcile its result with the basic principles of statutory construction. I must, therefore, respectfully dissent.

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. § 63-6-219 (Supp. 2009)]. A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital’s medical staff. During discovery, the former employee sought to depose the hospital’s infection control director regarding the details of an investigation into postoperative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn. Code Ann. § 63-6-219(e). The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital’s business and because the infection control director was the “original source” of the information. After granting the hospital an interlocutory appeal, a divided panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No. E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn. Ct. App. Jan. 2, 2009). We granted the
hospital’s Tenn. R. App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital’s business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. § 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. § 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding.

Following a jury trial, Defendant, Kevin McDougle, was convicted of two counts of aggravated robbery, a Class B felony, and one count of aggravated assault, a Class C felony, in case no. 06-04209. The trial court sentenced Defendant as a Range I, standard offender, to twelve years for each aggravated robbery conviction and six years for his aggravated assault conviction. Defendant was convicted in case no. 07-01739 of the offense of unlawful possession of a handgun by a convicted felon, a Class E felony. The trial court sentenced Defendant to two years for this conviction. The trial court ordered Defendant to serve all of his sentences consecutively for an effective sentence of thirty-two years. On appeal, Defendant argues that (1) the trial court erred in denying his motion to sever; (2) the trial court erred in providing a jury instruction on flight; (3) the imposition of consecutive sentencing violates his Sixth Amendment right to trial by jury; and (4) the trial court erred in finding that Defendant was a dangerous offender for consecutive sentencing purposes. After a thorough review, we affirm the judgments of the trial court.

The Defendant, David Nagele, appeals from the Knox County Criminal Court’s denial of his motion to withdraw his plea to attempted aggravated sexual battery, a Class C felony, following correction of the judgment to reflect that the Defendant was subject to community supervision for life. We hold (1) that the trial court did not err in denying the motion and (2) that the Defendant is not entitled to plain error relief in his challenge to the constitutionality of the community supervision for life statute. The judgment of the trial court is affirmed.

This is an appeal from the trial court's award of discretionary costs. Appellant/Plaintiff voluntarily dismissed her claim without prejudice prior to trial, and Appellee/Defendant filed a motion for discretionary costs, which motion the trial court granted. Finding that Appellee/Defendant did not meet her burden of proof, and that the trial abused its discretion in awarding certain discretionary costs that are not contemplated by Tenn. R. Civ. P. 54.04, we modify the award to reflect a total discretionary fee award of $3,851.15. Affirmed as modified herein.

This is an appeal from the trial court's order on Appellant/Husband's Petition for Release of Funds. After the trial court entered a Final Decree in this divorce action, the Appellant filed a petition for the release of his portion of the funds received from the sale of the marital home, which are currently being held by the clerk of the trial court. After a hearing, the trial court ordered that only part of the money may be released. The trial court ordered that the remainder be held until the conclusion of a separate tort action filed by persons not parties to the divorce action, in which Appellant was named as a defendant. Finding that no final judgment exists in this action, this Court dismisses the appeal for lack of subject matter jurisdiction.

I concur in the judgment and in the reasoning of all but Sections III and IV.B of the majority’s opinion. In Section III, the majority holds that “the first step” in addressing whether to apply the peer review privilege set forth in Tennessee Code Annotated section 63-6-219(e) “is to determine whether the subject matter of the underlying proceeding is within the subject matter covered by the statute.” In Section IV.B, the majority relies on the rationale developed in Lee Medical, Inc. v. Beecher, ___ S.W.3d ___ (Tenn. 2010), observing “that the privilege in [section] 63-6-219(e) applies only to peer review proceedings regarding a physician’s professional conduct, competence, and ability to practice medicine.” The majority determines “that some, but not all, of the functions of the Quality Review Committee [at Cleveland Community Hospital] were peer review proceedings involving the professional conduct, competence, and ability to practice medicine of the physicians on the hospital’s medical staff.”

While the majority’s narrow interpretation of the statutory peer review privilege has appeal, I cannot reconcile its result with the basic principles of statutory construction. I must, therefore, respectfully dissent.

This appeal involves the evidentiary privilege in the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. _ 63-6-219 (Supp. 2009)]. A former hospital employee filed suit in the Chancery Court for Bradley County against the hospital and an orthopaedic surgeon on the hospital's medical staff. During discovery, the former employee sought to depose the hospital's infection control director regarding the details of an investigation into post-operative nosocomial infections and her knowledge of whether the defendant surgeon had tested positive for infectious diseases. The hospital moved for a protective order on the ground that the requested information was privileged under Tenn. Code Ann. _ 63-6-219(e). The trial court declined to issue a protective order after determining that the information sought by the former employee was not privileged because it had been created in the regular course of the hospital's business and because the infection control director was the "original source" of the information. After granting the hospital an interlocutory appeal, a divided panel of the Court of Appeals affirmed the trial court. Powell v. Cmty. Health Sys., Inc., No.E2008-00535-COA-R9-CV, 2009 WL 17850 (Tenn. Ct. App. Jan. 2, 2009). We granted the hospital's Tenn. R. App. P. 11 application for permission to appeal. We have determined that records received or made in the ordinary course of a hospital's business apart from the operation of a peer review committee are not protected by the peer review privilege in Tenn. Code Ann. _ 63-6-219. We have also determined that documents prepared by or at the request of a peer review committee exercising its peer review function and documents prepared by third parties as part of the work of a peer review committee performing its peer review function are privileged. Finally, we have determined that the hospital did not waive its right to invoke the privilege in Tenn. Code Ann. _ 63-6-219(e) with regard to the work performed by its infection control director in the context of a peer review proceeding.