Elliot H. Himmelfarb, M. D. Et Al. v. Tracy R. Allain
Physicians filed an action for malicious prosecution and abuse of process against Patient after Patient voluntarily dismissed her medical malpractice lawsuit against them. Following a change in the applicable case law, Physicians voluntarily dismissed their malicious prosecution and abuse of process claims. Patient moved for attorney fees under Tenn. R. Civ. P. 37.03(2) as a sanction against Physicians for their failure to admit a matter requested under Tenn. R. Civ. P. 36.01. Patient also sought discretionary costs. The trial court found that Physicians had reasonable grounds to believe they might prevail on their claims, but granted Patient a partial attorney fee award. We reverse the award of attorneys fees and affirm the award of discretionary costs. |
Williamson | Court of Appeals | |
Ilie Nita v. Olga Nita
In this divorce appeal, husband challenges the trial court’s decisions regarding the primary residential parent, rehabilitative alimony, the division of the marital estate, and the award of attorney fees. With the exception of the designation of alimony as “rehabilitative,” we find no error in the trial court’s decision. |
Davidson | Court of Appeals | |
State of Tennessee v. Thomas Bolton
The defendant, Thomas Bolton, appeals his Shelby County Criminal Court jury convictions of vandalism, theft of property, and violations of the Solid Waste Disposal Act, challenging the sufficiency of the convicting evidence and the propriety of certain jury instructions. We affirm the convictions and sentences but remand for correction of clerical errors in the judgments. |
Shelby | Court of Criminal Appeals | |
Deidra Kay Minor v. Melvin Richard Nichols
This appeal involves the interpretation of a marital dissolution agreement. In the parties’ divorce, the wife was awarded the marital home and the associated debt on the home. In the parties’ marital dissolution agreement, the husband was required to pay alimony in an amount that covered half of the wife’s monthly mortgage payments. The alimony payments were to be made for fifteen years or until the mortgage on the marital home was “paid off in full.” The husband stopped making his alimony payments and the wife filed a contempt petition against him. While the contempt petition was pending, the wife fell behind on her mortgage payments and the house was sold in foreclosure. The husband then filed a petition to terminate his alimony obligation. After a hearing on both petitions, the trial court held the husband’s failure to pay alimony constituted willful contempt of court. Interpreting the marital dissolution agreement, however, the trial court also held that the husband’s alimony obligation ended when the marital home was sold in foreclosure, because at that point the mortgage was “paid off in full.” The wife now appeals. We decline to interpret the parties’ marital dissolution agreement in a manner that would terminate the husband’s alimony obligation if the foreclosure resulted from his contemptuous failure to pay alimony to the wife. Accordingly, we vacate the trial court’s decision and remand for further proceedings. |
Shelby | Court of Appeals | |
Victor R. Peterson v. Kathleen A. Peterson
This is the second time this divorce case has been before this Court. Victor R. Peterson (“Husband”) filed the first appeal. We remanded the case to the trial court because we were “unable to determine what property was awarded to [Kathleen A. Peterson (“Wife”)] as . . . equitable division of property and what property was awarded as alimony in solido.” Peterson, 2012 WL 1413890 at *3. On remand, the trial court classified the parties’ property, valued all of the marital property except for some miscellaneous personal property, decreed a division of the marital property, and awarded Wife $10,000 in alimony in solido. Wife appeals. She argues that the division of marital property is not equitable and that the alimony award is inadequate. We affirm. |
Morgan | Court of Appeals | |
Daniel Lee Draper v. Cherry Lindamood, Warden
The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him to life with the possibility of parole, that the habeas court erred in summarily dismissing his petition without a hearing, and that the habeas court erred in failing to treat his habeas petition as a post-conviction petition. After review, we affirm the summary dismissal of the petition. |
Hardeman | Court of Criminal Appeals | |
State of Tennessee v. Jeffrey Walton
The defendant, Jeffrey Walton, was convicted by a Shelby County Criminal Court jury of vandalism over $10,000, a Class C felony, and burglary of a building, a Class D felony, for which he received sentences of fifteen years as a persistent offender and twelve years as a career offender, to be served consecutively, in the Department of Correction. On appeal, he challenges the sufficiency of the convicting evidence. After review, we affirm the judgments of the trial court. |
Shelby | Court of Criminal Appeals | |
Rock Ivy Holding, LLC v. RC Properties, LLC et al
This multi-faceted business dispute, which arises in principal part from the real estate collapse of 2008, involves five limited liability companies, eight individuals who are either members or officers of the respective companies, 530 acres of undeveloped real estate, and $7 million of secured notes that were personally guaranteed by six of the individuals. Over the course of two years, SunTrust Bank, the holder of the notes, agreed to extensions of the original maturity date; a final extension was granted until August 7, 2008. A call for capital contributions was approved but it produced insufficient funds to payoff the debt.Thereafter, two of the individuals, one of whom was the president of Rock Creek, and both of whom personally guaranteed a portion of the debt, formed another entity which then acquired the notes from the bank. Rock Creek Development, LLC (“Rock Creek”), which owned the real estate, then agreed to sell a substantial portion of its property to pay off the balance owing on the notes. In an attempt to stop the sale, Rock Ivy Holding, LLC (“Rock Ivy”), one of three members of Rock Creek, filed this derivative action for itself and on behalf of Rock Creek against Rock Creek’s members: RC Properties, LLC; Linked, LLC; two officers of Rock Creek; and several individuals who were members of the defendant companies. The complaint alleged, inter alia, various conflicts of interests by the individual defendants and various breaches of statutory and contractual duties by members and/or officers. Pursuant to an agreed order, the sale proceeded, the net proceeds were held in the registry of the court, and the remaining claims went to trial. After eights days of a bench trial, the defendants moved to dismiss the complaint pursuant to Tenn. R. Civ. P. 41.02 at the close of the plaintiff’s case-in-chief.The trial court granted the motion and dismissed all of the plaintiff’s claims. Thereafter, several defendants filed various motions to recover their respective attorneys’ fees and expenses. Some of the motions were based on Tenn.Code Ann.§ 48-249804, which pertains to derivative actions, and others were based on indemnification provisions in Rock Creek’s Operating Agreement. The trial court granted some of the fee requests and denied others. In this appeal, Rock Ivychallenges the dismissal of its claims and the assessment of attorneys’ fees.Two individual defendants appeal the denial of their claims for attorneys’ fees. The holder of the notes appeals the denial of its claim for “default interest” and penalties. We affirm the trial court in all respects except for the trial court denying the claim for default interest on the notes. We have concluded that the holder of the notes is entitled to recover default interest from the time the notes were declared to be in default. Accordingly, this issue is remanded for further proceedings. |
Davidson | Court of Appeals | |
Marty Nix v. Tennessee Civil Service Commission
This administrative appeal arises from the termination of a state trooperfrom his employment with the Tennessee Department of Safety for filing a meritless sexual harassment claim against a fellow employee. Finding substantial and material evidence in support of the decision to terminate the trooper, we affirm. |
Davidson | Court of Appeals | |
In Re: Jeena P., et al.
Mother challenges the termination of her parental rights for failure to support. We find no need to address this issue because mother did not appeal the trial court’s findings of several other grounds for termination. Mother also disputes the trial court’s finding by clear and convincing evidence that termination is in the best interest of the children. We affirm the trial court. |
Montgomery | Court of Appeals | |
Clint Dewayne Graham v. Nycole Alexandria Vaughn
The father of a nine year old girl filed a petition seeking to legitimate the child, requesting that he be named primary residential parent, and asking that the mother be prevented from moving to Florida with the child. In her answer, the mother asked to be named as the child’s primary residential parent and, having already moved,to be allowed to remain in Florida with the child. After trial, the court ruled that there was no reasonable purpose in the mother’s proposed relocation and that the mother was to return to Tennessee with the child; the court entered a permanent parenting plan which designated the mother as primary residential parent and also ordered the father to pay a portion of the mother’s attorney fees. The mother appeals the court’s disposition of the petition to legitimate; the father appeals the award of fees to the mother. We affirm the decision to award fees to the mother, but vacate the award and remand for a redetermination of the amount; we affirm the court’s judgment in all other respects. |
Trousdale | Court of Appeals | |
Anthony Clinton v. State of Tennessee
Petitioner, Anthony Clinton, was convicted by a Shelby County jury of robbery, a Class C felony, and was sentenced as a career offender to fifteen years in the Tennessee Department of Correction. Following an unsuccessful direct appeal, he filed the instant petition for post-conviction relief. The post-conviction court held an evidentiary hearing and denied relief. Appealing from the post-conviction court’s order, petitioner pursues the following claims of ineffective assistance of counsel: (a) failure to file a motion to suppress his identification; (b) failure to file a motion to suppress the evidence seized during the search of his person; and (c) failure to obtain copies of the store surveillance tapes and the 9-1-1 recordings. Following our review, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Bobby J. Byrge, et al v. Parkwest Medical Center, et al
After taking a non-suit, Bobby J. Byrge, individually and as next of kin for the decedent Julia Kay Byrge, and the Estate of Julia Kay Byrge (“Plaintiff”) filed a second healthcare liability suit against Parkwest Medical Center (“Parkwest”) and Dr. John C. Showalter, M.D.1 Parkwest filed a motion to dismiss, and after a hearing, the Trial Court granted Parkwest’s motion finding and holding that Plaintiff’s suit was barred by the statute of limitations. Plaintiff appeals to this Court asserting that his suit was not barred as he was entitled to rely upon Tenn. Code Ann. § 28-1-105, the saving statute. We affirm finding and holding, as did the Trial Court, that Plaintiff’s first suit was not timely filed because Plaintiff did not comply with Tenn. Code Ann. § 29-26-121, and, therefore, Plaintiff could not rely upon Tenn. Code Ann. § 28-1-105 to save his second suit. |
Knox | Court of Appeals | |
Billy A. Mathes v. Dr. Edmond Lane et al
The plaintiff, a state prison inmate, appeals the trial court’s dismissal of his health care liability action against the defendant doctor and his complaint against the warden of the facility where he was treated by the doctor. The trial court granted the defendant doctor’s motion to dismiss based upon the plaintiff’s failure to comply with the requirements of the Tennessee Medical Malpractice Act (“TMMA”). See Tenn. Code Ann. §§ 29-26-115 to -122 (Supp. 2013). The trial court also granted the warden’s motion to dismiss upon finding that the plaintiff’s complaint contained no factual allegations against the warden. Discerning no error, we affirm. |
Morgan | Court of Appeals | |
State of Tennessee v. Wesley M. Gifford, Jr.-Concurring
I concur in the results reached in the majority opinion. Indeed, I join in the majority opinion on all but one issue. I write separately to address the issue of the trial court’s admission of the prior bad act of the Defendant’s exposing himself to Pamela through the back window of a truck “a few days earlier.” The majority holds that it was error, albeit harmless, for the trial court to admit this evidence under Rule 404(b) of the Rules of Evidence. The majority concludes that this evidence was only marginally relevant, and, therefore, the risk of unfair prejudice to the Defendant outweighed the relevance of the evidence. The majority emphasizes that the Defendant also was on trial for indecent exposure. |
Marion | Court of Criminal Appeals | |
Terry V. Johnson v. State of Tennessee
The pro se petitioner, Terry V. Johnson, appeals as of right from the Johnson County Circuit Court’s order denying his petition for writ of habeas corpus alleging that his 2005 conviction for sale of less than .5 grams of cocaine is void because the trial court failed to award pretrial jail credit. The State has filed a motion to affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. Following our review, we conclude that the State’s motion is well-taken and affirm the order of the trial court. |
Johnson | Court of Criminal Appeals | |
In the Matter of the Estate of Dennis R. Woolverton
This is a will contest. The alleged will was signed by three witnesses. At the hearing on the will contest, two of the three witnesses and a notary public testified about the signatures on the purported will. The trial court held that the document was the decedent’s validly executed will and admitted it to probate. On appeal, the contestant of the will argues that the will proponent failed to satisfy the statutory requirement of proof from all living witnesses, if to be found, because the third witness to the will did not appear or testify. We hold that the proponent of the purported will was required to either submit the testimony of all living witnesses or show that a living witness whose testimony was not proffered was not to be found. However, because the trial court failed to make findings of fact and conclusions of law regarding the availability of the third witness, as required under Tenn. R. Civ. P. 52.01, we must vacate the trial court’s decision and remand. |
Weakley | Court of Appeals | |
Acuff International, Inc. v. Sanyo Manufacturing Corporation
This case involves issues of breach of contract and negligence. After a bench trial, the trial court found in favor of the Defendant/Appellee manufacturer. Because the trial court’s order does not contain sufficient findings of fact and conclusions of law to satisfy the requirements of Rule 52.01 of the Tennessee Rules of Civil Procedure, we vacate the judgment of the trial court and remand for the entry of an order with appropriate findings of fact and conclusions of law. |
Shelby | Court of Appeals | |
State of Tennessee v. Wesley M. Gifford, Jr.
The Defendant, Wesley M. Gifford, Jr., was convicted by a jury of attempted aggravated burglary, telephone harassment, and indecent exposure. Following a sentencing hearing, the trial court imposed concurrent terms of three years and six months for the attempted aggravated burglary conviction and eleven months and twenty-nine days for the telephone harassment conviction. This effective sentence was also to run consecutively to his prior sentences. In this direct appeal, the Defendant contends that: (1) the trial court erred in failing to grant a mistrial when a witness testified that the Defendant previously had been in jail; (2) the trial court erred in allowing admission of evidence of the Defendant’s prior bad act; (3) the trial court erred in not instructing the jury on the issue of alibi; (4) the evidence was insufficient to support his convictions; and (5) cumulative errors entitle him to a new trial. After a thorough review of the record and applicable law, we affirm the judgments of the trial court. |
Marion | Court of Criminal Appeals | |
In Re: Jonathan S. C-B.
This is the second appeal in an ongoing custody dispute. Mother was initially designated primary residential parent of the child. Later, Father filed a petition alleging Mother was interfering with his parenting time and trying to turn the child against him. Mother then alleged Father was abusing their child, which allegations were determined to be unfounded. During that litigation, Father successfully demonstrated a material change in circumstances and became the primary residential parent; following that award, Mother filed the first appeal and this court affirmed the trial court’s ruling. The present appeal arises from Father’s petition requesting a modification of the parenting plan and to, inter alia, suspend Mother’s parenting time; subsequently,Mother filed her counter-petition requesting, inter alia, change of custody, along with renewed allegations that Father was physically and sexually abusing their child.The trial court dismissed Mother’s counter-petition and granted in part and denied in part Father’s petition. Mother appeals contending the trial court erred in dismissing her counter-petition; she also contends the trial court erred in excluding rebuttal testimony from her expert witnesses. Father appeals contending the award of attorney’s fees and expenses was inadequate; he also contends this appeal is frivolous and that he should be awarded damages. We affirm the trial court in all aspects and, although we do not find Mother’s appeal frivolous, we find Father is entitled to recover, pursuant to Tennessee Code Annotated § 36-5-103(c), his reasonable and necessary attorney’s fees and expenses incurred on appeal because this action involves custody of the parties’ child. |
Davidson | Court of Appeals | |
State of Tennessee v. Tawana Jones
Appellant, Tawana Jones, was convicted by a Shelby County jury of rape and abuse of an adult. See Tenn. Code Ann. §§ 39-13-502(a)(3), 71-6-117. The trial court sentenced appellant to twelve years and two years, respectively, to be served consecutively. On appeal, appellant challenges: (1) the sufficiency of the evidence supporting her rape conviction regarding whether the victim was mentally defective and, if so, whether appellant knew the victim was mentally defective; (2) the sufficiency of the evidence supporting appellant’s abuse of an adult conviction; (3) the trial court’s use of specific enhancement factors during sentencing; and (4) the trial court’s imposition of consecutive sentences. Following our review of the parties’ arguments, the record, and the applicable law, we affirm appellant’s rape conviction and, as the State concedes must be done, reverse and remand appellant’s abuse of an adult conviction for proceedings consistent with this opinion. |
Shelby | Court of Criminal Appeals | |
Doris Cannon ex rel. Juanita E. Good v. Bhaskar Reddy, M.D.
The plaintiff filed a health care liability action against the defendant. During the pendency of her action, the General Assembly enacted the pre-suit notice and certificate of good faith requirements of Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff voluntarily dismissed her original action. The plaintiff then filed two successive actions. First, the plaintiff filed a second action that did not comply with the pre-suit notice and certificate of good faith statutes. The plaintiff then filed a third action that complied with Tennessee Code Annotated sections 29-26-121 and -122. The plaintiff moved to consolidate her second and third actions, and the defendant moved to dismiss. The defendant contended that the plaintiff’s second action should be dismissed for failure to comply with the pre-suit notice and certificate of good faith requirements and that her third action should be dismissed based on the doctrine of prior suit pending. The trial court consolidated the lawsuits and denied the defendant’s motions to dismiss. The defendant moved for permission to file an interlocutory appeal, which the trial court denied. We granted the defendant’s application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. During the pendency of the appeal, the plaintiff voluntarily dismissed her second action. As a result of the plaintiff’s voluntary dismissal and our recent holding in Rajvongs v. Wright, ___ S.W.3d ___, 2013 WL 6504425 (Tenn. Dec. 12, 2013), we hold that the plaintiff, who properly provided pre-suit notice of her claim prior to filing her third action, was entitled to a 120-day extension in which to refile her complaint pursuant to Tennessee Code Annotated section 29-26-121(c). The plaintiff’s third complaint was therefore timely filed. We affirm the judgment of the trial court and remand this case for further proceedings. |
Maury | Supreme Court | |
Alvin Evans v. FedEx Express
Plaintiff filed an action against his employer alleging discrimination in violation of the Tennessee Human Rights Act. The trial court awarded summary judgment to Defendant employer on the basis that the action was barred by the contractual limitations period contained in the employment agreement executed by the parties. We affirm. |
Shelby | Court of Appeals | |
State of Tennessee v. Teresa Turner
The Defendant, Teresa Turner, pled guilty to reckless homicide, a Class D felony. The trial court sentenced the Defendant as a standard offender to three years with six months of the sentence to be served in confinement and the remainder of the sentence on supervised probation. The Defendant appeals, claiming that the trial court abused its discretion when it: (1) denied judicial diversion; (2) misapplied enhancement factors; and (3) ordered a sentence involving split confinement. After a thorough review of the record and applicable law, we reverse the judgment of the trial court. |
White | Court of Criminal Appeals | |
State of Tennessee v. Brian Marshall Keys
A Maury County jury convicted the Defendant, Brian Marshall Keys, of one count of selling 0.5 grams or more of cocaine within 1,000 feet of a school and two counts of selling less than 0.5 grams of cocaine within 1,000 feet of a school. The trial court ordered the Defendant to serve an effective sentence of fifteen years. On appeal, the Defendant asserts that the trial court erred when it denied his constitutional challenge to the Drug-Free School Zone Act and that the evidence is insufficient to support his convictions. After a thorough review of the record and relevant authorities, we affirm the trial court’s judgments. |
Maury | Court of Criminal Appeals |