S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.- Concur
I concur in the result reached by the majority opinion. I reach my conclusion, however, applying the abuse of discretion standard to the court’s action in imposing the specific restrictions and conditions in the protective order. |
Shelby | Court of Appeals | |
S. W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al. - Concur
I concur in the result reached by the majority Opinion that the trial court erred in imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte interviews in this particular case. I write separately, however, to express my concern regarding the implications of this ruling, as fully explained in my separate concurrence in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV, 2015 WL 277114 (Tenn. Ct. App. Jan. 20, 2015) (Stafford, J., concurring). Specifically, I agree with the majority’s interpretation of Tennessee Code Annotated 29-26-121(f), and its holding that the statute, as interpreted, does not authorize the trial court to impose the additional restrictions at issue in this case. However, I have genuine concern that the practical effect of the majority’s holding limits the inherent power of the trial court to both enforce its orders and protect litigants from unfair invasions of their privacy. As such, I must respectfully file this separate concurrence, in reliance on and fully incorporating my concurrence in Dean-Hayslett. See 2014 WL 277114, at *14–*17. |
Shelby | Court of Appeals | |
In Re: J.A.G. et al.
This is a parental termination case concerning the four minor children (collectively, the Children) of L.Y.N.G. (Mother) and K.B.G. (Father). The Department of Children’s Services (DCS) was already involved with the family when it took emergency custody of the children following an incident of domestic violence between the parents. The children were placed together in fostercare with relatives. They were adjudicated dependent and neglected. Fifteen months later, DCS filed a petition to terminate the parental rights of both parents. The court granted the petition based on its finding, byclear and convincing evidence, (1) that multiple grounds for termination existed and (2) that termination was in the children’s best interest. Mother and Father appeal. They challenge the trial court’s finding of grounds for termination, but do not raise an issue as to the trial court’s determination regarding the Children’s best interest. We affirm. |
Putnam | Court of Appeals | |
Cynthia McKenzie v. Jason McKenzie
An attorney, who was representing herself in her divorce action, appeals the trial court’s finding that she was in direct contempt of court. She insists her conduct was not contemptuous and it did not disrupt the orderly progress of the hearing. She also challenges the procedure bywhich the trial court conducted the summary contempt hearing, asserting it was erroneously held hours after the successful completion of the hearing in which she was allegedly in contempt of court. She also challenges the sufficiency of the evidence and contends the trial court erred by basing its finding of contempt on extraneous evidence instead of relying solely on knowledge the judge obtained through his own senses, his sight and hearing. A trial court has the authority to punish direct contempt summarily but only in exceptional circumstances when necessary to“act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress” of a court proceeding. Danielsv.Grimac,342 S.W.3d 511, 517 (Tenn. Ct. App. 2010); State v. Turner, 914 S.W.2d 951, 956-57 (Tenn. Crim. App. 1995); Robinson v. Air Draulics Eng’g Co., 377 S.W.2d 908, 911-12 (Tenn. 1964). The transcript of thehearingrevealsnoexceptionalcircumstances and no conduct that obstructed the administration of justice. To the contrary, all issues at the hearing during which the alleged contemptuous conduct occurred were ruled upon, and the hearing concluded hours before the commencement of the summary contempt hearing. Based on these facts, Plaintiff was entitled to a hearing upon proper notice pursuant to the procedures of Tenn. R. Crim. P. 42(b). See Grimac, 342 S.W.3d at 517-18 (citing Turner,914S.W.2dat 959 n. 11). Therefore, the court erred by conducting a deferred summary contempt hearing. Furthermore, the trial court found the attorney in contempt, “in willful misbehavior in her official transactions by appearing in Court intoxicated,” based on extrinsic evidence, urinalysis results, obtained after the hearing in question,not on conduct the court observed in the courtroom. Tennessee Rule of Criminal Procedure42(a),which governs the procedure by which a judge may summarily punish a person for criminal contempt,limits the evidence that may be considered to conduct the judge “saw or heard” in the courtroom. See Wilson v. Wilson, No. 03A01-9104-CH-00126, 1992 WL 200971, at *4 (Tenn. Ct. App. Aug. 21, 1992). Because the finding of intoxication was based on extrinsic evidence, the criminal contempt judgment must be reversed. The record also reveals the extrinsic evidence, thetest results the court relied upon, was unreliable, for it was only designed to test the“presence”of any alcohol for persons in recovery, not whether a person was “intoxicated.” Therefore, the judgment of criminal contempt is reversed and the case is dismissed. |
Davidson | Court of Appeals | |
Sherrie L. Durham v. Tennessee Department of Labor And Workforce Development, et al
The trial court denied Plaintiff’s motion to recuse and granted Defendants’ motion to dismiss for failure to prosecute. We reverse in part, affirm in part, and remand for further proceedings consistent with this Opinion. |
Court of Appeals | ||
Michael David Olson v. Jennifer Carlin Beck
In this divorce appeal, Husband argues that the trial court erred in not allowing him to repudiate the parties’ marital dissolution agreement. Husband also asserts that the trial court erred in its determination regarding the parenting plan, in failing to consider split parenting time, and in awarding Wife her attorney fees. We find no merit in Husband’s arguments and affirm the trial court’s decision. |
Davidson | Court of Appeals | |
Directv, Inc., et al v. Richard H. Roberts, Commissioner of Revenue, State of Tennessee
Plaintiffs contend that the sales tax law unconstitutionally discriminates against satellite television providers. The law taxes the entire subscription fee billed to satellite customers while the first $15 of the subscription fee billed to cable customers is exempt. On cross motions for summary judgment,the trial court found the sales tax law violated the Commerce Clause of the United States Constitution. The Commissioner of Revenue appeals. Because we find that satellite providers and cable providers are not similarly situated for purposes of the Commerce Clause, we reverse. |
Davidson | Court of Appeals | |
Cody S. Thomas v. Jenna R. (Thomas) Miller
In this post-divorce case, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent and to hold Mother in contempt for failure to abide by the joint decision-making provision of the plan. The trial court found a material change of circumstances existed warranting a change in the primary residential parent and held Mother in contempt, awarding Father $675.00 in attorney’s fees as a sanction. Mother appeals. We find no error in the trial court’s decision to change the primary residential parent;however,we vacate the trial court’s finding of contempt because Father’s petition did not comply with the mandates of Tenn. R. Crim. P. 42(b). |
Moore | Court of Appeals | |
Edward Martin v. Gregory Powers, et al
Holder of an automobile liabilityinsurancepolicybrought suit to recover for injuries sustained after being struck by a driver in a rental vehicle. The policy holder also sought coverage under the uninsured motorist coverage provision of his policy. Insurance carrier filed answer denying coverage and moved for summary judgment, contending that the policyholder was not entitled to coverage because the vehicle involved in the incident was owned by a rental car agency and, consequently, his damages did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as required by the policy. The trial court held that the rental car agency was a self-insurer under Tennessee law and, consequently, the vehicle was not an “uninsured motor vehicle,”and granted the carrier’s motion. Policyholder appeals; finding no error, we affirm the judgment. |
Williamson | Court of Appeals | |
S.W., by Heather Warren and Thomas C. Warren, as his natural parents and next friends v. Baptist Memorial Hospital, et al.
This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.
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Shelby | Court of Appeals | |
State of Tennessee v. Rubalddi Espinoza Yoc
Defendant, Rubalddi Espinoza Yoc, was convicted by a jury of one count of possession with intent to sell 0.5 grams or more of a Schedule II controlled substance and one count of delivery of 0.5 grams or more of a Schedule II controlled substance. The trial court merged the two counts and sentenced Defendant to nine years’ incarceration as a Range I, standard offender, with all but one year suspended on probation. On appeal, Defendant challenges the sufficiency of the evidence. Based upon our review of the record and legal authorities, we affirm the judgment of the trial court. |
Bedford | Court of Criminal Appeals | |
State of Tennessee v. Courtney B. Matthews
In 1996, a Montgomery County Circuit Court jury convicted the defendant, Courtney B. Matthews, of four counts of first degree felony murder and one count of especially aggravated robbery. The jury sentenced the defendant to a term of life in prison without the possibility of parole for each first degree murder conviction, and the trial court sentenced the defendant to a term of 25 years in prison for the especially aggravated robbery. The court ordered that all sentences be served consecutively. On appeal, the defendant contends: (1) that he was denied due process in the delay of the preparation of his trial transcript and of the hearing on the motion for new trial; (2) that the trial court erred in not reopening the hearing on the motion for new trial; (3) that the trial court erred by permitting cameras in the courtroom during the trial; (4) that the cameras “invaded” the deliberations of the jury; (5) that the trial court should have changed venue due to the influence of pretrial publicity; (6) that the trial court erred by admitting photographs of the victims; (7) that the trial court erred by admitting DNA evidence; (8) that the trial court erred by certifying a state witness as an expert in DNA analysis; (9) that the trial court erred by admitting the testimony of the medical examiner; (10) that the trial court erred by permitting the medical examiner to utilize demonstrative aids during his testimony; (11) that the evidence was insufficient to support his convictions under a theory of criminal responsibility for the conduct of another; (12) that the evidence was insufficient to support his convictions under a theory of direct liability; (13) that the trial court violated his due process rights by “forcing” the state to proceed on inconsistent theories at his trial and the trial of his codefendant; (14) that the trial court erred by interrupting jury deliberations to provide an instruction on criminal responsibility for conduct of another; (15) that the convictions for especially aggravated robbery and felony murder violate double jeopardy principles; (16) that the evidence was insufficient to support the finding that the murders were heinous, atrocious, or cruel; (17) that the trial court erred by failing to instruct the jury on certain non-statutory mitigating factors; and (18) that the trial court erred by imposing consecutive sentencing. Upon hearing oral arguments and reviewing the briefs of the parties, the extensive record, and the applicable law, we affirm the judgments of the trial court. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. Calvin Douglas
The Defendant-Appellant, Calvin Douglas, was convicted by a Shelby County Criminal Court jury of three counts of aggravated assault and one count of reckless endangerment with a dangerous weapon. The trial court sentenced the Defendant to an effective sentence of 20 years‟ confinement. On appeal, the Defendant argues that (1) the evidence is insufficient to sustain his convictions for aggravated assault and reckless endangerment with a deadly weapon, and (2) the trial court abused its discretion in imposing consecutive sentences. Upon our review, we affirm the judgments of the trial court. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Rickey Bell
Rickey Bell (“the Defendant”) was convicted by a jury of rape of a child, aggravated sexual battery, rape, and two counts of sexual battery by an authority figure. The trial court sentenced the Defendant to a total effective sentence of forty-nine years’ incarceration. On appeal, the Defendant argues that the trial court erred in denying the Defendant’s motion for a bill of particulars and in allowing proof of certain prior bad acts. The Defendant also challenges the sufficiency of the evidence supporting his convictions for rape of a child and rape. After a thorough review of the record, we conclude that the trial court did not abuse its discretion in denying the motion for a bill of particulars and in allowing the admission of proof of prior bad acts. We also conclude that there was sufficient evidence supporting the convictions for rape of a child and rape. Therefore, we affirm the judgments of the trial court. |
Shelby | Court of Criminal Appeals | |
Alphonzo Chalmers v. State of Tennessee
A Shelby County Criminal Court Jury convicted the petitioner, Alphonzo Chalmers, of first degree murder, and the trial court imposed a sentence of life imprisonment in the Tennessee Department of Correction. Thereafter, the petitioner filed a petition for writ of error coram nobis, arguing that newly discovered mental health records entitled him to a new trial. The coram nobis court summarily denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the coram nobis court. |
Shelby | Court of Criminal Appeals | |
Don Sanders v. State of Tennessee
The Petitioner, Don Sanders, appeals the Shelby County Criminal Court’s dismissal of his petition for post-conviction relief seeking relief from his conviction of first degree premeditated murder and resulting life sentence. On appeal, the Petitioner contends that the post-conviction court erred by ruling that his petition was untimely and by refusing to toll the one-year statute of limitations for his mental incompetence. Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-conviction court’s dismissal of the petition. |
Shelby | Court of Criminal Appeals | |
Willie Moore v. State of Tennessee
Petitioner, Willie Moore, pleaded guilty to eleven counts of identity theft, Class D felonies, and received the agreed-upon sentence of eleven years on each count to be served concurrently with each other as a persistent offender at forty-five percent release eligibility. He filed the instant petition for post-conviction relief on the basis that his guilty pleas were not knowingly, voluntarily, and intelligently entered. The post-conviction court denied relief, and this appeal followed. Upon review, we affirm the judgment of the post-conviction court. |
Shelby | Court of Criminal Appeals | |
Terry Nelson v. Michael D. Ponce & Associates, PLLC
This is a legal malpractice case that was dismissed on grant of summary judgment in favor of Appellee law firm. The trial court denied Appellant’s motion to continue the hearing on the motion for summary judgment, and also struck Appellant’s filings in opposition to the motion for summary judgment as untimely. Discerning no error, we affirm and remand. |
Davidson | Court of Appeals | |
In Re: American Bonding Company
This is an appeal by Williamson County Bail Bondsman, Amir Karshenas of American Bonding Company, of the trial court’s denial of his motion to recuse the judge from hearing matters related to his authority to conduct business as a bail bondsman. Following our review, we affirm the denial of the motion to recuse. |
Williamson | Court of Criminal Appeals | |
Josephine Whitthorne Young v. William F. Young, Jr.
This post-divorce dispute concerns a divorce decree that required husband to pay one-half of his retirement benefits to wife as alimony in solido. Fourteen years after the divorce, Husband returned to the trial court to terminate the payments on the ground that by the terms of the divorce decree, husband had been substantially overpaying wife. The trial court denied husband’s petition on the alternative grounds of res judicata, and a finding that the divorce decree obligated husband to pay wife one-half of the entire value of the retirement plan. We reverse the trial court’s determination that res judicata bars husband’s petition, but affirm as to the trial court’s interpretation of the divorce decree. Reversed in part, affirmed in part, and remanded. |
Shelby | Court of Appeals | |
William A. Osborne v. State of Tennessee
A Sumner County jury convicted the Petitioner, William A. Osborne, of three counts of facilitation of aggravated burglary, one count of facilitation of theft of property valued more than $500, one count of theft of property valued between $1,000 and $10,000, and one count of theft of property valued between $500 and $1,000. The trial court sentenced him as a career offender and ordered the Petitioner to serve an effective sentence of thirty-six years. The Petitioner appealed, and this Court affirmed the judgments of the trial court. State v. William A. Osborne, No. M2010-02412-CCA-R3-CD, 2012 WL 1243243, at *1 (Tenn. Crim. App., at Nashville, Apr. 5, 2012), perm. app. denied (Tenn. Aug. 17, 2012). The Petitioner subsequently filed a petition for post-conviction relief, in which he alleged that his trial counsel was ineffective on multiple grounds. The post-conviction court dismissed the petition after a hearing. After a thorough review of the record and applicable law, we affirm the post-conviction court’s judgment. |
Sumner | Court of Criminal Appeals | |
Marques Johnson v. State of Tennessee
Petitioner, Marques Johnson, entered into a plea agreement in two separate cases. In the first case, Petitioner pled guilty totwo counts of burglary of a motor vehicle and one count of theft of property valued over $500 and was sentenced to an effective sentence of six years. In the second case, Petitioner pled guilty to two counts of burglary of a motor vehicle and one count of theft of property valued over $1,000 and was sentenced to an effective sentence of twelve years. The trial court held a sentencing hearing and determined that the sentences should run consecutively, for a total effective sentence of eighteen years. This Court affirmed that decision on direct appeal. State v. Marques Sanchez Johnson, No. M2012-00169-CCA-R3-CD, 2012 WL 5188136 (Tenn. Crim. App. Oct. 18, 2012), perm. app. denied (Tenn. Jan. 22, 2013). Petitioner subsequently filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel and that he did not enter his plea knowingly and voluntarily. Petitioner claimed that his trial counsel never informed him of his right to testify at the sentencing hearing or to make a statement of allocution. After a hearing, the post-conviction court denied relief, finding that Petitioner had not proven his claim by clear and convincing evidence. After a thorough review of the record, we affirm the decision of the post-conviction court. |
Davidson | Court of Criminal Appeals | |
State of Tennessee v. Jeffrey Scott Tucker
The defendant, Jeffrey Scott Tucker, was convicted after a jury trial of assault, a Class A misdemeanor; assault of a law enforcement officer, a Class A misdemeanor; domestic assault, a Class A misdemeanor; and resisting arrest, a Class B misdemeanor. The defendant challenges the sufficiency of the evidence for the domestic assault conviction, contending that the testimony did not establish that the victim was in fear. The simple assault conviction, which the parties agreed would merge with the domestic assault conviction, was dismissed by the trial court after the jury returned a verdict. The defendant asserts that allowing the jury to consider the simple assault charge was error that affected his other convictions. We conclude that the evidence is sufficient to sustain the verdicts. We further conclude that the jury properly considered the simple assault charge. We affirm the judgment of the trial court. |
Putnam | Court of Criminal Appeals | |
Easter Baugh v. Larry Moore
In the first appeal of this action to quiet title to real property, which was the former home of the parties’ common ancestor, Plaintiff was declared the owner of the real estate. Thereafter, the same two parties disputed who owned the personal property in the home. The trial court conducted an evidentiary hearing and determined that Plaintiff owned some of the personal property, and Defendant owned the remaining personal property. Being dissatisfied with that determination, Defendant filed a motion for new trial contending Plaintiff made false statements under oath, which was denied. In this appeal, Defendant contends the evidence preponderates against the trial court’s ruling concerning the ownership of the personal property. He also appeals the denial of his motion for a new trial. Because Defendant has not provided a verbatim transcript of the evidence or a statement of the evidence pursuant to Tenn. R. App. P. 24, we have no evidence to review. Lacking any evidence to review, we presume the evidence presented supports the trial court’s decisions. Defendant’s contention that he is entitled to a new trial must also fail because his motion was not supported by any evidence, and he offered nothing more than bare assertions that Plaintiff made false statements at trial. We find no merit to either contention and affirm the trial court in all respects. We have also determined that this appeal was devoid of merit; thus, it constitutes a frivolous appeal under Tenn. Code Ann. § 27-1-122. Accordingly, Plaintiff is entitled to recover the reasonable and necessary attorney’s fees and expenses she incurred on appeal. For the foregoing reasons, we affirm the trial court in all respects and remand with instructions for the trial court to award Plaintiff her reasonable and necessary attorney’s fees and expenses. |
Coffee | Court of Appeals | |
State of Tennessee v. Joshua Paul Lewis
The defendant, Joshua Paul Lewis, was convicted of two counts of rape of a child, Class A felonies, and one count of attempted rape of a child, a Class B felony. He received twentyfive year sentences for the convictions for rape of a child and a ten-year sentence for attempted rape of a child, all to be served concurrently, for an effective sentence of twentyfive years. On this delayed appeal, the defendant argues that (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in denying his motion for acquittal; and (3) the cumulative effect of the errors at trial deprived him of his right to a fair trial. After reviewing the record, the briefs of the parties, and the applicable law, we affirm the judgments of the trial court. |
Cumberland | Court of Criminal Appeals |