James and Patricia Cullum, et al. v. Baptist Hospital Systems, Inc., et al.
M2009-01980-COA-R3-CV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician’s employer, and related hospitals. The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule. The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the nonparty physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.

Davidson Court of Appeals

State of Tennessee v. Bobby Hughlett
W2010-01048-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Joe H. Walker, III

The defendant, Bobby Hughlett, appeals from the trial court’s denial of any form of alternative sentencing, including probation. The defendant entered pleas of nolo contendere to attempted aggravated robbery and robbery, both Class C felonies. The defendant was given an agreed sentence of ten years for each count, to run concurrently, as a persistentoffender, with a 45% release eligibility date. The defendant contends that the court abused its discretion in denying him an alternative sentence, including probation, and erred in finding the defendant was on probation at the time of committing these offenses. After review, we affirm the sentences imposed by the trial court.

Tipton Court of Criminal Appeals

Karah and Ryan DePue, et al v. Charles D. Schroeder, et al
E2010-00504-COA-R9-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge Harold Wimberly

Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. §29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. §29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.

Knox Court of Appeals

State of Tennessee v. Derrick D. Crutcher
M2010-00871-CCA-R3-CD
Authoring Judge: Judge James Curwood Witt, Jr.
Trial Court Judge: Judge Steve Dozier

A Davidson County Criminal Court jury convicted the defendant, Derrick D. Crutcher, of simple possession of cocaine, in this case a Class E felony, see T.C.A. § 39-17-418(a), (e) (2006), and possession of drug paraphernalia, a Class A misdemeanor, see id. § 39-17- 425(a)(1). In this appeal as of right, the defendant challenges the sufficiency of the convicting evidence. Because the evidence is sufficient, we affirm the judgments of the trial court.

Davidson Court of Criminal Appeals

Robert J. Montville v. State of Tennessee
M2010-00031-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jeffrey S. Bivens

The Petitioner, Robert J. Montville, appeals the Hickman County Circuit Court’s denial of his petition for post-conviction relief from his convictions for simple assault and reckless driving and his resulting effective sentence of eleven months, twenty-nine days to be served as twenty-four hours in jail and the remainder on supervised probation. On appeal, the Petitioner contends that he received the ineffective assistance of trial counsel. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Hickman Court of Criminal Appeals

Karah and Ryan DePue, et al v. Charles D. Schroeder, et al - Dissenting
E2010-00504-COA-R9-CV

Knox Court of Appeals

Judy Dotson McConnell, et al v. Pat Fuller, et al
E2010-00530-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Chancellor W. Frank Brown

In September of 2009, Judy Dotson McConnell and Jerry Dotson (“Plaintiffs”) sued Pat Fuller, John Fuller, and Lela Dotson Gravett (“Defendants”) alleging, in relevant part, that the Last Will and Testament of Clarence E. Dotson, which was offered for probate in May of 2003, was a fraudulent will. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted alleging that the statute of limitations barred Plaintiffs’ claim. After a hearing, the Trial Court entered its order on February 16, 2010 finding and holding, inter alia, that Plaintiffs’ lawsuit was not filed within the statute of limitations and that Plaintiffs failed to “allege facts which would bring into play fraudulent concealment,” which would have tolled the statute of limitations. The Trial Court dismissed Plaintiffs’ suit. Plaintiffs appeal to this Court. We affirm.

Hamilton Court of Appeals

State of Tennessee v. Deborah N. Cotter
E2009-01849-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge John F. Dugger, Jr.

The appellant, Deborah N. Cotter, was convicted by a jury in the Hamblen County Criminal Court of aggravated robbery and was sentenced to ten years in the Tennessee Department of Correction. On appeal, she argues that the evidence is insufficient to support her conviction, particularly because no witness identified her in court as the robber. She also contends that the trial court erred in arriving at her sentence. Upon review, we affirm the judgment of the trial court.

Hamblen Court of Criminal Appeals

State of Tennessee v. Bryant C. Overton
M2009-01977-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David Bragg

A Rutherford County jury convicted the Defendant, Bryant C. Overton, of aggravated kidnapping, aggravated robbery, attempted first degree murder, and conspiracy to commit kidnapping. The trial court ordered the Defendant to serve an effective sentence of sixty years in the Tennessee Department of Correction. On appeal, the Defendant contends that the evidence is insufficient to support his convictions. After a thorough review of the record and the applicable law, we affirm the trial court’s judgments in part, but we reverse them in part based upon a sentencing error.

Rutherford Court of Criminal Appeals

Suzanne H. McKin v. Charles David McKin
E2010-1061-COA-R3-CV
Authoring Judge: Judge Herschel Pickens Franks
Trial Court Judge: Judge W. Jeffrey Hollingsworth

In this divorce case the Trial Judge granted the parties a divorce, divided the marital property, and ordered transitional alimony to the wife until the husband pays the wife an amount ordered by the Court to render the property settlement equitable. The parties have appealed, and we modify the Judgment because the Trial Court inadvertently included an amount in the property division which he had found to be the separate property of the husband. We adjust the property division along the lines intended by the Trial Judge and set a definite time for the transitional alimony to comply with the statute.

Hamilton Court of Appeals

Billy Ernest Kilburn v. Tennessee Department of Correction, et al.
M2010-01362-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Jeffrey S. Bivens

Inmate brought petition for writ of certiorari challenging his conviction of the prison disciplinary offense of conspiracy to violate state law. The trial court granted judgment on the record to the Tennessee Department of Correction (“TDOC”). We have concluded that TDOC failed to follow the Uniform Disciplinary Procedures, but that this departure did not affect the disposition of the case. We therefore affirm the chancellor’s decision.

Hickman Court of Appeals

In Re: Estate of James A. Hamilton a/k/a James Robert Hamilton
M2009-01882-COA-R3-CV
Authoring Judge: Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Jeffrey F. Stewart

A woman who failed to have her paternity determined while her putative father was living filed a complaint seeking to establish her right to inherit a part of his estate. Tennessee Code Annotated §31-2-105 requires paternity to be established by clear and convincing evidence if paternity is sought to be established after the putative father’s death. Prior to the trial, the woman moved the chancery court to order the deceased’s family to provide her with DNA samples in an effort to prove the deceased was her father. The trial court denied this motion, finding the rules of civil procedure do not require nonparties to provide DNA samples. Following a bench trial, the court concluded the woman failed to prove by clear and convincing evidence that the deceased was her father. The woman appealed. We affirm the trial court in all respects because, first, nothing in the Rules of Civil Procedure requires the deceased’s family members to provide DNA samples to assist the woman in proving she was the deceased’s daughter. Second, the positive and negative evidence rule does not apply to the testimony in this case because there was no conflicting testimony by eyewitnesses to the woman’s conception. Third, the missing evidence and missing witness rule applies to jury trials, whereas this trial was a bench trial, and there was no evidence that the purportedly missing evidence or missing witnesses were under the estate’s control.

Marion Court of Appeals

Kristene M. Brewer v. Boyd W. Brewer
M2010-00768-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Buddy D. Perry

Former cohabitant brought this partition action with respect to real and personal property. On appeal, the defendant argues that the trial court erred in dividing the real property and a mobile home, in finding the motor vehicles to be jointly-owned property, and in dividing the proceeds of a savings account equally between the parties. We have concluded that the trial court erred in dividing the savings account, which is titled in the defendant’s name alone. In all other respects, we affirm the decision of the trial court.

Franklin Court of Appeals

Zulu Naantaanbuu v. Sheila Naantaanbuu
W2010-01417-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor Arnold B. Golden

In this divorce action, Wife appeals the trial court’s denial of: (1) an oral motion for a continuance supported by her doctor’s affidavit; and (2) a motion to add, as necessary parties, two mortgagees of real estate alleged to be marital property. Discerning no error, we affirm.

Shelby Court of Appeals

Alvin T. McGee v. State of Tennessee
M2009-01850-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert G. Crigler

The Petitioner, Alvin T. McGee, filed for post-conviction relief from his convictions for attempted burglary and vandalism between $500 and $1000, alleging that his guilty pleas were not knowingly and voluntarily entered. The post-conviction court denied the petition, and the Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

Marshall Court of Criminal Appeals

State of Tennessee v. Mitzi Rollins
M2010-00566-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert Crigler

The appellant, Mitzi Rollins, pled guilty in the Moore County Circuit Court to one count of initiating a false report under Tennessee Code Annotated section 39-16-502. The plea agreement provided that she would be sentenced to two years and ten months, with the trial court to determine the manner of service. After a hearing, the trial court denied the appellant’s request for alternative sentencing, citing her lengthy criminal history and the repeated unsuccessful attempts to use less restrictive sentencing. The appellant contends the trial court erred by ordering her to serve her sentence in confinement. We affirm the judgment of the trial court.

Moore Court of Criminal Appeals

State of Tennessee v Charles E. Lowe-Kelley
M2010-00500-CCA-R3-CD
Authoring Judge: Judge James Curtwood Witt, Jr.
Trial Court Judge: Judge Stella Hargrove

A Maury County Circuit Court jury convicted the defendant, Charles E. Lowe-Kelley, of two counts of first degree premeditated murder, two counts of first degree felony murder, and nine counts of attempted first degree murder. At sentencing, the trial court imposed consecutive sentences of life with the possibility of parole for each first degree premeditated murder conviction, merged the first degree felony murder convictions into the first degree premeditated murder convictions, and imposed concurrent sentences of 15 years’ incarceration for each attempted first degree murder conviction to be served concurrently with the life sentences. On appeal, in addition to contesting the sufficiency of the evidence, the defendant contends that the trial court erred by (1) denying his motion for a continuance, (2) allowing a juror to remain on the jury who expressed an opinion about the case, (3) admitting evidence without establishing a proper chain of custody, (4) admitting a taperecorded conversation between the defendant and a separately-tried co-defendant, and (5) imposing consecutive sentences. Because the defendant failed to file a timely motion for new trial, all issues except the sufficiency of the evidence and sentencing are waived. Furthermore, the untimely motion for new trial rendered the notice of appeal untimely. In the interest of justice, however, we waive the timely filing of the notice of appeal and review the remaining issues. Following our review, we affirm the judgments of the trial court.

Maury Court of Criminal Appeals

State of Tennessee v. Douglas Wayne Young
E2009-00765-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert H. Montgomery, Jr.

A Sullivan County Criminal Court Jury convicted the appellant, Douglas Wayne Young, of aggravated rape and sentenced him to twenty-two years in the Tennessee Department of Correction. On appeal, the appellant claims that the trial court erred in (1) admitting the appellant’s nine millimeter handgun into evidence; (2) admitting scientific evidence from a DNA and serology expert; (3) finding that there was sufficient evidence to support the conviction; (4) giving the jury an instruction concerning flight; and (5) imposing a sentence of twenty-two years. Upon review, we affirm the judgment of the trial court.

Sullivan Court of Criminal Appeals

State of Tennessee v. Brent Blye
E2008-00976-CCA-R3-CD
Authoring Judge: Judge D. Kelly Thomas, Jr.
Trial Court Judge: Judge R. Jerry Beck

Following a jury trial, the Defendant, Brent Allen Blye, was convicted in Case Number S50,833 of possession with intent to sell 26 grams or more of cocaine, a Class B felony, and two Class A misdemeanors and was sentenced by the trial court pursuant to an agreement by the parties. At the sentencing hearing, the Defendant pled guilty to several felony and misdemeanor charges in three unrelated cases and was sentenced pursuant to a plea agreement to an effective term of 30 years. In this appeal as of right, the Defendant contends that (1) his pro se motions should be considered as a motion for new trial in Case Number S50,833; (2) the evidence presented at trial was insufficient to sustain his convictions in Case Number S50,833; (3) the trial court erred in denying his motion to withdraw his guilty pleas in Case Numbers S46,736, S48,639, and S51,239; (4) his right to a speedy trial was violated in Case Number S46,736; (5) the trial court erred in sentencing him; and (6) the trial judge who presided over the sentencing hearing for all four cases should have recused herself. Following our review, we affirm the convictions but remand the case for the entry of corrected judgments consistent with this opinion.

Sullivan Court of Criminal Appeals

Rachel Elaine Smith v. James Daniel McGrath
M2010-00866-COA-R3-JV
Authoring Judge: Judge Richard H. Dinkins
Trial Court Judge: Judge George L. Lovell

Mother appeals action of the trial court in adding a “paramour provision” to an order approving parenting plan for minor child. We modify the judgment and affirm in all other respects.

Maury Court of Appeals

Curtis Robin Russsell, et al. v. Anderson County, et al.
E2010-00189-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Judge Jon Kerry Blackwood

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection. The action was filed pursuant to the Tennessee Governmental Tort Liability Act (“GTLA”), Tenn. Code Ann. § 29-20-101 et seq., against the City of Clinton (“the City”) by plaintiffs Curtis Robin Russell (“Mr. Russell”) and Dorothy Louise Russell (“Mrs. Russell”) (collectively “the Russells”) as next of kin of the decedent, their son Curtis Tyler Russell (“Curtis”). The Russells settled with the driver of the vehicle, Ladislav Misek (“Mr. Misek”), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City. On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

Anderson Court of Appeals

State of Tennessee v. Deadrick Garrett
E2009-02365-CCA-R3-CD
Authoring Judge: Judge John Everett Williams
Trial Court Judge: Judge Mary Beth Leibowitz

The defendant, Deadrick Garrett, was convicted of first degree premeditated murder and sentenced to life with the possibility of parole in the Tennessee Department of Correction. On appeal, he argues that the evidence was insufficient to support his conviction and that the trial court erred in excluding evidence regarding the victim’s prior convictions and parole status. After careful review, we affirm the judgment from the trial court.

Knox Court of Criminal Appeals

State of Tennessee v. Lloyd Andra Webb
E2009-02135-CCA-R3-CD
Authoring Judge: Judge Joseph M. Tipton
Trial Court Judge: Judge John Kerry Blackwood

The Defendant, Lloyd Andra Webb, pled guilty to possession with intent to sell twenty-six grams or more of cocaine, a Class B felony, and to possession of marijuana, a Class A misdemeanor. See T.C.A. §§ 39-17-417 (2010); 39-17-418 (2010). He was sentenced as a Range I, standard offender to nine years for the possession with intent to sell conviction and to eleven months, twenty-nine days for the misdemeanor possession conviction, to be served concurrently. He was order to serve fifteen weekends in the Blount County Jail with the balance of his sentences on community corrections. The Defendant’s plea agreement reserved a certified question of law regarding the legality of the traffic stop that led to his arrest. We affirm the judgment of the trial court.

Blount Court of Criminal Appeals

Mattie M. Lindsey, et al. v. Mark Lambert, et al.
W2010-00213-COA-R3-CV
Authoring Judge: Judge David R. Farmer
Trial Court Judge: Judge Donna Fields

This appeal involves an award of sanctions. We reverse because the moving party did not comply with the safe harbor provision of Rule 11.03 of the Tennessee Rules of Civil Procedure.

Shelby Court of Appeals

Tommy K. Hindman vs. Louise Helen Hindman
E2010-01052-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Daryl R. Fansler

Louise Helen Hindman (“Wife”) and Tommy K. Hindman (“Husband”) were divorced in August of 1997, at which time the trial court approved a marital dissolution agreement (“the MDA”) submitted by the parties. Relevant to the instant case, the MDA addressed future medical and educational expenses for the parties’ minor child (“Son”). After Wife refused to reimburse Husband in compliance with the pertinent provisions of the MDA, he filed a petition seeking to have her held in contempt. The trial court ultimately ordered Wife to pay $43,678. We affirm.

Knox Court of Appeals