Raleigh Commons, Inc. v. SWH, LLC, et al.
This appeal arises from a prolonged dispute among business associates which they have come to refer to as a “business divorce.” The parties in this matter, each doctors, formed a limited liability company for the purpose of acquiring property and constructing a medical office building on the property. In order to acquire the property from the current owner, the doctors executed an assumption and modification agreement whereby the LLC and the doctors each individually agreed to be jointly and severally liable to the current owner for its obligations on a promissory note. Subsequently, one of the doctors, the Appellee, withdrew membership from the LLC and executed an indemnity agreement with the remaining LLC members whereby the Appellee would be held harmless from any liability of the LLC, including the note. Thereafter, the LLC and its remaining members defaulted on the note, and the holder of the note filed a complaint against the Appellee, the LLC, and the individual LLC members, seeking to collect the balance due under the note. In order to avoid having a judgment entered against him, the Appellee purchased the note and pursued a claim against the LLC and its individual members for indemnification and breach of the note. Ultimately, the trial court granted the Appellee’s motion for summary judgment on his indemnification claim, awarded him attorney’s fees, costs, and prejudgment interest, and dismissed the Appellant’s cross-claims against the Appellee. After thoroughly reviewing the record, we affirm in part, reverse in part, vacate in part, and remand for further proceedings. |
Shelby | Court of Appeals | |
State of Tennessee v. Malcolm J. Coble
The Defendant, Malcolm J. Coble, contends that his right to a speedy trial was violated when the trial court revoked his community corrections sentence on the basis of a 2010 violation warrant, later amended in 2012, because the warrants were not executed and an evidentiary hearing held until 2012. After a review of the record and the applicable authorities, we affirm the judgment of the trial court. |
Madison | Court of Criminal Appeals | |
Eddie C. Pratcher, Jr. v. Methodist Healthcare Memphis Hospitals et al.
The primary issue in this interlocutory appeal is whether the Tennessee health care liability statute of repose, Tenn. Code Ann. § 29-26-116(a)(3) (2012) (“the statute of repose”), is an affirmative defense under Tenn. R. Civ. P. 8.03, that is waived if not raised in a timely manner. Sandra Y. Jones Pratcher died following complications that arose on December 4, 1999, when she received anesthesia before undergoing a cesarean section. On December 1, 2000, her husband, Eddie C. Pratcher, Jr., (“Plaintiff”) filed suit against various health care providers, including Consultants in Anesthesia, Inc. (“Defendant”) and one of its nurse anesthetists. Plaintiff alleged that Defendant, which contracted with the hospital to provide anesthesia services to its obstetric patients, was vicariously liable for the negligent acts of its nurse anesthetist. Plaintiff amended his complaint on March 3, 2006, to assert that Defendant was also vicariously liable for the negligent actions of its corporate owner and president, Dr. Chauhan, who was on call on December 4, 1999, but failed to come to the hospital to administer anesthesia to Plaintiff’s wife. Plaintiff amended his complaint two more times and each time asserted that Defendant was vicariously liable for the negligent acts of Dr. Chauhan. Defendant did not raise the statute of repose as a defense to the vicarious liability claim based on Dr. Chauhan’s alleged negligence. After the jury returned a verdict for all defendants, the trial court set aside the verdict based on an error in the verdict form and its disapproval of the verdict as thirteenth juror. After the trial court granted a new trial as to all parties, Defendant moved to dismiss the case based on the statute of repose and to amend its answer to assert a statute of repose defense. The trial court ruled that Defendant had waived the statute of repose defense and denied the motions. We hold that (1) the running of the statute of repose does not deprive the trial court of subject matter jurisdiction; and (2) as Rule 8.03 explicitly states, the statute of repose is an affirmative defense. Defendant failed to timely raise the statute of repose as an affirmative defense. Therefore, the trial court did not abuse its discretion by denying Defendant’s posttrial motion to amend its answer to assert the statute of repose as a defense. The judgment of the trial court is affirmed. |
Shelby | Supreme Court | |
City of South Pittsburg, Tennessee v. James C. Hailey and Company, et al
In April 2008 the City of South Pittsburg hired a contractor to enlarge its sewage treatment plant. During construction of the project several sink holes developed, the last of which occurred in February of 2009 and caused the plant’s lagoon to collapse. The City made claim on the contractor’s builders’ risk insurance policy; the insurer denied the claim, contending that construction of the project was complete at the time of the collapse. The City, which had filed suit against the contractor, amended the complaint, adding the insurer as a party and asserting a claim for breach of contract against the company; the City also requested that the court issue a declaratory judgment that the losses sustained by the city were covered by the policy. The court subsequently granted the insurance company’s motion for summary judgment and denied the city’s motion for partial summary judgment. The city and the engineering firm engaged by the City to plan the project appeal the grant of summary judgment to the insurer and the denial of the city’s motion. We have determined that the court erred in granting the insurer’s motion and denying the City’s; consequently, we reverse both judgments. |
Court of Appeals | ||
Lisa Gail Hayes v. Mark C. Pierret
In these acrimonious post-divorce proceedings, the father of two minor children filed a petition seeking, inter alia, to be given sole decision-making authority over the children’s educations, non-emergency health care, religion, and extracurricular activities, and to be designated the primary residential parent or alternatively to receive more parenting time. The trial court found a material change of circumstances had occurred due to the parties’ total inability to cooperatively co-parent and that it was in the children’s best interest to spend more quality time with their father. However, the court found it was in the children’s best interest for the mother to remain the primary residential parent and to have final authority over the children’s non-emergency medical care after consultation with the father. The court found that the other major decisions concerning the children should be made jointly. Each party was ordered to pay his or her own attorney’s fees. We affirm the foregoing decisions; however, we have determined the father may be entitled to a modification of his child support obligation, which was not addressed in the trial court’s final order, and we remand this issue for further proceedings. |
Williamson | Court of Appeals | |
In Re: Estate of Jane Kathryn Ross
The trial court decreed a resulting trust in a house paid for by the decedent on property owned by her son. We have concluded that the trial court erred. |
Davidson | Court of Appeals | |
Don Mabee v. Gayle Mabee
The ex-husband of the defendant filed a petition to terminate alimony. The parties’ 2010 marital dissolution agreement provides that the petitioner shall pay alimony to his ex-wife for a specified period or upon her cohabitating with another man, and petitioner alleges that the defendant has been cohabitating with another man. The trial court made findings that, although the defendant had an intimate relationship with another man, she was not cohabitating as that term is defined; thus, the trial court denied the petition and awarded the defendant an arrearage judgment for alimony the petitioner failed to pay. Finding the trial court applied the correct legal standard and the evidence does not preponderate against the trial court’s findings, we affirm. |
Franklin | Court of Appeals | |
Kitty Fern (Darden) Sartain v. Mitchell Carl Sartain
This appeal arises from the second divorce between these parties. Husband and Wife were married for nineteen years, divorced in 1997, and then married again for thirteen additional years. In this second divorce, the trial court awarded Wife alimony in futuro and alimony in solido in addition to 45% of Husband’s military retirement pay. As part of the first divorce the trial court had awarded Wife 36% of Husband’s military retirement pay. Although Husband retired in 2006, Wife had not received any portion of his retirement pay. Wife requested the court in this second divorce award her the money she should have been paid from the date of Husband’s retirement to the date of the second divorce. The trial court declined to make that award. On appeal we affirm the trial court’s judgment awarding Wife alimony in futuro and alimony in solido. We reverse the court’s judgment denying Wife the portion of Husband’s retirement pay she had been awarded in the first divorce, and we remand the case for a hearing on the issues surrounding the Survivor Benefit Plan. |
Montgomery | Court of Appeals | |
Leonard Jasper Young v. State of Tennessee
The Petitioner, Leonard Jasper Young, appeals from the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief as it relates to the guilt phase of his trial. The post-conviction court granted the Petitioner relief as to the sentencing phase, and the State did not appeal this ruling. A Shelby County jury convicted the Petitioner of premeditated first degree murder, especially aggravated kidnapping, and theft over $1,000. He received an effective sentence of death plus seventy-two years. On appeal, the Petitioner asserts that trial counsel were ineffective during the guilt phase of his trial. We affirm the judgment of the post-conviction court denying the Petitioner post-conviction relief. |
Shelby | Court of Criminal Appeals | |
State of Tennessee v. Curtis Keller
After a trial by jury the defendant, Curtis Keller, was convicted of two counts of especially aggravated kidnapping (against Tamika Jones and M.B.), Class A felonies; one count of attempted especially aggravated robbery (against Andrew Morrow), a Class B felony; one count of especially aggravated burglary, a Class B felony; three counts of aggravated assault (against Andrew Morrow, Tamika Jones, and M.B.), Class C felonies; and one count of employing a firearm during the commission of a “dangerous felony,” a Class C felony. The trial court sentenced the defendant to a total effective sentence of two hundred and forty years. On appeal, the defendant claims that: (1) the jury instructions concerning the especially aggravated kidnapping charges were inadequate in light of State v. White, 362 S.W.3d 559 (Tenn. 2012), (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous, and (3) his eight separate convictions violate the Double Jeopardy Clause because his crime spree “was one continuous act.” After careful review, we conclude that: (1) the jury instructions were inadequate in light of White, but harmless beyond a reasonable doubt, and (2) the jury instructions concerning the employment of a firearm during the commission of a “dangerous felony” were erroneous because they did not foreclose the possibility that the jury used one of the especially aggravated kidnappings—which, as stated in the indictment, were based on the defendant’s use of a firearm—as predicate felonies. As the State concedes, the statute prohibiting an individual’s use of a firearm during the commission of a “dangerous felony” expressly forbids charging a defendant for a violation of that statute “if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged.” T.C.A. § 39-17-1324(c). Accordingly, the defendant’s conviction for employing a firearm during the commission of a dangerous felony is reversed. In addition, it was plain error for the defendant to be convicted of both especially aggravated burglary and attempted especially aggravated robbery based on the same act of causing serious bodily injury to victim Andrew Morrow. The defendant’s conviction for especially aggravated burglary is reduced to a conviction of aggravated burglary, and a new sentence of fifteen years is imposed on this count. With respect to his other claims, the defendant has failed to establish any entitlement to relief, and his convictions of two counts of especially aggravated kidnapping, one count of attempted especially aggravated robbery, and three counts of aggravated assault are affirmed. |
Shelby | Court of Criminal Appeals | |
Raymond Hayden v. Wayne Carpenter, Warden
The petitioner, Raymond Hayden, appeals the Lake County Circuit Court’s dismissal of his 2012 petition for writ of habeas corpus in which he sought to challenge his 2009 Putnam County, guilty-pleaded conviction of the sale of cocaine. Following our review, we affirm the order of the circuit court. |
Lake | Court of Criminal Appeals | |
State of Tennessee v. Warren Hildred
The defendant, Warren Hildred, appeals his Shelby County Criminal Court jury conviction of second degree murder, challenging both the exclusion of certain evidence and the sufficiency of the convicting evidence. Discerning no error, we affirm. |
Shelby | Court of Criminal Appeals | |
Edward Thomas Kendrick, III v. State of Tennessee
Edward Thomas Kendrick, III (“the Petitioner”) was convicted by a jury of first degree premeditated murder. This Court affirmed the Petitioner’s conviction on direct appeal. The Petitioner filed for post-conviction relief, alleging ineffective assistance of counsel. After a hearing, the post-conviction court denied relief, and this appeal followed. Upon our thorough review of the record and the applicable law, we are constrained to conclude that the Petitioner established that he received the ineffective assistance of counsel at trial, because it is reasonably likely that a jury would have convicted him of a lesser degree of homicide absent the deficiencies in his trial counsel’s performance. Accordingly, we must reverse the Petitioner’s conviction and remand this matter for further proceedings. |
Hamilton | Court of Criminal Appeals | |
Larry Keith Huddle v.State of Tennessee
In June 1998, petitioner, Larry Keith Huddle, entered a “no contest” plea to one count of attempted aggravated sexual battery. Pursuant to the plea agreement, he received an eight-year sentence, with thirty-five percent release eligibility, to be served in community corrections. His sentence expired in 2004, but he remained under community supervision for life. In 2011, petitioner filed a petition for post-conviction relief, arguing that he pleaded guilty without knowing that he would be subject to community supervision for life. Following a hearing, the post-conviction court dismissed the petition, finding that the petition was not timely. On appeal, petitioner contends that Ward v. State, 315 S.W.3d 461 (Tenn.2010), announced a new rule of constitutional law that should be applied retroactively, which would toll the statute of limitations and render his petition for post-conviction relief timely. He further argues that he received ineffective assistance of counsel and that the State now carries the burden of proving that the failure to advise him of the condition of community supervision for life was harmless beyond a reasonable doubt. Following our review of the record and the applicable law, we affirm the judgment of the post-conviction court. |
Sullivan | Court of Criminal Appeals | |
Samuel E. Foster et al v. Walter William Chiles, III et al
This is a health care liability case. Samuel E. Foster and his wife, Mary Foster, timely filed a complaint after properly sending pre-suit notices to the potential defendants as required by Tenn. Code Ann. § 29-26-121(a) (2012). After nonsuiting their first lawsuit, they timely filed a second complaint in which they alleged the same cause of action against the same defendants. The second complaint alleged compliance with section 121(a), citing the notices already properly sent before the first complaint was filed. The trial court dismissed the second complaint with prejudice based upon the court’s determination that plaintiffs failed to satisfy the notice requirement of section 121(a). We hold that plaintiffs complied with section 121(a)’s notice requirement by giving a written notice of their potential health care liability claim to each defendant at least 60 days prior to the filing of their second complaint. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that plaintiffs’ inadvertent failure to file – with the second complaint – proof of their service of the subject notices does not warrant dismissal with prejudice. We vacate the trial court’s order of dismissal and remand for further proceedings. |
Knox | Court of Appeals | |
Edgar Bailey, Jr. v. State of Tennessee
Convicted of felony murder, three counts of aggravated assault, and setting fire to personal property, petitioner, Edgar Bailey, Jr., filed the instant petition for writ of error coram nobis, alleging that the indictment under which he was tried and convicted for felony murder was defective in that it did not bear a return date from the grand jury and that the State withheld it from him prior to trial. He further claims that the allegedly defective indictment constitutes newly discovered evidence for the purpose of error coram nobis proceedings. The coram nobis court summarily dismissed the petition. Following our review, we affirm the judgment of the coram nobis court. |
Hamilton | Court of Criminal Appeals | |
Amy Wheatley Sparkman v. Jason Aaron Sparkman
This appeal involves post-divorce proceedings arising out of numerous disputes between the parties. The only rulings that are challenged on appeal are the trial court’s conclusions that: (1) Father was required to pay uncovered medical expenses for the children’s counseling, pursuant to the divorce decree; and (2) Father must pay $14,000 of Mother’s attorney’s fees. For the following reasons, we affirm the trial court’s decision on both issues. |
Madison | Court of Appeals | |
Pearlie Mae Dunigan, Next of Kin/Personal Representative of Estate of Grover Dunigan, Deceased v. State of Tennessee
This appeal involves a claim for damages filed with the Tennessee Claims Commission, arising out of the death of an inmate while he was housed in a state penitentiary. The Claims Commission denied the claimant’s motion for a default judgment. Thereafter, the Claims Commission determined that the gravamen of the complaint was for medical malpractice, and consequently, it granted the State’s motion to dismiss based upon the claimant’s failure to comply with various provisions of the Medical Malpractice Act. The claimant appeals. For the following reasons, we affirm. |
Davidson | Court of Appeals | |
Larry Sneed v. The City of Red Bank, Tennessee A Municipality
After his discharge as the Chief of Police for Red Bank, Tennessee, Larry Sneed filed suit against Red Bank pursuant to the Tennessee Human Rights Act and the Tennessee Public Protection Act. He requested a jury trial on both claims. Red Bank filed a motion to transfer to circuit court and to proceed without a jury pursuant to the Tennessee Governmental Tort Liability Act. The trial court transferred the case and ordered the case to proceed without a jury on the Tennessee Public Protection Act claim. Relying on University of Tennessee of Chattanooga v. Farrow, E2000-02386-COA-R9-CV, 2001 WL 935467 (Tenn. Ct. App. Aug. 16, 2001), the court held that the Tennessee Governmental Tort Liability Act did not preclude a jury trial on the remaining claim. Red Bank pursued this interlocutory appeal. We reverse the decision of the trial court and hold that the Tennessee Governmental Tort Liability Act applies to claims brought against a municipality pursuant to the Tennessee Human Rights Act; therefore, that claim must also be tried without a jury. |
Hamilton | Court of Appeals | |
Gregory G. Kilgore v. State of Tennessee
Following a bench trial, a Montgomery County Circuit Court convicted the Petitioner, Gregory G. Kilgore, of aggravated robbery and possession with the intent to sell or deliver .5 grams or more of cocaine. The trial court sentenced the Petitioner to twelve years for each conviction to be served concurrently, in the Tennessee Department of Correction. The Petitioner appealed, challenging the sufficiency of the evidence, and this Court affirmed the conviction. State v. George C. Kilgore, No. M2009-01539-CCA-R3-CD, 2010 WL 2483546, at *1 (Tenn. Crim. App., at Nashville, June 21, 2010), perm. app. denied (Tenn. October 20, 2010). The Petitioner timely filed a petition seeking post-conviction relief on the basis of ineffective assistance of counsel, which the post-conviction court denied after a hearing. The Petitioner appeals the post-conviction court’s denial, claiming that his attorney’s failure to adequately cross-examine a witness and to procure a surveillance video constitutes ineffective assistance of counsel. After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-conviction court’s judgment. |
Montgomery | Court of Criminal Appeals | |
State of Tennessee v. James Scott O'Brien
The defendant, James Scott O’Brien, appeals the Robertson County Circuit Court’s order that he serve in confinement nine months of the 30-month sentence imposed for his conviction of theft of property valued at $1,000 or more but less than $10,000. Because the record supports the sentencing order, we affirm. |
Robertson | Court of Criminal Appeals | |
William T. Bryant v. State of Tennessee
The petitioner, William T. Bryant, filed a petition to test DNA evidence pursuant to the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition, and the petitioner appeals. Upon review, we affirm the judgment of the post-conviction court. |
Obion | Court of Criminal Appeals | |
Jerry Louis Fitzgerald, Jr. v. State of Tennessee
Petitioner, Jerry Louis Fitzgerald, Jr., was indicted in March of 2008 by the Gibson County Grand Jury for possession of more than .5 grams of cocaine with the intent to sell or deliver, unlawful sale of over .5 grams of cocaine, and unlawful delivery of over .5 grams of cocaine. Petitioner ultimately entered guilty pleas to three counts of selling over .5 grams of cocaine. As a result of the guilty pleas, he was sentenced to twenty years for each count, to be served concurrently, for a total effective sentence of twenty years. Following the entry of judgment, Petitioner filed a pro se motion to withdraw his guilty plea, which the trial court denied without a hearing. Petitioner appealed. See State v. Louis Fitzgerald, Jr., No. W2009-02520-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 703, at *1-2 (Tenn. Crim. App., at Jackson, Aug. 20, 2010). This Court remanded the case for a hearing on the motion to withdraw the guilty plea. On remand, the trial court held a hearing and again denied the motion. There was no direct appeal from this denial. Petitioner filed a petition for post-conviction relief in November of 2011, seeking a delayed appeal from the denial of the motion to withdraw the guilty pleas. In June of 2012, a consent order was entered allowing a delayed appeal from the denial of the motion to withdraw the guilty pleas. On appeal, Petitioner challenges the trial court’s denial of the motion to withdraw his guilty pleas because the trial court failed to determine: (1) whether Petitioner was denied effective counsel; (2) whether the plea was knowingly and involuntarily made; and (3) whether manifest injustice exists as a ground for withdrawal of the pleas. After a review of the record, we determine that the trial court did not abuse its discretion in denying the motion to withdraw the guilty pleas where there was substantial evidence in the record to support the trial court’s conclusion. Consequently, the judgments of the trial court are affirmed. |
Gibson | Court of Criminal Appeals | |
State of Tennessee v. LaShun Gray and Stanley Williams
The Defendants, Lashun Gray and Stanley Williams, were tried jointly before a Shelby County Criminal Court jury. Defendant Gray was convicted of attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See T.C.A. §§ 39-13-202, 39-12-101, 39-17-1324 (2010). He was sentenced as a Range I, standard offender to consecutive sentences of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective thirty-four-year sentence. Defendant Williams was convicted of first degree murder, attempt to commit first degree murder, a Class A felony, and employing a firearm during the commission of a dangerous felony, a Class C felony. See id. He was sentenced to life imprisonment for the first degree murder conviction and as a Range I, standard offender to consecutive terms of twenty-four years for the attempted first degree murder conviction and ten years for the firearm violation, for an effective sentence of life plus thirty-four years. On appeal, Defendant Gray contends that (1) the evidence is insufficient to support his conviction for attempted first degree murder, (2) the trial court erred by allowing the medical examiner to testify about the effects of a gunshot wound on a living person, and (3) the court erred during sentencing. Defendant Williams contends that |
Shelby | Court of Criminal Appeals | |
Nigel Marlin Reid Sr. v. Morristown Power et al
Nigel Marlin Reid, Sr. filed a complaint in the trial court. The court, sua sponte, held that the complaint is “frivolous” and that plaintiff’s claims against his brother are barred by res judicata. The court dismissed the action. Because the complaint fails to state a cause of action, we affirm. |
Hamblen | Court of Appeals |