Kimberly Powell v. Community Health Systems, Inc. et al. - Concurring
E2008-00535-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Jerri S. Bryant

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

Kimberly Powell v. Community Health Systems, Inc. et al.
E2008-00535-SC-R11-CV
Authoring Judge: Justice William C Koch, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

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

Lee Medical, Inc. v. Paula Beecher et al. - Dissenting
M2008-02496-SC-S09-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Jeffrey S. Bivins

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

Lee Medical, Inc. v. Paula Beecher et al.
M2008-02496-SC-S09-CV
Authoring Judge: Justice William C Koch, Jr.
Trial Court Judge: Judge Jeffrey S. Bivins

This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn. Code
Ann. § 63-6-219 (Supp. 2009)] to a hospital system’s business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals. After several of the system’s hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system’s hospitals. These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor’s allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn. Code Ann. § 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined that most of the requested records were covered by the privilege. The trial court also granted the vendor permission to pursue an interlocutory appeal to the Court of Appeals; however, the Court of Appeals declined to accept the appeal. We granted the vendor’s Tenn. R. App. P. 11 application to address the trial court’s interpretation and
application of Tenn. Code Ann. § 63-6-219(e). We have determined that the trial court interpreted the privilege in Tenn. Code Ann. § 63-6-219(e) too broadly. Therefore, we vacate the portions of the trial court’s discovery orders applying the privilege in Tenn. Code Ann. § 63-6-219(e) and remand the case to the trial court for further proceedings.

Ella G. Alexander Wade v. Felice A. Vabnick, M.D.
W2009-02273-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Judge James F. Russell

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

Lee Medical, Inc. v. Paula Beecher et al. - Dissenting
M2008-02496-SC-S09-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Jeffrey S. Bivins

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

Lee Medical, Inc. v. Paula Beecher et al.
M2008-02496-SC-S09-CV
Authoring Judge: William C. Koch, Jr., J.
Trial Court Judge: Jeffrey S. Bivins, Judge
This appeal involves the application of the Tennessee Peer Review Law of 1967 [Tenn. Code Ann. _ 63-6-219 (Supp. 2009)] to a hospital system's business decision regarding the provision of vascular access services to patients in its member hospitals. The hospital system had customarily outsourced these services at several of its hospitals, but, following an audit, it decided to discontinue outsourcing the services and to begin providing them using nurses employed by its own hospitals. After several of the system's hospitals cancelled their vascular access services contracts, the vendor that had been providing the services filed two suits in the Circuit Court for Sumner County against the manufacturer of the catheters used to provide the services and one of its employees, a staffing affiliate of the hospital system and two of its employees, and the chief nursing officer at one of the system's hospitals. These suits, which were eventually transferred to the Circuit Court for Williamson County and consolidated, sought damages under numerous theories based on the vendor's allegations that the defendants, all of whom had played a role in the audit, had disparaged the manner in which it had been providing the vascular access services and had improperly interfered with its contracts. During discovery, the vendor sought copies of various records relating to the audit of its services. The defendants claimed that these records were covered by the privilege in Tenn. Code Ann. _ 63-6-219(e). After reviewing the disputed records in chambers, the trial court determined that most of the requested records were covered by the privilege. The trial court also granted the vendor permission to pursue an interlocutory appeal to the Court of Appeals; however, the Court of Appeals declined to accept the appeal. We granted the vendor's Tenn. R. App. P. 11 application to address the trial court's interpretation and application of Tenn. Code Ann. _ 63-6-219(e). We have determined that the trial court interpreted the privilege in Tenn. Code Ann. _ 63-6-219(e) too broadly. Therefore, we vacate the portions of the trial court's discovery orders applying the privilege in Tenn. Code Ann. _ 63-6-219(e) and remand the case to the trial court for further proceedings.

Kimberly Powell v. Community Health Systems, Inc. et al. - Concurring
E2008-00535-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Jerri S. Bryant

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

Kimberly Powell v. Community Health Systems, Inc. et al.
E2008-00535-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Jerri S. Bryant

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

Judy K. Flake v. Samuel Guy Flake
W2010-00165-COA-R3-CV
Authoring Judge: Judge J. Steven Stafford
Trial Court Judge: Chancellor William C. Cole

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

State of Tennessee v. Lawrence Hailey
W2009-00759-CCA-R3-CD
Authoring Judge: Judge Camille R. Mcmullen
Trial Court Judge: Judge Chris B. Craft

Defendant-Appellant, Lawrence Hailey, was convicted by a Shelby County jury of one count of robbery, a Class C felony. He was sentenced as a Range II, multiple offender to serve nine years and six months in the Tennessee Department of Correction. In this appeal, Hailey argues: (1) the evidence is insufficient to support his conviction, and (2) his sentence is excessive. Following our review, we affirm the judgment of the trial court.

State of Tennessee v. Kevin McDougle
W2007-01877-CCA-R3-CD
Authoring Judge: Judge Thomas T. Woodall
Trial Court Judge: Judge W. Mark Ward

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

Maurice Darnell Tyler v. State of Tennessee
M2008-02199-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge J. Randall Wyatt, Jr.

Petitioner, Maurice Darnell Tyler, was convicted of two counts of first degree murder and received a total effective sentence of life without the possibility of parole. Subsequently, Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The post-conviction court denied the petition, and Petitioner now appeals. Upon review, we affirm the judgment of the post-conviction court.

Bailey Tool & Manufacturing Co. v. Forrest Butler et al.
M2009-00685-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Carol L. McCoy

This is a dispute between two companies that supply parts in the automotive industry. Company A claims that Company B tortiously interfered with its contract and with its business relationships. The trial court granted summary judgment on the grounds that there was no genuine issue of material fact as to causation and that Company B conclusively established the affirmative defense of justification. We affirm the decision of the trial court because Company B negated the element of causation.

Travis Jay Lester v. State of Tennessee
M2009-00523-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Jane Wheatcraft

The Petitioner, Travis Jay Lester, pled guilty in the Wilson County Criminal Court to introduction of contraband into a penal facility, resisting arrest, and two counts of assault. He received a total effective sentence of four years in the Tennessee Department of Correction. Subsequently, the Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was ineffective and 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.

State of Tennessee v. William Ladonte Davis
M2009-00138-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert Crigler, Judge

The appellant, William Ladonte Davis, pled guilty to possession of .5 grams or more of a substance containing cocaine with the intent to sell and conspiracy to sell cocaine, receiving sentences of eleven years and five years, respectively. On appeal, the appellant challenges the trial court's denial of alternative sentencing, specifically contending that he should have been sentenced to probation or community corrections. Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Ronald Lee Stewart
M2008-00337-CCA-R3-CD
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge Robert Crigler

A Marshall County Circuit Court Jury found the appellant, Ronald Lee Stewart, guilty of aggravated burglary, theft, and vandalism. The trial court sentenced the appellant as a Range III persistent offender to a total effective sentence of thirteen years in the Tennessee Department of Correction. On appeal, the appellant argues that his convictions "violate[] the Sixth Amendment because of juror fatigue" and that the trial court erroneously found him to be a persistent offender. Upon review, we affirm the judgments of the trial court.

State of Tennessee v. Sidney Leonard Pigg, III
M2009-01339-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Robert Crigler, Judge

The Defendant, Sidney Leonard Pigg, III, was convicted by a Marshall County jury of Class D felony theft of property. See Tenn. Code Ann. _ 39-14-103. The trial court imposed a three-year sentence for this conviction, which was to be suspended following service of sixty days. On appeal, the Defendant challenges the sufficiency of the evidence supporting his conviction. Following our review of the record, we affirm the judgment of the trial court.

Lucy M. Ray v. Swanson Realty, LLC, et al.
M2009-01469-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Judge Royce Taylor

The plaintiff home builder filed a complaint for breach of contract against a woman who refused to close on the sale of a home she had contracted to purchase. When the defendant failed to timely respond, the plaintiff filed a motion for default judgment and served the motion on the defendant by mailing a copy to her. She did not open the envelope, but wrote "return to sender" on it, and placed it back into the mail. The trial court granted the plaintiff a default judgment. The defendant subsequently filed a motion to set aside the default judgment, which the trial court denied. The defendant argues on appeal that she did not receive actual notice of the motion for default judgment, and that the trial court should have granted her motion to set it aside amend because of "mistake, inadvertence, surprise or excusable neglect." We affirm the trial court.

State of Tennessee v. Roderick Sammual Chadwick
M2008-02270-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Monte Watkins

A Davidson County jury found the Defendant, Roderick Sammual Chadwick, guilty of attempted voluntary manslaughter and aggravated assault. The trial court imposed concurrent terms of twelve years and fifteen years, respectively, for these convictions. Under the same indictment, the Defendant pleaded guilty to being a felon in possession of a weapon. The trial court sentenced the Defendant to six years for this conviction, to be served consecutively to the effective fifteen-year sentence, for a total effective sentence of twentyone years in the Department of Correction. In this direct appeal, the Defendant asserts that the evidence was insufficient to support his convictions and that consecutive sentencing was improper. Because the record on appeal does not include the necessary transcripts of what transpired in the trial court, we conclude that the Defendant has waived the issues argued on appeal. We must presume that the evidence was sufficient to support his convictions and that the sentencing ruling of the trial court was correct; therefore, the judgments of the trial court are affirmed.

State of Tennessee v. Demance Marshall Beasley
M2009-01188-CCA-R3-CD
Authoring Judge: Judge David H. Welles
Trial Court Judge: Judge Monte Watkins

The Defendant, Demance Marshall Beasley, was charged with: one count of attempted especially aggravated robbery, a Class B felony, see Tennessee Code Annotated sections 39- 13-403(b), -12-107(a); one count of attempted first degree murder, a Class A felony, see Tennessee Code Annotated sections 39-13-202(c), -12-107(a); and one count of aggravated assault, a Class C felony, see Tennessee Code Annotated section 39-13-102(e)(1). Following a jury trial, he was convicted as charged. In this direct appeal, he contends that: (1) the State presented evidence insufficient to convict him; (2) the trial court erred by foreclosing crossexamination of the victims regarding their drug usage; and (3) the trial court improperly instructed the jury regarding identification of the Defendant as the perpetrator of the crime. After our review, we affirm the judgments of the trial court.

Marquise Harris v. State of Tennessee
M2009-01834-CCA-R3-HC
Authoring Judge: Judge Jerry L. Smith

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Marquise Harris, has appealed the trial court's order dismissing his petition for writ of habeas corpus in which Petitioner alleged that: (1) he received ineffective assistance of counsel; (2) was subject to an illegal search, seizure, and arrest; and (3) he received an unconstitutional enhancement of his sentences. Upon a review of the record in this case, we are persuaded that the trial court was correct in dismissing the petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

Regions Bank v. Trailer Source, et al.
M2008-01167-COA-R3-CV
Authoring Judge: Presiding Judge Patricia J. Cottrell
Trial Court Judge: Chancellor Ellen H. Lyle

A junior creditor sued the senior creditor claiming that the senior creditor's involvement in the sale of collateral, used trailers for tractor-trailer trucks, was commercially unreasonable. We agree with the trial court that the senior creditor, a bank, was subject to the commercially reasonable disposition of collateral rule. However, we hold that the bank's approval of the sale, arranged by the debtor, was not commercially unreasonable. Consequently, we reverse the judgment of the trial court.

Bernard Henry v. State of Tennessee
W2009-01226-CCA-R3-PC
Authoring Judge: Judge Alan E. Glenn
Trial Court Judge: Judge John T. Fowlkes, Jr.

The petitioner, Bernard Henry, appeals the denial of his petition for post-conviction relief, arguing that he received ineffective assistance of both trial and appellate counsel. Following our review, we affirm the denial of the petition.

Lemar J. White v. State of Tennessee
W2008-01661-CCA-R3-PC
Authoring Judge: Judge Norma McGee Ogle
Trial Court Judge: Judge James C. Beasley, Jr.

Petitioner Lemar J. White was convicted of first degree premeditated murder and sentenced to life in prison. After this court affirmed his conviction, he filed a petition for post-conviction relief, alleging he received ineffective assistance of both trial and appellate counsel. Specifically, he claims both attorneys should have challenged the validity of his warrantless arrest because the State did not supply a sufficient basis for finding probable cause. We affirm.