In Re Houston D.
W2021-00979-COA-R3-JV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge William A. Peeler

This appeal involves a petition for grandparent visitation filed by the paternal grandparents. The juvenile court granted the petition and the parents appeal. We reverse and dismiss the case.

Malik Dewayne Hardin v. State of Tennessee
E2021-01244-CCA-R3-PC
Authoring Judge: Judge. J. Ross Dyer
Trial Court Judge: Judge Kyle A. Hixson

The petitioner, Malik DeWayne Hardin, appeals the partial denial of his Rule 36 motion to correct a clerical error, asserting that a clerical error resulted in his being sentenced as a Range II offender and that he did not receive all the pretrial jail credit he was promised. After review, we affirm the judgment of the trial court.

State of Tennessee v. Bryan A. Erwin
E2021-01232-CCA-R3-CD
Authoring Judge: Judge J. Ross Dyer
Trial Court Judge: Judge Andrew M. Freiberg

A Bradley County jury convicted the defendant, Bryan A. Erwin, of simple assault and aggravated assault for which the trial court imposed an effective three-year sentence to be served in the Tennessee Department of Correction. On appeal, the defendant contends that the State committed prosecutorial misconduct at various times during the trial and that the trial court erred in certain evidentiary rulings and in sentencing. After reviewing the record and considering the applicable law, we affirm the judgments of the trial court. Additionally, we remand for the entry of corrected judgment forms to reflect the appropriate conviction for count 1, for simple assault, and count 2, for aggravated assault.

State of Tennessee v. Raymond Paul Lankey
E2021-01161-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge David R. Duggan

The Defendant, Raymond Paul Lankey, appeals the trial court’s order imposing confinement after finding that the Defendant violated his probation. The Defendant’s probation began in December 2019, when he pleaded guilty to aggravated assault in exchange for an effective three-year sentence, with two years, eleven months and eight days to be served on supervised probation. In July 2021, a probation violation warrant was issued, the Defendant’s second, alleging multiple violations. After a hearing, the trial court revoked the Defendant’s probation, ordering him to serve the remainder of his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked his probation and when it ordered him to confinement. After review, we affirm the trial court’s judgment.

Tennessee Homes v. Dalton L. Welch et al.
M2021-01383-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge William A. Lockhart

This appeal is a landlord-tenant dispute involving issues of liquidated damages and material breach of contract. The landlord filed a civil warrant in general sessions court to recover an early termination fee and other related fees pursuant to the parties’ lease agreement. The general sessions court entered a judgment in favor of the landlord finding that the early termination fee was reasonable and was not a penalty. The tenants appealed the judgment to the circuit court. The circuit court also entered a judgment in favor of the landlord finding that the early termination fee was reasonable and was not a penalty and that the landlord did not breach the lease agreement. The tenants appeal. We affirm as modified and remand to the circuit court for calculation of damages.

In Re Alessa H.
M2021-01403-COA-R3-PT
Authoring Judge: Judge John W,. McClarty
Trial Court Judge: Chancellor Stella L. Hargrove

Following the entry of a default judgment against a mother who failed to answer the petition to terminate her parental rights, the trial court terminated the mother’s parental rights to her child on the grounds of (1) abandonment by failure to establish a suitable home; (2) substantial noncompliance with the permanency plan; (3) persistence of conditions; and (4) failure to manifest an ability and willingness to personally assume custody or financial responsibility. The trial court further found that termination of the mother’s parental rights was in the child’s best interest. The mother moved to set aside the default judgment. We affirm the trial court’s denial of the motion to set aside the default judgment. We affirm the trial court’s conclusion that clear and convincing evidence supports the aforementioned grounds for termination. However, we remand for the trial court to determine whether the termination of the mother’s parental rights is in the best interest of the child pursuant to the new statutory factors which became effective on the date the petition was filed.

Trimon J. Pruitt v. State of Tennessee
W2021-01214-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Kyle Atkins

A Madison County jury convicted the Petitioner, Trimon J. Pruitt, of one count of second degree murder, and the trial court sentenced him to serve twenty-four years, at 100%. The Petitioner appealed, and this court affirmed his conviction and sentence. State v. Trimon Pruitt, No. W2018-00039-CCA-R3-CD, 2019 WL 1501552, *1 (Tenn. Crim. App., at Jackson, Apr. 4, 2019), Tenn. R. App. P. 11 application denied (Tenn. Aug 19, 2019). The Petitioner filed an untimely petition for post-conviction relief, which the post-conviction court dismissed after a hearing. We affirm the post-conviction court’s judgment.

State of Tennessee v. Phillip Myron Looper
M2021-00652-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Dee David Gay

The Defendant, Phillip Myron Looper, pleaded guilty to two counts of aggravated animal cruelty and one count of aggravated assault.  The trial court sentenced the Defendant to 364 days to be served in the county jail, followed by twelve years of probation, including a restriction from leaving the county of residence except for medical treatment.  The Defendant did not object to the sentence but filed a timely appeal, contending that the trial court erred when it imposed a sentence in excess of the agreed upon five years and by improperly imposing travel restrictions.  After review, we reverse the trial court’s judgments and remand the case for entry of an order as set forth herein. 

STATE OF TENNESSEE v. DANIEL SMITH
W2021-01075-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge James M. Lammey

The Defendant, Daniel Smith, appeals the trial court’s revocation of his ten-year probation sentence for aggravated assault. The trial court determined that the Defendant’s act of sending a letter to the victim violated the terms of his probation sentence and ordered the Defendant to serve his sentence. The Defendant asserts that the trial court’s revocation of his probation sentence was an abuse of discretion and that he should be returned to service of a probation sentence. After review, we conclude that revocation of the probation sentence was not an abuse of discretion.

State of Tennessee v. John P. Stone
W2021-01044-CCA-R3-CD
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Charles Creed McGinley

The Defendant, John P. Stone, was convicted of aggravated burglary following a bench trial, and he received a sentence of twelve years in confinement. On appeal, the Defendant argues that the evidence was insufficient to convict him of aggravated burglary. After reviewing the record, the parties’ briefs, and the applicable law, we affirm the trial court’s judgment.

Barry Charles Blackburn Ex Rel. Briton B. v. Mark A. McLean, M.D. et al.
M2021-00417-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Russell Parkes
This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Lavonte D. Simmons v. State of Tennessee
E2021-00819-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Steven Wayne Sword

The Petitioner, Lavonte D. Simmons, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in finding that he received effective assistance of trial counsel. Based on our review, we affirm the judgment of the postconviction court.

Karen Marchand Shaw v. Kevin Michael Shaw
W2018-00677-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Judge Gina C. Higgins

This appeal involves a multitude of challenges brought to the orders of the trial court in a post-divorce dispute involving minor children. We vacate the trial court’s decision to sua sponte order a new parenting plan, as well as to enter a temporary and permanent injunction against Mother. We also reverse the trial court’s decision to award Father discretionary costs for expert fees regarding an issue on which he did not prevail. Otherwise, we affirm the rulings of the trial court.

Sammye M. Brock Et Al. v. Benjamin Garrison Brock
E2021-00363-COA-R3-CV
Authoring Judge: Judge D. Michael Swiney, C.J.
Trial Court Judge: Judge Jeffrey M. Atherton

This appeal concerns the interpretation of a last will and testament, which provided for the creation of a trust. The decedent’s wife is the current income beneficiary of the trust, with the decedent’s son being a remainder beneficiary. The son requested an accounting of the trust financials, to which the trustees of the trust responded that the son was not entitled to receive them. The trustees filed a complaint for declaratory judgment asking the trial court to instruct the parties whether the son was entitled to the information he requested. The son subsequently filed a counterclaim asking that the trustees be required to provide him with the information he requested and alleging breach of trust by the trustees. The Trial Court granted the trustees’ motion for judgment on the pleadings after finding that the son was a remainder beneficiary and not a current income beneficiary of the trust and, therefore, was not entitled to financial information regarding the trust. The Trial Court found that the language in the decedent’s last will and testament was intended to override the reporting requirements of Tenn. Code Ann. § 35-15-813(a) and limit the trustees’ statutory obligation of reporting to qualified beneficiaries. In doing so, the Trial Court determined that the trustees were not required to provide the son with reports or other financial information concerning the trust. The Trial Court denied the son’s motion for judgment on the pleadings. Discerning no error, we affirm.

Bryan Shawn Blevins v. State of Tennessee
E2021-01312-CCA-R3-PC
Authoring Judge: Judge John W. Campbell
Trial Court Judge: Judge Stacy L. Street

The Petitioner, Bryan Shawn Blevins, appeals the denial of his petition for post-conviction relief, arguing that his trial counsel provided ineffective assistance, which rendered his guilty pleas unknowing and involuntary. The State argues that the post-conviction court erred in denying the State’s motion to summarily dismiss the petition as time-barred. Based on our review, we conclude that the Petitioner failed to show that the one-year statute of limitations should be tolled on due process grounds. Thus, the Petitioner’s post-conviction claims are barred by the statute of limitations. We, therefore, reverse the post-conviction court’s denial of the State’s motion to dismiss the petition as untimely.

STATE OF TENNESSEE v. GARY WAYNE PONDER
M2021-00940-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Gary McKenzie

A DeKalb County jury convicted the Defendant, Gary Wayne Ponder, of aggravated arson. The trial court imposed a twenty-three-year sentence to be served in the Tennessee Department of Correction. On appeal, the Defendant argues that the evidence was insufficient to support his conviction, that the trial court erred when it denied his motion for a change of venue, and that the trial court erred when it sentenced him. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Michael Thompson v. Genesis Diamonds, LLC
M2021-00634-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Michael Wayne Collins

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12-119(c).  The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims.  The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court.  More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs.  In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6).  The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c).  The trial court denied the defendant’s request for discretionary costs as untimely.  We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

David H. Johnson v. Steve Upton, Warden
M2021-01164-CCA-R3-HC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Michael Wayne Collins

The Petitioner, David H. Johnson, appeals the denial of his petition for habeas corpus relief.  He maintains that the trial court did not have jurisdiction over his case because the superseding indictment was returned after the expiration of the statute of limitations for aggravated rape.  The habeas court summarily denied the petition because the record failed to establish that the judgment was void.  After review, we affirm the habeas court.

Sterling Carter v. State of Tennessee
M2021-01093-CCA-R3-PC
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Steve R. Dozier

The Petitioner, Sterling Carter, pleaded guilty to aggravated sexual battery, and the trial court imposed a twenty-two year sentence to be served in the Tennessee Department of Correction.  The Petitioner filed a post-conviction relief petition, alleging that he had received the ineffective assistance of counsel and that his guilty plea was involuntary.  After a hearing, the post-conviction court denied relief, finding that the Petitioner had not proven his allegations by clear and convincing evidence. On appeal, the Petitioner maintains his arguments.  After review, we affirm the post-conviction court’s judgment.

DESHAWN MCCLENTON v. STATE OF TENNESSEE
W2021-01054-CCA-R3-HC
Authoring Judge: Presiding Judge John Everett Williams
Trial Court Judge: Judge Lee V. Coffee

The Petitioner, DeShawn McClenton, appeals the summary dismissal of his petition for writ of habeas corpus. After review, we affirm the judgment of the habeas corpus court.

Jase Enterprises, LLC v. Tennessee Bureau of Workers' Compensation
W2021-00448-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Chancellor James F. Butler

This appeal concerns a penalty assessed against a company by the Tennessee Bureau of Workers’ Compensation (“the Bureau”). The Bureau assessed a penalty against Jase Enterprises, LLC (“Jase”), a construction company owned by Jason Usery (“Usery”), for failure to secure workers’ compensation insurance coverage. After a contested case hearing, the administrative law judge (“the ALJ”) upheld the penalty assessment but modified its amount. Jase petitioned for judicial review in the Chancery Court for Henderson County (“the Trial Court”). The Trial Court upheld the ALJ’s decision. Jase appeals to this Court, arguing among other things that it was not afforded due process and that the decision to assess a penalty against it was arbitrary. In particular, Jase argues that the evidence did not establish that Joe Sheldon (“Sheldon”) was a Jase employee. We find that Jase was afforded due process; it received adequate notice and had an opportunity to be heard. We find further that the penalty assessment against Jase was supported by substantial and material evidence, including Sheldon’s deposition. We affirm.

Brianna Danielle King v. Aaron Jefferson Daily
M2022-00556-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Darrell Scarlett

This is an appeal from a final order entered on March 28, 2022.  Because the appellant did not file her notice of appeal within thirty days after entry of the final order as required by Tennessee Rule Appellate Procedure 4(a), we dismiss the appeal.

State of Tennessee v. Cody W. Bales
E2021-00918-CCA-R3-CD
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Steven Wayne Sword

Cody W. Bales, Defendant, pled guilty to statutory rape in July of 2019 and received a six-year sentence to be served on supervised probation after the service of 12 months in incarceration. A probation revocation warrant was issued in April of 2021. After a hearing, the trial court revoked probation in full, ordering Defendant to serve his sentence in incarceration. Defendant appeals. After a review, we determine that the trial court did not abuse its discretion in revoking Defendant’s probation. Accordingly, the judgment of the trial court is affirmed.

Tony Baker v. Shauna McSherry
M2022-01024-COA-T10B-CV
Authoring Judge: Middle Section Presiding Judge, Frank G. Clement, Jr.
Trial Court Judge: Judge Sam Benningfield

This is an accelerated interlocutory appeal as of right pursuant to Tennessee Supreme Court Rule 10B section 2.02 from the trial court’s denial of a motion for recusal. Having reviewed the petition for recusal appeal, we affirm the trial court’s decision to deny the motion for recusal.

Christopher McCoy v. Katelyn Conway et al.
M2021-00921-COA-R3-CV
Authoring Judge: Western Section Presiding Judge, J. Steven Stafford
Trial Court Judge: Judge Michael Wayne Collins

The plaintiff was injured when his car was hit by an uninsured driver. The plaintiff was initially paid $5,000.00 from the medical payments coverage of his automobile policy. A jury then found the plaintiff’s compensatory damages to total $80,000.00. The plaintiff’s uninsured motorist carrier then paid the plaintiff $45,000.00, representing the policy limit of $50,000.00 less the prior $5,000.00 payment. The plaintiff then sought to compel the uninsured motorist carrier to pay the additional $5,000.00 owed under the uninsured motorist policy. The trial court agreed and ordered the uninsured motorist carrier to pay the plaintiff an additional $5,000.00, resulting in total payment by the carrier to the plaintiff of $55,000.00. The uninsured motorist carrier appeals. We reverse the decision of the trial court.