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.

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).

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.

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.

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.

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. 

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.

In Re Skylar M.
E2022-00119-COA-R3-PT
Authoring Judge: Judge Thomas R. Frierson, II
Trial Court Judge: Judge Ronald Thurman

The trial court terminated the parental rights of the father upon concluding that the petitioners had proven by clear and convincing evidence the following statutory grounds of termination: (1) abandonment by failure to visit the child, (2) abandonment by failure to support the child, (3) persistence of the conditions that led to the child’s removal from the father’s custody, (4) failure to manifest an ability and willingness to assume legal and physical custody of the child as a putative father, and (5) risk of substantial harm to the child’s physical or psychological welfare if returned to the putative father’s legal and physical custody. The father timely appealed. Upon review of the final order, we conclude that the trial court did not comply with Tennessee Code Annotated § 36-1-113(k) due to its failure to include sufficient findings of fact in its written order. We therefore vacate the trial court’s judgment and remand this matter to the trial court for the expedited entry of sufficient written findings of fact. We deny the petitioners’ request for attorney’s fees on appeal.

In Re Damium F. et al.
M2021-01301-COA-R3-PT
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Sheila Calloway

Hayley Allen v. Justin Allen
E2020-01681-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge James E. Lauderback

Justin R. Allen (“Father”) appeals the trial court’s decision regarding custody of his two minor children. Because the order appealed from is interlocutory, this Court lacks subject matter jurisdiction and the appeal is dismissed.

Corry Merriweather v. State of Tennessee
W2021-01002-CCA-R3-PC
Authoring Judge: Judge Camille R. McMullen
Trial Court Judge: Judge John Wheeler Campbell

Pro se Petitioner, Corry Merriweather, appeals the summary dismissal of his second petition seeking post-conviction relief from his conviction of second-degree murder. On appeal, the Petitioner argues the post-conviction court erred by dismissing his petition without conducting an evidentiary hearing. Upon review, we affirm.

State of Tennessee v. Bobby Lovin
E2021-00705-CCA-R3-CD
Authoring Judge: Judge John Everett Williams, Presiding Judge
Trial Court Judge: Judge E. Shayne Sexton

A jury convicted the Defendant, Bobby Lovin, of two counts of rape of a child, and he received an effective sixty-four-year sentence. The Defendant appeals, challenging the sufficiency of the evidence on one count of rape of a child and the trial court’s admission of the victim’s recorded forensic interview. We conclude that the evidence is sufficient and that there was no error in the admission of the video, and we affirm the trial court’s judgments.

Etta Faye Beck Bombacino v. Anthony John Bombacino, Sr.
E2021-01261-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge J. Michael Sharp

Etta Faye Beck Bombacino (“Wife”) filed for divorce from Anthony John Bombacino (“Husband”) on January 29, 2021. Trial was held on July 21, 2021, and the trial court assessed equal fault to the parties and ordered them divorced. The trial court also ordered that the parties split the equity in their home after marital debts were paid and awarded Wife no spousal support. Wife appeals. Discerning no error, we affirm.

Marleta Costner Et Al. v. Maryville-Alcoa-Blount County Parks & Recreation Commission Et Al.
E2021-00189-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge David R. Duggan

In this premises liability action, the plaintiffs sued three local governments and a parks and recreation commission, jointly created by the local governments, to recover for injuries suffered by one of the plaintiffs when she stepped into a hole while attending a concert at a park maintained by the commission. The trial court dismissed the action as to the three local governments, concluding that they were immune under the state’s Governmental Tort Liability Act (“GTLA”). Later, the trial court granted the commission’s motion for summary judgment, ruling that the commission enjoyed immunity under both the GTLA and the state statutes known as the Recreational Use Statutes. We dismiss the appeal as to the three local governments, concluding we lack subject matter jurisdiction because plaintiffs failed to timely initiate an appeal against them. We affirm the trial court’s holding that the commission retained immunity under both the GTLA and the Recreational Use Statutes.

Bradley Allen Garrett v. Eileen Marie Garrett
E2022-00030-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge J. Michael Sharp

A review of the record on appeal reveals that the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.