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.

Raquel Agustin Mitchell v. Toney R. Mitchell
E2021-01283-COA-R3-CV
Authoring Judge: Judge John W. McClarty
Trial Court Judge: Chancellor Jerri S. Bryant

This post-divorce appeal concerns the trial court’s entry of a permanent parenting plan, calculation of child support, and classification of assets. We affirm the court’s decisions.

State of Tennessee v. Christopher James Carbin
W2021-01082-CCA-R3-CD
Authoring Judge: Judge Robert L. Holloway, Jr.
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Christopher James Carbin, appeals the trial court’s denial of his “Motion for Order Compelling Discovery,” which he filed regarding his 1986 Shelby County convictions for attempted second degree burglary, carrying burglar’s tools, and receiving stolen property. Upon review, we conclude that we are without jurisdiction to address the merits of the instant case, and the appeal is dismissed.

In Re Estate of Linda W. Smith
W2022-00052-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Karen D. Webster

Appellant, Frances Diane Weeks Wright, has appealed an order of the Shelby County Probate Court (the “Trial Court”) that was entered on January 3, 2022. We determine that the January 3, 2022 order does not constitute a final appealable judgment. Therefore, this Court lacks jurisdiction to consider the appeal.

State of Tennessee v. Demerrick Porter
W2021-01216-CCA-R3-CD
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Paula L. Skahan

The Defendant, Demerrick Porter, was convicted in the Shelby County Criminal Court of second degree murder, attempted second degree murder, and employing a firearm during the commission of a dangerous felony and received an effective sentence of thirty-eight years in confinement. On appeal, the Defendant contends that the evidence is insufficient to support his convictions of second degree murder and attempted second degree murder. After review, we affirm the judgments of the trial court.

Bank of New York Mellon v. Helen E. Chamberlain
M2021-00684-COA-R3-CV
Authoring Judge: Judge Carma Dennis McGee
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises from a detainer action filed by a bank following a foreclosure sale.  The defendant borrower filed a counterclaim for “Wrongful Foreclosure – Breach of Contract,” alleging that the plaintiff bank breached the deed of trust by failing to provide proper notice prior to acceleration.  The trial court originally granted summary judgment in favor of the plaintiff bank, finding that notice was properly sent, but this Court reversed, concluding that genuine issues of material fact existed such that summary judgment could not be awarded to either party.  On remand, the trial court permitted both parties to amend their answers.  The plaintiff bank then asserted res judicata based on a prior lawsuit in federal court and moved for summary judgment on that basis.  The trial court ultimately granted the plaintiff bank summary judgment, concluding that the defendant’s argument regarding lack of notice either was raised or should have been raised in her prior action in federal court in which she attempted to halt the foreclosure.  The defendant appeals.  We affirm and remand for further proceedings.

Kenia Moreno v. Mehreban Jazzabi, Executrix of Estate of Ben Jazzabi
M2021-00024-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Judge Amanda Jane McClendon

A landlord and tenant entered into a lease-purchase agreement.  Near the end of the lease term, the tenant sought to exercise the purchase option.  The landlord claimed that the tenant could not do so because she defaulted on rent payments.  The landlord also argued that he terminated the agreement before the tenant exercised the option.  The trial court rejected both arguments and granted the tenant specific performance of the purchase option.  We affirm.

Buffi Lynne Stancil Ex Rel. Rebecca Mae Gentry v. Dominion Crossville, LLC, Et Al.
E2021-01378-COA-R3-CV
Authoring Judge: Judge Arnold B. Goldin
Trial Court Judge: Judge Jonathan L. Young

This is an interlocutory appeal from the trial court’s decision to deny a motion to compel arbitration. For the reasons stated herein, we affirm the trial court’s order.