APPELLATE COURT OPINIONS

I respectfully dissent from the majority’s decision to reverse the trial court’s dismissal of this action. I believe that the trial court properly relied on this Court’s majority opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV, 2018 WL 6242461 (Tenn. Ct. App. Nov. 28, 2018), perm. app. denied (Tenn. Mar. 27, 2019), as an analogous case. The trial court found that the plaintiff, Carl Short (“Plaintiff”), had failed to substantially comply with Tennessee Code Annotated § 29-26-121(a)(2)(E) (Supp. 2018), which provides that written pre-suit notice shall include a HIPPA-compliant medical authorization “permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.” Inasmuch as the authorizations in the instant action authorize each defendant to disclose medical records to the other named medical providers but do not authorize each provider to request the other providers’ records, I conclude that, as in Parks, Plaintiff’s authorizations are “not sufficient to enable defendants to obtain plaintiff’s medical records” and are therefore not substantially compliant with the statute. See Parks, 2018 WL 6242461, at *3.

A jury convicted Defendant, Sean Angelo Davenport, of first degree premeditated murder, and Defendant was sentenced to life. On appeal, Defendant argues that (1) the evidence was insufficient for a rational juror to have found him guilty of first degree premeditated murder; (2) the trial court erred by instructing the jury on flight; (3) the trial court erred by failing to give Defendant’s requested jury instruction on spoliation; (4) the trial court erred by admitting evidence of Defendant’s prior bad acts; and (5) the trial court erred by failing to order a mistrial when, during deliberations, the jury asked if Defendant had access to their personal information. After a thorough review of the facts and applicable case law, we affirm.

This appeal concerns healthcare liability. Carl Short (“Plaintiff”), widower of Allison Short (“Decedent”), filed suit in the Circuit Court for Knox County (“the Trial Court”) alleging negligence in his late wife’s medical treatment against a number of physicians (“Physician Defendants”) and Turkey Creek Medical Center (“the Hospital”) (“Defendants,” collectively). Defendants moved to dismiss on the basis of noncompliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), which requires that pre-suit notice include a HIPAA compliant medical authorization allowing the healthcare provider receiving the notice to obtain complete medical records from every other provider that is sent a notice.1 Plaintiff’s authorizations allowed each provider to disclose complete medical records to each named provider although it did not state specifically that each provider could request records from the other. The Trial Court held that Plaintiff’s authorizations failed to substantially comply with the statute’s requirements because of this failure to explicitly allow each provider to obtain records. Plaintiff appeals. We hold that Plaintiff’s method of permitting Defendants access to Decedent’s medical records substantially complied with Tenn. Code Ann. § 29-26-121(a)(2)(E). We reverse the judgment of the Trial Court.

This is an action brought by the State of Tennessee pursuant to the Tennessee Consumer Protection Act, Tennessee Code Annotated section 47-18-101, et seq., and seeking judicial dissolution, pursuant to Tennessee Code Annotated section 48-24-301, of HRC Medical Centers, Inc., a for-profit corporation operating approximately 50 hormone replacement therapy centers. The State alleged, inter alia, that the corporation’s advertising for its hormone replacement therapy was deceptive, and sought restitution for consumers. Also sued were the owners of HRC and their spouses; it is alleged that those defendants, as recipients of some of the assets of HRC, are personally liable for violations of the Uniform Fraudulent Transfer Act, Tennessee Code Annotated sections 66-3-305(a) and 66-3-306(a). The defendants filed motions to dismiss, for summary judgment, and to remand the case to the Division of Health Related Boards of the Tennessee Department of Health; all of the motions were denied. The State moved for summary judgment on the issue of liability under the Consumer Protection Act and, after the motion was granted, on the issue of damages. In granting the second motion, the trial court entered an award of $18,141,750, based upon the median amount paid by consumers for the hormone therapy treatment. The defendants appeal, raising issues related to the trial court’s denial of their motion for remand, motions to dismiss, and motions for summary judgment; they also appeal the grant of summary judgment to the State. Upon a thorough review of the record, we affirm the judgment.  

This divorce case involves the trial court’s classification and division of the separate and marital property of the parties. The trial court did not place a valuation on any of the property that was contested, nor did it refer to or make any findings regarding the factors provided by the governing statute, Tenn. Code Ann. § 36-4-121 (2017). We vacate the trial court’s order and remand with instructions to make sufficient findings of fact and conclusions of law as required by Tenn. R. Civ. P. 52.01.

Petitioner, Brian Lee Webb, appeals from the denial of his petition for post-conviction relief. Because Petitioner failed to establish that he received ineffective assistance of counsel, we affirm the judgment of the post-conviction court.

The Tennessee District Attorneys General Conference (“TNDAGC”) filed with this Court a petition to vacate Formal Ethics Opinion 2017-F-163 (“Opinion”) issued by the Board of Professional Responsibility (“Board”) regarding ethical considerations for prosecutors under Rule 3.8(d) of the Tennessee Rules of Professional Conduct. The TNDAGC also requested that the Court stay the effectiveness of the Opinion pending review. This Court determined that a full and deliberate review of the issues was necessary and granted a stay of the effectiveness of the Opinion. Based on our review, we decline to interpret a prosecutor’s ethical duty under Rule 3.8(d) as being more expansive than one’s legal obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its progeny, or that “timely” disclosure of the material should be interpreted as “as soon as reasonably practicable.” Accordingly, we vacate Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility. We also take this opportunity to interpret Rule 3.8(d) as coextensive in scope with a prosecutor’s legal obligations under Brady and its progeny, as explained in this opinion.

Defendant, Tosha Marie Silcox, appeals from the trial court’s revocation of her probation in November 2018. Without presenting the issue to the trial court, Defendant now challenges the trial court’s 2016 probation revocation order, which modified Defendant’s original 2014 sentence. The modified probation order required Defendant to serve a sentence of split confinement for a period of one year and extended Defendant’s probation. With regard to the 2018 revocation, Defendant argues that the State failed to prove that Defendant disobeyed a lawful order of the probation officer and that she used “abusive, threatening, or intimidating behavior” towards her probation officer. After hearing oral argument and conducting a full review of the record, we affirm the judgment of the trial court.

A Hamilton County jury convicted the Defendant, Osei Sorrell, of attempted second degree murder, aggravated assault, and reckless endangerment. The trial court dismissed the aggravated assault conviction in its capacity as 13th juror and imposed an effective
nine-year sentence for the remaining convictions. The Defendant raises the following issues on appeal: (1) the jury venire did not represent a cross-section of Hamilton County; (2) the trial court erred when it denied his motion for new trial based on newly discovered evidence that would have resulted in a different verdict; (3) the trial court erred in declaring the victim unavailable to testify; (4) the trial court erred when it limited the proof of the victim’s gang affiliation; (5) Agent Hudson was not qualified as an expert on firearms identification; and (6) the trial court erred when it allowed the victim’s prior out of court identification of the Defendant as the shooter to be admitted. After a thorough review of the record and applicable law, we affirm the trial court’s judgments.

Father and Step-Mother filed a petition to terminate Mother’s parental rights on the grounds of willful failure to visit and support. The trial court denied termination based upon willful failure to visit, but found sufficient evidence in favor of willful failure to support. The trial court, however, found that termination was not in the child’s best interest and therefore denied the petition to terminate Mother’s parental rights. Because we conclude that clear and convincing evidence does not support the ground of willful failure to support, we reverse the trial court’s finding of a ground to support termination. As such, we affirm the trial court’s denial of the termination petition.

Defendant, James Mitchell, entered a plea of guilty to possession with intent to sell more than .5 grams of methamphetamine. The trial court sentenced Defendant as a Range I, standard offender, to eight years. Defendant attempted to reserve a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, challenging the trial court’s denial of his motion to suppress the evidence seized after a search of his person that occurred when he arrived by car at another person’s home which was being searched pursuant to a search warrant. After review, we conclude that this Court does not have jurisdiction to address the certified question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, filed by William Kinney and Margaret Kinney (“Defendants”), seeking to recuse the trial judge. The case arises out of the indebtedness of Defendant’s business, Kinney Custom Interiors, to the plaintiff, Anderson Lumber Company, Inc. (“Plaintiff”). Having reviewed the petition for recusal appeal filed by Defendants, and finding no error, we affirm.

The defendant, Zackary James Earl Ponder, appeals his Stewart County Circuit Court jury convictions of first degree premeditated murder and aggravated assault, claiming that the trial court erred by admitting into evidence three photographs of the victim, by refusing to allow the defendant pretrial access to the criminal history of a State witness, by limiting his cross-examination of the investigating officer, by permitting the prosecutor to express his personal opinion during closing argument, and by failing to address “the fine portion of the defendant’s sentence.” He also challenges the sufficiency of the evidence for his conviction of first degree murder. Although we conclude that portions of the State’s closing argument were improper, we deem the error harmless. We detect clerical error in the judgment for the defendant’s conviction of aggravated assault that necessitates the entry of a corrected judgment for that count. Otherwise, the judgments of the trial court are affirmed.

Petitioner, David B. Gardner, appeals the denial of his petition for a writ of error coram nobis based upon newly discovered evidence. After thoroughly reviewing the record and applicable authorities, we affirm the judgment of the error coram nobis court.

The petitioner, Lee D. Watts, appeals the denial of his petition for post-conviction relief, which petition challenged his 2015 convictions of first degree felony murder and especially aggravated robbery, alleging that he was deprived of the effective assistance of counsel. Discerning no error, we affirm the denial of post-conviction relief.

We granted permission to appeal to determine whether the Court of Criminal Appeals misapplied the standard of review applicable to trial court decisions to admit or exclude evidence. In this case, the trial court determined that the defendant’s statements during a post-polygraph interview were inadmissible pursuant to Tennessee Rule of Evidence 403. On interlocutory appeal, the Court of Criminal Appeals concluded that the trial court abused its discretion by excluding the statements. The Court of Criminal Appeals reversed the trial court’s ruling and remanded the matter for further proceedings. We granted the defendant’s application for permission to appeal. We now hold that the Court of Criminal Appeals erred when it concluded that the trial court abused its discretion. Accordingly, we reverse the judgment of the Court of Criminal Appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

The Defendant, Tyson B. Dodson, pled guilty to burglary, failure to appear, domestic assault, and vandalism valued at $1000 or less. After entering a guilty plea, the trial court imposed a sentence of three years, with eleven months and twenty-nine days to be served in confinement and the remainder of the sentence to be served under supervised probation. In addition, the Defendant was ordered to pay restitution in the amount of $999. On appeal, the Defendant contends that the trial court abused its discretion by altering the terms of the plea agreement and ordering restitution at the sentencing hearing and that the Defendant was denied his constitutional right to due process because the trial court failed to ensure that the Defendant had notice that restitution would be addressed at the sentencing hearing. Following our review, we reverse the order setting the restitution amount and remand for a restitution hearing, at which the trial court shall consider Defendant’s financial resources and ability to pay and determine the proper amount and schedule of restitution payments. In all other respects, the judgments are affirmed.

After receiving a cease and desist letter from a local zoning official forbidding them from hosting an off-road event on their property, landowners appealed to the board of zoning appeals. The board denied their application. And landowners sought review by filing an unverified petition for writ of certiorari in the chancery court. On the board’s motion, the court dismissed the petition for lack of subject matter jurisdiction. On appeal, landowners argue that their petition in actuality seeks declaratory relief. We conclude that landowners were challenging a quasi-judicial decision of a local board of zoning appeals and that a petition for writ of certiorari was the proper method for seeking review. Because landowners’ petition was not verified, we affirm the dismissal.   

The trial court granted the defendant’s motion for summary judgment and dismissed the plaintiffs’ negligence suit on the grounds that the plaintiffs failed to serve the defendant with process within the one-year statute of limitations. On appeal, we conclude that the trial court did not err in denying the plaintiffs’ motion to enlarge the time frame for obtaining new service of process or in granting the defendant’s motion for summary judgment. We, therefore, affirm the decision of the trial court in all respects.  

Defendant, Douglas Edward Christian, was convicted of Class B felony possession of .5 grams or more of methamphetamine, a Schedule II controlled substance, with the intent to sell or deliver (Count 1); Class B felony possession of .5 grams or more of cocaine, a Schedule II controlled substance, with the intent to sell or deliver (Count 2); Class D felony possession of a Schedule III controlled substance, Bu[p]reno[r]phine, with the intent to sell or deliver (Count 3); and Class A misdemeanor possession of marijuana, a Schedule VI controlled substance (Count 4). The trial court sentenced Defendant to an effective term of twenty-years as a Range II offender. On appeal, Defendant claims that the trial court “erroneously used foreign judgments” to sentence him as a Range II offender, considered unsubstantiated information in sentencing him, wrongly denied pretrial jail credits, and erred by denying Defendant his right to a speedy trial. After a thorough review of the record and briefs, we affirm the judgments of the trial court.

Robert Diggs, Defendant, pled guilty to two counts of sale of a Schedule III controlled substance within a drug-free zone (counts one and five), two counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for the convictions in counts one and five. No sentence was imposed in counts two and six. On appeal, Defendant argues that the trial court erred by ordering him to serve his sentence in the Tennessee Department of Correction because the trial court incorrectly determined that his convictions under the Drug-Free School Zone Act (“DFSZ Act”) made him ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly determined that Defendant was not eligible for community corrections because Defendant was convicted under the DFSZ Act and we affirm the convictions.

Petitioner, David N. Shaver, appeals the Grainger County Circuit Court’s denial of his petition for post-conviction relief. Petitioner asserts that he received ineffective assistance of counsel in connection with his guilty plea proceedings. Specifically, he contends that trial counsel failed to properly explain the terms of the plea agreement and failed to conduct a proper investigation into the charge against Petitioner. After a thorough review of the record and the applicable law, we affirm the judgment of the post-conviction court.

Mimi Barrett, Defendant, pled guilty to three counts of sale of a Schedule III controlled substance within a drug-free zone (counts one, three, and five), three counts of delivery of a Schedule III controlled substance within a drug-free zone (counts two, four, and six), and one count of maintaining a dwelling where a controlled substance was kept or sold (count seven). The trial court ordered Defendant to serve concurrent sentences of two years in the Tennessee Department of Correction for each conviction. On appeal, Defendant argues that the trial court erred by ordering her to serve her sentence in the Tennessee Department of Correction because the trial court incorrectly determined that her convictions under the Drug-Free School Zone Act (“DFSZ Act”) made her ineligible for community corrections. After a thorough review of the facts and applicable case law, we conclude that the trial court properly denied community corrections on the ground that Defendant was convicted under the Drug-Free School Zone Act. We affirm the judgments of the trial court.

This post-divorce appeal involves the trial court’s denial of a petition for modification of the parenting plan. Having carefully reviewed the record before us, we hold that the evidence supports the parenting plan determination and other rulings made by the court.

This appeal involves a lease agreement for the storage of a friction welding/joiner machine. The original agreement was entered into by John F. Humphrey Metal Fabricators, Inc. and Aluminum Company of America. B. W. Byrd Metal Fabricators, Inc. is the successor in interest to John F. Humphrey Metal Fabricators, Inc. and Aluminum Company of America was formerly known as Alcoa, Inc. The trial court awarded to the plaintiff rent payments for the months of May and June 2012, plus interest at 1.5% per month, but it found that the plaintiff had failed to submit invoices to put the defendant on notice of a debt and neglected to mitigate its damages. The plaintiff appeals. We affirm in part and reverse in part and remand for further proceedings.