APPELLATE COURT OPINIONS

Defendant, James Allen Ballew, was indicted by the White County Grand Jury for one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, from White County Lumber Company.  On January 29, 2013, Defendant entered a guilty plea to theft of property valued at $500 or more but less than $1,000, a Class E felony.  Pursuant to a negotiated plea agreement, Defendant received a two-year sentence to be served on probation and agreed to pay restitution, with the amount to be determined at a subsequent hearing.  A restitution hearing was conducted.  At the conclusion of the hearing, the trial court took the matter under advisement and requested that the State provide the court with a revised pecuniary loss list, including items recovered by the victim.  All that is contained in the transcript from the subsequent hearing is a brief colloquy wherein the trial court said, “we’ve agreed that an order will be submitted on restitution?” and the prosecutor replied, “Yes, your honor.”  The appellate record does not contain a separate order for restitution.  However, an amended judgment was entered, which states that Defendant is ordered to pay restitution in the amount of $11,000 to White County Lumber.  The amended judgment is silent as to the time or manner of payment.  Defendant appeals, arguing that the amount of restitution was unreasonable and unsupported by the evidence and that the trial court did not consider Defendant’s ability to pay restitution.  The State argues that the record is inadequate to allow for appellate review, and therefore, the trial court’s order of restitution should be presumed correct.  We conclude that there is nothing in the record to indicate whether the trial court made a ruling as to the amount of restitution or if an agreement was reached.  Defendant’s ability to pay restitution was apparently not considered by the trial court, and the trial court failed to include the repayment terms on the judgment form.  It is problematic that there is no indication that Defendant’s counsel was present in open court when the trial judge and the prosecutor had their brief colloquy.  Restitution, when appropriate, is just as much an integral part of a sentence as the length of sentence and the manner of service of the sentence.  See T.C.A. § 40-35-104(c)(2).  Thus, there must be something more in the record setting forth restitution other than what is contained in this record.  Moreover, the amended judgment incorrectly states that Defendant was convicted of a Class D felony.  Accordingly, we reverse the judgment of the trial court as to restitution and remand this case for a new restitution hearing and entry of an amended judgment that reflects the amount of restitution and the manner of payment, as well as that Defendant’s conviction offense as a Class E felony.

The order appealed is not a final judgment, and therefore, we dismiss this appeal for lack of jurisdiction.

A subcontractor filed suit to enforce a mechanic’s lien. The subcontractor, which was also a remote contractor, was required by Tenn. Code Ann. § 66-11-145(a) to serve a notice of its claim of nonpayment on the owner of the project as well as on the “prime contractor in contractual privity with the remote contractor.” The subcontractor notified the owner, but it did not notify the prime contractor. The subcontractor asserted it was not required to notify the prime contractor because it had no contractual relationship with the prime contractor. The defendants moved to dismiss the subcontractor’s complaint due to its failure to comply with the statute and notify the proper parties. The trial court granted the motions and dismissed the subcontractor’s lien claims. The subcontractor appealed, and we affirm the trial court’s judgment. The subcontractor is required by statute to notify both the owner and the prime contractor of the project of nonpayment.

This is a termination of parental rights case. The trial court terminated Appellants/Parents’ parental rights on the grounds of: (1) abandonment by failure to provide suitable housing; (2) substantial non-compliance with the permanency plans; and (3) persistence of conditions. Because the grounds for termination of Appellants’ parental rights are met by clear and convincing evidence, and there is also clear and convincing evidence that termination of parental rights is in the best interests of the Children, we affirm and remand.

Petitioner, William Newson, pleaded guilty to driving under the influence of an intoxicant (DUI) with an agreed sentence of eleven months twenty nine days, with forty-eight hours to serve and the remainder on probation. The sentence was to be served concurrently with a parole violation and a violation of an order of protection in unrelated cases. Petitioner filed a timely petition for post-conviction relief alleging that trial counsel promised him that his DUI guilty plea would result in his release from jail after serving the forty-eight hours as described in the guilty plea agreement and that he would return to probation. Petitioner now appeals the trial court’s denial of his petition for post-conviction relief, in which he alleged that his guilty plea was not knowingly, voluntarily, and intelligently entered due to the ineffective assistance of trial counsel. Having reviewed the record before us, we affirm the judgment of trial court.

Appellant, Christopher Bell, pleaded guilty to especially aggravated robbery, aggravated burglary, employing a firearm during the commission of a dangerous felony, and aggravated criminal trespass. The trial court sentenced appellant to an effective seventeen-year sentence. Appellant reserved a certified question of law arguing that the juvenile court did not properly conduct his transfer hearing from juvenile court to criminal court. Following our review of the briefs, the record, and the applicable law, we conclude that appellant’s transfer hearing was properly conducted and affirm the judgments of the trial court.

Defendant, Charlie E. Mullican, pled guilty pursuant to a negotiated plea agreement, to driving under the influence of an intoxicant (DUI), second offense, and possession of a handgun while under the influence of intoxicants.  He properly reserved a certified question of law for appeal.  The question of the law is dispositive of the case.  After a thorough review we affirm the judgment of the trial court.

The order appealed is not a final judgment and therefore, the Court lacks jurisdiction to hear this matter. Consequently, this appeal is hereby dismissed.

Appellants Ronald Chery, Daryn W. Chery, and John K. St. Cloud were charged in a presentment with thirteen counts of aggravated burglary, thirteen counts of varying degrees of theft, and one count of conspiracy to commit theft of property valued at more than $60,000.  Appellants filed a motion to dismiss the presentment on the grounds that they had been previously charged with one count of aggravated burglary and evading arrest that were so closely related to the subsequent thirteen burglaries and thefts that joinder of the offenses was mandatory.  Following a hearing on the motion to dismiss, the trial court denied relief. Each appellant pleaded guilty to five counts of aggravated burglary, and the State dismissed all theft counts and the conspiracy count.  As part of the plea agreement, appellants reserved a certified question pertaining to the necessity of mandatory joinder of the subsequent thirteen burglaries with the first burglary and related offenses pursuant to Rule 8(a) of the Tennessee Rules of Criminal Procedure.  Following our review, we affirm the judgments of the trial court. 

In December 2009, the Petitioner, Maurice Edward Carter, pled guilty to one count of aggravated statutory rape and one count of criminal exposure to HIV and received an effective sentence of 20 years.  Pursuant to his plea agreement, the Petitioner reserved a certified question of law concerning the trial court’s denial of his motions to suppress evidence and his statement.  On direct appeal, this Court determined that the certified question was not dispositive of the Petitioner’s case and dismissed the appeal.  Thereafter, the Petitioner filed a post-conviction petition but was denied relief.  The Petitioner now appeals, contending that he received ineffective assistance of counsel based upon trial counsel’s failure to:  (1) properly preserve the certified question of law; (2) adequately explain to the Petitioner the possible outcomes of his direct appeal; and (3) address in the certified question of law the issue of the legality of the officer’s opening a locked box found in the Petitioner’s vehicle.  The Petitioner further contends that his guilty plea was unknowing and involuntary based upon trial counsel’s ineffectiveness and the trial court’s failure to ensure that the Petitioner understood the ramifications and possible outcomes of his appeal of a certified question of law.  Following review, we affirm the judgment of the post-conviction court.

The Defendant, Micah Johnson, alias, was convicted by a Knox County jury of one count of premeditated murder, two counts of felony murder, two counts of especially aggravated kidnapping, and one count of especially aggravated robbery. The trial court merged the murder counts and the kidnapping counts into a single count for each, respectively. The trial court imposed an effective sentence of life imprisonment with the possibility of parole plus fifty years for all of these convictions. In this direct appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction for premeditated murder; (2) the trial court erred by failing to instruct the jury regarding substantial interference as mandated in State v. White, 362 S.W.3d 559 (Tenn. 2012), thus, requiring reversal of his kidnapping convictions; (3) the trial court erred, in violation of Tennessee Rule of Evidence 404(b), by allowing introduction of the Defendant’s prison disciplinary records as rebuttal evidence to the neuropsychologist’s testimony about the Defendant’s psychological test results; (4) the trial court abused its discretion by allowing the State to impeach the forensic psychiatrist defense expert with a twenty-two-year-old academic misdeed; (5) the trial court erred by failing to suppress the video recording of the crime scene and the photographs taken at the crime scene and during the victim’s autopsy all gruesomely depicting the victim’s body; (6) plain error occurred when the State elicited testimony from its rebuttal mental health expert that, if the Defendant was found not guilty by reason of insanity, he was not committable to a mental health facility in her opinion; and (7) the imposition of consecutive sentencing was improper. Following our review of the record and the applicable authorities, we conclude that the trial court’s failing to instruct the jury properly pursuant to White constitutes reversible error. Therefore, the Defendant’s two convictions for especially aggravated kidnapping must be reversed and remanded to the trial court for a new trial as to those offenses only. In all other respects, the judgments of the trial court are affirmed.

The defendant, Timothy Allen Johnson, was convicted of one count of tampering with evidence, a Class C felony.  He was sentenced as a persistent offender to a twelve-year sentence.  On appeal, the defendant argues that the evidence is insufficient to support his conviction.  After a thorough review of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial court.

In this delayed direct appeal, the Defendant, Elmi Abdulahi Abdi, argues that the trial court erred when it admitted a redacted version of his video-recorded statement into evidence.  The Defendant contends that the trial court should have introduced the full video-recorded statement to allow the jury to consider his statement in context.  The record does not include the un-redacted video statement, a transcript of the audio of the un-redacted video statement, a transcript of a hearing on the Defendant’s motion in limine to exclude the redacted statement, or an order from the trial court ruling on the motion in limine.  Additionally, the Defendant did not make a contemporaneous objection when the redacted video was played to the jury and did not require the introduction of the un-redacted video pursuant to the rule of completeness, Tennessee Rule of Evidence 106.  We conclude that the trial court did not err in admitting the redacted video and affirm the judgment of the trial court.

The Defendant-Appellant, William Scott Ross, pled guilty to one count of facilitation of a conspiracy to sell over seventy pounds of marijuana and one count of official misconduct.  Pursuant to the plea agreement, he received an effective three-year sentence in the local corrections facility, suspended to supervised probation.  After a hearing, the trial court denied the Defendant’s request for judicial diversion.  On appeal, the Defendant argues that the trial court erred in refusing to grant judicial diversion.  Upon review, we affirm the judgment of the trial court.

This is a termination of parental rights case regarding S.C.M. and T.O.J.M. (collectively, the Children), the minor children of H.C. (Mother) and B.M. (Father). After both parents were arrested, the Children’s maternal grandparents, R.R. and T.R. (collectively, the Grandparents) obtained temporary, emergency custody. Nearly three years later, the Grandparents filed a petition seeking to (1) terminate both parents’ rights and (2) adopt the Children. Following a trial, the court terminated both parents’ rights. Father appeals. We affirm.

In this post-divorce case, Father filed a petition to modify the permanent parenting plan to make him the primary residential parent and to hold Mother in contempt for failure to abide by the joint decision-making provision of the plan.  The trial court found a material change of circumstances existed warranting a change in the primary residential parent and held Mother in contempt, awarding Father $675.00 in attorney’s fees as a sanction. Mother appeals. We find no error in the trial court’s decision to change the primary residential parent;however,we vacate the trial court’s finding of contempt because Father’s petition did not comply with the mandates of Tenn. R. Crim. P. 42(b).

The defendant, Reginald Perry Davis Lashley, appeals the revocation of his probationary sentence.  The defendant pled guilty to two counts of criminal attempt to deliver a controlled substance, to wit ecstasy, and received an effective six-year sentence, which was suspended to supervised probation following service of one year in incarceration.  Subsequently, a violation warrant was issued alleging that the defendant had violated the terms and conditions of his probation by being arrested for DUI, using intoxicants to excess, failing to report the new arrest, and failing to verify payment of costs and fines.  Following a hearing, the trial court found the defendant had violated the terms and conditions of his probation and ordered that the balance of the sentence be served in incarceration.  On appeal, the defendant contends that the decision to revoke was not supported by sufficient evidence.  Following review of the record, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation.  As such, the judgment of the trial court is affirmed.

Holder of an automobile liabilityinsurancepolicybrought suit to recover for injuries sustained after being struck by a driver in a rental vehicle. The policy holder also sought coverage under the uninsured motorist coverage provision of his policy. Insurance carrier filed answer denying coverage and moved for summary judgment, contending that the policyholder was not entitled to coverage because the vehicle involved in the incident was owned by a rental car agency and, consequently, his damages did not arise out of the ownership, maintenance or use of an uninsured motor vehicle as required by the policy. The trial court held that the rental car agency was a self-insurer under Tennessee law and, consequently, the vehicle was not an “uninsured motor vehicle,”and granted the carrier’s motion. Policyholder appeals; finding no error, we affirm the judgment.

This is a healthcare liability action. The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated § 29-26-121(f)(1), but set-forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit. The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.” The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order. We reverse in part, affirm in part, and remand for further proceedings.

The trial court denied Plaintiff’s motion to recuse and granted Defendants’ motion to dismiss for failure to prosecute. We reverse in part, affirm in part, and remand for further proceedings consistent with this Opinion.

This is the second appeal in this action involving a dispute over setoff claims related to a bankruptcy proceeding. The action commenced when the original plaintiff, Delwin L. Huggins, filed a complaint against the defendants, R. Ellsworth McKee and Alternative Fuels, LLC (“AF”), in December 2007. In July 2009, Mr. Huggins filed for Chapter 7 bankruptcy. In that proceeding, John P. Konvalinka purchased Mr. Huggins‟s interest in this action and was subsequently joined as a substitute plaintiff. Following consideration of the defendants‟ motion for judgment on the pleadings, the trial court dismissed Mr. Konvalinka‟s claims. Upon appeal, this Court affirmed the dismissal as to Mr. Konvalinka‟s claims against Mr. McKee but reversed as to the claims against AF. Upon remand, the trial court dismissed Mr. Konvalinka‟s claims against AF as moot. Having determined that the trial court failed to explain its conclusion that no relief would be possible, we vacate the judgment.

I concur in the result reached by the majority opinion. I reach my conclusion, however, applying the abuse of discretion standard to the court’s action in imposing the specific restrictions and conditions in the protective order.

In this divorce appeal, Husband argues that the trial court erred in not allowing him to repudiate the parties’ marital dissolution agreement. Husband also asserts that the trial court erred in its determination regarding the parenting plan, in failing to consider split parenting time, and in awarding Wife her attorney fees. We find no merit in Husband’s arguments and affirm the trial court’s decision.

This is a healthcare liability action.  The trial court granted Defendants’ motion for a qualified protective order pursuant to Tennessee Code Annotated  § 29-26-121(f)(1), but set forth several conditions, including: 1) a court reporter must be present at the ex parte interviews with Plaintiff’s treating healthcare providers and record all questions and answers; 2) all answers during the interviews must be under oath; 3) the interview transcripts shall be filed under seal and with permission of the trial court, and after showing of good cause, Plaintiff may access the transcripts for the purpose of determining whether a violation of privacy under HIPAA occurred during the interviews; and 4) Defendants should not attempt to elicit or discuss protected health information which is not relevant to the issues in this lawsuit.  The order also provided “[t]his does not restrict the Defendants or their attorneys from discussing non-substantive matters unrelated to the patient’s protected health information.”  The trial court denied Defendants’ joint motion for interlocutory appeal of the order and Defendants filed an application for extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure.  We granted the appeal for the sole purpose of determining whether, under section 29-26-121(f), the trial court erred by adding the four conditions noted above to its order.  We reverse in part, affirm in part, and remand for further proceedings.

I concur in the result reached by the majority Opinion that the trial court erred in imposing additional restrictions on Defendants’ counsel with regard to the requested ex parte interviews in this particular case. I write separately, however, to express my concern regarding the implications of this ruling, as fully explained in my separate concurrence in Dean-Hayslett v. Methodist Healthcare, No. W2014-00625-COA-R10-CV, 2015 WL 277114 (Tenn. Ct. App. Jan. 20, 2015) (Stafford, J., concurring). Specifically, I agree with the majority’s interpretation of Tennessee Code Annotated 29-26-121(f), and its holding that the statute, as interpreted, does not authorize the trial court to impose the additional restrictions at issue in this case. However, I have genuine concern that the practical effect of the majority’s holding limits the inherent power of the trial court to both enforce its orders and protect litigants from unfair invasions of their privacy. As such, I must respectfully file this separate concurrence, in reliance on and fully incorporating my concurrence in Dean-Hayslett. See 2014 WL 277114, at *14–*17.