Dennis Harold Ultsch v. HTI Memorial Hospital Corporation (Dissent)
M2020-00341-SC-R11-CV
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Joseph P. Binkley, Jr.

This appeal presents issues similar to those in Ultsch v. HTI Memorial Hospital
Corp., No. M2020-00341-SC-R11-CV, ___ S.W.3d ___ (Tenn. 2023). In that case, I
dissented from the result reached by a majority of the Court, which held that provisions of
the statutory scheme commonly referred to as the Health Care Liability Act (“HCLA”)
abrogated the common law vicarious liability principle known as the operation-of-law
exception. I reach the same conclusion here and respectfully dissent from the result
reached by the majority in this case.

Milburn L. Edwards v. State of Tennessee
M2022-01416-CCA-R3-HC
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Christopher V. Sockwell

Petitioner, Milburn L. Edwards, appeals from the Wayne County Circuit Court’s order summarily dismissing his ninth petition for writ of habeas corpus. On appeal, Petitioner argues the habeas corpus court’s order failed to include adequate findings of fact and conclusions of law, the State’s answer to the habeas corpus petition was insufficient, and the Warden of Petitioner’s penitentiary was not served with process. After review, we affirm the judgment of the habeas corpus court.

Andrew Hasley v. Harleigh Lott
M2022-01141-COA-R3-JV
Authoring Judge: Presiding Judge Frank G. Clement, Jr.
Trial Court Judge: Judge Michael Meise

This appeal arises from a juvenile court’s determination of a permanent parenting plan, in which the trial court found all best interest factors to be equal between the parents, granted Mother and Father equal parenting time, and designated them as “Joint Primary Residential Parents.” Mother raises several issues. Generally, she contends that the evidence preponderated against the trial court’s findings that all applicable best interest factors were equal between Mother and Father and that the trial court abused its discretion in crafting the permanent parenting plan. We find that the evidence preponderates against the trial court’s findings concerning two of the best interest factors. We also find that the court erred, as a matter of law, by designating the parties as joint primary residential parents in the absence of an agreement to do so. In accordance with these findings, we designate Mother as primary residential parent, affirm the trial court’s parenting plan in all other respects, and remand to the trial court for entry of judgment in accordance with this opinion.

State of Tennessee v. Jimmy L. Cobble
M2022-00598-CCA-R3-CD
Authoring Judge: Judge Robert W. Wedemeyer
Trial Court Judge: Judge Wesley Thomas Bray

The Defendant, Jimmy L. Cobble, pleaded guilty to vehicular assault and driving under the influence (“DUI”), fifth offense in exchange for a concurrent sentence of one year in jail followed by seven years of supervised probation. After a violation report was filed and a hearing held, the trial court revoked the Defendant’s probation, determining that he materially violated the terms of his probation sentence by testing positive for methamphetamine and amphetamine and by admitting to using heroin and fentanyl. It ordered the Defendant to serve the remainder of his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it failed to consider alternatives to him serving the duration of his eight year sentence in confinement. After review, we affirm the trial court’s judgment.

State of Tennessee v. Marterrius Hite
W2022-00678-CCA-R3-Cd
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Lee V. Coffee

The Defendant, Marterrius Hite, was convicted in the Shelby County Criminal Court of
two counts of first degree felony murder, aggravated child abuse, and aggravated child
neglect and received an effective sentence of life plus eighty years in confinement. On
appeal, the Defendant claims that (1) the evidence is insufficient to support his convictions,
(2) the trial court erred by allowing the State to introduce his belt into evidence without
establishing a proper chain of custody, (3) the trial court committed plain error by ruling
he “opened the door” to a police officer testifying that he was arrested on prior warrants,
(4) the trial court committed plain error by commenting on his expert witness’s PowerPoint
presentation, (5) the trial court erred by allowing the jury to deliberate late at night, and (6)
his effective sentence is excessive. Upon review, we affirm the judgments of the trial court.

Tony Thomas v. State of Tennessee
W2022-00851-CCA-R3-PC
Authoring Judge: Judge Timothy L. Easter
Trial Court Judge: Judge Lee V. Coffee

Petitioner, Tony Thomas, appeals the Shelby County Criminal Court’s denial of
post-conviction relief. On appeal, Petitioner argues that the post-conviction court erred in
denying relief. Finding that the issues presented for our review are without merit, waived,
previously determined, or a combination thereof, we affirm the judgment of the postconviction
court.

Deshun Hampton v. State of Tennessee
W2022-01473-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge Jennifer Johnson Mitchell

The Petitioner, Deshun Hampton, appeals the denial of his petition for post-conviction
relief, arguing that he received ineffective assistance of counsel and that his guilty plea was
not knowingly and voluntarily entered. Based on our review, we affirm the judgment of
the post-conviction court.

Said Laghrab v. State of Tennessee
W2022-00736-CCA-R3-PC
Authoring Judge: Judge John W. Campbell, Sr.
Trial Court Judge: Judge J. Weber McCraw

The Petitioner, Said Laghrab, pled guilty in the Fayette County Circuit Court to aggravated
assault and received a four-year sentence. Seven years later, he filed a petition for postconviction
relief, and the post-conviction court summarily dismissed the petition as
untimely. Based upon the oral arguments, the record, and the parties’ briefs, we conclude
that the Petitioner has not shown he is entitled to due process tolling of the statute of
limitations and affirm the post-conviction court’s dismissal of the petition.

State of Tennessee v. Clifton Weathers Horn, II
M2022-00615-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge William R. Goodman, III

Defendant, Clifton Weathers Horn, II, pleaded guilty to eight counts of unlawful photography in violation of privacy (with dissemination), one count of attempted tampering with evidence, and fourteen counts of facilitation of sexual exploitation of a minor. Following a sentencing hearing, the trial court sentenced him to a term of four years in the Department of Correction, followed by one year of supervised probation. On appeal, Defendant argues the trial court erred in denying judicial diversion or other forms of full alternative sentencing. After review, we affirm the judgments of the trial court.

State of Tennessee v. Anthony Terrell Brown
M2022-00729-CCA-R3-CD
Authoring Judge: Judge Matthew J. Wilson
Trial Court Judge: Judge Dee David Gay

Anthony Terrell Brown, Defendant, was convicted by a jury in the Robertson County Circuit Court of first degree premeditated murder. He received a sentence of life in prison without parole. On appeal, Defendant contends the trial court erred when the presiding circuit court judge appointed, by interchange, a trial judge from an adjoining district to try the case, and that the evidence is insufficient to support his conviction. After review, we affirm the judgment of the trial court.

Emergency Medical Care Facilities, P.C. v. Bluecross Blueshield of Tennessee, Inc., et al.
M2021-00174-COA-R3-CV
Authoring Judge: Presiding Judge J. Steven Stafford
Trial Court Judge: Chancellor Anne C. Martin

Plaintiff appeals the trial court’s decision to dismiss its class action allegations against two defendants on the basis of collateral estoppel. Specifically, the trial court ruled that while a prior determination that Appellant was not entitled to class action certification was not a final judgment on the merits, due to a dismissal of that case without prejudice, the ruling was “sufficiently firm” to have preclusive effect, citing the Restatement (Second) Of Judgments. Because Tennessee law requires a final adjudication on the merits for a judgment to be entitled to preclusive effect, we reverse.

Christine L. Manion Et Al. v. The Baldini, Pryor, and Lammert Partnership
M2022-00384-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Chancellor Joseph A. Woodruff

The owners of certain real property sought a prescriptive easement over the parking lot of an adjacent neighbor. The trial court granted the prescriptive easement over the entirety of the neighbor's parking lot. The neighbor appealed. Discerning that the record contains clear and convincing evidence of all the requirements for a prescriptive easement, we affirm. We modify the trial court's judgment, however, by limiting the scope of easement to the route followed when the route was first established. 

George Gary Ingram v. Dr. Michael Gallagher, Et Al.
E2020-01222-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge W. Jeffrey Hollingsworth

This is a health care liability case. George Gary Ingram ("Ingram") filed a health care
liability action in the Circuit Court for Hamilton County ("the Trial Court") against, among
others, Dr. Michael Gallagher ("Dr. Gallagher') and Chattanooga-Hamilton County
Hospital Authority d/b/a Erlanger Health System ("Erlanger") ("Defendants,"
collectively). Plaintiff later filed an amended complaint naming Dr. Gallagher as the sole
defendant. He thus removed the other defendants, including Erlanger, from the lawsuit.
Dr. Gallagher then filed an answer asserting, as a defense, that his governmental employer,
Erlanger, was not made a party to the action. Consequently, Plaintiff filed a motion to alter
or amend the Trial Court's order of dismissal as to Erlanger, which was denied. Plaintiff s
claims were dismissed. In Ingram v. Gallagher, No. E2020-01222-COA-R3-CV, 2021
WL 3028161 (Tenn. Ct. App. July 19, 2021) ("Ingram I"), we reversed the Trial Court,
holding that the Trial Court erred in denying Plaintiff s motion to revise the order of
dismissal. We pretermitted all other issues. The Tennessee Supreme Court then reversed
this Court, holding that Erlanger was removed from the lawsuit when Plaintiff filed his
amended complaint and that the order of dismissal had no legal effect so there was no order to amend. Our Supreme Court remanded for us to address the remaining issues. We hold, inter alia, that the savings statute is inapplicable as the Governmental Tort Liability Act
("the GTLA") is implicated; that the Trial Court did not err in dismissing Erlanger for lack
of pre-suit notice and a certificate of good faith; and that the Trial Court did not err in
granting summary judgment to Dr. Gallagher as his governmental employer, Erlanger, was not made a party. We affirm.

In Re N.M.
E2022-01398-COA-R3-PT
Authoring Judge: Judge D. Michael Swiney
Trial Court Judge: Judge Kenneth N. Bailey, Jr.

This appeal arises from the termination of a mother’s parental rights to her minor child
upon the juvenile court’s finding by clear and convincing evidence of the statutory grounds
of abandonment by failure to provide a suitable home, abandonment by failure to visit,
abandonment by failure to support the child, abandonment by wanton disregard for the
child’s welfare, substantial noncompliance with the permanency plan, persistent
conditions, and failure to manifest an ability and willingness to assume custody of the
child.1 The juvenile court further found that termination of the mother’s parental rights
was in the child’s best interest. Discerning no error, we affirm.

Denise Phillips Jones v. Kelvin Dominic Jones
M2022-00624-COA-R3-CV
Authoring Judge: Judge Steven Stafford
Trial Court Judge: Judge Robert E. Lee Davies

This appeal arises from a divorce. Prior to the marriage, the parties signed an antenuptial agreement that included a provision whereby Husband’s son from a prior marriage would be entitled to one-fourth of the value of the marital property upon divorce. During proceedings in the trial court, Husband filed a petition to hold Wife in criminal contempt. The trial court dismissed Husband’s petition for contempt, granted Husband a divorce on the uncontested ground of adultery, found the provision regarding Husband’s son to be unenforceable, and equitably divided the parties’ marital property. The trial court also declined to award Husband his requested discretionary fees. Primarily based on Husband’s failure to follow briefing requirements, we affirm the trial court’s judgment on all issues.

Madeline Luckett Nolan v. Gregory Stewart Nolan
W2021-01018-COA-R3-CV
Authoring Judge: Judge Jeffrey Usman
Trial Court Judge: Judge Rhynette N. Hurd

The circuit court, finding that Father committed twenty-one counts of criminal contempt,
imposed a jail sentence and awarded Mother attorney’s fees. Father appeals, arguing that
the court’s holding violates the prohibition against double jeopardy, that the evidence is
insufficient to support thirteen of the counts, and that the court erred in awarding attorney’s
fees. We conclude that double jeopardy is not implicated in the findings of contempt and
that Father has not presented an argument entitling him to relief regarding the attorney’s
fees award. However, because the evidence is insufficient to support the finding of
contempt on Counts 9, 16, 36, and 40, we reverse the circuit court’s finding of contempt
on these counts. In addition, we conclude that Count 12 must be vacated because the
factual predicate of the trial court’s findings appears to potentially rest upon an unsupported
basis. The remaining 16 counts are affirmed and the case is remanded for further
proceedings.

State of Tennessee v. Dashun Shackleford
E2020-01712-SC-R11-CD
Authoring Judge: Chief Justice Roger A. Page
Trial Court Judge: Judge Steven Wayne Sword

This appeal concerns the criminal gang-enhancement statute, Tennessee Code Annotated
section 40-35-121, and specifically what is required in an indictment to sufficiently plead
and provide notice under the statute. Dashun Shackleford (“Defendant”) was arrested for
aggravated robbery as to four individuals in September 2016, along with his friend and
fellow gang member, Jalon Copeland. Defendant’s indictment contained twenty counts:
four alternative counts each of aggravated robbery against four victims and four
corresponding counts of criminal gang offense enhancement. The gang-enhancement
statute requires the State to give notice in separate counts of the indictment of the
enhancement applicable under the statute. The indictment also alleged that Defendant was
a “Crips” gang member and listed the convictions of fifteen alleged fellow Crips members
to prove Defendant’s gang had a “pattern of criminal gang activity,” as also required by
the gang-enhancement statute. A Knox County jury convicted Defendant as charged. The
trial court merged the aggravated robbery convictions into four counts and imposed a total
effective sentence of twenty years to be served at eighty-five percent. In this case, the
gang- enhancement conviction increased Defendant’s aggravated robbery convictions from Class
B felonies to Class A felonies. Defendant appealed, arguing, among other things, that the
evidence at trial was insufficient to support his gang-enhancement conviction. The Court
of Criminal Appeals agreed, taking particular issue with the allegation in the indictment
that Defendant and the other gang members listed therein were plain Crips. In the
gang-enhancement phase of trial, the proof established that the majority of the gang members
listed in the indictment, including Defendant, were members of several different subsets of
the Crips gang, with only one of the listed men identified as a plain Crip. The intermediate
court concluded that the State failed to prove that Defendant’s subset gang had engaged in
a pattern of criminal gang activity and failed to comply with the notice requirements of the
gang-enhancement statute. In doing so, the court also, sua sponte, determined that a fatal
variance existed between the indictment and proof at trial. The Court of Criminal Appeals,
therefore, reverted Defendant’s aggravated robbery convictions to a classification lower in
the absence of the gang enhancement. After review, we conclude that the Court of Criminal
Appeals erred in its decision. The gang-enhancement statute is worded broadly and does
not require the State to specify in the indictment a criminal defendant’s gang subset nor
that the defendant is in the same gang subset as the individuals whose criminal activity
establishes the gang’s “pattern of criminal gang activity.” Defendant waived all other issues
by failing to properly raise them before the trial court or on appeal. Therefore, the decision
of the Court of Criminal Appeals is reversed and the trial court’s judgments are reinstated.

Save Our Fairgrounds et al. v. Metropolitan Government of Nashville and Davidson County, Tennessee et al.
M2021-00074-COA-R3-CV
Authoring Judge: Judge W. Neal McBrayer
Trial Court Judge: Chancellor Ellen Hobbs Lyle

Citizens sought to stop the construction and operation of a soccer stadium at The Fairgrounds Nashville. The plaintiffs advanced a plethora of legal theories in support of their claims that the soccer development violated the Metro Charter. After a month-long trial, the court dismissed the plaintiffs’ claims with prejudice. On appeal, the plaintiffs raise two issues: (1) whether the trial court’s orders were final; and (2) whether the court erred in ruling that the Metro Charter did not require a public referendum before any demolition and new development could occur at the Fairgrounds. We conclude that the court’s orders were final. But, because the challenged demolition and construction have already happened, we dismiss this appeal as moot.

Kim Williams v. The Lewis Preservation Trust Et Al.
E2022-01034-COA-R3-CV
Authoring Judge: Judge Kristi M. Davis
Trial Court Judge: Judge Melissa Thomas Willis

In 2012, Robert and Elizabeth Ann Lewis created a revocable trust and transferred thereto
their rental property business as well as real estate. Several years later, after Robert was
deceased and Elizabeth had become incapacitated, one of the Lewis’ sons, acting as
Elizabeth’s attorney-in-fact, created a new trust with terms different from that of the
original. A different Lewis sibling, Kim Williams, disputed the son’s authority to create
the second trust pursuant to both the terms of the original trust and his power of attorney.
Kim Williams claimed, inter alia, that the son breached several fiduciary duties in creating
the second trust. Following discovery and an unsuccessful mediation, the Chancery Court
for Rhea County (the “trial court”) denied Ms. Williams’ motion for summary judgment
and granted the defendants’ cross-motion for summary judgment. Ms. Williams appeals.
Having reviewed the record and arguments of the parties, we conclude that the trial court’s
ruling is affirmed in part, reversed in part, and vacated in part, and the case remanded for
further proceedings.

Abigail Lynn Sevigny v. Warren Maxwell Sevigny
M2022-00953-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Philip R. Robinson

In this post-divorce dispute, the wife filed a petition for criminal contempt. After testimony was heard, the parties announced in broad terms that they had reached a settlement. Thereafter, the parties could not agree on the terms of the settlement. At a hearing on the husband’s motion requesting approval of his proposed order, the court dismissed the petition on grounds of double jeopardy. We have determined that the trial court erred in dismissing the case and remand for further proceedings.

In Re Trust of Nellie B. Fontanella
M2022-01822-COA-R3-CV
Authoring Judge: Judge Andy D. Bennett
Trial Court Judge: Judge Joe Thompson

This is an appeal from an order requiring a trustee to provide an updated accounting to a beneficiary at the beneficiary’s expense. Because the order does not resolve all of the claims between the parties, we dismiss the appeal for lack of a final judgment.

State of Tennessee v. Justin L. Stegall
W2022-00628-CCA-R3-CD
Authoring Judge: Judge Jill Bartee Ayers
Trial Court Judge: Judge Donald H. Allen

Defendant was convicted of a single count of aggravated sexual battery, and the trial court
imposed a sentence of eight years as a Range I offender to be served in confinement. On
appeal, Defendant argues that the evidence was insufficient to support his conviction and
that the trial court erred by admitting the video recording of the minor victim’s forensic
interview. Following our review of the entire record and the parties’ briefs, we reverse
Defendant’s conviction and remand this case for a new trial.

State of Tennessee v. Halley O'Brien Thompson
W2022-01535-CCA-R3-CD
Authoring Judge: Judge Tom Greenholtz
Trial Court Judge: Judge Kyle C. Atkins

A Madison County Circuit Court jury found the Defendant, Halley OBrien Thompson,1
guilty of aggravated sexual battery. The trial court sentenced the Defendant to fourteen
years in the Tennessee Department of Correction. On appeal, the Defendant contends that
the trial court erred by allowing an investigator to testify that it was common for child
victims to delay reporting allegations of sexual assault. He also argues that the State
presented improper prosecutorial argument during its rebuttal closing argument. Upon
review, we respectfully disagree and affirm the trial court’s judgment.

Knox Community Development Corporation v. William G. Mitchell
E2023-00714-COA-R3-CV
Authoring Judge: Per Curiam
Trial Court Judge: Judge Charles A. Cerny Jr.

This is an appeal from a final order entered on January 17, 2023, in the Knox County
General Sessions Court (“Trial Court”). The Notice of Appeal filed by the appellant
incorrectly sought review in this Court instead of the circuit court. Furthermore, the Notice
of Appeal was not filed until May 12, 2023, more than ten days after entry of the Trial
Court’s judgment from which the appellant seeks to appeal. Because the Notice of Appeal
was untimely and was filed in the wrong court, we have no jurisdiction to consider this
appeal. We also determine that transferring the appeal to the correct court would be futile.

John Benbow v. L&S Family Entertainment, LLC, Et Al.
M2022-00491-COA-R3-CV
Authoring Judge: Chief Judge D. Michael Swiney
Trial Court Judge: Judge Joe Thompson

This case concerns claims of negligence against several people and entities for allegedly serving alcohol to and/or failing to protect a 20-year-old man who died in a car accident while intoxicated. John D. Benbow (“Plaintiff”), individually and as next of kin to his son, Jacob N. Benbow, deceased, filed a wrongful death action in the Sumner County Circuit Court (“the Trial Court”) against the defendants, L&S Family Entertainment, LLC d/b/a Strike & Spare (“L&S”); JPZ, LLC d/b/a Silverado Rivergate Sports Bar & Grill (“Silverado’s”); 1 Rancho Cantina, LLC (“Rancho Cantina”); Jody D. McCutchen; Brandi McCutchen; and Brenon D. McCutchen (“the McCutchens”). Certain of the defendants filed motions for summary judgment. The Trial Court granted summary judgment for Rancho Cantina, L&S, Brandi, and Jody. 2 However, the Trial Court denied summary judgment for Brenon.3 Plaintiff appeals. We affirm the Trial Court’s grant of summary judgment to Jody because Plaintiff failed to create any genuine issue of material fact that Jody took charge of Jacob. However, we reverse the Trial Court’s grants of summary judgment to Rancho Cantina, L&S, and Brandi, as genuine issues of material fact exist with respect to Plaintiff’s claims against those parties. We observe that the standard is comparative fault, not contributory negligence. Whether Jacob was at least 50% at fault for comparative fault purposes is a question not properly resolvable at this summary judgment stage under the facts of this case. We thus affirm, in part, and reverse, in part. We remand to the Trial Court for further proceedings consistent with this Opinion.