APPELLATE COURT OPINIONS

We granted an interlocutory appeal pursuant to Tenn. R. App. P. 9 in this case to consider whether the allegations set forth in the Complaint make this a ‘health care liability action’ as defined by Tenn. Code Ann. § 29-26-101 et seq. (“the Tennessee Health Care Liability Act”) such that the pre-suit notice and certification requirements set forth in Tenn. Code Ann. §§ 29-26-121 and – 122 are applicable. We find and hold that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act. We affirm that portion of the judgment of the Circuit Court for Loudon County (“the Trial Court”) finding and holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.1

This is a Rule 10B appeal of the denial of a petition for recusal. The trial court denied Appellant’s motion to recuse, and Appellant filed this accelerated interlocutory appeal pursuant to Rule 10B of the Rules of the Tennessee Supreme Court. We affirm in part, modifying the trial court’s order to deny the motion to recuse and vacate its order regarding the validity of the will. We remand for further hearing regarding the validity of the will at issue.

A plan administrator filed an interpleader action asking the court to determine the proper beneficiary of death benefits in a retirement plan. After the plan participant died, both his former wife and his estate demanded payment from the plan administrator. Although the former wife was listed as the designated beneficiary in the plan, the estate claimed that the beneficiary designation had been revoked in the couple’s marital dissolution agreement. The former wife filed a motion for judgment on the pleadings and a counterclaim alleging breach of the implied covenant of good faith and fair dealing in the administration of the plan. The trial court denied the former wife’s motion, awarded the disputed proceeds to the estate, and dismissed the counterclaim. The former wife appealed. Upon review, we conclude that the marital dissolution agreement did not revoke the previous beneficiary designation. We also conclude that the trial court erred in dismissing the counterclaim. Thus, we reverse in part, vacate in part, and remand this case for further proceedings consistent with this opinion.

The primary issue in this appeal is whether the former spouse of a military retiree is entitled to a share of his military retirement.  The military retiree submits that, because of his service-connected disability rating of 100%, his former spouse is not entitled to a share of his military retirement.  Based on its interpretation of the parties’ marital dissolution agreement, the trial court ruled in favor of the former spouse and awarded her a percentage of the retiree’s “total military retired pay,” including disability benefits.  Upon our de novo review, we conclude that the trial court erred in awarding the former spouse a percentage of the retiree’s disability benefits.  But the trial court correctly determined that the military retiree’s disability rating did not deprive his former spouse of an interest in his military retirement.

The Petitioner, Sterling Lamar Cooper, appeals the Roane County Criminal Court’s denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. He argues that his effective twenty-four-year sentence, which included service of a nine-year community corrections sentence that was never revoked, is illegal. We affirm the trial court’s denial of the motion but remand the case for correction of clerical errors in the judgments of conviction.

This appeal involves an arbitration agreement executed in connection with a nursing home admission. The trial court found no evidence that the individual who signed the arbitration agreement on behalf of the resident had authority to do so, and that, in any event, the form itself was not properly completed. Accordingly, the trial court denied the nursing home’s motion to compel arbitration. The nursing home appeals and argues that the trial court erred in deciding these issues because they should have been resolved by an arbitrator. We affirm and remand for further proceedings.

This is an appeal from a bench trial. Due to the deficiencies in the appellants’ brief on appeal, we find that they waived consideration of any issues on appeal and hereby dismiss the appeal.

Defendant, Benjamin Gunn, was convicted of unlawful possession of cocaine with intent to sell, unlawful possession of cocaine with intent to deliver, and third offense unlawful possession of marijuana. The trial court merged the two cocaine convictions and imposed a sentence of twelve years. Defendant was sentenced to two years for possession of marijuana to be served consecutively to the possession of cocaine conviction for an effective fourteen-year sentence. On appeal, Defendant raises the following issues: (1) whether the evidence was sufficient to support his convictions for unlawful possession of cocaine with intent to sell and unlawful possession of cocaine with intent to deliver; (2) whether the trial court erred by allowing testimony concerning prior search warrants; (3) whether Defendant was properly sentenced for third offense possession of marijuana; (4) whether the trial court erred by allowing the State’s expert witness to testify concerning the characteristics of a drug dealer; (5) whether the State committed prosecutorial misconduct; (6) whether the trial court improperly commented on the legality of the search warrant; and (7) cumulative error. After a thorough review of the record, we affirm the judgments of the trial court.

The employee worked for the predecessor to the defendant employer for many years and developed carpal tunnel syndrome. The previous employer underwent bankruptcy, and the defendant became the employee’s new employer. After the employee developed more severe symptoms, he filed a claim for workers’ compensation benefits. The employer initially paid employee temporary total disability benefits but denied employee’s later claim for additional benefits, taking the position that the employee’s symptoms were caused by pre-existing medical conditions. At trial, both sides presented expert medical testimony. The trial court held in favor of the employee and awarded benefits. The employer now appeals, and the appeal has been referred to the Special Workers’ Compensation Appeals Panel pursuant to Tennessee Supreme Court Rule 51. We affirm.

This appeal concerns a defamation claim. Lisa Rung (“Rung”) put up a Facebook post featuring a photograph of the back of Robert Weidlich (“Weidlich”)’s vehicle. Weidlich’s vehicle had a number of bumper stickers on it, some of which incorporated
the Confederate Battle Flag. Along with the photograph, Rung asserted in her Facebook post that the Weidlichs were “white supremacist[s].” Weidlich sued Rung for defamation in a case eventually tried before the Circuit Court for Franklin County (“the Trial Court”). After trial, the Trial Court entered judgment in favor of Weidlich and awarded him damages. Rung appeals. We hold that Rung’s Facebook post, viewed in its entire context, constitutes non-actionable commentary upon disclosed facts. We reverse the judgment of the Trial Court.

The Petitioner, Antoine Cardet Smith, appeals from the denial of post-conviction relief by the Montgomery County Circuit Court.  In this appeal, he argues that he received ineffective assistance of counsel.  Upon our review, we affirm the judgment of the
post-conviction court.

This case involves the interpretation and enforcement of an alimony termination provision in the parties’ marital dissolution agreement. Wife filed a Notice of Termination of Alimony Payments in the Chancery Court of Madison County, alleging that Husband’s non-compliance with the parties’ permanent parenting plan relieved her of any further obligation to pay alimony pursuant to the alimony provision of their marital dissolution agreement. Husband then filed a motion to enforce the marital dissolution agreement and for a temporary injunction. Wife subsequently moved for summary judgment to enforce the alimony provision of the marital dissolution agreement. Husband did not dispute that he failed to comply with the “Passport Provision” of the parties’ permanent parenting plan but argued that his violation of the agreement did not relieve Wife’s obligation to continue to pay alimony in solido. The trial court concluded that the marital dissolution agreement unambiguously provided that Wife would be immediately relieved of her total obligation to pay alimony if Husband failed to comply with his obligations under the parties’ permanent parenting plan and granted Wife’s motion for summary judgment. Husband appeals the trial court’s granting of summary judgment, while Wife seeks an award of her attorney’s fees on appeal. Finding no error, we affirm the trial court’s granting of summary judgment and award the Wife her attorneys’ fees incurred on appeal which the trial court shall calculate upon remand.

Commercial Bank & Trust Company, Legal Guardian of the Estate of Albert P. Mjekiqi, a Disabled Minor; Omer Mjekiqi and Gabriela Mjekiqi, Individually and as Legal Guardians of the Person of Albert P. Mjekiqi; and Volunteer State Health Plan, Inc. (collectively “Plaintiffs”) sued Children’s Anesthesiologists, P.C.; Heather D. Phillips, D.O.; Kari L. Clinton; Neurosurgical Associates, P.C.; Lewis W. Harris, M.D.; and East Tennessee Children’s Hospital Association, Inc. d/b/a East Tennessee Children’s Hospital alleging health care liability in connection with surgery performed on Albert P. Mjekiqi (“Albert”) in May of 2011. After a trial, the Circuit Court for Knox County (“the Trial Court”) entered judgment on the jury’s verdict finding no liability on the part of the defendants. Plaintiffs appeal to this Court raising issues with regard to admission of evidence and jury instructions. We discern no error, and we affirm

In this termination of parental rights case, a mother appeals the termination of her rights to her son on the grounds of abandonment by failure to establish a suitable home, persistence of conditions, and mental incompetence and upon the finding that termination was in the child’s best interest. Upon our review, we discern no error and affirm the judgment of the juvenile court.

This is a declaratory judgment action in which the plaintiff property owners sought a finding that the defendant’s right to operate a rock quarry had not vested prior to the adoption of BL2015-13, which prohibits such activity on the property in question. All parties then moved for summary judgment as relevant to their respective positions. The trial court granted summary judgment in the defendant’s favor, finding that the quarry qualified as a pre-existing nonconforming use. We affirm.  

This case involves a post-divorce modification of a parenting plan. The trial court found that there had been a material change in circumstances since the entry of the parties’ existing parenting plan. Mother appeals the trial court’s modification of the parenting plan insofar as the trial court did not adopt, in toto, her proposed plan. Father appeals the trial court’s finding that a material change in circumstances occurred since entry of the parties’ existing parenting plan but argues, in the alternative, that the trial court should be affirmed. Discerning no error, we affirm and remand.

Appellant appeals from the trial court's grant of summary judgment in favor of appellee concerning appellees' authority to rename three city parks by way of resolution.  After a thorough review of the record, we affirm the decision of the trial court.

A Maury County Circuit Court Jury convicted the Appellant, David Sharp, of evading arrest, a Class E felony, and driving on a revoked license, a Class B misdemeanor. After a sentencing hearing, he received an effective eighteen-month sentence to be served as ninety days in jail and the remainder on supervised probation. On appeal, the Appellant contends that the trial court erred by allowing the State to introduce a photograph into evidence to rebut a defense witness’s testimony and that the evidence is insufficient to support the convictions. Based upon the oral arguments, the record, and the parties’ briefs, we conclude that the trial court erred by admitting the photograph and that the error was not harmless. Therefore, the Appellant’s convictions are reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

The Defendant, Joshua Iceman, was convicted by a jury of aggravated child abuse and first degree felony murder, for which he received concurrent terms of eighteen years and life imprisonment, respectively. The Defendant appeals, arguing (1) that his statement at the hospital resulted from custodial interrogation given without proper Miranda warnings and, therefore, that statement should have been suppressed; (2) that the State experts’ testimony on “shaken-baby syndrome and/or non-accidental trauma” was not sufficiently reliable to warrant its admission; (3) that the evidence was insufficient to support his convictions because the jury was faced with conflicting expert testimony; and (4) that the trial court erred in enhancing his sentencing term for his aggravated child abuse conviction above the minimum in the Class A felony range. Following our review of the record, we affirm the judgments of the trial court.

An employee filed a claim for workers’ compensation benefits, alleging that he injured his back in the course and scope of his employment. His employer denied the claim. The trial court ruled the employee was permanently and totally disabled and apportioned liability fifty-two percent to the employer and forty-eight percent to the Second Injury Fund. The employer appealed, arguing the trial court erred in finding the employee established a work-related injury and in apportioning the liability for the award. After careful review, we affirm the trial court’s judgment.

An employer filed a complaint to resolve a dispute with an employee regarding workers’ compensation benefits. The employee alleged he suffered gradual hearing loss arising out of and in the course of his employment. The trial court held that the employee’s claim, filed three years after his doctor advised him that his hearing loss was work related, was barred by the statute of limitations. Further, the trial court found the statute of limitations was not tolled because the employee failed to prove that any work-related noise caused a progression of the employee’s hearing loss. The employee appealed. We affirm the trial court’s judgment.

A jury convicted the Defendant, Jeffrey W. Tittle, of attempted aggravated kidnapping and aggravated assault, Class C felonies, for grabbing the victim, placing a knife to her throat, and dragging her approximately twenty feet down a dark driveway into a scrap yard. The Defendant was sentenced to ten years for each offense, to be served consecutively. On appeal, the Defendant challenges the trial court’s decision to introduce a video from the responding officer’s patrol car, the trial court’s decision to permit the jury to view the video more than once, and the trial court’s refusal to merge the offenses based on the principles of double jeopardy and due process. We conclude that there was no error in admitting the video, that there was no error in allowing the jury to view it during deliberations, that double jeopardy principles do not bar dual convictions for attempted aggravated kidnapping and aggravated assault, and that there is no basis to disturb the determination of the jury that any removal or confinement was beyond that necessary to commit the aggravated assault. Accordingly, we affirm the trial court’s judgments. We remand only for the correction of clerical errors in the judgment form.

This appeal arises from the denial of parole to an inmate by the Tennessee Board of Parole (“the Board”). The inmate was convicted in 1990 of first degree murder and first degree burglary. The Board denied parole on the basis that the inmate’s release at the time of the hearing would depreciate the seriousness of the crime for which he was convicted. The inmate filed a petition for writ of certiorari with the Davidson County Chancery Court (“trial court”), alleging violations of due process and equal protection. The trial court denied relief, determining that no grounds existed to disturb the Board’s decision. Discerning no reversible error, we affirm.

On December 10, 1992, Derrick Richardson, the Petitioner, was convicted of first degree felony murder and sentenced to life. On appeal, this court affirmed the Petitioner’s conviction. See State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL 247114, at *1 (Tenn. Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994) (concurring in results only). The Petitioner filed a petition for writ of error coram nobis based on the affidavits of three individuals who claimed that one of the State’s “key witnesses,” LaKeysh Davis, lied about seeing the Petitioner shoot the victim because she was inside her home and could not have seen the location where the shooting occurred. The Petitioner claims that the information provided by the affiants is newly discovered evidence. Following a hearing, the coram nobis court denied coram nobis relief. We affirm. 

The pro se petitioner, David L. Alford, appeals from the Knox County Criminal Court’s judgment summarily dismissing his petition for a writ of error coram nobis. The State has filed a motion to affirm the trial court’s judgment pursuant to Tennessee Court of Criminal Appeals Rule 20. Following our review, we conclude that the State’s position is well-taken and affirm the judgment of the trial court.