APPELLATE COURT OPINIONS

This interlocutory appeal involves a health care liability action. The plaintiffs, Margie Hunt and husband, Rickey Hunt, claim that Mrs. Hunt suffered injuries proximately caused by the conduct of the defendants with respect to two surgeries. Prior to filing their complaint, the plaintiffs gave timely written notice of their claim to potential defendants. See Tenn. Code Ann. § 29-26-121(c) (Supp. 2013). Each of the three defendants moved to dismiss the complaint. Their separate motions were predicated on their assertion that the plaintiffs' pre-suit notice failed to comply with the requirements of Tenn. Code Ann. § 29-26-121, part of the Tennessee's Health Care Liability Act. Specifically, the defendants argue that the plaintiffs failed to provide a HIPAA-compliant medical authorization with their pre-suit notice. They also contend that the plaintiffs failed to attach to the complaint the medical authorization and also the pre-suit notice served upon the defendants. The defendant Dr. Nitin J. Rangnekar also relies upon the ground of insufficiency of service of process. The trial court denied each defendant's motion. On the defendants' further motions, the court granted them permission to pursue an interlocutory appeal pursuant to the provisions of Tenn. R. App. P. 9. We likewise granted the defendants permission to file a Rule 9 appeal. We affirm the judgment of the trial court.

The Petitioner, Christopher Hubbard, appeals the Shelby County Criminal Court‘s denial of his petition for post-conviction relief from his convictions of aggravated kidnapping and aggravated assault and resulting effective sentence of life without the possibility of parole as a repeat violent offender. On appeal, the Petitioner contends that he received the ineffective assistance of counsel because trial counsel failed to call a favorable witness to testify, that the trial court erred by ruling that the charges of especially aggravated kidnapping and aggravated assault did not violate double jeopardy principles, and that he received the ineffective assistance of counsel because trial and appellate counsel failed to raise the double jeopardy issue. Based upon the oral arguments, the record, and the parties‘ briefs, we affirm the judgment of the post-conviction court.

A Shelby County Criminal Court Jury convicted the appellant, Joe Jackson, of aggravated assault and reckless endangerment. The trial court imposed a total effective sentence of fourteen years. On appeal, the appellant contends that the evidence was insufficient to sustain his conviction of aggravated assault. Upon review, we affirm the judgments of the trial court.

This case involves an agreement among most of the heirs of Vida Mae McCartt (Decedent) regarding the distribution of the assets of her estate. After Decedent’s will was admitted to probate, five of her grandchildren filed an action to contest its validity. Following mediation, the grandchildren and Decedent’s three living children entered into a settlement agreement, which the trial court approved and incorporated into an agreed order distributing the assets of the estate. Thereafter, Sara Shannon Armes, the daughter of Decedent’s deceased son, J.D. McCartt, Sr., brought this action alleging that she was entitled to a share of the estate under the terms of the agreed order. Armes, who was not a party to the settlement agreement, also alleged that her siblings perpetrated a fraud by representing to the court that J.D. McCartt, Sr. had only three children and heirs at law when he actually had four, including Armes. The trial court granted the defendants’ Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim upon which relief could be granted. We vacate the judgment of the trial court and remand for further proceedings.

I respectfully concur in results only. I do so because the majority opinion, in the section discussing Defendant Sims’ severance issue, fails to address the admissibility of Defendant Sims’ unredacted statement pursuant to the “rule of completeness.” Tenn. R. Evid. 106. As noted in the majority opinion, the trial court considered the rule of completeness in its decision to admit the evidence. The majority opinion, in my view, implies that Defendant Sims’ unredacted statement was inadmissible under any circumstances in this particular case.

The Defendant, John Brandon Gold, pleaded guilty to violating the sex offender registry, a Class E felony.  The trial court sentenced the Defendant, a Range II persistent offender, to five years plus ninety days, to be served at 45%.  The trial court denied the Defendant an alternative sentence.  On appeal, the Defendant contends that his sentence is excessive.  After a thorough review of the record and applicable authorities, we affirm the trial court’s judgment.

The defendants, Jeremy Sims and Sherry Brookshire, appeal their Shelby County Criminal Court jury convictions of kidnapping and aggravated robbery. Defendant Sims claims that the trial court abused its discretion by denying his motion for severance, the trial court erred by admitting certain witness testimony, the evidence was insufficient to sustain his conviction of aggravated robbery, the trial court erred by giving certain instructions to and communicating ex parte with the jury, the trial court erred by denying his post-trial motion for a mistrial and severance of defendants on the basis of Defendant Brookshire's incompetence to stand trial, and the cumulative effect of these errors prevented him from receiving a fair trial. Defendant Brookshire also challenges the trial court's denial of the motion to sever, the admission of certain evidence, the sufficiency of the evidence pertaining to the conviction of aggravated robbery, the trial court's instructions to the jury, and the trial court's finding that she was competent to stand trial. Discerning no error, we affirm.

In this parental termination case, A.J.S.P. (Mother) appeals the termination of her rights to her minor son, E.T.P. (the Child). After the Child was placed in state custody and adjudicated dependent and neglected, custody was awarded to a non-relative. Subsequently, physical custody was returned to the Department of Children’s Services (DCS). At that time, both parents were incarcerated. As to Mother, DCS filed a petition to terminate her rights to the child based on her wanton disregard for the Child’s welfare. After a trial, the court granted the petition based on its findings, said to be made by clear and convincing evidence, that (1) grounds for termination exist and (2) termination is in the best interest of the Child. On appeal, Mother challenges only the court’s best interest determination. We affirm.

The plaintiff, Jodi Lynn Jenkins (“Wife”), filed this divorce action against the defendant, Steven Louis Jenkins (“Husband”), on March 20, 2014. Prior to trial, the parties reached an agreement regarding certain issues, including an equitable division of their marital property, a permanent parenting plan, and child support. The trial court conducted a hearing on September 10, 2014, regarding the remaining issues of alimony and attorney's fees. Following the hearing, the trial court entered an order awarding Wife alimony in futuro in the amount of $3,500 per month until Husband's child support obligation terminated and $4,500 per month thereafter. The court also awarded Wife $5,000 in attorney's fees.1 Husband timely appealed. Discerning no error, we affirm the trial court's judgment. We remand this action to the trial court for a determination regarding the issue of a reasonable award of attorney's fees to Wife incurred in defending this appeal.

Plaintiff filed a health care liability action against defendant doctor but did not file the certificate of good faith required by Tenn. Code Ann. § 29-16-122. Defendant filed a motion to dismiss; the motion was granted by the trial court. Plaintiff appeals the dismissal of her complaint. Finding no error, we affirm. 

Plaintiff/Appellant appeals the trial court's dismissal of his complaint on the ground that it was barred by the doctrine of res judicata. Specifically, Appellant argues that a prior dismissal on the basis of the expiration of the statute of limitations was not an adjudication on the merits. Because dismissals on statute of limitations grounds generally operate as adjudications on the merits, we affirm.

Petitioner, Robert E. Boling, appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erred in concluding that he failed to prove that he received ineffective assistance from his trial counsel. Based upon a thorough review of the record and the applicable law, the decision of the post-conviction court is affirmed.

Petitioner, Malik Jones, entered guilty pleas in three separate cases, resulting in a total effective sentence of thirty-one years. Petitioner then sought post-conviction relief on the basis of an involuntary guilty plea and ineffective assistance of counsel. After a hearing, the post-conviction court denied relief. Because Petitioner has failed to provide clear and convincing evidence that he received ineffective assistance of counsel or that his plea was involuntary, we affirm the judgment of the post-conviction court.

In 2009, James Goins & Carpenter, P.C. (JGC) leased office space from 817 Partnership (817). JGC later decided to expand its law practice. It leased additional space in the same building from 817. Thereafter, a bank that had occupied the ground floor of the building moved out. Beginning in February 2011, Stuart F. James, an attorney with JGC, began raising concerns about security in the building. Over the course of the next few months, Mr. James repeatedly emailed 817's representatives about security, the heating and air conditioning system, JGC's financial problems, the need for a rent reduction, and a host of other issues. These emails eventually stopped; but in March 2013, Mr. James responded to a notice from 817 that JGC had missed rent payments. At that point, JGC's security issues resurfaced in a series of emails Mr. James sent from March to May of 2013. Ultimately, Mr. James informed 817 that JGC was dissolving and would be vacating the premises well before its lease expired. As a result, 817 filed a detainer action in general sessions court against JGC and Mr. James (collectively the Defendants). The general sessions court granted 817 a judgment. The Defendants filed a “motion to reconsider,” which was denied.

Robert George Russell, Jr., a Knoxville Fire Department captain, brought this action challenging the decision of Fire Chief Stan Sharp to promote others to the position of assistant fire chief. In 2013, Chief Sharp selected three fire officers to fill vacancies in the position of assistant chief. Russell filed an employment grievance with the Civil Service Merit Board (the CSMB or the Board), alleging that, in making his selections, Chief Sharp violated the applicable rules and regulations when he used, among other things, a mathematical formula that had not been approved by the Board. Russell also asserted that Chief Sharp violated the rules by not considering his ranking, according to the eligibility roster listing of the candidates eligible for promotion. The Board's administrative hearing officer denied the grievance, and the trial court affirmed. We hold that Chief Sharp did not violate the Board's rules and regulations and did not act arbitrarily or capriciously in exercising his discretion to make promotions. We affirm the trial court's judgment.

A Williamson County jury convicted the Defendant, Lecarvis Marquis Miller, of reckless aggravated assault and simple assault.  The trial court merged the convictions and sentenced the Defendant to serve ten years as a Range III, persistent offender.  On appeal, the Defendant asserts that the trial court erred when it failed to give the jury a supplemental unanimity instruction.  After a thorough review of the record and applicable law, we affirm the trial court’s judgment.

Mother and Father were divorced in 2009; the final divorce decree incorporated a permanent parenting plan designating Mother as primary parent. On May 17, 2010, Mother filed a petition in Davidson County Juvenile Court to have two of the parties’ children declared dependent and neglected based on Father’s alleged physical abuse of the children in two incidents in Davidson County on May 12. At the time of the incidents neither party nor the children were residents of Davidson County. Following a hearing in Juvenile Court, a trial de novo was held in Circuit Court; the court held that the evidence did not support a finding that the children were dependent and neglected and dismissed the petition. Mother appeals, asserting that the court erred in limiting proof to the events which occurred in Davidson County and in excluding the testimony of certain expert witnesses; Mother also argues that the evidence supports a finding that the children were dependent and neglected. Determining that the court did not abuse its discretion in the admission of evidence and that the evidence does not clearly and convincingly show that the children were dependent and neglected, we affirm the dismissal of the petition.

The paramount issue in this parental relocation action arises from a contractual provision in the parenting plan that reads: “If either party should relocate from Lincoln County, Tennessee, the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System.” The parties were divorced in 2009 at which time Mother was designated the primary residential parent. In 2014, Mother notified Father that she intended to relocate to Brentwood, Tennessee, because her husband accepted a job there. Father filed a petition opposing relocation relying, in part, on a contractual provision in the parenting plan. Because the parents were exercising substantially equal parenting time, the relocation issue was to be decided pursuant to Tenn. Code Ann. § 36-6-108(c), which states that no presumption in favor of or against relocation with the child shall arise and that “the court shall determine whether or not to permit relocation of the child based upon the best interests of the child.” Tenn. Code Ann. § 36-6-108(c). Following a full evidentiary hearing, the trial court denied Mother’s request to relocate. The sole basis for the ruling was that Mother was estopped to relocate with the children based on the parenting plan. Having decided the case based on estoppel, the court stated it was not necessary to conduct a best interest analysis. Mother filed a Motion to Alter or Amend insisting the trial court was required to conduct a best interest analysis pursuant to Tenn. Code Ann. § 36-6-108(c). The court then conducted the required analysis and additionally found that relocation was not in the children’s best interests. The court modified its order stating that it was denying relocation on the basis of estoppel and its best interest findings. We have determined that the trial court erred in finding Mother was estopped to relocate based upon the parenting plan because the parties contractual agreement merged into the final decree, and the trial court retained jurisdiction on issues concerning the care, custody, and control of the minor children. Nevertheless, we affirm the decision to deny relocation based upon the trial court’s finding that relocation was not in the children’s best interests. Mother also filed a petition to hold Father in civil contempt for failing to pay a debt for which they were jointly liable. The court ruled that Father was not in civil contempt because he had cured his contemptuous conduct and we find no error with the contempt ruling. 

The employee sustained a work-related lower back injury, which required surgery. Her treating physician assigned an 8% permanent impairment rating, and referred her to a pain management specialist. The employee’s lawyer arranged for an independent medical evaluation with a neurologist, who assigned the employee 23% permanent impairment for her back injury and 2% permanent impairment for the sleep interruption she experienced as a result of ongoing back pain. Because the impairment ratings differed, the employee was seen by a physician in the Tennessee Medical Impairment Rating Registry (“MIR”), as established by statute. The MIR physician, an orthopedic surgeon, assigned the employee a 9% permanent impairment. The depositions of the evaluating physician and the MIR physician were introduced at trial, as well as the medical records of the treating physician, the employee’s testimony, and that of several lay witnesses. The trial court refused to allow the employer to call a vocational expert to testify, because the employer had failed to disclose the identity of this witness at an earlier time. At the conclusion of the proof, the trial court found that, regardless of the permanent impairment rating applied, the employee is unable to work and is therefore entitled to permanent and total disability benefits. Alternatively, the trial court found that the employee had introduced clear and convincing evidence to rebut the statutory presumption of accuracy that applies to the MIR physician’s impairment rating and adopted the 23% permanent impairment rating of the evaluating physician, even though his assignment of 2% permanent impairment for the employee’s sleep interruption was inconsistent with The AMA Guides to Permanent Impairment, 6th Edition (“AMA Guides”). The employer appealed. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We conclude that: (1) the trial court did not err by excluding the employer’s vocational expert; (2) the evidence preponderates against the trial court’s finding of permanent and total disability; and (3) the trial court erred by concluding that the employee rebutted by clear and convincing evidence the statutory presumption of accuracy that applies to the MIR physician’s impairment rating. Accordingly, we reverse and modify the judgment of the trial court, and considering the MIR physician’s impairment rating and the lay testimony concerning the employee’s limitations, award the employee 45% permanent partial disability benefits.

This is a contract action involving an alleged oral contract between the plaintiffs, landlords Jim Hicks and Betty Hicks (“Landlords”), a married couple who own the rental property at issue, and the co-defendant, Duane Seitz, who located and paid the first month's rent on the property on behalf of his former wife, Debbie Seitz. Ms. Seitz, also originally named as a co-defendant, resided in the home on the property with her adult daughter, her adult daughter's boyfriend, and the daughter's two small children (collectively, “Tenants”). Following several months during which the rent was paid late, partially, or not at all and upon discovery of unkempt conditions in the home, Landlords served Tenants with a notice of eviction. After Tenants had moved from the home, Landlords filed a civil warrant in the Sevier County General Sessions Court against the defendants, Ms. Seitz and Mr. Seitz, alleging unpaid rent and vandalism. Upon hearing, the General Sessions Court entered a judgment in favor of Landlords and against both defendants in the amount of $7,000 plus 5.25% interest and court costs. The defendants appealed to the Circuit Court. Following a bench trial, the Circuit Court entered a judgment in favor of Landlords and against only Mr. Seitz in the amount of $6,285 in damages, plus 5.25% interest and court costs, based upon breach of an oral contract. Having found that Mr. Seitz had entered an oral contract with Landlords but that Ms. Seitz had not, the Circuit Court dismissed Ms. Seitz from the action. Mr. Seitz appeals, contending that the trial court erred by (1) finding an enforceable oral contract between Mr. Hicks and Mr. Seitz and (2) dismissing Ms. Seitz from the action. Because Ms. Seitz was never served with notice of this appeal, we conclude that this Court does not have subject matter jurisdiction over the issue of her dismissal from this matter. As to the trial court's judgment in favor of Landlords, we discern no error and affirm.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Chancery Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

In this child support arrearage case Harold Newman, Jr. (“Respondent”) appeals the December 23, 2014 order of the Circuit Court for Roane County (“the Trial Court”) finding Respondent in civil contempt and ordering that Respondent be incarcerated in the Roane County Jail until he pays a purge amount of $150.00. We find and hold that no evidence was produced showing that Respondent had the present ability to pay $150.00, or any amount, and, therefore, the order finding Respondent in contempt and sentencing him to incarceration was in error. We reverse that portion of the Trial Court's December 23, 2014 order finding Respondent in civil contempt and sentencing Respondent to indefinite incarceration in the Roane County Jail with the ability to purge himself of contempt by making a $150.00 purge payment and remand this case to the Trial Court for further proceedings.

Because the order appealed is not a final judgment, this Court lacks subject matter jurisdiction. Therefore, we dismiss this appeal.

Petitioner, Nathan Young Payne, appeals the dismissal of his motion to withdraw his guilty plea, which the lower court subsequently treated as a petition for post-conviction relief. Because Petitioner has not proven that due process requires tolling of the statute of limitations for post-conviction purposes, the decision of the post-conviction court is affirmed.

Petitioner, Melissa Barnett, appeals the dismissal of her second petition for a writ of error coram nobis, in which she alleged that her codefendant's recantation of his trial testimony constitutes newly-discovered evidence of her innocence. Upon our review of the record, we agree with the coram nobis court that Petitoner was previously granted a meaningful opportunity to present this claim, and we affirm its decision to dismiss the petition.