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Posted by: Tanja Trezise on Nov 25, 2020

Appellant was injured in an accident involving a vehicle owned by Lexus of Memphis and insured under a policy issued by Appellee insurance company. The at-fault driver entered into a rental agreement with Lexus of Memphis for use of the subject vehicle. After a jury entered a verdict in favor of Appellant against the at-fault driver, Appellant sought to collect the judgment under a policy issued by Appellee. The trial court held that the at-fault driver, as a renter of the vehicle, was exempt from coverage under the policy. Discerning no error, we affirm.

Posted by: Tanja Trezise on Nov 25, 2020

This appeal involves a licensure disciplinary action. The Tennessee Board of Nursing charged an advanced practice registered nurse with overprescribing controlled substances. After a contested case hearing, the Board found the nurse practitioner guilty of violations of Tennessee’s nursing rules. However, during the deliberations of the Board, one member conducted her own research. She observed that her findings had “changed her mind” and shared the information with the other panel members. The Board subsequently imposed a much-reduced sanction than what was sought by the State. After the administrative law judge twice denied the State’s motions for mistrial, the parties filed appeals with the chancery court. Upon review, the trial court determined that the procedural errors in the record, including the introduction of extrinsic prejudicial information, constituted an abuse of discretion that affected the merits of the Board’s decision. The court reversed and remanded the matter for a new contested case hearing to be heard before and deliberated by a different Board panel. We affirm.

Posted by: Tanja Trezise on Nov 25, 2020

Appellant prison inmate appeals the dismissal of his petition for a writ of certiorari. On appeal, Appellant asserts that the board failed to comply with the Uniform Disciplinary Procedure in imposing discipline in this case. Because the trial court did not abuse its discretion in denying the appellant relief, we affirm.

Posted by: Tanja Trezise on Nov 25, 2020

This appeal concerns the appropriate medical impairment rating for an employee who sustained a work-related shoulder injury. The employer asserts the trial court erred in awarding permanent benefits based upon a six percent medical impairment rating because a portion of the rating was attributable to a non-work-related condition. The employee contends the authorized treating physician’s opinion that the employee had a six percent impairment is presumed correct under Tennessee Code Annotated section 50-6-204(k)(7) and that the employer did not produce competent evidence to rebut the presumption. Following a compensation hearing, the trial court determined the employee established by a preponderance of the evidence that the distal clavicle resection, performed to treat the employee’s pre-existing AC arthrosis, was reasonably necessary medical treatment as a result of the work injury, and it awarded permanent partial disability benefits based on the full impairment rating assigned by the authorized physician. The employer has appealed. Having carefully reviewed the record, we modify the trial court’s award of permanent disability benefits and certify as final the trial court’s order as modified.

Posted by: Tanja Trezise on Nov 25, 2020

This appeal involves a claim for attorney’s fees pursuant to Tennessee Code Annotated section 50-6-226(a)(1). Following an expedited hearing, the Court of Workers’ Compensation Claims ordered the employer to pay the medical expenses for the employee’s treatment but denied the employee’s request for attorney’s fees for a “wrongfully” denied claim pursuant to Tennessee Code Annotated section 50-6-226(d)(1)(B). The court did, however, award attorney’s fees pursuant to section 50-6-226(a)(1) based on the amount of unpaid medical bills that the court ordered the employer to pay. In an appeal of that order, we determined it was premature, under the circumstances presented, for the trial court to award attorney’s fees at the expedited hearing stage of the case, vacated the part of the court’s order awarding attorney’s fees, and remanded the case. The parties subsequently settled the employee’s claim but advised the trial court the employer did not agree to pay an attorney’s fee based on a percentage of the medical bills it had paid as previously ordered by the court. Following a compensation hearing in which the parties stipulated that the employer had paid the contested medical bills under the medical fee schedule, the trial court found the settlement provided the employee substantially the benefits to which she was entitled and approved the settlement, but it declined to order the employer to pay an attorney’s fee on the disputed medical benefits based upon the language in section 50-6-226(a)(1). The employee has appealed. We affirm and certify as final the trial court’s order approving the settlement of the employee’s claim and denying the employee’s request for attorney’s fees on the contested medical benefits.

Posted by: Tanja Trezise on Nov 20, 2020

KAREN NELSON MOORE, Circuit Judge. The “compassionate release” provision of 18 U.S.C. § 3582 allows district courts to reduce the sentences of incarcerated persons in “extraordinary and compelling” circumstances. 18 U.S.C. § 3582(c)(1)(A). For over three decades, § 3582(c)(1)(A) allowed only the Bureau of Prisons (“BOP”) to file motions for compassionate release. Because the BOP rarely did so, few compassionate release cases reached the federal courts. This drought of compassion concluded in 2020, when the forces of law and nature collided. The First Step Act of 2018’s provision allowing incarcerated persons to file their own § 3582(c)(1)(A) motions coupled with COVID-19’s pernicious presence in federal prisons triggered a massive upswing in imprisoned persons seeking compassionate release; 10,940 persons applied for compassionate release in the first three months of the pandemic alone. Michael Jones is one of these legion petitioners. Jones is serving a ten-year sentence at Federal Correctional Institution Elkton, where one out of every four imprisoned persons has tested positive for COVID-19. In his § 3582(c)(1)(A) motion, Jones’s medical ailments—which expose him to COVID-19-related health complications—comprise the crux of his request for a sentence reduction.

Here, the district court found for the sake of argument that an extraordinary and compelling circumstance existed in Jones’s case but that the § 3553(a) factors counseled against granting compassionate release. The district judge, however, did not refer to U.S.S.G. § 1B1.13 in rendering its extraordinary-and-compelling finding. Because Jones—not the BOP—filed a motion for compassionate release, the district court did not need to refer to § 1B1.13 in its decision. Further, the district court satisfied its obligation to explain its consideration of the § 3553(a) factors. Thus, we AFFIRM.

Posted by: Tanja Trezise on Nov 20, 2020

In this consolidated appeal, we review whether the trial court erred in holding appellants’ attorney in civil contempt and/or in assessing fees and costs after this Court, in a previous appeal, reversed the trial court’s grant of appellees’ motion for involuntary dismissal and mandated for entry of an order granting appellants’ motion for voluntary dismissal. We conclude that there was no contempt and that the fees assessed for contempt were unwarranted. Because the underlying lawsuit was voluntarily nonsuited, we pretermit appellants’ issue concerning whether the trial court erred in denying recusal.

Posted by: Tanja Trezise on Nov 20, 2020

The defendant, John Edward Wilson, Jr., pled guilty to aggravated burglary and indecent exposure for which he received an effective sentence of five years’ confinement. The defendant appeals the trial court’s denial of diversion and other forms of alternative sentencing, claiming the trial court erred in failing to properly analyze the diversion factors and failing to apply the correct legal standard when ordering confinement rather than probation. The State contends the defendant failed to show he was a favorable candidate for diversion, and the trial court properly exercised its discretion in ordering confinement. Upon our review of the applicable law, the record, and the arguments of the parties, we reverse the decision of the trial court and remand the matter for a new sentencing hearing consistent with this opinion.

Posted by: Tanja Trezise on Nov 20, 2020

A Shelby County jury convicted Petitioner, Antonio Wicks, of second degree murder in the death of the victim, Donald Miller, and the trial court sentenced Petitioner to 25 years’ incarceration as a Range I violent offender. This court affirmed Petitioner’s conviction on direct appeal. See State v. Antonio Wicks, No. W2011-00964-CCA-R3- CD, 2012 WL 1424717, at *1 (Tenn. Crim. App. Apr. 23, 2012), perm. app. denied (Tenn. Aug. 16, 2012). Petitioner filed a pro se post-conviction petition and four amended petitions following the appointment of counsel. Following a hearing, the postconviction court denied relief. Petitioner now appeals, claiming that he was denied the effective assistance of counsel because trial counsel failed to (1) move for a mistrial due to only having eleven jurors; (2) file a motion to dismiss the indictment pursuant to State v. Ferguson, 2 S.W.3d 912, 915-16 (Tenn. 1999); (3) cross-examine the State’s witness regarding the loss or destruction of potentially exculpatory evidence; (4) object to improper prosecutorial argument; and (5) raise in the motion for new trial and on direct appeal the failure to cross-examine a witness and improper prosecutorial argument. After a thorough review of the record and applicable case law, the judgment of the postconviction court is affirmed.

Posted by: Tanja Trezise on Nov 20, 2020

Raymond Watison, Petitioner, filed a Petition for Writ of Error Coram Nobis (“the Petition”), claiming newly discovered evidence. The State moved to dismiss the Petition. The trial court found that the Petition failed to state a colorable claim and that it was not timely filed and summarily dismissed the Petition. We affirm.


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