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Posted by: Karen Belcher on Jan 21, 2022

CLAY, Circuit Judge. Defendants Demarco Tempo and Kenneth Sadler challenge the judgments in their criminal cases after a jury convicted them on various drug, gun, and obstruction of justice charges. Defendant Demarco Tempo appeals his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; drug possession and distribution charges under § 841(a)(1), (b)(1)(C); and a drug possession and distribution near a school charge under §§ 841, 860. Defendant Kenneth Sadler challenges his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846; a drug possession and distribution near a school charge under §§ 841, 860; a felon in possession of a firearm charge under 18 U.S.C. § 922(g)(1); a conspiracy to obstruct justice charge under § 1512(k); and witness tampering charges under § 1512(a)(2)(A). For the reasons discussed below, we AFFIRM Tempo’s convictions and sentence, AFFIRM Sadler’s convictions, but VACATE Sadler’s sentence, and REMAND for a new trial on the sole question of whether Sadler was within the chain of distribution as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).

Posted by: Karen Belcher on Jan 21, 2022

In 2019, the Defendant, Quinton Deshawn Mostella, pleaded guilty to facilitation of first degree murder. The trial court imposed a twenty-two-year sentence to be served consecutively to the Defendant’s sentence in a 2009 case. The Defendant subsequently filed a motion to correct the 2019 judgment contending that the judgment did not reflect 714 days of pretrial jail credit. The trial court granted the motion, awarding the Defendant pretrial jail credit and amending his sentence to run concurrently to his 2009 sentence. On appeal, the State contends that the trial court lacked the jurisdiction to amend the Defendant’s judgment and sentence. After a thorough review of the record and applicable law, we reverse and vacate the trial court’s amended judgment.

Posted by: Karen Belcher on Jan 21, 2022

Petitioner, Rashawn Jones, appeals from the Shelby County Criminal Court’s denial of his post-conviction petition seeking relief from his convictions upon his guilty pleas to three counts of robbery and one count of felony escape. Based upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

Posted by: Karen Belcher on Jan 21, 2022

Vanquish Worldwide, LLC, a Tennessee company that services contracts with the United States government, procured business insurance from Sentinel Insurance Company, Ltd., d/b/a The Hartford (“Sentinel”) and American National Property and Casualty Company (“ANPAC”) through insurance agent Steve Hardin. Vanquish later sought coverage for its payment of an arbitrated settlement with a subcontractor. Despite Mr. Hardin’s assurance that Vanquish would have coverage for the dispute, Vanquish’s claim was denied because it was outside the stated coverage of its insurance policies. Vanquish brought negligent misrepresentation and negligence claims against Mr. Hardin and against Sentinel and ANPAC on the basis of vicarious liability. The trial court granted summary judgment to Mr. Hardin, Sentinel, and ANPAC. Vanquish appeals. Because the unrebutted statutory presumptions of Tennessee Code Annotated § 56-7-135 effectively negate elements of each cause of action, we affirm the trial court’s judgment.

Posted by: Karen Belcher on Jan 20, 2022

The issue presented in this interlocutory appeal is whether the Health Care Liability Act, Tennessee Code Annotated sections 29-26-101 to -122, applies to medical battery and intentional misrepresentation claims against health care providers for injuries arising from a surgical procedure. The defendant doctor told the plaintiff he was an experienced board-certified plastic surgeon, and the plaintiff consented to surgery. But the doctor was not a board-certified plastic surgeon, and the surgery did not go well. The plaintiff and her husband sued the doctor and his medical practice for her injuries, alleging medical battery and intentional misrepresentation. The defendants moved to dismiss because the plaintiffs had not complied with the pre-suit notice and filing requirements of the Health Care Liability Act. The plaintiffs, conceding their noncompliance, argued the Act did not apply to their medical battery and intentional misrepresentation claims. The trial court agreed with the plaintiffs, ruling that the defendants’ misrepresentations were made before any health care services were rendered and thus did not relate to the provision of health care services. On interlocutory review, the Court of Appeals affirmed. We reverse and hold that the Health Care Liability Act applies to the plaintiffs’ claims. The Act broadly defines a “health care liability action” to include claims alleging that a health care provider caused an injury that related to the provision of health care services, regardless of the theory of liability. Based on the allegations in the complaint, the plaintiffs’ medical battery and intentional misrepresentation claims fall within the definition of a “health care liability action” under the Act. We remand to the trial court for further proceedings consistent with this opinion.

Posted by: Karen Belcher on Jan 20, 2022

KETHLEDGE, Circuit Judge. Serwan Mizori appeals the district court’s order denying his motion under Federal Rule of Appellate Procedure 4(a)(5) for an extension of time to file a notice of appeal as to the court’s earlier order denying his motion under 28 U.S.C. § 2255. We hold that Mizori does not need a certificate of appealability to appeal the denial of his Rule 4(a)(5) motion and that the district court abused its discretion by denying that motion.

The district court’s October 16, 2019 order is reversed, and the case is remanded for the limited purpose of allowing Mizori to file a notice of appeal of the court’s July 17, 2019 order denying his § 2255 motion. See Fed R. App. P. 3(a)(1), 4(a). Our court will then determine whether Mizori is entitled to a certificate of appealability as to that order. See 28 U.S.C. § 2253(c).

Posted by: Karen Belcher on Jan 20, 2022

Defendant, Jerome Andre McClinton, pled guilty to one count of sale of more than 0.5 grams of methamphetamine. Pursuant to his plea agreement, the manner of service of his ten-year sentence was to be determined by the trial court. Following a sentencing hearing, the trial court ordered the sentence to be served in confinement. On appeal, Defendant contends that the trial court abused its discretion by ordering him to serve his sentence without considering his amenability to correction or potential for rehabilitation. Following a thorough review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Jan 20, 2022

This is an appeal of a post-divorce matter filed by Wife to enforce the parties’ marital dissolution agreement. Primarily at issue was the Wife’s award of alimony in solido, which, pursuant to the parties’ agreement, was to be paid to her out of Husband’s retirement accounts, tax free to Wife. Wife contended that Husband violated the parties’ agreement because she had allegedly been taxed on the amount of alimony in solido. The trial court found no violation of the marital dissolution agreement concerning the alimony in solido payment. We affirm.

Posted by: Karen Belcher on Jan 20, 2022

Appellee alleges that Appellant abused the discovery process. The trial court agreed, granting Appellee’s motion to exclude Appellant’s expert witnesses and, consequently, granting summary judgment in Appellee’s favor. Because the basis for the imposition of the sanction is unclear and the trial court does not engage in the necessary analysis regarding discovery sanctions, we vacate and remand for further proceedings.

Posted by: Karen Belcher on Jan 19, 2022

This appeal arises from a Rule 12.02(6) dismissal of a legal malpractice action as time- barred under the one-year statute of limitations in Tennessee Code Annotated § 28-3- 104(c)(1). In its September 17, 2019 Complaint, the plaintiff county alleged that its trial counsel in an underlying Public Employee Political Freedom Act (“PEPFA”) action committed malpractice by failing to object to the jury verdict form in conjunction with agreeing to bifurcate the issue of damage. The defendant attorney and his law firm moved to dismiss the complaint as time-barred under § 28-3-104(c)(1), asserting that the county’s claim accrued no later than July 7, 2017—the date on which the court entered the final judgment against the county in the underlying PEPFA case. The county opposed the Motion, asserting that its claim did not accrue until September 18, 2018—the date on which the Court of Appeals issued its opinion in the PEPFA case—because it was on that date the county first reasonably became aware of the alleged malpractice. The trial court granted the Motion to Dismiss on the ground the county knew it had been injured and had sufficient constructive knowledge to trigger accrual of the action more than one year prior to its commencement. This appeal followed. We affirm.


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