Raybin & Weissman

TN Supreme Court 2011 Cases Granted Review

Case: State of Tennessee, by and through Robert E. Cooper, Jr., Attorney General and Reporter for the State of Tennessee v. NV Sumatra Tobacco Trading Company (Tenn. Ct. App. 2011)

Facts: The State brought action against a foreign tobacco product manufacturer which allegedly had failed to make escrow deposits as required under the Tennessee Escrow Fund Act for cigarettes sold in Tennessee.  The trial court granted summary judgment in favor of the manufacturer finding that it lacked personal jurisdiction.

Issue: The Court of Appeals reversed the trial court’s order and remanded the matter for entry of summary judgment in favor of the State and for calculation of the escrow amount owed.  The Court held that Sumatra cannot escape jurisdiction in Tennessee because a manufacturer that distributes its products into the stream of commerce for widespread distribution derives both legal and economic benefits from the states in which its products are sold.  Additionally, a foreign manufacturer that purposefully avails itself of those benefits should be subject to personal jurisdiction, even though its products are distributed by independent companies.  The Court further stated that the exercise of jurisdiction is supported if the manufacturer knew or reasonably should have known of the distribution system through which its products were being sold in the forum state

Review Granted: January 11, 2012.

Prediction: Sarah believes the Supreme Court will likely uphold the exercise of personal jurisdiction against Sumatra.  She agrees with the Court of Appeals that Sumatra clearly did more than merely place its products into the stream of commerce but intentionally decided to market and sell its product nationwide with the goal of mass distribution to all fifty states, including Tennessee, which therefore opens it up to being hauled into court and answer in a Tennessee court.

Case: Davey Mann, et al. v. Alpha Tau Omega Fraternity, et al. (Tenn. 2011)

Facts: Davey Mann and Teresa Mann were injured in an automobile accident when Jeffrey Callicut allegedly crossed the centerline, causing a head-on collision.  Prior to the accident, Callicut had allegedly consumed alcoholic beverages at the home of Eric and Lori Cox during a social gathering of members/prospective members of Alpha Tau Omega Fraternity (ATO).  The Mann’s filed their initial complaint against the Callicut’s, ATO, Tennessee Zeta Rho Chapter (ZR), the Cox’s, and John Doe, A through Z.  An answer was filed by ZR.  Based on this answer an amended complaint was filed against E.J. Cox, Daniel Kelly, John Condon, III, Nicholas Beaver, and Zachary Beaver (collectively, Defendants).  Defendants filed motions for summary judgment and a motion for judgment on the pleadings.  Before these motions could be heard, the Callicut’s moved to amend their answer, alleging the comparative fault of Defendants, whom they referred to as codefendants.  Based on the allegations of comparative fault against Defendants in the Callicut’s amended answer, and attempting to utilize Tenn. Code Ann. § 20-1-119, Plaintiffs amended their complaint again to assert claims against Defendants who then filed motions to dismiss and for summary judgment.  The trial court granted the motions of the Defendants.

Issue: The Court of Appeals affirmed the decision of the trial court because no final order had been entered against the defendants and they therefore remained parties to the lawsuit when the plaintiffs sought to assert claims against them in their Second Amended Complaint.  The Court held that since the original statute of limitations had expired and Tenn. Code Ann. § 20-1-119 could not be utilized to extend the statute of limitations period against the defendants, the motions were properly granted.

Review Granted: December 13, 2011.

Prediction: Sarah believes the Supreme Court will likely uphold the decision of the Court of Appeals and the trial court. David disagrees because the intent is to permit an extension of the statute of limitations.

Case: David Keen v. State of Tennessee (Tenn. Crim. App. 2006)

Facts: Petitioner was sentenced to death.  On direct appeal, the petitioner’s conviction was affirmed, but the Supreme Court reversed and remanded the sentence of death after finding reversible error due to erroneous jury instructions.  On remand, the jury again, imposed the penalty of death.  Our Supreme Court affirmed the sentence of death of direct appeal.  A petition for post-conviction relief was filed alleging a claim, among others, of jury misconduct.  The petition alleged that during deliberations a juror read aloud a passage from Romans 13 during a point in deliberations when “one juror didn’t believe in the death penalty.”  The juror testified that these specific verses were read because it deals with punishment in that if you commit a crime you’re supposed to be punished.  An evidentiary hearing was conducted and the post-conviction court denied relief and dismissed the petition.

Issue: The Court of Criminal Appeals affirmed the judgment of the post-conviction court finding that the petitioner failed to prove the allegations contained in his post-conviction relief petition.  Specifically, as to the jury misconduct, the Court held that the reading of the Bible verse was not shown to be prejudicial to the petitioner in that no proof had been presented that the reading of the Bible verse put any undue pressure on any juror, or had any influence on the jury’s verdict.

Review Granted: December 14, 2011.

Prediction: After praying about his prediction, David believes the Supreme Court will reverse the finding of the Court of Criminal Appeals and remand back to the trial court for a new trial. The Biblical passage was directly related to punishment and was used to induce the juror to vote for death.  It is per se an outside influence and this sentence will not stand.

Case: BSG, LLC v. Check Velocity, Inc. (Tenn. Ct. App. 2011)

Facts: BSG, LLC markets and provides various financial services to businesses.  In 2004, BSG and Check Velocity, Inc. (CV) entered into an agreement where BSG agreed to market the services of CV who in turn agreed to pay periodic compensation (fee residuals) to BSG.  BSG introduced CV to Weight Watchers in June 2005, and they entered into an agreement for check recovery services.  In accordance with its agreement with BSG, CV paid residuals arising from the Weight Watchers agreement to BSG.  In August 2008, Weight Watchers and CV entered into an agreement that provided the same check collection services and added services for collection of declined credit card accounts.  At this time, CV ceased paying BSG residual fees, taking the position that the 2008 agreement was a new agreement, not a renewal of the 2005 agreement.  BSG sued for breach of contract.  The trial court considered the 2008 agreement to be a new agreement, not a renewal.

Issue: The Court of Appeals reversed the trial court’s ruling, holding that that 2008 agreement between CV and Weight Watchers did renew the old agreement regarding check collection services.  They held that the addition of new, distinct services does not change the fact that the old services continued uninterrupted and unchanged and that a renewal of a contract will be presumed to be in accordance with the terms of the original contract in the absence of evidence to the contrary.

Review Granted: November 16, 2011.

Prediction: This will be an interesting lesson in contract law. Sarah believes the Supreme Court will likely affirm the ruling of the Court of Appeals. David disagrees. The additional Weight Watchers component added  weight to the agreement to where it was effectively a new agreement. This is not a contract on a diet for less than what was bargained for; it gained weight and is a new agreement.

Case: Jerry Garrison, et al., v. Andy E. Bickford, et al. (Tenn. Ct. App. 2011)

Facts: This case arises from an automobile accident that caused the death of Michael Garrison, age 18.  The accident occurred near the Garrison home, when a motor vehicle operated by Andy Bickford struck a minibike ridden by decedent.  Michael’s father, mother and brother were not present at the time of the impact but they allege that they came to the scene of the accident soon after it happened and observed Michael’s body and the destroyed minibike.  A wrongful death suit was filed where the Garrison’s asserted bystander claims for negligent infliction of emotional distress as a result of the bodily injury and death of Michael.  State Farm filed a Motion for Partial Summary Judgment on the grounds that its policy afforded no coverage for negligent infliction of emotional distress.  The trial court overruled the Motion but proposed a Rule 9 appeal, which was granted by the Court of Appeals.

Issue: The Court of Appeals reversed the trial court, granting the Motion for Partial Summary Judgment.  The appellate court held that most of the cases conclude that “bodily injury” does not encompass emotional distress or other mental suffering and under the Policy’s language, the sickness could be either physical or mental, as long as it is caused by a physical injury to the body.   Accordingly, the policy at issue does not cover the bystander claims for negligent infliction of emotional distress as there is no allegation that the Garrison’s sustained any injury to their bodies that caused them emotional sickness or disease.

Review Granted: November 15, 2011.

Prediction: Sarah believes that the Supreme Court will likely uphold the Court of Appeals granting of Partial Summary Judgment for State Farm because most of the courts addressing the issue have concluded that “bodily” refers to some sort of physical harm, and that the definition of bodily injury in question is thus not ambiguous. David agrees. This is a very important case and will have wide implications.

Case: Jeanette Rae Jackson v. Bradley Kent Smith (Tenn. Ct. App. 2011)

Facts: Following the death of her daughter (the minor child’s mother), Jackson petitioned the trial court for visitation rights with her granddaughter pursuant to Tenn. Code Ann. §36-6-306.  The trial court denied visitation based upon its finding that Jackson had not carried her burden to demonstrate a danger of substantial harm to the child.  No appeal was taken.  Subsequently, the legislature amended the statute to create a rebuttable presumption of substantial harm based upon the cessation of the relationship between the child and grandparent.  Jackson then filed a second petition.  Smith filed a motion to dismiss the second petition on the ground of res judicata which the trial court granted.

Issue: The Court of Appeals affirmed the trial court’s dismissal concluding that the doctrine of res judicata may apply even though there has been an intervening change in the substantive law.  However, because the prior order, upon which the trial court based its res judicata finding, is not in the appellate record, this Court cannot review the question of whether the motion to dismiss was properly granted.

Review Granted: November 15, 2011.

Prediction: Sarah believes the Supreme Court will likely reverse the decision of the Court of Appeals and remand back to the trial court so that the absent order can be added to the record.  It is not clear how the case made it this far without the Order.  It is also not clear why the Supreme Court didn’t just remand for that limited purpose. Alternatively, this may be a premature decision since the so-called rebuttable presumption may be constitutionally suspect.  These “grandparent” visitation statutes have not been interpreted favorably for the grandparent.

Case: State of Tennessee v. Steven Q. Stanford (Tenn. Crim. App. 2011)

Facts: Defendant was convicted by a jury of one count of initiation of a process to manufacture methamphetamine and one count of possession of drug paraphernalia based on evidence found in a search of his vehicle and his home.  Defendant contends that there was no direct evidence presented showing that he lived at the residence and that his mere presence at the location was  insufficient to show that he initiated a process to manufacture methamphetamine or possessed any drug paraphernalia.

Issue: The Criminal Court of Appeals concluded that, in the light most favorable to the State, a rational trier of fact could have found the essential elements of both offenses in this case.  While the Court agreed that his presence alone was insufficient to support the convictions, the totality of the circumstantial evidence presented was sufficient to allow a rationale juror to conclude beyond a reasonable doubt that the defendant was guilty of the crimes.

Review Granted: October 25, 2011.

Prediction: David believes the Supreme Court will likely affirm the ruling of the Court of Criminal Appeals because a reviewing court may not substitute its inferences for those drawn by the trier of fact in circumstantial evidence cases. That the Court accepted this case and the companion Farmer and Clark case indicates a possibility that the standard of review in circumstantial evidence cases may change.  At present it is identical to that of direct evidence but we may return to a more rigorous standard.  If the standard of review changes the case could be reversed and dismissed.

Case: State of Tennessee v. Michael Farmer and Anthony Clark (Tenn. Crim. App. 2011)

Facts: Defendants were charged with especially aggravated robbery and aggravated robbery in Shelby County.  After a jury trial, they were convicted of both and sentenced for a total effective sentence of fifteen years.  Both defendants claim that the evidence is insufficient to support their convictions, asserting that no evidence put forth at their trial established that they actually took money from either victim.

Issue: The Criminal Court of Appeals, after carefully reviewing the defendants’ arguments and the record evidence, affirmed the judgments of the trial court.  The Court concluded that even when a criminal offense has been proven exclusively through circumstantial evidence, the weight given that evidence, the inferences drawn from that evidence, and the extent to which all the circumstances are consistent with guilt, these are primarily jury questions and under no circumstances may an appellate court substitute its inferences for those drawn by the trier of fact.

Review Granted: October 25, 2011.

Prediction: David believes the Supreme Court will likely affirm the ruling of the Court of Criminal Appeals but see his analysis in Stanford above.

Reasonable Suspicion to Detain and Probable Cause to Arrest; Court of Appeals application of Correct Harmless Error Standard on Motion to Suppress

Case: State of Tennessee v. Travis Kinte Echols (Tenn. Crim. App. 2011)

Facts: Travis Kinte Echols was convicted of first degree felony murder of committed during the perpetration of robbery and sentenced to life.  The defendant  raised numerous issues on appeal, including that the evidence was insufficient to support the conviction.

Issue: The Court of Criminal Appeals found no errors that warranted a reversal and affirmed the judgment of the trial court.  The Court concluded that while the police officers did not have probable cause to arrest him for killing the victim, the circumstances surrounding his confession were made after a voluntary waiver of his Miranda rights and therefore any error was harmless. In concluding that the error was harmless, the Court of Criminal Appeals stated that the issue of whether an error is harmless does not turn upon the existence of properly admitted evidence that is sufficient to affirm a conviction, but rather, the key question is whether the error likely had an injurious effect on the jury’s decision-making process.  Therefore, although it was improperly admitted, it was harmless because it was cumulative to another witness’s testimony and did not change the outcome of the trial.

Review Granted: October 21, 2011.

Prediction: David believes the Supreme Court will likely reverse. The confession was inadmissible and the confession was not harmless. In granting review the Court’s Order recited that the “Court  is particularly interested in the following two issues: (1) whether the police lacked reasonable suspicion to detain and probable cause to arrest Mr. Echols and (2) whether the Court of Criminal Appeals applied the correct  harmless error standard with regard to the trial court’s denial of Mr. Echols’s motion to suppress.” As to the standard the Court of Criminal Appeals should have used the harmless constitutional error standard.

Case: Ready Mix, USA, LLC v. Jefferson County, Tennessee (Tenn. Ct. App. 2011)

Facts: Jefferson County issued a stop work order against Ready Mix to cease mining activities on Jefferson County’s  property because of a zoning controversy.  Ready Mix brought suit in Chancery Court seeking a declaratory judgment on the issue.  A bench trial was held and the Trial Court adopted the doctrine of diminishing assets finding that Ready Mix had established a pre-existing and non-conforming use on its property pursuant to Tenn. Code Ann. § 13-7-208(b)(1).  The Court further held that the plaintiff was not required to file an administrative appeal prior to filing suit in Chancery Court.

Issue: The Court of Appeals held that under the plaintiff was required to exhaust its administrative remedies prior to filing an action in Chancery Court.  They concluded that the exhaustion doctrine serves to prevent premature interference with agency processes, so that the agency may (1) function efficiently and have an opportunity to correct its own errors; (2) afford the parties and the courts the benefit of its experience and expertise without the threat of litigious interruption; and (3) compile a record which is adequate for judicial review.

Review Granted: October 18, 2011.

Prediction: Sarah believes the Supreme Court will likely reverse the decision of the Court of Appeals. This is not a zoning change or alteration of the zoning laws per se, it is a litigation of the use of the land. Thus, no administrative remedies were appropriate.

***Pursuant to Tennessee Rule of Appellate Procedure 16(b), the following two cases have been consolidated for oral argument***

Case: Donna Clark v. Sputniks, LLC et al. (Tenn. Ct. App. 2011)

Facts: Samuel Clark was attacked by David Smotherman at Sputniks, a bar in Hendersonville, Tennessee.  Mr. Clark died as a result of his injuries and his wife, Donna Clark, brought this tort action against Sputniks, LLC; Cristie Phillips, individually and doing business as Sputniks, LLC; and Mr. Smotherman.  At the time of the occurrence Sputniks, LLC was insured by QBE Insurance Corporation.  QBE denied coverage and declined to defend the action against Sputniks, LLC.  The trial court granted default judgment on the issue of liability in favor of Donna Clark and held that the occurrence was covered by both the Commercial General Liability and Liquor Liability Coverage Agreements of the QBE policy.

Issue: The Court of Appeals affirmed the trial court in part and reversed in part holding that the occurrence is excluded under the assault and battery exclusion of the Commercial general Liability policy but is covered by the Liquor Liability Policy.  The court held that the broad language of the assault and battery exclusion covers all of the acts and omissions alleged in the complaint, including negligence in creating the conditions that allegedly led to the assault and battery.  Also, that the allegations of the complaint were sufficient to give notice to QBE that the plaintiff was claiming that her husband sustained injuries as a result of the “selling, serving or furnishing of any alcoholic beverage.”

Review Granted: September 22, 2011.

Case: Leonard Gamble v. Sputniks, LLC et al. (Tenn. Ct. App. 2011)

Facts: Samuel Clark was fatally attacked by David Smotherman at Sputniks.  Leonard Gamble intervened in the altercation and was injured.  He brought this tort action against Sputniks, LLC; Cristie Phillips, individually and doing business as Sputniks, LLC; and Mr. Smotherman.  At the time of the occurrence Sputniks, LLC was insured by QBE Insurance Corporation.  QBE denied coverage and declined to defend the action against Sputniks, LLC.  The trial court granted default judgment on the issue of liability in favor of Donna Clark and held that the occurrence was covered by both the Commercial General Liability and Liquor Liability Coverage Agreements of the QBE policy.

Issue: The Court of Appeals affirmed the trial court in part and reversed in part holding that the occurrence is excluded under the assault and battery exclusion of the Commercial general Liability policy but is covered by the Liquor Liability Policy. The court held that the broad language of the assault and battery exclusion covers all of the acts and omissions alleged in the complaint, including negligence in creating the conditions that allegedly led to the assault and battery.  Also, that the allegations of the complaint were sufficient to give notice to QBE that the plaintiff was claiming that he sustained injuries as a result of the “selling, serving or furnishing of any alcoholic beverage.”

Review Granted: September 22, 2011.

Prediction: Sarah believes the Supreme Court will likely affirm the Court of Appeals ruling.

Case: Joshua Cooper, et al. v. Logistics Insight Corp., et al. (Tenn. Ct. App. 2011)

Facts: Plaintiff was employed by MasterStaff, Inc., and was assigned to work as a tow motor operator for either Logistics Insight Corp. or ProLogistics, Inc.  Plaintiff was operating a tow motor while unloading a trailer at a warehouse when he fell from the trailer and sustained injuries to his back and spine.  The trailer was attached to a tractor truck leased by ProLogistics and being operated by Joe Murray, an employee of ProLogistics.  Plaintiff and his wife filed a personal injury lawsuit against Logistics Insight, ProLogistics, and Joe Murray.  MasterStaff and Discover RE (the workers compensation benefit carrier for MasterStaff) then moved the court for an order allowing them to file an intervening petition to assert and protect a subrogation lien for medical benefits and temporary workers’ compensation benefits that had been paid to Plaintiff and for any future benefits that might be paid.  The trial court granted the motion to intervene.  An agreement was reached as to the Defendants and the intervenors filed a motion to set the case for trial, asserting that the agreement was reached without the consent of the intervenors and that it did not dispose of all the claims between the parties.  Before the matter could proceed to trial, Defendants filed a motion to dismiss the petition for failure to state a claim which the trial court granted.

Issue: The Court of Appeals found that the dismissal of the intervening petition was error.  The Court held that the intervenors were entitled to present proof as to the likelihood and amount of future medical expenses they would incur on behalf of Plaintiff to protect their rights to a credit under Tenn. Code Ann. § 50-6-112(c)(2).

Review Granted: September 21, 2011.

Prediction: Sarah believes the Supreme Court will likely reverse the Court of Appeals because the statute does not encompass future medical payments when the parties have settled the case for a lump sum award and while entitled to future liability for workers’ compensation benefits, the credit does not apply to future medical expenses.

Case: Christian Heyne, et al. v. Metropolitan Nashville Board of Public Education (Tenn. Ct. App. 2011)

Facts: Christian Heyne was given a ten-day suspension for a violation of the Student-Parent Code of Conduct for reckless endangerment.  The suspension was appealed to a disciplinary panel, then to a discipline administrator, and lastly to the school board.  The suspension was upheld at each level.  Thereafter, this petition for common law writ of certiorari was filed.  The trial court found that the suspended student’s due process rights were violated by the failure to provide an impartial panel and that the decision was arbitrary as it was not supported by the evidence.  The court also awarded petitioners their attorneys’ fees.

Issue: The Court of Appeals reversed the findings of the trial court finding that the student’s due process rights were not violated and that the decision was not arbitrary because it is supported by material evidence.  The Court held that Heyne was afforded more than the requisite due process set forth in Tenn. Code Ann. §49-6-3401 and that there was material evidence to support the findings that the conduct constituted reckless endangerment as that term is defined in the Code of Conduct.

Review Granted: September 21, 2011.

Prediction: Sarah believes the Supreme Court will likely affirm the Court of Appeals ruling as they have previously held that the extent of protection required was merely that the student be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.

Case: Elliot H. Himmelfarb, M.D., et al. v. Tracy R. Allain (Tenn. Ct. App. 2011)

Facts: Two physicians filed this malicious prosecution action against a former patient after she voluntarily dismissed, without prejudice, a medical malpractice action she filed against them.  The defendant, the former patient, moved for summary judgment asserting that the plaintiffs could not prove the essential elements of a malicious prosecution claim: that the medical malpractice suit was brought without probable cause, that it was brought with malice, and that it was terminated in the physicians’ favor.  The trial court denied the motion.

Issue: The Court of Appeals affirmed the trial court’s ruling denying summary judgment determining that the issues of favorable termination in this case involve questions of fact and law, and that fact questions concerning the circumstances surrounding the voluntary dismissal without prejudice of the medical malpractice action are in dispute.  The Court also determined that there are genuine issues of material fact concerning the other essential elements

Review Granted: September 21, 2011.

Prediction: Sarah believes the Supreme Court will likely uphold the Court of Appeals denial of summary judgment.

Case: R. Douglas Hughes et al. v. New Life Development Corporation et al. (Tenn. Ct. App. 2011)

Facts: Appellants are homeowners in a subdivision commonly known as Colley’s Rift.  New Life Development Corporation purchased approximately 1,400 undeveloped acres as well as 11 unimproved subdivision lots pursuant to a special warranty deed.  Two cases have been filed by the homeowners in this matter which the trail court consolidated.  At issue was New Life’s ability to develop its property.  The trial court granted summary judgment in favor of New Life on all seven counts of Case 1 and resolved all three counts of Case 2 in favor of the defendants.  The court went on to enjoin New Life from “engaging in any development which would be prohibited activity under Article VIII, Section (e) of its Charter.”

Issue: The Court of Appeals concluded that summary judgment based on the amendments to the restrictive covenants was not appropriate.  The Court also found that the only reasonable interpretation, based on the deed and all of the related documents and circumstances, was that the original developer transferred its position as developer to New Life.

Review Granted: September 22, 2011.

Prediction: Sarah believes the Supreme Court will likely uphold the decision of the Court of Appeals.

Case: Betty Saint Rogers v. Louisville Land Company, et al. (Tenn. Ct. App. 2011)

Facts: Betty Saint Rogers brought suit alleging claims under the Tennessee Consumer Protection Act, the Tennessee statutes governing cemeteries, outrageous conduct, and breach of contract, among other things for the failure to maintain the cemetery where her son was buried.  The trial court, after a non-jury trial, entered its final judgment awarding Plaintiff a judgment of $250.00 for breach of contract, $45,000.00 for intentional infliction of emotional distress, $250,000.00 in punitive damages, $37,306.25 in attorneys’ fees, and $556.42 in discretionary costs.

Issue: The Court of Appeals reversed the lower court as to the award of damages for intentional infliction of emotional distress, punitive damages, attorneys’ fees and breach of contract against Joe V. Williams, III personally with the remainder of the judgment being affirmed.  The Court held that there was not a showing that Plaintiff suffered a severe mental injury, therefore damages for intentional infliction of emotional distress were not proper and as a result, no punitive damages may be awarded.  The Court also stated that there was adequate proof to support an award of breach of contract damages in the form of time and effort spent doing maintenance in the Cemetery.  Furthermore, with regard to holding Joe V. Williams, III personally liable, the evidence in the record is insufficient to support a finding that “the separate corporate entity ‘is a sham or dummy’ or that disregarding the separate corporate entity is ‘necessary to accomplish justice.”

Review Granted: September 21, 2011.

Prediction: Sarah believes the Supreme Court will likely uphold the ruling of the Court of Appeals.

Case: Danny A. Stewart v. Gayle Ray, Commissioner, TDOC et al. (Tenn. Ct. App. 2011)

Facts: Danny A. Stewart, a prisoner serving multiple sentences, some concurrently and some consecutively, filed a petition for certiorari naming as respondents the Commissioner of the Department of Correction and heads of various other agencies allegedly responsible for determining his eligibility for parole.  He alleges they are incorrectly calculating his eligibility for parole in that it is basing its calculation on the aggregate consecutive sentences of 42 years, whereas the correct method is to calculate eligibility on each separate sentence so that he would start serving his next consecutive sentence as an in-custody parolee of his earliest consecutive sentence.  The trial court dismissed the case based on Stewart’s failure to exhaust his administrative remedies.

Issue: The Court of Appeals vacated the order of dismissal and remanded for further proceedings holding that any written request which makes the agency aware of the substance of the controversy and asks the agency to act in accordance with a suggested course of action is sufficient as a request for a declaratory order from the agency.

Review Granted: September 26, 2011.

Prediction: David believes the Supreme Court will likely uphold the Court of Appeals and hold that the TDOC has incorrectly calculated his eligibility for parole and remand for further proceedings.

Case: Cyrus Deville Wilson v. State of Tennessee (Tenn. Crim. App. 2011)

Facts: Cyrus Deville Wilson was tried and convicted for first degree murder and sentenced to life in prison.  Key to the State’s case were two juvenile eyewitnesses.  Petitioner obtained the District Attorney’s file in this matter which contained handwritten notes wherein the prosecutor had written “good case but for most of [the witnesses] are juveniles who have already lied repeatedly.”  Petitioner then filed a petition for writ of error coram nobis contending that this constituted exculpatory evidence that was withheld in violation of his constitutional rights and requested a new trial.  The coram nobis court dismissed the petition.

Issue: The Court of Appeals reversed the judgment of the coram nobis court and remanded for an evidentiary hearing.  The Court held that the petition raises a possible ground for relief, but that numerous facts need to be established before the coram nobis court can determine whether the petition has any merit.  Therefore, without an evidentiary hearing there is not enough evidence on the record for the coram nobis court to determine whether the petition has any merit.

Review Granted: September 21, 2011.

Prediction: David believes the Supreme Court will likely uphold the Court of Appeals and require an evidentiary hearing.

Case: State of Tennessee v. John Anthony Lethco (Tenn. Crim. App. 2011)

Facts: John Lethco was convicted by a jury of aggravated burglary, possession of burglary tools, theft of property valued at $60,000 or more, and theft of property valued at more than $500 but less than $1,000.  At sentencing the trial court ordered the defendant to serve an effective sentence of 27 years incarceration.

Issue: The Court of Appeals affirmed the judgments of the trial court except in that they discerned an anomaly in the judgment of theft of property valued at more than $500 but less than $1,000 that requires correction on remand.  The Court held that because the defendant filed his notice of appeal prior to filing his motion for new trial, the trial court was without jurisdiction to rule on the motion for new trial and any issues raised therein were waived.

Review Granted: September 22, 2011.

Prediction: David believes that the Supreme Court will likely uphold the ruling of the Court of Criminal Appeals.

Case: State of Tennessee v. Heather Richardson (Tenn. Ct. Crim. App. 2011)

Facts: Defendant was arrested after police witnessed her conduct a drug sale in the parking lot of a Kroger grocery store. During a search of defendant’s person, police discovered a small amount of marijuana. After her arrest she gave a statement to police admitting to selling drugs twice that day in response to financial pressure. Defendant filed for pretrial diversion, which the prosecutor denied. The trial court held that the prosecutor did not abuse his discretion in denying the application for pretrial diversion.

Issue: The Court of Criminal Appeals reversed the circuit court’s order and remanded to the trial court to order the prosecutor to grant the pretrial diversion stating that the denial of diversion was not supported by a preponderance of the evidence. Accordingly, the court held that the record lacks substantial evidence that the offensive conduct was so prolonged or egregious to implicate the need for deterrence or the necessity of protecting the public from her.

Review Granted: August 29, 2011.

Prediction: David believes the Supreme Court will uphold the ruling and agrees with the lower court’s ruling that a denial of pretrial diversion would only be justified when, weighted against all relevant factors, the circumstances of the offense and the need for deterrence are of such overwhelming significance that they necessarily outweigh all other factors. David also observes that the legislature repealed pretrial diversion for all felony cases for crimes which occur after July 1, 2011.

Case: State of Tennessee v. Brian David Thomason (Tenn. Ct. Crim. App. 2009)

Facts: Defendant was the foreman for the Gibson County garage and supervised inmate “trustees” who were employed at the garage and maintained the county’s vehicle fleet. The West Tennessee Drug Task Force conducted a reverse sting operation in which an undercover officer sold Hydrocodone to one of the trustees. Within five minutes of the sale, eight Hydrocodone pills were found in Thomason’s pocket, which he later admitted to obtaining from the trustee. He was indicted and applied for pretrial diversion which was denied by the prosecutor based on the fact that Thomason was in a position of trust. The trial court denied pretrial diversion finding that the prosecutor did not abuse his discretion.

Issue: The Court of Criminal Appeals reversed the judgment of the trial court and remanded the matter to the trial court to grant Defendant pretrial diversion. The court held that the failure of the prosecutor to consider all of the essential factors applicable to pretrial diversion and the failure to discuss the weight accorded to each factor amounted to an abuse of discretion.

Review Granted: August 29, 2011.

Prediction: David believes the Supreme Court will affirm the lower court because the need for deterrence and the circumstances of the offense are only two of the factors the prosecutor must look at, and they cannot be controlling unless they outweigh all other factors. David also observes that the legislature repealed pretrial diversion for all felony cases for crimes which occur after July 1, 2011.

Case: Curtis Myers v. AMISUB (SFH), INC., d/b/a St. Francis Hospital, et al. (Tenn. Ct. App. 2011)

Facts: Curtis Myers and Lisa Myers filed a complaint for medical malpractice on January 5, 2007. They amended the complaint on April 20, 2007, adding two more Defendants. On August 24, 2007, Ms. Myers filed a notice of voluntary nonsuit. Mr. Myers took a voluntary nonsuit by order entered by the trial court on October 21, 2008. In the meantime, the General Assembly amended the Medical Malpractice Act and the statutes subsequently were amended effective July 1, 2009. On September 30, 2009, Mr. Myers re-commenced his action within the one year provided by the savings statute. Defendants filed a motion to dismiss asserting that the action should be dismissed for failure to comply with the newly amended statutes. The trial court denied the motion and Defendants moved the trial court for permission to seek an interlocutory appeal which the trial court granted.

Issue: The Court of Appeals reversed the trial court and remanded for dismissal stating that only when extraordinary cause is demonstrated does the trial court have the discretion to excuse compliance with the new statutes. Accordingly, Mr. Myers references no cause that would support waiver of the statutes, much less extraordinary cause and thus it was not within the trial court’s discretion to waive the requisites.

Review Granted: August 29, 2011.

Prediction: Sarah believes the Supreme Court will likely reverse the lower court finding that the new statutes do not apply to the case filed before the amendments.

Case: State v. Lowe-Kelley (Tenn. Ct. App. 2011)

Facts: Defendant was convicted of multiple counts of first degree murder and attempted murder. Eighteen days later, the defendant’s lawyer filed a motion for new trial without any grounds for relief as well as a motion to withdraw because the lawyer was about to take a position with the DA’s office. A new attorney was appointed eighteen more days later, who filed a Motion for New Trial several months later. The trial court overruled the motion and the new attorney filed a notice of appeal the same day.

Issue: The Court of Criminal Appeals held that the second motion for new trial was beyond the 30-day window of Tenn.R.Crim.P. 33(b) and thus “untimely” and “a nullity” (along with the notice of appeal as well). Moreover, the original Motion did not state any grounds with particularity and was thus barred by Tenn.R.Crim.P. 47(c)(1). Accordingly, the court held that all issues that would result in a new trial were waived and considered only the defendant’s claims that the evidence was insufficient and the sentence improper.

Review Granted: July 20, 2011.

Prediction: David believes the Supreme Court will reverse the holding. Although the record is unclear, it appears as though the trial court accepted the first motion and declined to deny it until a second motion was filed. So long as the original, timely-filed motion was pending without being denied, the new attorney was free to amend to add particular grounds, especially in light of the reasonable withdrawal of trial counsel.

Case: Mills v. Fulmarque, Inc. (Tenn. Ct. App. 2010)

Facts: Plaintiffs filed a personal injury suit against Royal Group. Royal Group alleged comparative fault against Aaron Rents Inc. after the one-year statute of limitations had run. The Plaintiffs utilized T.C.A. 20-1-119’s ninety-day window to amend their complaint to add Rents to the case. In its Answer, Aaron Rents alleged comparative fault against Fulmarque and Plaintiffs amended their complaint yet again to add Fulmarque as a defendant.

Issue: The Court of Appeals held that the term “applicable statute of limitations” as used in the T.C.A. 20-1-119 “does not refer simply to the one-year limitation period for personal injury, but also to the limitation period as extended by the ninety-day window.” Thus, Plaintiffs had a second window to add Fulmarque upon its identification in Aaron Rents’ Answer.

Review Granted: May 26, 2011.

Prediction: Although it seems troubling that a statute of limitations could be prolonged by an indefinite number of ninety-day extensions, Sarah agrees with the appellate court that the public policy rationale behind allowing an initial extension should be “extended” further to permit additional opportunities to name co-defendants when a new party has been identified. See Browder v. Morris, 975 S.W.2d 308, 310 (Tenn.1998).

Case: Hodge v. Chadwick (Tenn. Ct. App. 2010)

Facts: Following a divorce and payment of child support, Husband discovered that he was not the biological father of a child allegedly born to the marriage. Wife filed for modification of the parenting plan and Husband filed a counter-petition alleging intentional misrepresentation. The trial court awarded Husband compensatory damages for his prior payments to Wife as well as for emotional distress and attorneys fees.

Issue: The Court of Appeals held that although Wife made an intentional misrepresentation about paternity, Husband could not recover damages for emotional distress because (1) Tennessee law does not permit such a claim based on misrepresentation, and (2) reimbursing him for prior child support payments would be an impermissible retroactive modification of child support, which is prohibited by T.C.A. 36-5-101(f)(1).

Review granted: May 25, 2011.

Prediction: Sarah believes the Supreme Court will affirm for the reasons provided by the appellate court. However, the Court might take the opportunity to discuss possible theories of “paternity fraud” as recognized in other states based on negligent or intentional infliction of emotional distress or outrageous conduct (rather than misrepresentation, which was the claim in this case).

In Fowler v. State, and in the separate case of State v. Waller, the Court of Criminal Appeals ordered the expungement of the dismissed charges of the multi-count indictments even though the defendants pled guilty to one of the charges in the indictment. Clearly, the counts which resulted in convictions were not subject to expungement. However, the Court of Criminal Appeals held that the counts which were dismissed should have been expunged in a so-called partial expungement of a single indictment. The Supreme Court of Tennessee granted review in each case on March 11, 2011 to resolve the issue of whether a “partial” expungement is possible.

Prediction: In State v. Adler, 92 S.W.3d 397 (Tenn. 2002), the Supreme Court of Tennessee held that a defendant could expunge dismissed portions of an indictment where the defendant was convicted of lesser offenses. In 2003, the legislature enacted an amendment to Tenn. Code Ann. § 40-32-101 which prohibited expungement of records “when a defendant in a case has been convicted of any offense or charge including a lesser included offense or charge.” This ambiguous language was probably intended to prohibit such “partial” expungements of an indictment where some of the charges have been dismissed but other counts resulted in a conviction. Even though these some charges are eventually dismissed, if they are not expunged, then they stay on the person’s record forever causing severe employment and other collateral problems. It is for that reason that individuals attempt these partial expungements of dismissed counts even though the defendant is convicted of a separate count in the indictment or a lesser-included offense. The Court of Criminal Appeals interpreted the statute appropriately and found that the language is not specific enough to preclude partial expungements. While that is probably the not the intent of the legislature in enacting the law, David feels that the statute, being criminal in nature, should be strictly construed against the State making such partial expungements permissible. Without doubt, the legislature will probably come back with a specific statute to “cure” the problem but, at least for now, David believes that the Supreme Court will permit such partial expungements, probably in a split vote, given the ambiguous language in the statute.

In Rich, M.D. v. TN Board of Medical Examiners, Dr. Rich’s medical license was suspended after violating several statutes and regulations. The Court of Appeals reversed the findings that Dr. Rich violated certain subsections of T.C.A. § 63-6-214(b) because the Board did not “articulate” the applicable standard of care, as required by subsection (g). The Court of Appeals rejected the Board’s argument that the presentation of expert testimony on the standard of care was sufficient, holding that the plain language of the statute requires the Board itself to articulate the standard. The Supreme Court granted review on March 10, 2011.

Prediction: This is a close call because the expert’s testimony on the standard does not appear to have been challenged and the word “articulate” is vague in this context. However, Sarah agrees with the lower court that the statute plainly requires the Board itself to articulate a standard.

In Smith v. State, inmate filed for post-conviction relief for his life sentence for a 1985 felony murder and a death sentence for a 1989 murder. The Court of Criminal Appeals rejected challenges to the first conviction as untimely. The inmate claimed that the limitations period should have been tolled by misrepresentation about the continued representation by his trial attorneys, but the court held that he failed to present the proof necessary to establish this and was not entitled to a remand. However, the court upheld the reversal of the death sentence and granted a new sentencing hearing based upon ineffective assistance of counsel. The court held that the inmate’s trial lawyers had failed to discover and present evidence that the trial judge should have recused himself because of the judge’s participation as a prosecutor in a prior conviction used as an aggravating factor. Although the court recognized that recusal is not always merited by a judge’s prior prosecution of a defendant, the court noted that the evidence of the extent of the judge’s involvement in the prior case, and the fact that the evidence was a matter of public record, was significant enough that the failure to present this evidence was deficient performance. Moreover, since the court held that it would have required recusal by the judge because his “impartiality might be reasonably questioned,” the inmate was not required to prove prejudice because the error was “so serious as to deprive the defendant of a fair trial.” The Supreme Court granted review on March 10, 2011.

Prediction: As this would be the inmate’s third death sentence to be vacated, the Supreme Court will be extremely reluctant upholding the order. David believes the Supreme Court will reverse and hold that the ineffective assistance claim required a showing of prejudice, and then find that the inmate cannot meet this hurdle given the facts of the case.

The appeal in State v. Parker resulted from the April 8, 2003 attempted rape of an elderly victim. Following a home invasion, the victim was treated and released from the hospital in the early morning hours of April 9, 2003. Law enforcement officers found her dead in her apartment later that afternoon. The Defendant was charged with one count of attempted rape, one count of second degree murder, and one count of first degree felony murder. The second degree murder count was dismissed before the trial. The jury found the Defendant guilty of attempted rape and second degree murder as a lesser included offense of first degree felony murder. Although the scant evidence of murder was found insufficient to support the murder conviction, it was affirmed in any event! The Court of Criminal Appeals held: “As applied to the facts of the present case, the evidence was sufficient to prove that the victim died as a result of the Defendant’s attempt to commit aggravated rape. Thus, the State proved a culpable mental state, which exceeded the threshold of the ‘knowing’ element of second degree murder. The proof therefore supports the Defendant’s conviction [for second degree murder].” Judge Witt dissented: “I respectfully express concern about the implications of the majority’s holding that the defendant’s conviction of second degree murder is valid despite lack of proof of his acting knowingly to kill the victim.” The Supreme Court granted review on February 16, 2011.

Prediction: This is an astounding case since it affirms a conviction on the theory that the defendant is guilty of something else. Judge Witt is correct on his view of the law. However, the Supreme Court will disagree with all three judges and find the evidence independently admissible to prove second degree murder: a “knowing” killing can certainly be inferred from the facts. David believes the murder conviction will be affirmed.

In Brown v. Roland, Plaintiff sued Defendant after a car accident for an amount “under $25,000.”  This was the limit of Defendant’s insurance coverage, but Plaintiff apparently sustained significantly higher damages.  After Defendant settled for the full $25,000, Plaintiff served notice to her insurance company of the proposed settlement and her willingness to enter into binding arbitration to settle her claim for underinsured motorist benefits for a higher amount.  The trial court dismissed Plaintiff’s claim against her insurance company, even though she followed all of the procedural requirements, because Plaintiff had already been “made whole” by the settlement for her claimed damages, and there was no remaining claim to arbitrate.  The Court of Appeals affirmed, and the Tennessee Supreme Court granted review on February 16, 2011.

Prediction:  Sarah believes the Court will affirm as a cautionary lesson to attorneys to allege the total amount of damages in their complaint, even if they know the defendant’s insurance company will not be able to match it.  This is a tough result for the Plaintiff and her attorney, who otherwise followed the various statutory requirements to obtain underinsured motorist coverage.  However, one of these requirements is to notify your own insurance company of the initial claim to give it an opportunity to intervene in the suit.  This rule would be pointless if the insurance company is not put on notice of the full amount of damages for which it may be responsible, particularly when, as here, the defendant’s insurance company can pay the entire alleged claim.

In Brundage v. Cumberland County, Petitioners filed a Statutory Writ of Certiorari, seeking the review of Respondents’ action in granting the right to develop a landfill to Smith Mountain Solutions pursuant to Tenn. Code Ann. § 68-211-704 (the “Jackson Law”).  The statute allows de novo judicial review of county landfill decisions but does not specify procedure.  The Trial Judge dismissed the action on the ground that Petitioners did not file sworn affidavits within 60 days of the decision being appealed, as required by Tenn. Code Ann. §§ 27-8-104 and 106.  The Court of Appeals affirmed, and the Supreme Court granted review on February 16, 2011.

Prediction: Sarah believes the Court will affirm.  There is discussion in the lower court opinion about the distinctions between statutory and common law writs of certiorari, which the Supreme Court could be looking to clarify.  However, since a sworn affidavit is always required in either action, any clarification on writs will not change the result.

In Federal Ins. Co. v. Winters, Plaintiff Insurance Company sued Defendant Roofing Company after Defendant’s subcontractor accidentally burned down a house insured by Plaintiff.  The Trial Court granted summary judgment to Defendant, finding that it could not be liable in tort for the negligent act of a subcontractor, unless the Defendant was shown to have negligently hired the subcontractor or exercised control over the work.  The Court of Appeals reversed, holding that there is an implied non-delegable duty under contract law for construction to be performed in a workmanlike manner.  Moreover, Defendant was bound by representations on his website that he had liability insurance, since it was relied upon by the homeowners.  The Supreme Court granted review on February 16, 2011.

Prediction: Sarah believes the Supreme Court will affirm.  As the appellate court discussed in its opinion, this rule has been recognized by several states and is based upon sound contract principals and public policy.