- Savings Statute and Statue of Limitations in Medical Malpractice Action
In Shaw Howell, Individually and as Administrator for the Estate of Jesse Franklin Browning, Jr. v. Claiborne and Hughes Health Center, Appellant filed a claim in 2007 in the name of an estate which was subsequently non-suited. Less than one year later, the claim was then re-filed, also in the name of an estate. With permission of the court, Appellant later amended the complaint to name the administrator of the estate as the plaintiff. However, the trial court dismissed the complaint finding: (1) the complaint was barred by the statute of limitations as there were no allegations in the complaint which would invoke the savings statute; (2) the complaint failed to state with particularity the specific acts of negligence; and (3) that the Appellant failed to comply with the notice requirements for a medical malpractice action found in Tenn. Code. Ann. S 29-26- 121. On appeal, the court reversed the decision of the trial court and remanded the matter for further proceedings. The Supreme Court granted review on December 13, 2010.
Prediction: Sarah believes the Tennessee Supreme Court will likely reinstate the dismissal of plaintiff’s claim based on the statute of limitations.
- Evidence of an Acquittal
In State v. Alfred Turner, the defendant was convicted of facilitation of murder. The defendant argues that the trial court erred in allowing the State to reference the acquittals of Rodney Blades and George Tate following their trial for the murder of the victim. Specifically, the defendant argues that by informing the jury that a previous jury had acquitted Mr. Blades and Mr. Tate, the jury was not given an opportunity to independently decide whether the two men were responsible for the victim’s murder. The defendant contends that the previous jury verdict would likely weigh heavily in the minds of the present jury and that any probative value of the evidence of the acquittals was substantially outweighed by the danger of unfair prejudice. …… Here, the defendant’s theory of defense was that Mr. Blades and Mr. Tate actually committed the murder. The defendant used the testimony of witnesses from their trial to establish his defense, but he sought to prevent the State from telling the jury that the two had been acquitted at trial. The trial court denied the defendant’s motion in limine regarding the issue. The basis of the defendant’s argument on appeal is that he was denied a fair trial because he contended that Mr. Blades and Mr. Tate were responsible for the victim’s murder, the jury was allowed to hear that they had been acquitted following their own trial. The general rule is that the admission of evidence of a judgment of acquittal is inadmissible as being irrelevant. Evidence of a prior acquittal is not relevant because it does not prove innocence but, rather, indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime. …. Even if a court were to find the information of the acquittal relevant, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and the possibility of misleading the jury. … The trial court should not have allowed the evidence of the prior acquittals. The inclusion of this information was likely to have affected the result of the trial; therefore, we are compelled to remand the case to the trial court for a new trial. Judge McMullen, dissented. Here, the State did not attempt to introduce the actual judgments of acquittal in this case. Rather, the acquittal evidence in this case originated from witness/defendants who were present at the previous trial, intimately involved in the case, and available to be cross-examined by the defense. As such, their testimony does not constitute hearsay. Moreover, the probative value of the testimony regarding Tate’s and Blade’s acquittal was not outweighed by the prejudicial effect that the jury would be misled or confused in Turner’s case. In fact, this case demonstrates exactly the opposite. Over half of the proof at trial, submitted by the State and the defense, consisted of evidence and testimony from the previous trial, which occurred over ten years ago. The proof detailed Tate and Blade’s involvement. Aaron Williams, another prosecution witness charged with various crimes related to this case, also testified that he was testifying against Turner in exchange for a reduced sentence. Given these unique facts and circumstances, it is more likely that the jury would have been misled and confused the issues had they not heard that Tate and Blades were arrested, charged, and acquitted. The Supreme Court granted review on December 13, 2010.
Prediction: David believes the Tennessee Supreme Court will likely adopt Judge McMullen’s dissent and reinstate the conviction. The Supreme Court will tailor a highly fact-specific exception to the general rule prohibiting evidence of an acquittal.
- Products Liability Statute of Limitations when Manufacturer Becomes Insolvent
In Lind v. Beaman Dodge, plaintiff was injured in a Chrysler truck sold by Beaman and sued the seller in June 2007. In December 2007, the trial court entered an order of nonsuit in which Beaman was dismissed without prejudice. Tenn. Code Ann. S 29-28-106 bars products liability actions against sellers unless certain conditions are met, including insolvency of the manufacturer. In 2009, Chrysler was declared bankrupt and plaintiff again filed suit against Beaman. Beaman moved to dismiss on the ground that the suit arose more than one year from the date of the previous nonsuit. The trial court denied the motion, holding that the one year statute of limitation did not begin to run until the manufacturer was declared insolvent. The trial court then granted Beaman’s motion for interlocutory appeal, which was declined to be heard by the Court of Appeals. The Supreme Court granted review of the interlocutory appeal on November 15, 2010.
Prediction: Although Sarah has reviewed the trial court’s order denying Beaman’s motion to dismiss and its order granting appeal, Sarah will not make a prediction due to the lack of a full appellate record. She will, however, note that the trial court considered and relied upon a similar case, Braswell v. AC and S, Inc., 105 S.W.3d 587 (Tenn. Ct. App. 2002), in which the court held that construing the limitations period to run before bankruptcy would render the statute meaningless.
- Supplementing the Record on Appeal
In State v. Larry Edward Moore, Jr., the defendant was convicted of carjacking and challenged on appeal, inter alia, the trial court’s decision to not redact certain statements he made in an interview videotaped by police. Somehow the videotape in the record became damaged and unable to be viewed by the Court of Criminal Appeals. The court found that the defendant-appellant failed to meet its responsibility under T.R.A.P. 24(b) to prepare an accurate and complete record – and that the remainder of the record was sufficient to permit meaningful review – and upheld the conviction. In its order granting review, the Supreme Court ordered the defendant-appellant “to supplement the record on appeal with a non-defective DVD version” of the videotape, citing T.R.A.P. 24 (which allows the record to be corrected at any time) and State v. Byington, 284 S.W.3d 220 (Tenn. 2009), and remanded to the Court of Criminal Appeals for reconsideration.
Prediction: The case was remanded without consideration of the merits. Since this is primarily a question of fact based on a videotape that David – like the appellate courts – has not seen, he will not offer a prediction of how the lower court will hold on remand.
- Right to Jury Trials in Ouster Actions
In State of Tennessee ex rel. Robert L. Wolfenbarger, III., et al, vs. Scott Moore, et al, “citizen plaintiffs” filed an ouster suit against Scott Moore and Paul Pinkston, Knox County Commissioners. The trial court found that Moore, but not Pinkston, should be removed from office. The Court of Appeals reversed the judgment in favor of Pinkston and remanded for a new trial because the trail court erred by denying Citizen Plaintiffs’ request for a jury trial. The Ouster Act provides that ouster actions “shall be conducted in accordance with the procedures of court of chancery,” and Tenn. Code Ann. S 21-1-103 provides for jury trials in chancery court. This statute was intended to give a broad right to jury trial unless “expressly excepted” by another statute. Smith County Education Association v. Anderson, 676 S.W.2d 328, 337 (Tenn. 1984). Because the Ouster Act does not “expressly” preclude jury trials, the Court of Appeals held that the trial court erred in denying Plaintiffs’ request. The Supreme Court granted Pinkston’s application for review on August 25.
Prediction: Sarah believes the Court will affirm, finding that parties are entitled to request a trial by jury in an ouster action. David disagrees; that would be a dramatic change in the law.
- Writ Of Error Coram Nobis
In Wlodarz v. State, Tenn.Crim.App. (May 19, 2010) the defendant entered a best interest plea to murder. He filed a writ of error coram nobis claiming that a ballistics report was newly discovered evidence or that he did not know about the report when he entered a “best interest” guilty plea. The trial court found held that, even if the reports were new evidence, it was not persuaded that the report invalidated Petitioner’s pleas. It reasoned that, because Petitioner entered best interest pleas, he did not necessarily agree with all the evidence, but he still accepted guilt in exchange for avoiding a potential death sentence. Given Petitioner’s intelligence and awareness of the issues, the trial court concluded, the additional evidence did not show that his pleas were not knowingly and voluntarily entered. The Court of Criminal Appeals affirmed; “Petitioner testified that he did not see the reports until February 2008, and the coram nobis court accepted that testimony as true. Regardless, that was the basis for Petitioner’s earlier post-conviction petition. .. Petitioner was unable to meet the burden for his post-conviction petition, and we will not re-litigate that issue now.”. The Supreme Court granted review on August 25, 2010 and requested the parties brief the question of whether a guilty pleaded conviction is even subject to a writ of error coram nobis.
Prediction: The Supreme Court will hold that a writ of error coram nobis is not a “back door” vehicle to challenge a guilty plea. This will be affirmed.
- Double Jeopardy
In State v. Watkins, Tenn.Crim.App. (March 1, 2010) the Court of Criminal Appeals held that double jeopardy prevented defendant from being sentenced to consecutive terms for same criminal conduct and thus sentences were merged. Defendant was sentenced for four years for reckless homicide and twenty five years for aggravated child abuse arising from same conduct which caused the death of the thirteen month old victim. The evidence which supported defendant’s convictions were identical as both convictions rested on the same act, namely the impact he caused between the victim’s head and the stairway wall. The defendant did not raise the issue in the motion for new trial and thus the appellate court considered the issue under the stricter plain error standard. The Supreme Court granted review on August 25, 2010.
Prediction: Hopefully, that the issue arises as a plain error standard should not trouble the Supreme Court at all. These dual convictions should not stand otherwise every murder could also have a separate reckless endangerment charge tacked on as well. Conceptually, the homicide here should merge with the child abuse since the latter carries far more time. David does not see this case being reversed since the appellate merger was proper albeit in a plain error context.
- Rule 11 Sanctions
In Thomas & Associates, Inc. v. Homes By Design, Inc. and Tennessee American Contractors, Inc., prior to the trial of the case, Plaintiff filed a Rule 11 motion for sanctions contending that the filing of Defendant’s counterclaim violated Rule 11. Thereafter, the case went to trial on Plaintiff’s complaint and Defendant’s counterclaim. At the close of the proof, Defendant voluntarily dismissed its counterclaims. After the trial was concluded, the trial court held that Defendant and its attorneys violated Rule 11 because the evidence presented at trial revealed that the counterclaim had no basis in fact or law and they failed to dismiss the counterclaim when the motion for sanctions was filed. On appeal, the Court of Appeals reversed the imposition of Rule 11 sanctions determining that the trial court applied an incorrect legal standard by evaluating the issue with the wisdom of hindsight instead of examining the circumstances existing at the time the counterclaim was signed by the attorneys, and for imposing sanctions on Defendant for failing to voluntarily dismiss its counterclaim, because Rule 11 does not impose a duty to review or reevaluate a pleading once filed or to take affirmative steps thereafter to dismiss a previously filed pleading. The Supreme Court granted review on March 1, 2010.
Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals and clarify that pursuant to Tenn. R. Civ. P. 11, the trial court should test the signer’s conduct by inquiring what was reasonable to believe at the time of signing the pleading. David disagrees: if facts later come to light that make the pleading wholly frivolous there should be a duty to mitigate and correct.
- Rule 60 Motion to Set Aside Judgment
In Stephanie H. Hewitt v. Joseph Cook, Mother filed a contempt petition against Father for failure to pay child support and also sought a judgment for the past-due support. In September 2006, Father was found in contempt and Mother was awarded a judgment. Father paid neither the judgment nor the current support obligation. In January 2007, Mother filed another contempt petition. After the second contempt petition was filed, Father’s attorney withdrew from representing him. A hearing was held on Mother’s contempt petition in August 2007, but Father did not attend. In September 2007, the trial court entered another order finding Father in contempt and awarding Mother another judgment. In March 2008, Father filed a Rule 60 motion for relief from the judgment, arguing that he did not have notice of the August 2007 hearing, was never sent a copy of the judgment, and only learned of the judgment in December 2007. The motion also sought the recusal of the trial judge. The trial court denied Father’s Rule 60 motion and motion for recusal. On appeal, the court affirmed. The Supreme Court granted review on February 22, 2010.
Prediction: Sarah believes the Tennessee Supreme Court will likely reverse holding that the failure to comply with Tenn. R. Civ. P. 58 invalidated the judgment. David agrees.