Raybin And Perky Tennessee Supreme Court Hot List

(We do not maintain a mailing list. To review the HotList each week, bookmark this page and return to it every Wednesday afternoon.)

David Raybin, Sarah Perky, and Ben Raybin edit the Tennessee Supreme Court Hot List which will keep you informed about the recent grants of review in both civil and criminal cases and what it may mean to your practice. The following list addresses all pending cases where review was granted in order of the date of grant of review. Each month we “prune” the list to remove cases which have been decided so the list is as current as possible.

CASES PENDING REVIEW IN THE SUPREME COURT OF TENNESSEE
as of May 21, 2013.

• Business Liability to Customers

Case:  Jolyn Cullum, et al v. Jan McCool, et al

Issue:  Is a business liable to a customer injured by a third party when the business expels the third party from its store for being inebriated but does not undertake safety measures to protect customers from the third party?

Facts:  Ms. McCool (“Third Party”) entered Wal-Mart to obtain prescription medications but was refused service and ordered to leave by employees who noticed she was inebriated.  Third Party returned to her car to drive away and unfortunately drove directly into Ms. Cullum (“Plaintiff”).  Plaintiff sued Third Party and Wal-Mart, but the trial court dismissed the claims against Wal-Mart on the basis that Wal-Mart did not have a duty to control Third-Party and lacked the means and ability to do so.

Appellate Decision:  The COA reversed and held in favor of Plaintiff, concluding that the trial court should have focused on the duty to protect Plaintiff rather than the ability to control Third-Party.  Under this approach, the COA noted that businesses have a duty to take reasonable steps to protect customers from reasonably foreseeable risks, and here Wal-Mart had actual notice of a specific danger to its customers.  The COA also noted that Wal-Mart may not have been able to prevent Third-Party from leaving the store, but it did not have to “actively expel her” without undertaking some measures to ensure the safety of its customers.

Review Granted:  May 14, 2013.

Prediction:  Ben thinks the Supreme Court will affirm the COA in favor of the Plaintiff because of Wal-Mart’s actual knowledge of the threat to its customers.  The Plaintiff may have a tough time showing that Wal-Mart could have taken a feasible action that would have protected the Plaintiff, but, as the COA observed, “it is ultimately for the trier of fact to determine” whether Wal-Mart is liable.

---

• Surrogacy Agreement

Case:  In Re Baby

Facts:  The “Intended Parents” entered into a surrogacy agreement with “Surrogate.”  Before the child’s birth, a juvenile court entered a final order declaring parentage and ratifying the surrogacy agreement.  Shortly after the child’s birth, Surrogate filed motions to effectively assume parentage herself.  The juvenile court denied the motions and upheld the original order.

Appellate Decision:  The COA affirmed the juvenile court’s order in favor of the Intended Parents.  The COA (1) declined to find that surrogacy agreements violate public policy, (2) found that the juvenile court had jurisdiction over the matter because surrogacy is associated with adoption, (3) rejected Surrogate’s argument that the agreement was invalid because the statute refers to the “biological father” and his “wife,” and the Intended Parents were not married until shortly after the birth.

Issue:  Did the juvenile court correctly uphold the surrogacy agreement after the Surrogate changed her mind?

Review Granted:  May 7, 2013

Prediction:  Sarah thinks the Supreme Court will affirm for the reasons indicated by the COA.  As the intermediate court noted, the statute left the door open for a court to review the validity of surrogacy contracts, so the Supreme Court may provide some public policy analysis on this.  Ben believes there may be a concurrence or dissent on the marriage issue which strictly construes the “biological father” and “wife” language.  The COA found that the “obvious intent is for the child to be raised in a stable, loving home by committed parents,” but it is unclear that our legislature really intended to encompass all such parents (such as gay couples).

---

• Knowing and Voluntary Plea Agreement

Case:  Juan Alberto Blanco Garcia v. State of Tennessee

Facts:  Petitioner, an undocumented immigrant, pled guilty to two charges and subsequently faced removal proceedings.  He alleged in post-conviction that his lawyer was ineffective in failing to advise him on his removability, and that his plea was not knowing and voluntary where the court failed to inquire as to whether he was aware of potential immigration consequences.

Appellate Decision:  The CCA upheld the post-conviction court’s denial of relief.  As for ineffective assistance, the court found the record supported a finding that his attorney had advised him he “may or may not be deported.”  As for whether his plea was knowing and voluntary, the court observed that the sentencing court failed to comply with the then-recently-enacted Tenn. R. Crim. P. 11(b)(1)(J) requirement for the court to inquire as to whether a defendant has been made aware of potential immigration consequences.  However, the court found the plea was knowing and voluntary because trial counsel had, in fact, made Petitioner aware of such consequences.

Issues: Is a trial attorney ineffective for telling a defendant he “may or may not be deported”?  Is a plea knowing and voluntary where the court fails to inquire as to whether a petitioner has been told of potential immigration consequences, where the defendant has been so told?

Review Granted:  April 9, 2013.

Prediction:  Ben believes the Supreme Court will affirm.  Rule 11(b)(1)(J) is a good safeguard to ensure a defendant is aware that his plea may have immigration consequences, but the failure of the court to comply with this rule does not itself make a plea not knowing and voluntary.

• Proximate Cause

Case:  Kenneth E. King v. Anderson County, Tennessee

Facts:  After Inmate was erroneously left in jail following a court order for his release, Inmate was injured by his cellmate.  The trial court found the county 55% at fault and the Inmate 45% at fault for provoking the assault.

Appellate Decision:  The COA upheld the verdict, determining that the county breached its duty to release Inmate from jail (rather than the higher standard of protecting Inmate from other inmates), and finding proximate cause due to the dangerous inmates with whom Inmate was placed.  The court also concluded that the evidence does not preponderate against the apportionment of fault where “it is unclear exactly what the link is between” Inmate’s actions and his injuries.

Issues:  Did the county’s failure to release Inmate proximately cause his injuries?  Did the trial court correctly find the county 55% at fault?

Review Granted:  April 9, 2013.

Prediction:  Ben thinks the Supreme Court will reverse the COA because he disagrees that the failure to release Inmate was the proximate cause of the injury (as opposed to merely the cause-in-fact).  It may be foreseeable that an inmate will be injured, but Ben suggests wrongful imprisonment does not enhance this foreseeability.

• Prosecutorial Misconduct: Closing Argument

Case:  State of Tennessee v. Noura Jackson

Facts:  The opening sentence of the prosecutor’s closing argument was: “Just tell us where you were.  That’s all we’re asking, Noura.”  The Defendant objected to the apparent improper reference to the Defendant’s post-arrest silence.  The prosecutor told the court that she was referencing testimony from a witness who had asked where the Defendant was.  The court offered an immediate curative instruction and declined to order a mistrial.

Appellate Decision:  The CCA upheld the conviction, concluding that the statement was “certainly dramatic” but not improper.  The court noted that the statement was, in fact, consistent with the witness’s testimony; that it was unclear whether the prosecutor meant to comment on the Defendant’s silence; and that any error would have been harmless in light of the curative instruction and the strength of the evidence of guilt.  A two-judge concurrence concluded that the statement was improper, but did not affect the verdict in light of the curative instruction and the weight of the evidence.

Issue:  Was prosecutor’s statement in rebuttal that Defendant should “Just tell us where you were” an improper comment on Defendant’s post-arrest silence?

Review Granted:  April 9, 2013

Prediction:  David believes the Supreme Court will affirm but, like the concurrence, stress to prosecutors the bounds of permissible arguments concerning a Defendant’s silence.

• Burglary When Defendant Obtains Consent to Enter with Deception

Case:  State of Tennessee v. Marcus Pope

Facts:  The Victim sold candy and snacks out of his residence.  He normally conducted business from a window but allowed Defendant and an accomplice inside because he trusted him and it was hot outside.  Upon entering, Defendant and the accomplice attacked and robbed the Victim.  Defendant was convicted of aggravated robbery and aggravated burglary.

Appellate Decision:  Defendant argued that burglary could not be established where he had been given consent to enter the house.  The CCA relied on its earlier decision in State v. Holland, 860 S.W.2d 53 (Tenn. Crim. App. 1993) to conclude that “effective consent” under the statute cannot be obtained through deception.  Thus, Defendant did not have effective consent here because he created the false impression that he was present to do business rather than rob the victim.

Issue:  Does a defendant commit aggravated burglary when he obtained permission to enter a habitation through deception?

Review Granted:  April 9, 2013.

Prediction:  David thinks the Supreme Court will affirm for the reasons stated in the CCA’s opinion.  Ben disagrees:  since no property owner would ever give consent for their property to be robbed, the CCA’s interpretation could render the “consent” aspect of the statute meaningless in most situations.

---

• DUI Probable Cause

Case:  State of Tennessee v. David Dwayne Bell

Facts:  Defendant was stopped for driving in the wrong direction.  He admitted to consuming some alcohol, and the arresting officer testified that Defendant smelled of alcohol and failed some (but not all) of the six field sobriety tests administered.  At the suppression hearing, the judge found Defendant “did pretty dog-gone good” on the tests and that he (the judge) “couldn’t pass them as well as [Defendant] did.”  The judge determined that the arrest lacked probable cause, and thus suppressed the subsequent blood test.

Appellate Decision:  The Court of Criminal Appeals affirmed the suppression under a deferential review of the facts, noting that all information available is pertinent to probable cause.  Even if there was initially probable cause for arrest, it dissipated once Defendant passed all of the field sobriety tests.

Issue:  Did passing each field sobriety test thwart probable cause?

Review Granted:  March 5, 2013.

Prediction:  Ben thinks the supreme court is likely to affirm.  The court will probably clarify that passed field sobriety tests are not necessarily dispositive if there is other evidence of impairment, but will ultimately hold here there was no probable cause under the totality of the circumstances.

• Voluntary Dismissal – “Two Dismissal Rule”

Case:  Jeffrey R. Cooper v. Phillip Glasser, et al.

Facts:  Plaintiff filed a claim against Defendants in California state court alleging, among other things, breach of contract and fraud.  Plaintiff voluntarily dismissed that action without prejudice.  Plaintiff later sued the same Defendants in the United States District Court for the Middle District of Tennessee alleging the same grounds.  Plaintiff again voluntarily dismissed his action without prejudice.  Plaintiff then filed suit against Defendants a third time in Tennessee state court.  The trial court granted Defendants summary judgment and dismissed Plaintiff’s action finding that under the “two dismissal rule” of Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiff’s voluntary dismissal operated as a judgment on the merits and as such, his third suit was barred by res judicata.  On appeal, the court affirmed reasoning that because the federal court received jurisdiction from a federal question and supplemental jurisdiction, rather than diversity jurisdiction, and Plaintiff dismissed his action under the Federal Rules of Civil Procedure, rather than as a result of a state statute of limitations defense, the second dismissal was of a purely federal character and should be subject to the federal court “two dismissal rule.”

Issue:  Was the second voluntary dismissal in federal court a judgment on the merits, thus barring this third action under res judicata?

Review Granted:  February 13, 2013

Prediction:  Sarah believes that the Court will likely reverse the decision of the Court of Appeals and apply Tennessee’s rule which permits a third filing under the reasoning of the United States Supreme Court in Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

• Summary Judgment on Statutory Interpretation in Declaratory Action

 Case:  Pickard, et al. v. Tenn. Dept. of Environment and Conservation, et al.

Facts:  The Tennessee Department of Environment and Conservation (“TDEC”) issued a draft permit allowing a proposed rock quarry to discharge storm water and wastewater into nearby creek.  TDEC ultimately issued a final permit to the quarry and property owners allegedly affected by the discharge filed both a permit appeal and declaratory order petition with the Water Quality Control Board.  The Board dismissed the declaratory order petition and property owners then filed a petition for declaratory judgment in chancery court.  The trial court found that property owners’ petition for declaratory order was ripe, property owners had exhausted their administrative remedies and property owners complied with Tenn. Code Ann. § 69-3-105(i).  The trial court also issued a declaratory judgment on the construction of Tennessee Complied Rule and Regulation 1200-04-03-.06 in favor of property owners on summary judgment.  On appeal, the court affirmed the trial court’s rulings with regard to ripeness, exhaustion of administrative remedies and Tenn. Code Ann. § 69-3-105(i) but reversed the grant of summary judgment on the construction of Tennessee Complied Rule and Regulation 1200-04-03-.06 and remanded the matter for further proceedings.

Issue:  Was the property owners’ petition for declaratory relief against the TDEC permit ripe and exhausted, and was 1200-04-03-.06 properly interpreted?

Review Granted:  February 15, 2013

Prediction:  Sarah believes that the Court will likely affirm the ruling of the trial court in all respects and including the issuance of the declaratory judgment on the construction of Tennessee Complied Rule and Regulation 1200-04-03-.06 in favor of property owners on summary judgment since the interpretation of a statute is a question of law and questions of law are generally appropriate at the summary judgment stage.

• Life Insurance Disbursement

 Case:  Erik Hood v. Casey Jenkins, et al.

Facts: Father died after naming Son as the beneficiary of his life insurance policy.  After receiving a claim from Son and realizing he was still a minor, Insurance Company requested proof of guardianship.  Sister obtained an order of guardianship, but Company responded that the order did not indicate guardianship for finances, so Sister obtained a new order that so provided (which was merely a copy of the first with handwritten notations).  Company then obtained a document from the court confirming the second order was valid.  However, it turned out that the orders failed to meet the statutory requirements and were not actually valid.  Sister squandered the funds, and Son sued Company for re-issue of the proceeds.  The trial court held for Son, and the Court of Appeals affirmed.

Issue:  Must Insurance Company re-issue insurance proceeds after erroneously disbursing to minor beneficiary’s purported guardian?

Review Granted: February 13, 2013

Prediction:  The intermediate court noted that at least two of its prior opinions held that insurance companies need not re-issue when payment is made in good faith, unless it is aware of “suspicious circumstances.”  The court reaffirmed this rule but concluded that Company could not avail itself of it under the circumstances.  Ben thinks this is a close call because the Company should be credited for (1) seeking the guardianship order in the first place, (2) requesting an order providing for financial guardianship, and (3) seeking clarification from the court that the second order was valid.  Requiring further inquiry into the legal sufficiency of the order seems to go beyond mere good faith.  Thus, Ben believes this case will ultimately turn on whether the Supreme Court decides to endorse the good faith rule. 

• Consecutive Sentencing

Case:  State of Tennessee v. James Allen Pollard

Facts: Defendant was convicted of first degree murder, felony murder, and especially aggravated robbery, and received life in prison and eighteen years.  The court ordered these sentences to be served consecutively upon making an affirmative finding in the following sentencing factor: “The defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high.”  T.C.A. 40-35-115(b)(4).  The court made only a conclusory finding that the factor applied and noted that the defendant “has no remorse.”  The Court of Criminal Appeals reversed and remanded, holding that the trial court failed to take three required actions:  (1) conclude that an extended sentence is necessary to protect the public, (2) conclude that consecutive sentencing is reasonably related to the severity of the offenses, and (3) make specific findings of fact in support.  State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995).  The State appealed.

Issue:  Did the trial court err by imposing consecutive sentences?

Review Granted:  February 13, 2013

Prediction:  It appears from the intermediate court’s opinion that the trial court indeed provided an inadequate record pursuant to Wilkerson, but Ben is reluctant to offer a prediction in the absence of the full record.  Moreover, the State appears to have a stronger position here than in a typical case because first-degree murder may inherently satisfy the factor, and one of the sentences is a life sentence (making the consecutive/concurrent distinction.

• Confessions -  Civilian as a State Agent

Cases:   State v. Henry Floyd Sanders and State v. Fred Chad Clark, II

Facts:  In State v. Sanders the police asked a family member to wear a body wire while questioning the defendant about child sexual abuse.  The defendant argued that the trial court should have suppressed the statements he made to the family member because she was working as an agent of the State, and his statements were the product of the family member’s coercion.  The Court of Criminal Appeals held that “The totality of the circumstances reveals that appellant was not coerced by Ms. Standberry into making a statement or confession. This court relies on the following factors in so determining: (1) appellant was not in custody; (2) Ms. Standberry maintained a stern, yet non-argumentative tone; (3) the conversation occurred outdoors, i.e., appellant could not have reasonably felt confined or not free to leave at any time; and (4) the conversation occurred within a few feet of appellant’s vehicle, to which he held the keys, allowing him to leave at any time. While Ms. Standberry admittedly lied to appellant with regard to ceasing the investigation against him, she was not acting under instructions from law enforcement to do so. Her actions were the product of her legitimate motivation to seek the truth about the allegations of sexual abuse involving her daughter. Ms. Standberry’s tactics did not overbear appellant’s will, and we find his statements to be voluntarily given. Moreover, any error was harmless in light of the relatively non-incriminatory nature of appellant’s statements. He admitted to inadvertent touches only and did not incriminate himself with regard to any intentional acts of sexual abuse. Appellant did not testify at trial, thus, there were no inconsistencies with which to impeach him. Appellant is not entitled to relief on this issue.”

State v. Clark presented virtually identical facts. “The trial court found that Ms. Clark was a state actor because she and the police were complicit in obtaining the Defendant’s admissions. The court found, however, that the Defendant’s free will was not overborne by Ms. Clark’s actions. The court also determined that although Ms. Clark made misrepresentations about their future together and implied that she would not seek prosecution, she had no authority to forego prosecution or allow leniency. The court found, as well, that she did not misrepresent the evidence and did not threaten the Defendant because her statements that she would go to the police and obtain a medical examination of the victims unless the Defendant told the truth were statements of fact. The court noted that although the Defendant erroneously placed his trust in Ms. Clark, the evidence did not support a conclusion that the Defendant’s decision to confess was prompted by his misplaced trust, rather than by “the realities of the situation.” The court noted, as well, that the Defendant told Ms. Clark to “go ahead” with her plans to have the victims examined and to call the police because he had done nothing wrong. The court also noted the Defendant’s offer to undergo a polygraph examination. The court found it significant that the Defendant’s first affirmative, unqualified admission occurred in the second statement without prompting from Ms. Clark, after he had time to reflect following the first conversation.”  Under these facts the Court of Criminal Appeals affirmed.

The Tennessee Supreme Court granted review in both cases, but did not consolidate them.

Issue:  Can a defendant’s statement to someone who is secretly assisting the State implicate the “police-dominated atmosphere” and coercion which Miranda proscribes, or are the statements simply involuntary?

Review Granted:  February 13, 2013

Prediction:  In State v. Branham, 855 S.W.2d 563 (Tenn. 1993), the Court considered the admissibility of a defendant’s surreptitiously recorded confession to a family member who visited the defendant in jail.  The court said that the question of coercion must be considered from a defendant’s perspective. However, in State v. Smith, 933 S.W.3d 450, 455 (Tenn. 1996) the Court found that the defendant’s subjective perception alone is not sufficient to justify the conclusion that confession was not voluntary and that coercive police activity must also be shown.  In David’s view the Court has granted review in these similar cases to address the tension between its two prior opinions on this subject. A person’s federal and state constitutional rights to be free from compelled self-incrimination are not violated simply because a person acting at the State’s behest elicits incriminating information from a Defendant.  However, coercion of a suspect is distinguished from strategic deception and the statement can be involuntary. David thinks the Court will fine tune the scope of the test and see if the statements were the product of coercion. David thinks the statement in Clark was involuntary and will be excluded but the statement in Sanders was admissible.

• Corroboration of Victim “Accomplice” Testimony

Case:  State of Tennessee v. Dewayne Collier

Facts:  Defendant was convicted of statutory rape against a “consenting” victim.  On appeal, Defendant challenged the sufficiency of the evidence because under old—but surviving—Tennessee Supreme Court case law, such a victim is considered an accomplice whose testimony must be corroborated by other evidence.  The Court of Criminal Appeals was critical of this rule but continued to recognize it as binding precedent.  The Defendant’s conviction was nonetheless affirmed because the court found sufficient corroboration existed.

Issue:  Should the Supreme Court modify the rule classifying the victim of statutory rape as an accomplice and requiring corroboration of the victim’s testimony?

Review Granted:  January 8, 2013

Prediction:  David thinks the Supreme Court will modify the rule to some degree at least with respect to statutory rape.  The policy concern of the rule is to promote reliability by ensuring not only that the jury believes that a crime has occurred, but also that the defendant (rather than the accomplice or some other person) has committed the crime.  In the limited context, it could be argued that where the victim happens to also be an accomplice by operation of law, the victim’s testimony is no less reliable than a victim in any other setting and needs no additional corroboration.
The problem comes about in removing all restrictions, in that some jurisdictions do not require corroboration but the jury is instructed that accomplice testimony must be received with caution: “You should scrutinize that testimony carefully to determine whether it has in your opinion been affected by the accomplice’s interest in the matter, or by any other factor which may have caused the accomplice to testify falsely or inaccurately against the defendant in order to further her own interests. Accomplice testimony should be received with great caution and care.”

• Criminal Contempt 

Case:  Tracy Rose Baker v. State of Tennessee

Facts:  Ms. Baker was convicted of criminal contempt in a civil domestic case and sought post-conviction relief.  The post-conviction court dismissed the petition upon holding that a contempt finding in a civil action is not a “conviction” under the Post-Conviction Procedure Act.  The Court of Criminal Appeals agreed, explaining that the Act “applies only to constitutional claims arising from a conviction for a criminal offense,” and criminal contempt is not a “criminal offense.” Thus, no relief was available to collaterally attack the conviction.

Issue:  Is a contempt finding in a civil action a “conviction” under the Post-Conviction Procedure Act so that the conviction is subject to collaterally attack a conviction?

Review Granted:  November 28, 2012.

Prediction: The relevant statute provides relief for a “conviction or sentence.”  The “criminal offense” requirement comes from Tennessee Supreme Court Rule 28 which the Court of Criminal Appeals held precluded post-conviction relief .  David will not make a prediction here given that he has been requested  to associate in the appeal on behalf of Ms. Baker.

• Multiple Convictions from same “episode” (Assault/False Imprisonment)

Case:  State of Tennessee v. Terrance Antonio Cecil

Facts:  Defendant was convicted of assault and false imprisonment.  The facts showed that, during a domestic dispute, the defendant grabbed the victim as she attempted to leave and struck her repeatedly, and that she remained in his home after the assault to avoid angering him further.  On appeal, Defendant argued that the false imprisonment offense was “essentially incidental” to the accompanying assault offense and therefore constituted an impermissible second conviction  for crimes  committed during a  criminal episode under the recent holding in State v. White, 362 S.W.3d 559 (Tenn. 2012).  The Court of Criminal Appeals disagreed and affirmed the conviction, holding that “the Defendant’s conduct in committing the offense of false imprisonment far exceeded the conduct necessary to assault the victim.”

Issue:  Did convictions for both assault and false imprisonment violate Due Process under the facts of this case so that there can only be one conviction rather than two?

Review Granted:  November 29, 2012.

Prediction:  David agrees with the intermediate court that the evidence is sufficient beyond a reasonable doubt that the Defendant’s actions went beyond an assault as apparently he was trying to forcibly keep her in his house rather than merely injure her.  Ben thinks the Supreme Court will reverse.  The order granting review specifically references the jury instructions, a critical matter largely overlooked in the lower court’s opinion.  White makes clear that the “essentially incidental” issue is a jury question, and it is likely that the jury in this case was not fully instructed on this standard, so the Court may prefer that the determination is made by a fact-finder when, as here, there is a close call.

• Retroactivity

Case:   Derrick Brandon Bush v. State of Tennessee

Facts:  The Defendant pled guilty to two sex offenses in December 2000 and was not told that his sentence included mandatory lifetime community supervision.  That July, the Tennessee Supreme Court held that lifetime supervision is a direct consequence of a guilty plea for which the court must give defendants notification.  Ward v. State, 315 S.W.3d 461 (Tenn. 2010).  The Defendant filed for post-conviction relief, alleging that his guilty plea was unconstitutional in light of Ward, and that the one-year post-conviction statute of limitations should be tolled.  The post-conviction court granted relief, but the Court of Criminal Appeals reversed, concluding that the rule in Ward is a new one, but does not apply retroactively.

Issue:  Is the rule in Ward v. State a new one which may be applied retroactively so as to toll the post-conviction statute of limitations?

Review Granted:  October 17, 2012.

Prediction:  David believes the Supreme Court will reverse and conclude that the rule is new and retroactive.  The underlying question on this issue is whether to follow the strict federal habeas rule for retroactivity or rather to apply a more liberal interpretation of the statutory language of T.C.A. § 40-30-122.  Our Supreme Court has already rejected the federal rule in a case preceding the current statute, Meadows v. State, 849 S.W. 748, 755 (Tenn. 1993), and stood by that standard in a more recent case, Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001) (following the federal standard only for determining whether a rule is “new”).  This makes good sense because federal habeas rules have been made highly restrictive due to concerns of comity and federalism which are inapplicable here.  Under a less restrictive standard, our Supreme Court should have little trouble concluding, after re-reading its opinion in Ward, that lifetime community supervision is a sufficiently significant punishment that justice requires notification to a defendant.

• Permanent Parenting Plans

Case:  Andrew K. Armbrister v. Melissa H. Armbrister

Facts:  Following a 2009 divorce and entry of a Permanent Parenting Plan (PPP), the husband moved to modify the PPP due to a change of circumstance, i.e., his remarriage, move of residence, and change of work schedule.  The trial court increased the number of days the father would have the children and reduced the award of child support.  The Court of Appeals reversed, holding that the changes were not sufficiently significant to justify a PPP modification by a preponderance of the evidence.  Judge Susano dissented, writing that, under the unique circumstances of the case (including the amicable relationship between the former spouses), the trial court did not abuse its discretion in allowing a modification.

Issue:  Was the husband’s remarriage, move of residence, and change of work schedule sufficient to justify a PPP modification?

Review Granted:  October 16, 2012.

Prediction:  Sarah thinks the Supreme Court is likely to affirm.  Part of the dispute between the majority and dissent seems to be the standard of review, with the majority viewing the issue as a question of fact with a presumption of correctness and the dissent viewing it as a matter of discretion.  Although Judge Susano may be right that the adjusted PPP is a better result, the majority seems to have the stronger argument that no material change in circumstances has occurred so as to allow a modification under T.C.A. § 36-6-101(a)(2)(C).

• Premeditation

Case:  State of Tennessee v. Kevin Anthony Dickson, Jr.

Facts:  Defendant Dickson was upset that Anthony Lyons had sold him a substance other than cocaine.  He returned to Lyons’s house armed with a gun and two companions who also had guns.  As they kicked the door open, guest Rodney Hardin grabbed the Defendant but was shot by one of the Defendant’s companions.  As the attackers entered the house to assault its occupants and demand money, the Defendant’s friend shot Lyons’s brother as he attempted to flee upstairs.  Both victims survived.  After a jury trial, the Defendant was convicted of two counts of attempted first degree murder.  The Court of Criminal Appeals reversed in part, finding that the shooting of the brother was premeditated and could be attributed to the Defendant, but that there was insufficient evidence that the shooting of Hardin was premeditated.  Judge Williams dissented, writing that the jury could have reasonably inferred that premeditation existed in the companion’s mind prior to their arrival in the home.

Issue:  Is the Defendant liable for premeditated attempted murder when his companion shot a man who grabbed the Defendant immediately upon entry to the house and/or a man who attempted to flee the attack during its progress?

Review Granted:  October 17, 2012.

Prediction:  David thinks the Supreme Court will affirm.  Under the particular circumstances of this case, there does not seem to be much evidence that the Defendant was planning to actually kill anyone in the house before they entered or that they expected immediate resistance upon entering.  By contrast, the court recognized that settled case law provides that shooting a retreating victim is indicative of premeditation.

• Applicability of the Savings Statute to Tenn. Code Ann. § 29-26-121

In Hong Samouth (Sam) Rajvongs v. Dr. Anthony Wright, patient filed a medical malpractice action against podiatrist and then voluntarily dismissed the complaint without prejudice.  Less than a year later, patient provided podiatrist with the sixty (60) day notice of potential claim pursuant to recently enacted Tenn. Code Ann. § 29-26-121(a).  Patient then refilled his complaint relying on the savings statute set forth at Tenn. Code Ann. § 28-1-105.  Podiatrist filed a motion for summary judgment arguing the action was time-barred under the savings statute as it was filed more than one (1) year after the dismissal of the original complaint.  Patient argued that pursuant to Tenn. Code Ann. § 29-26-121(c), the statute of limitations was extended by 120 days since patient complied with the sixty (60) day notice requirement set forth in Tenn. Code Ann. § 29-26-121(a).  The trial court denied podiatrist’s motion for summary judgment but granted podiatrist an interlocutory appeal.  On appeal, the court affirmed finding that patient was entitled to the 120 day extension to the one year statute of limitations as well as the same extension to the three (3) year statute of repose.  The Supreme Court granted review on September 24, 2012.

Prediction:  Sarah believes that the Court will likely affirm the decision of the Court of Appeals as there is no reason why the provisions of the new medical malpractice statute which impose additional burdens on plaintiffs should apply while the provisions of the statute designed to mitigate the harshness of those additional burdens should not.

• Juror Bias – Facebook

Case:  State v. William Darelle Smith

Facts: Following the testimony of the State’s expert witness, a juror sent the witness a Facebook message stating that the juror recognized the witness and “thought you did a great job today” and “really explained things so great!”  After being brought to the court’s attention, the trial judge declined the defendant’s request to question the juror about the communication and found no violation.

Issue:  The Court of Criminal Appeals held that the trial court did not abuse its discretion in denying the defendant’s request for further inquiry because the communication “appears to be a social communication rather than one in which the juror is seeking extraneous and improper information about the case.”

Review Granted: August 15, 2012

Prediction:  This case shows one of the many hazards that the internet age has created in the justice system.  David believes that the Supreme Court will, at the very least, use this case to establish some clearer precedent for online communication during trial (only one of the cases cited by the court is from this century).  David also thinks that the Supreme Court is likely to reverse.  This was clearly more than a “social communication” because it directly related not only to the trial but the juror’s assessment of testimony.  It is a close call as to whether the message itself mandates reversal, but the defendant was clearly entitled the opportunity to ask the witness about the obvious appearance of bias.

• Summons, Motion to Dismiss 

Case: Cristy Irene Fair v. Stephen Lynn Cochran 

Facts:  Plaintiff filed her Summons and Complaint within the statute of limitations, but proof of service was not returned until more than one year later, in excess of the limitations period.  The trial court granted the Defendant’s motion to dismiss for lack of service and expiration of the statute.

Issues:  The Court of Appeals held that the Plaintiff failed to satisfy the requirement of Tenn. R. Civ. P. 4.03 to “promptly make proof of service to the court.”  The lack of timely proof being dispositive and undisputed, the Court concluded that the action was properly adjudicated in a motion to dismiss (rather than a motion for summary judgment).  Judge Susano, dissenting (http://www.tncourts.gov/sites/default/files/faircidis.pdf), wrote that the lack of proof was not dispositive, and the Plaintiff should have the opportunity to prove effective service of process.

Review Granted:  August 16, 2012

Prediction:  Sarah thinks the Supreme Court will reverse for the reasons stated in Judge Susano’s dissent, primarily the fact that an action commences when a complaint is filed and process is served (regardless of when proof of service is given).  Although the Plaintiff may have a hard time showing timely service in the absence of evidence thereof, this is a question of fact rathar than a question of law.

• The County Sheriff’s Civil Law

Case: Jim Hammond v. Chris Harvey, et al. 

Facts:  Six sheriff sergeants filed a grievance with the Hamilton County Sheriff’s Office Civil Service Board over arbitrary pay disparities amongst sheriffs.  The Board found a disparity and ordered the Sheriff to equalize pay depending on job responsibility and any written criteria regarding standards.  The Sheriff appealed to the trial court, which held that the Board lacked authority to order the Sheriff to equalize pay and declared the Board’s decision “null and void.”

Issues:  The Court of Appeals agreed that the Board lacked statutory authority to order pay modification.  However, the Court of Appeals held that voiding the Board’s order went too far and remanded to the Board with instructions to “direct the Sheriff in writing to take the necessary steps to eliminate the disparity in sergeant pay,” with the caveat that the Sheriff gets to decide how to accomplish this goal.

Review granted: August 15, 2012.  The Supreme Court’s order directed the appellant to supplement the record with the relevant civil service manual and instructed the parties to brief the grievance procedure directing employees to file a grievance regarding an “unfair treatment in reference to pay.”

Prediction:  Sarah thinks the Supreme Court is likely to reverse.  The instructions accompanying the order suggest the court has concerns about the Board’s factual findings, which went unchallenged by the intermediate court.  Moreover, the conclusion that the Board can make findings and impose some action, but lacks the authority to order any particular action, seems to render the statute toothless.

• Farm Zoning

Case: Velda J. Shore v. Maple Lane Farms, LLC, et al.

Facts:  Plaintiff Homeowner sought relief against the owner of nearby farmland–who had been hosting events on the land such as pumpkin patches, corn mazes, and concerts—claiming that these activities interfered with the quiet enjoyment of her property.  The trial court dismissed the complaint, holding that the Defendant’s farm activities were protected from the application of the local zoning laws by the Tennessee Right-to-Farm Act.

Issue:  The Court of Appeals affirmed, holding that the activities satisfied the definition of “agritourism,” see Tenn. Code Ann. § 43-39-101, which constitutes a “farm operation” and is thus considered “the equivalent of agriculture.”

Review Granted:  August 16, 2012

Prediction:  Sarah that believes the Supreme Court of the “Agriculture and Commerce” State will affirm this broadened definition of farming. David, who knows nothing about farming, agrees.

• Remittitur

Case: Aundrey Meals v. Ford Motor Company

Facts:  Defendant Ford appeals a jury verdict finding it partially liable in a products liability action where a young child was catastrophically injured in a car accident.  The jury awarded damages in the amount of $43.8 million and assessed 15 percent fault against Ford.

Issue:  The Court of Appeals affirmed the verdict on multiple issues, but remanded with a suggestion of remittitur to a total amount of $12.9 million (of which Ford remains only 15 percent liable).  According to the court, the “damage award is excessively high so as to demonstrate passion on the part of the jury.”  Judge Kirby dissented from the suggestion of remittitur, writing that the holding lacked a legal basis and “amounts to a policy determination” by the majority.  http://www.tncourts.gov/sites/default/files/mealsadis.pdf

Review granted:  August 15, 2012

Prediction:  Sarah thinks the Supreme Court will probably affirm the suggestion of remittitur because the relatively low assessment of fault and high award of total damages seems to suggest some passion from the jury.  More importantly, the Court’s analysis of non-economic damages in this case could signal its views on the inevitable challenge to the new tort reform law, which is not applicable in this case. David disagrees.  The jury did what it was required to do.

• Search and Seizure, Corpus Delicti Rule 

Case:  State v. Courtney Bishop

Facts:  Defendant Bishop was put in a “48-hour hold” by Memphis police officers without a warrant so they could question him.  He gave incriminating statements on the second day and was eventually convicted for felony murder and attempted aggravated robbery.

Issue:  The Court of Criminal Appeals held with striking language that the warrantless detention was blatantly unconstitutional and granted Bishop a new trial. Additionally, finding that Bishop’s statement was the only evidence of his purpose, the court determined pursuant to the corpus delicti rule that the evidence was insufficient to support the conviction for first degree murder and modified the conviction to one for second degree murder.

Review granted:  August 15, 2012.  In its order granting the review, the Supreme Court requested further briefing on several questions relating to the corpus delicti rule.

Prediction: David thinks the court will affirm on the new trial on the confession issue. The Corpus Delicti rule requires some proof albeit slight to corroborate the defendant’s statement. The obvious question is whether this rule survived the new criminal code. David believes it will. Some archaic rules, like the year and day rule were long obsolete. The corpus delecti rule, like the rule regarding causation, is not explicitly stated but is part of our common law interpretations which  are to be retained. “The provisions of this title shall be construed according to the fair import of their terms, including reference to judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104 See State v. Hawk, 2005, 170 S.W.3d 547. “Reform Act did not abrogate the common law rule that a principal offender must be convicted before a person alleged to be an accessory after the fact may be tried and convicted.”

• Modification of Grandparent Visitation – Standard of Review

Case:  Neal Lovelace and Norma Jean Lovelace v. Timothy Kevin Copley and Beth Copley (Tenn. Ct. App. 2012).

Facts:  Grandparents brought contempt motion against mother alleging that she violated grandparent visitation order.  The Chancery Court found the mother in contempt and modified visitation.

Issue: The Court of Appeals held that the substantial harm standard found in the Grandparent Visitation Statute applied in proceedings to modify grandparent visitation.  The Court held that since nothing in the record or in the Grandparent Visitation Statute persuades them that the standard of review in modifications should be any different when a parent seeks to modify visitation under said statute, then the standard contained in the statute applies to both the initial visitation award and any later modification.

Review Granted: June 21, 2012.

Prediction:  Sarah believes that the Supreme Court will likely reverse the holding of the Court of Appeals.  The Supreme Court in Blair v. Badenhope 77 S.W.3d 137 (Tenn. 2002), previously made a distinction between the standard applied in the initial determination and a modification.

• State’s Preservation of Evidence – Standard of Review

Case:  State of Tennessee v. Angela M. Merriman (Tenn. Crim. App. 2012).

Facts:  A Warren County grand jury charged Merriman with one count of second offense DUI, one count of reckless endangerment, one count of reckless driving, one count of driving on a suspended license, and one count of violation of the implied consent law.  Merriman filed a Motion to Dismiss the Indictment due to the State’s failure to preserve or produce the digital video recording of the pursuit and stop leading to her arrest.  The Warren County Circuit Court dismissed the driving under the influence (DUI) second offense charger, the felony reckless endangerment charge, and the reckless driving charge.

Issue: The Court of Criminal Appeals affirmed the judgment of the trial court.  The Court held that in the case of violations of discovery rules, via Rule 16, the trial court is afforded wide discretion in fashioning a remedy for the State’s failure to preserve evidence.  The State had a duty to preserve the evidence and failed to do so.

Review Granted: June 21, 2012.

Prediction: David believes the Supreme Court will likely uphold the holding of the Court of Criminal Appeals. There needs to be a significant sanction for failing to retain such critical evidence.

• Sufficiency of the Evidence – Tampering with Evidence

Case:  State of Tennessee v. LeDarren S. Hawkins (Tenn. Crim. App. 2012).

Facts:  This case arises from Hawkins shooting and killing the victim, Jerome Ellington, and, thereafter, disposing of the shotgun he used in the commission of this offense.  Hawkins was convicted by a Madison County jury of first degree murder and tampering with evidence.  He was sentenced to serve an effective life sentence.

Issue: The Court of Criminal Appeals affirmed the trial court’s judgments.  The Court held that the conduct of concealing the weapon at a location away from the shooting, thereby preventing police officers from recovering the murder weapon, is sufficient evidence to sustain Hawkins’ conviction beyond a reasonable doubt.

Review Granted: June 20, 2012.

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

• Interstate Agreement on Detainers

Case:  State of Tennessee v. Michael Shane Springer(Tenn. Crim. App. 2012).

Facts:  The grand jury indicted Springer for twenty-one counts of rape of a child. While Springer was in the custody of the West Tennessee Detention Facility in Mason, Tennessee awaiting sentencing on federal charges, Springer filed a “Demand for Speedy Disposition” pursuant to the Interstate Agreement on Detainers Act regarding the indictment.  Springer pled guilty to two counts of rape of a child, receiving consecutive sentences of twenty-five years.  The trial court also ordered him to serve his sentences consecutively to a sentence imposed by the U.S. District Court for the Western District of Tennessee.  In conjunction with entering his guilty plea, Springer reserved the following certified question of law for disposition:  Whether the trial court erred in failing to grant the Defendant’s Motion to Dismiss alleging the State violated the provisions of the Interstate Agreement on Detainers (T.C.A. § 40-31-101 et seq., U.S. Code Title 18-App) and the anti-shuttling provisions therein pursuant to Alabama v. Bozeman.

Issue: The Court of Criminal Appeals affirmed Springer’s convictions.  The Court held that Article IV’s anti-shuttling provision is not triggered until a person has been transferred to the state facility to which [he] is ultimately assigned, not the local facility in which he sits awaiting transfer to that facility.

Review Granted: June 19, 2012.

Prediction:  David believes that the Supreme Court will likely reverse. The statue does not make that fine a distinction.

• Teachers’ Tenure Act – Summary Judgment

Case: Saundra Thompson v. Memphis City Schools Board of Education (Tenn. Ct. App. 2012).

Facts:  This is a case involving a teacher who was dismissed without a hearing.  Thompson failed to return to work after a sick leave and her employment was terminated by the school board.  When the school board refused to give Thompson a tenure hearing, she filed a complaint for damages based on the Teachers’ Tenure Act and violations of her due process rights.  Despite attempts to hold a tenure hearing, no hearing was ever held.  On cross-motions for summary judgment, the chancellor reinstated Thompson and awarded her back-pay.  After a hearing on damages, the chancellor awarded compensatory damages and attorney fees under 42 U.S.C. § 1983.

Issue:  The Court of Appeals affirmed the denial of the school board’s motions to dismiss and for summary judgment but vacated and remanded the grant of Thompson’s motion for partial summary judgment.  The Court held that there is conflicting evidence in the record and in a motion for summary judgment a trial judge is not permitted to weigh the evidence and must accept the nonmoving party’s evidence as true, and view both the evidence and all reasonable inferences that can be draws therefrom in the light most favorable to the nonmoving party, therefore it was improper for the chancellor to award Thompson summary judgment. The case was remanded for the board to hold an additional hearing.

Review Granted: June 19, 2012.

Prediction:  Sarah believes that the Supreme Court will likely uphold the decision of the Court of Appeals remanding for an additional hearing.

• Sufficiency of the Convicting Evidence – Constructive Possession of  Drugs

Case:  State of Tennessee v. Bobby Lee Robinson and Jamie Nathaniel Grimes (Tenn. Crim. App. 2011)

Facts:  A Davidson County jury convicted Robinson of possession of more than 300 grams of cocaine with intent to sell, and possession of drug paraphernalia.  Robinson was sentenced to seventeen years as a standard offender for the cocaine offense, and eleven months and twenty-nine days for the misdemeanor offense, with all sentences to be served concurrently.

Issue: The Criminal Court of Appeals affirmed the judgment of the trial court, holding that Robinson’s constructive possession of the drugs is sufficient to sustain the conviction, which requires proof that Robinson had the power and intention at a given time to exercise dominion and control over the drugs.

Review Granted: May 17, 2012.

Prediction:  David believes the Supreme Court will likely reverse. While Robinson was in the vehicle there was no other evidence establishing knowledge of the drugs. Possession, in this case is not 9/10ths of the law.

• Pretrial Diversion

Case:  State of Tennessee v. Sidney S. Stanton, III (Tenn. Crim. App. 2012)

Facts:  The Tennessee Dept. of Agriculture (TDA) was notified that there were dead horses on a farm located in Warren County.  The same day, a representative went to investigate the allegations and determined there were two dead, unburied horses on the property whereon he then notified Stanton that they needed to be buried.  He then returned to ensure they had been buried but discovered they had only been relocated but not buried.  While at the farm it was noticed that there were two additional horses had died and several horses appeared to be in very poor health.  A search warrant was obtained and the horses and farm conditions were examined.  An Animal Cruelty and Neglect  Investigation was conducted and it was determined that there was probable cause to believe the Animal Cruelty Act had been violated and that the farm should be treated as a crime scene and that the horses would be seized if Stanton did not voluntarily surrender them.  Stanton was indicted for animal cruelty.  Stanton applied for pretrial diversion which was denied by the assistant district attorney.  After a hearing, the trial court affirmed the denial of diversion and found no abuse of discretion but granted Stanton’s Motion for Interlocutory Appeal.

Issue: The Court of Criminal Appeals affirmed the judgment of the trial court holding that the assistant district attorney carefully weighed and considered the factors laid out in State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983) and that substantial evidence existed to support his denial of diversion.

Review Granted: May 17, 2012.

Prediction: Since this case is not a horse of a different color, David believes that the Supreme Court will likely uphold the Criminal Court of Appeals judgment affirming the trial court’s denial of diversion.

• Failure of Trial Court to Inform Jury of Judgments of Acquittal and Limitation of Defense Argument

Case:  State of Tennessee v. Jereme Dannuel Little (Tenn. Crim. App. 2012)

Facts:  A Hamilton County grand jury charged Little with two counts of aggravated robbery and one count of especially aggravated kidnapping.  At the close of proof, Little moved for judgments of acquittal on the aggravated robbery charges based upon the lack of evidence to corroborate the testimony of an accomplice.  The trial court granted Little’s motion for judgments of acquittal as to the aggravated robbery charges only.  The jury then convicted Little of especially aggravated kidnapping, and the trial court imposed a sentence of eighteen years incarceration.

Issue: The Criminal Court of Appeals affirmed the judgment of the trial court holding that the trial court’s errors in failing to instruct the jury about the acquittal of the robbery charge and in limiting Little’s argument before the jury about the aggravated robbery charges were harmless beyond a reasonable doubt.  Therefore, there was no reversible error.

Review Granted: May 16, 2012.

Prediction:  David believes the Supreme Court will likely reverse. If the defendant desires such an instruction it should be given to prevent speculation as to what happened to the charge.

• Suppression of Statements/Involuntary Confession

Case:  State of Tennessee v. David Hooper Climer, Jr. (Tenn. Crim. App. 2011)

Facts:  A Gibson County Circuit Court jury convicted Climer of first degree premeditated murder of his mother and abuse of a corpse, and the trial court sentenced him to consecutive sentences of life and two years, respectively.

Issue: The Court of Criminal Appeals concluded that the evidence was insufficient to support Climer’s conviction of first degree premeditated murder but that the evidence is sufficient to support a conviction for the lesser-included offense of second degree murder.  The Court then reduced the first degree premeditated murder conviction to second degree murder and remanded back to the trial court for resentencing.  The Court affirmed the conviction for abuse of a corpse.

The Supreme Court has granted the application for appeal but only with regard to whether the Tennessee Court of Criminal Appeals erred by affirming the trial court’s denial of Mr. Climer’s motion to suppress his statements.  As to this issue, the Court of Criminal Appeals held that while Climer’s statement in his first interview prior to waiving his rights was an equivocal request for an attorney, any error in improperly clarifying said request was harmless because Climer did not implicate himself in the victim’s disappearance, death, or dismemberment.

Review Granted: May 18, 2012.

Prediction:  David believes the Supreme Court will likely affirm. If is not clear that there was any harmful confession prior to the request for an attorney.

• Admissibility of Evidence in Will Contest/Invalidation of Marriage for Want of Sufficient Mental Capacity

Case:  In re Estate of Raymond L. Smallman, Deceased, Mark Smallman, et al. v. Linda Caraway, et al. (Tenn. Ct. App. 2011)

Facts:  The two sons of the decedent asked the Court to declare that their father died intestate and that his marriage to Caraway a few days before he died was void because he was neither competent to make a will or enter into a marriage contract.  Upon trial, the jury determined that Raymond Smallman was not of sound mind when he executed a will, a copy of which was filed in evidence, and the will was obtained through undue influence on him.  The jury also found that the marriage between Raymond Smallman and Casaway was invalid as well.

Issue: The Court of Appeals affirmed the trial court’s judgment holding that while evidence not relevant to the case was admitted by the trial court, any error committed was harmless because there was no basis to conclude that the jury would be prejudiced against Caraway in any way.  The Court also concluded that there was sufficient material evidence to support the jury’s finding that the marriage was void due to the father’s mental incapacity.

Review Granted: May 16, 2012.

Prediction:  Sarah believes that the Supreme Court will likely uphold the holding of the Court of Appeals decision. David disagrees, evidence that Caraway allegedly manipulated another will was introduced to show she was a gold digger; a fact not relevant to decedent’s state of mind.

• Termination of Parental Rights under the Abandonment Requirements of Tenn. Code Ann. § 36-1-102

Case:  In re Angela T., Ekene T., and Ember T. (Tenn. Ct. App. 2012)

Facts:  Mother filed petition to terminate father’s parental rights.  The Chancery Court, Madison County, terminated father’s parental rights stating that Father had testified under oath at the hearing that he wished to surrender his parental rights and that termination of his parental rights and adoption was in the children’s best interest.  Father then appealed claiming duress at the hearing, and the Court of Appeals affirmed.  Father appealed.  The Supreme Court, 303 S.W.3d 240, reversed and remanded holding that a trial court’s written order of termination must contain the statutorily required findings of fact and conclusions of law, identifying which ground(s) for termination exist and determining whether termination of parental rights is in the best interest of the children, even where the parent consents to the termination of parental rights..  On remand, the Chancery Court, Madison County, declined to terminate father’s parental rights determining that Mother had not demonstrated grounds for terminating Father’s parental rights.  Mother appealed.

Issue: The Court of Appeals reversed and remanded, holding that the prior order suspending the Father’s visitation rights did not preclude finding that he willfully failed to visit his children, and that evidence established that Father abandoned his children by willfully failing to make reasonable payments toward their support.

The Supreme Court is particularly interested in the following issues: (1) Whether the Father willfully failed to visit his children, satisfying the requirements for “abandonment” under Tenn. Code Ann. § 36-1-102, and (2) Whether the Father willfully failed to support his children, satisfying the requirements for “abandonment” under Tenn. Code Ann. § 36-1-102.

Review Granted: April 23, 2012.

Prediction:  Sarah believes the Supreme Court will likely uphold the ruling of the Court of Appeals for the Father’s failure to provide support for his children.

• Tolling the Statute of Limitations with a John Doe Warrant Coupled with a DNA Profile of an Unknown Offender 

Case: State of Tennessee v. Robert Jason Burdick (Tenn. Crim. App. 2011)

Facts:  Burdick was found guilty of attempted aggravated rape.  Burdick appealed arguing that his indictment was barred by the statute of limitations and that the affidavit of complaint against John Doe with a DNA profile was not sufficient to commence prosecution prior to the expiration of the statute of limitations.

Issue: The Court of Criminal Appeals affirmed the judgment of the trial court holding that a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations.

Review Granted: April 11, 2012.

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

• Mitigating Factors in Sentencing Decisions

Case: State of Tennessee v. Christine Caudle (Tenn. Crim. App. 2011)

Facts: Christine Caudle pled guilty to reckless endangerment with a deadly weapon and theft of merchandise over $500, Class E felonies.  She was sentenced as a Range II, multiple offender to three years for each sentence, to be served concurrently.  On appeal, Caudle contends that the trial court erred by failing to apply applicable mitigating factors and by failing to grant probation or an alternative sentence. This case relates to a theft at a department store and the Defendant’s attacking a store employee who was seriously injured.

Issue: The Court of Criminal Appeals affirmed the judgment of the trial court holding that the failure to include the transcript of the guilty plea hearing in the record prohibits the court’s conducting a full de novo review of the sentence and in such absence, the court must presume that the trial court’s rulings were supported by sufficient evidence. The Supreme Court granted review and directed the clerk of the Circuit Court for Williamson County to prepare and file with the Clerk of the Appellate Courts, within thirty (30) days following entry of their order, a supplemental record consisting of the transcript of the hearing regarding the entry of the defendant’s guilty plea.

Review Granted: April 12, 2011.

Prediction: David believes the Supreme Court will likely affirm the denial of probation but will tackle the continuing problem of the lack of the guilty plea transcript as part of the sentencing decision appeal. David will go out on the proverbial limb and predict that while a transcript of the guilty plea is preferred, the appellate court can render a decision if the facts are readily apparent from the sentencing hearing.

• Statute of Limitations Provision in the Medical Malpractice Act and Whether It Applies to Governmental Entities and Their Employees under the Tennessee Governmental Tort Liability Act

Case: Walton Cunningham & Phyllis Cunningham ex rel. Phillip Walton Cunningham v. Williamson County Hospital District, et al. (Tenn. Ct. App. 2011)

Facts: This is a medical malpractice action filed by the Cunningham’s alleging that Williamson Medical Center and five of its employees proximately caused the death of their son.  The action was commenced with the filing of an initial complaint more than one year but less than sixteen months after their son’s death.  Williamson filed a motion to dismiss the Cunningham’s claim as time barred pursuant to the one-year statute of limitations in the Governmental Tort Liability.  The Cunningham’s responded contending that the one-year limitation was extended by 120 days pursuant to Tenn. Code Ann. § 29-26-121(c), because they provided the requisite pre-suit written notice pursuant to the statute prior to the running of the one-years period, and the complaint was filed within the 120-day extension.  Williamson countered that the statute was not applicable because the General Assembly had not explicitly stated that it applied to claims governed by the Governmental Tort Liability Act.  The trial court found that the action was timely filed because it was commenced within the 120-day extension afforded to the Cunningham’s pursuant to the Tennessee Medical Malpractice Act (Tenn. Code Ann. § 29-26-121(c)).

Issue:  The Court of Appeals, in a matter of first impression, determined that the amendment codified at Tenn. Code Ann. § 29-26-121(a) – (c) applies, notwithstanding the one-year statute of limitations provision under the Governmental Tort Liability Act, that the Cunningham’s compliance with the pre-suit notification provision in the statute extended the statute of limitations by 120 days, and that this action was timely filed within the 120-day extension.  The Court held that the General Assembly expressly mandated that the Medical Malpractice Act was to have universal application to all medical malpractice actions, including those against governmental entities.

Review Granted: April 11, 2012.

Prediction: Sarah believes that the Supreme Court will likely uphold the decision of the Court of Appeals because when construing legislative enactments, courts are to presume that every word in a statute has meaning and purpose and should be given full effect if the obvious intention of the General Assembly is not violated by so doing and here they did that by expressly declaring it to apply to all medical malpractice actions.

• Proof of Causation

Case: Rheaetta F. Wilson, et al. v. Americare Systems, Inc., et al. (Tenn. Ct. App. 2012)

Facts: Decedent’s next of kin filed this wrongful death action against an assisted living facility, two nurses, and the facility’s management company for failure to provide proper care and treatment.  Partial summary judgment was awarded to the next of kin with only the issue of the causation of Americare being tried before a jury.  The jury entered a verdict in favor of the next of kin, awarding compensatory damages and punitive damages.  On appeal, Americare disputes the judgment of direct liability against it as well as the award of punitive damages.

Issue: The Court of Appeals reversed the judgment finding direct liability on the part of Americare and finding no material evidence to support a conclusion that any staffing deficiency proximately caused the decedent’s death.  The Court held that there was no material evidence to support the conclusion that it was more probable than not that the decedent’s death was caused by staffing decisions made by Americare and it was just as likely that the nurses were careless, incompetent, or poorly performed their duties conscientiously and/or made bad decisions.

Review Granted: April 11, 2012.

Prediction: Sarah believes the Supreme Court will likely uphold the decision of the Court of Appeals. David disagrees; there were more than enough sins for Americare to be found to have caused the injury and death.

• Breach of Contract – Construction of a Silent Consent Clause in an Anti-Assignment Provision

Case: Dick Broadcasting Co., Inc. of Tennessee v. Oak Ridge FM, Inc. et al. (Tenn. Ct. App. 2011)

Facts: Dick Broadcasting Co. (“DBC”) entered into three contracts with Oak Ridge, ComCon, and Pirkle to program WOKI-FM, a radio station in Oak Ridge, Tennessee.  The first contract, the Time Brokerage Agreement, granted DBC the right to program WOKI-FM for seven years and to purchase substantially all of the broadcast time on the station.  The second contract, the Right-of-First-Refusal Agreement, granted DBC a right of first refusal to purchase substantially all of the assets used in the operation of WOKI-FM.  The third contract, the Consulting Agreement, contracted for ComCon (comprised of Pirkle and his son) to provide part-time consulting service regarding WOKI-FM during the term of the Time Brokerage Agreement. DBC and its related entities decided to sell its assets to Citadel Broadcasting Co. (“Citadel”) for a price of $300,000,000.  The sale was to include the assignment of the contracts.  DBC formally notified Pirkle of its intent to assign the contracts to Citadel and requested written consent for the assignment which Pirkle refused to sign.  Thereafter, this action was filed by DBC for causes of action sounding in contract.  Both parties filed competing summary judgment motions.  The trial court dismissed the case, finding as a matter of law that the Oak Ridge et al. did not breach one of the contracts at issue.

Issue: The Court of Appeals reversed the judgment of the trial court holding that under a silent consent clause in an anti-assignment provision, a party may not withhold consent without a good faith and commercially reasonable basis for objecting to the assignment and that this obligation arises from the duty of good faith and fair dealing.  Further, a breach of the obligation is a breach of contract.

Review Granted: April 11, 2012.

Prediction: Sarah believes the Supreme Court will likely uphold the ruling of the Court of Appeals because in Tennessee, the common law imposes a duty of good faith in the performance of contracts.

• Validity of Execution of Will – Effective Signature

Case: In re Estate of Thomas Grady Chastain (Tenn. Ct. App. 2011)

Facts: Deceased signed the affidavit of attesting witnesses, which affidavit was attached to the purported will on the same date; he also initialed the bottom of the first page of the “will,” but did not sign the second page of the two-page “will.”  Contestants moved the court to declare the Will invalid for lack of an effective signature as prescribed by Tenn. Code Ann. § 32-1-104.  The trial court held, as a matter of law, that the “will” of Deceased was not executed in compliance with the statute.

Issue: The Court of Appeals reversed the decision of the trial court holding that it is clear that Deceased appeared in the presence of the witnesses, and declared that he was executing his Will; therefore, the signature is valid and effective.

Review Granted: April 11, 2012.

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

• Arbitration Appellate Jurisdiction – Choice of Law Between the Federal Arbitration Act and the Tennessee Uniform Arbitration Act

Case: Morgan Keegan & Company, Inc. v. William Hamilton Smythe, III, et al. (Tenn. Ct. App. 2011)

Facts: For a number of years, Smythe had multiple investment accounts at Morgan Keegan for himself and as trustee for members of his family.  In the contracts that Smythe signed when the investment accounts at Morgan Keegan were opened, Smythe agreed to arbitrate any disputes in accordance with the Financial Industry Regulatory Authority (“FINRA”) procedures.  Over time Smythe came to believe that Morgan Keegan had improperly invested his accounts in several funds and after sustaining significant losses Smythe filed a claim with the FINRA to initiate an arbitration proceeding against Morgan Keegan.  Arbitrators were selected following the FINRA rules and an arbitration panel was appointed.  Two of the arbitrators listed were on other panels against Morgan Keegan in unrelated cases that were decided against Morgan Keegan.  After this, Morgan Keegan submitted to the Director of Arbitration, motions of recusals against them being on the panel in the instant case.  The director denied said motions.  The arbitration hearing was conducted and the panel issued an award in favor of Smythe.  Morgan Keegan then filed a Petition and Application of Vacatur in the trial court pursuant to the Federal Arbitration Act (“FAA”) and the Tennessee Uniform Arbitration Act (“TUAA”) alleging that the two arbitrators were not impartial.   The trial court granted Morgan Keegan’s motion to vacate the arbitration award and remanded the case to FINRA for a new hearing before a neutral and unbiased panel.

Issue: The Court of Appeals concluded that, although the FAA applies to the substantive issues in this case, the TUAA governs the applicability of the trial court’s order.  The Court held that under the TUAA, § 29-5-319(a)(3) does not authorize this appeal, because there was no motion to confirm, and the trial court did not address confirmation of the arbitration award in its order.  Further, the applicable provision of the TUAA is § 29-5-319(a)(5), which indicates that an order vacating an arbitration award and directing a rehearing in not appealable.  Therefore, because an appeal from the trial court’s decision in this cause is not authorized under § 29-5-319(a) of the TUAA or any other authority, the appeal must be dismissed for lack of subject matter jurisdiction.

Review Granted: April 11, 2012.

Prediction: Sarah believes that the Supreme Court will likely affirm.

• Immigration Enforcement

Case: Daniel Renteria-Villegas et al. v. Metropolitan Government of Nashville and Davidson County, and United States Immigration and Customs Enforcement (M.D. Tenn. Sept. 12, 2011)

Facts: This case presents a challenge to an October 2009 Memorandum of Agreement (“MOA”) between ICE and Metro pursuant to Section 287(g) of the Immigration and Nationality Act, 8 U.S.C. § 1357(g), which authorizes the Department of Homeland Security to enter into written agreements to train and deputize local law enforcement officers to perform specified acts relating to immigration enforcement.  The MOA empowers Davidson County Sheriff’s Office (“DCSO”) deputies to perform those immigration enforcement acts.  The Complaint sets forth four causes of action: Count I alleges that, by entering into the MOA, Metro violated the Charter.  Count II alleges that ICE violated the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701 et seq.  Count III alleges that both Metro and ICE violated the Due Process Clause of the Fourteenth Amendment. Count IV sets forth a state law claim for false imprisonment against Metro.  The U.S. District Court for the Middle District of Tennessee granted ICE’s Motion to Dismiss Count III insofar as it alleges that ICE violated Renteria-Villegas rights to due process, but denied ICE’s Motion to Dismiss Count II.  The Court then denied all remaining motion pending certification of the dispositive issue in this case to the Tennessee Supreme Court.

Issue: The Tennessee Supreme Court, pursuant to Rule 23, accepts certification of the following question of law:  Does an October 2009 Memorandum of Agreement between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, by and through the Davidson County Sheriff’s Office, violate the Charter of Nashville and Davidson County or other state law?

Review Granted: April 12, 2012.

Prediction: David believes that the Supreme Court will find that Memorandum Agreement does not violate any law or Charter.

• Fourth Amendment Search and Seizure — Duration of the Stop

Case: State of Tennessee v. Wayne Lamar Donaldson, Jr. (Tenn. Crim. App. 2011)

Facts: Donaldson was stopped by police after being observed violating traffic ordinances.  The officer wrote up the citations and returned to the vehicle, asking Donaldson to get out of his vehicle because he “wanted to get a feel for him.”  He was also going to give the citations to Donaldson.  After Donaldson stepped out of the vehicle the officer looked down and saw a clear plastic bag with a white powder substance on the driver’s side floorboard.  Donaldson was indicted and charged with possession of, with intent to sell or deliver, twenty-six grams or more of a substance containing cocaine within a drug-free school zone.  Donaldson filed a motion to suppress all evidence seized during the stop.  The trial court granted the motion, and subsequently dismissed  the indictment based upon the State’s acknowledgment that it could not proceed to trial without the evidence.

Issue: The Court of Criminal Appeals affirmed the judgment of the trial court holding that while the initial traffic stop was valid, there was no basis for the officer to have Donaldson exit the vehicle or for the officer to perform a search of the car.  Furthermore, a reasonable traffic stop can become unreasonable if the time, manner or scope of the investigation exceeds the proper parameters.

Review Granted: February 14, 2012.

Prediction:  David believes the Supreme Court will likely uphold the decision of the Court of Criminal Appeals because  the  duration of a stop must be temporary and last no longer than necessary to effectuate the purpose of the stop.

• Seizure Resulting from Activation of Blue Lights by Police

Case: State of Tennessee v. James David Moats (Tenn. Crim. App. 2011)

Facts: An officer observed Moats sitting in a parking lot in his vehicle with the lights on.  The parking lot had a no loitering sign and the police had been asked to “extra patrol” the area.  The officer left, patrolled another area, and then returned.  The officer drove up behind the vehicle, initiated the blue lights and approached the vehicle, asking Moats if he was okay.  The officer noticed an open beer can, wherein Moats admitted to having been drinking.  Moats had difficulty exiting the vehicle and performed poorly on three field sobriety tests.  Moats filed a motion to suppress, arguing that the police officer did not have reasonable suspicion to seize him.  The trial court denied the motion and Moats was convicted of driving under the influence.

Issue:  The Court of Criminal Appeals reversed the trial court holding that the officer seized Moats when the blue lights were activated and that there was no reasonable suspicion to seize him.  The Court held that a seizure occurred when the lights were activated because a reasonable citizen would not feel free to leave after the officer’s show of authority in activating the lights and such seizure violated the constitutional prohibition against unreasonable seizures.

Review Granted: February 15, 2012.

Prediction: David believes the Supreme Court will likely affirm the decision of the Court of Criminal Appeals.

• Certified Question of Law Pursuant to Tenn. Rule of Crim. Pro. 37(b)(2)

Case: State of Tennessee v. Kenneth D. Hubanks (Tenn. Crim. App. 2011)

Facts: A search warrant was executed at Hubanks residence based on an affidavit wherein a confidential source, along with an agent, purchased a bag of green leafy substance that field tested positive for marijuana.  A grand jury indicted Hubanks for possession with intent to sell more than .5 grams of cocaine, possession with intent to sell more than one-half ounce of marijuana, and unlawful possession of drug paraphernalia.  Hubanks filed a motion to suppress the evidence, which the trial court denied.  Hubanks then entered a plea of nolo contender to all of the charges but reserved a certified question of law pursuant to Tenn. Rule of Crim. Pro. 37(b)(2) as to whether the search warrant established probable cause to search his residence.

Issue: The Court of Criminal Appeals held that Hubanks failed to comply with the strict requirements of Tenn. Rule of Crim. Pro. 37(b)(2) and dismissed the appeal.  The Court held that requirement of review of a certified question of law is that the judgment of conviction, or other document to which such judgment refers that is filed before the notice of appeal, must contain a statement of the certified question of law reserved by the defendant for appellate review.  Hubanks judgment of conviction reflect no mention of the reserved certified question of law and the Court of Criminal Appeals can therefore not assume jurisdiction.

Review Granted: February 15, 2012.

Prediction: David believes the Supreme Court will likely reverse the decision of the Court of Criminal Appeals. The technical requirement of  “incorporation” has been altered by the  Rules of Criminal Procedure.

• Written Communication to Juror

Case: State of Tennessee v. Prince Adams (Tenn. Crim. App. 2011)

Facts: Adams was indicted by a Shelby County grand jury for first degree premeditated murder.  At trial, Adams proceeded under the theory that he could not have formed premeditation based upon his reaction to the drug Ambien.  In support of that he called three doctors to testify at trial.  The jury rejected the defense and Adams was convicted of premeditated first degree murder.  Adams asserted on appeal  that he is entitled to a new trial because the jury foreperson received a note from a dismissed alternate juror that was improper extrinsic contact. The note indicated that the alternate jurors and the other alternate juror thought that the defendant was guilty of first degree murder.

Issue: The Criminal Court of Appeals affirmed Adams conviction and sentence.  The Court held that Adams raised no issues that would entitle him to relief.  With regard to the note received by the juror, the Court held that there was no prima facie evidence that the extrinsic contact occurred and that the contact exposed the jury to some improper influence or extraneous information that was prejudicial in nature.  Furthermore, the Court stated that while the trial judge failed to follow Tennessee Supreme Court instructions in Walsh v. State, 166 S.W.3d 641 (Tenn. 2005), regarding the questioning of the foreperson, the court reached its decision that there was no prejudice without, in any way, considering the foreperson’s specific testimony that the communication did not affect the verdict and, therefore, did not rely on any information forbidden by Walsh.

Review Granted: February 15, 2012.

Prediction: David believes the Supreme Court will likely reverse. The note fell squarely within the concept of extrinsic, prejudicial  information.

• Post-Conviction Relief – Tolling of the Statute of Limitations for Circumstances Beyond a Petitioner’s Control

Case: Artis Whitehead v. State of Tennessee (Tenn. Crim. App. 2011)

Facts: Whitehead stood trial for an incident at B.B. King’s restaurant in Memphis, involving a gunman who restrained several employees, as well as a produce delivery driver, took money and valuables from some employees, and caused serious injuries to two of his captives.  Whitehead was convicted of five counts of especially aggravated kidnapping, two counts of aggravated assault, two counts of aggravated robbery, two counts of especially aggravated robbery, and one count of attempted aggravated robbery. Whitehead was sentenced to consecutive sentences totaling 249 years.  On direct appeal, the Court of Criminal Appeals affirmed the convictions and sentences.  The Tennessee Supreme Court denied the application for permission to appeal and the United States Supreme Court denied the petition for certiorari.  Whitehead then filed a tardy petition for post-conviction relief.  The post-conviction court denied the petition after finding that the due process concerns of a misleading letter from his lawyer did not toll the statute of limitations.

Issue: The Court of Criminal Appeals affirmed the denial of post-conviction relief.  The petitioner argued a letter  from his counsel provides a basis for relief from the strict application of the one-year limitations period. It is clear that counsel mistakenly advised the petitioner regarding the deadline to file his petition for post-conviction relief. The Court held that no circumstances beyond the petitioner’s control denied him a reasonable opportunity to present his post-conviction claims in a timely manner.  Therefore, due process tolling of the limitations period was not justified.

Review Granted: February 15, 2012.

Prediction: David believes that the Supreme Court will likely reverse. The petitioner was entitled to rely on his lawyer’s  advice as to when he needed to file. Due Process requires a tolling  of the limitations period.

• Termination of Parental Rights

Case: In Re Taylor BW, and Ashley NW (Tenn. Ct. App. 2011)

Facts: The father and his wife petitioned to terminate the parental rights of the two minor children’s mother and allow the father’s wife to adopt the two minor children.  After a myriad of pleadings, the trial court held an evidentiary hearing and ruled that the father had proved statutory grounds to terminate the mother’s parental rights, and that it was in the best interest of the two minor children that her parental rights be terminated.  The mother petitioned to reconsider, and upon further consideration the trial court reversed its ruling and held that it was not in the children’s best interest to terminate her rights as a parent of the two children.

Issue: The Court of Appeals reversed and reinstated the original judgment of the trial court terminating the mother’s parental rights.  The Court held that according to Tenn. Code Ann. § 36-1-101(d) in all cases, when the best interests of the child and those of the adults are in conflict, such conflict shall always be resolved to favor the rights and the best interests of the child, which interests are hereby recognized as constitutionally protected and, to that end, this part shall be liberally construed.

Review Granted: February 16, 2012.

Prediction: Sarah believes that the Supreme Court will likely uphold the decision of the Court of Appeals because it is not about whether a parent should be given another chance to establish and maintain a relationship but what effect termination of the parent’s parental rights would have on the children.

Continue Reading…

 

Raybin And Perky Tennessee Supreme Court Hot List – Part 2

Raybin And Perky Tennessee Supreme Court Hot List – Part 3

Raybin And Perky Tennessee Supreme Court Hot List – Part 4

Raybin And Perky Tennessee Supreme Court Hot List – Part 5

Raybin And Perky Tennessee Supreme Court Hot List – Part 6