Evelyn Nye v. Bayer Cropscience, Inc., et al. - Concurring/Dissenting
I concur in the majority’s conclusion that the learned intermediary doctrine is not applicable to the facts of this case. I disagree, however, that Pittsburgh Corning Corporation (“Pittsburgh Corning”) and Owens Corning Corporation (“Owens Corning”) were unavailable for service of process and that North Brothers, Inc. (“North Brothers”) therefore is subject to suit in strict liability pursuant to Tennessee Code Annotated section 29-28-106 (2000). |
Hamilton | Supreme Court | |
State of Tennessee v. Cedric Johnson
This appeal involves the application of the mandatory joinder provisions in Tenn. R. Crim. P. 8(a)(1)(A). The defendant was charged with committing an aggravated robbery and was separately charged with initiating a false police report twelve hours later regarding his automobile that was somehow connected with the robbery. Approximately one month after he was indicted by a Shelby County grand jury for initiating a false police report, the defendant pleaded guilty to attempting to initiate a false police report. Thereafter, a Shelby County grand jury indicted the defendant for aggravated robbery. The defendant filed a motion in the Criminal Court for Shelby County seeking to dismiss the aggravated robbery indictment in accordance with Tenn. R. Crim. P. 8(a)(2) because the State had already prosecuted him separately on the initiation of a false police report charge. The trial court granted the defendant’s motion, and the State appealed to the Court of Criminal Appeals. A divided panel of the Court of Criminal Appeals affirmed the trial court’s judgment. State v. Johnson, No. W2008-01593-CCA-R3-CD, 2009 WL 4263653 (Tenn. Crim. App. Nov. 30, 2009). We granted the State’s application for permission to appeal to address the application of Tenn. R. Crim. P. 8(a)(1)(A) to offenses arising from the same criminal episode. We have determined that the two offenses involved in this case were not part of the same criminal episode and, therefore, that the Court of Criminal Appeals erred by relying on Tenn. R. Crim P. 8(a)(2) to dismiss the aggravated robbery charge. |
Shelby | Supreme Court | |
Dalton Reb Hughes et al. v. the Metropolitan Government of Nashville and Davidson County, Tennessee et al.
After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee’s conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee. |
Davidson | Supreme Court | |
Wendell P. Baugh, III et al., v. Herman Novak et al.
This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy. The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers’ alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation. Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers’ counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. § 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009). We granted the sellers’ Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court’s decision to dismiss the purchasers’ counterclaim for fraudulent inducement. |
Williamson | Supreme Court | |
Jason Calvert v. State of Tennessee
We granted the defendant’s application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant’s legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel’s performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel’s failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion. |
Davidson | Supreme Court | |
William B. Penn v. Board of Professional Responsibility
We have reviewed the record to determine whether Mr. Penn’s petition for writ of certiorari satisfied the requirements identified in Cawood as necessary to confer subject matter jurisdiction upon the trial court. Because Mr. Penn’s petition failed to conform to Tennessee Code Annotated section 27-8-106, in that it was neither “sworn to” nor included language assuring that “it is the first application for the writ,” the trial court lacked jurisdiction to hear and decide his petition. For these reasons, the Board’s motion to dismiss Mr. Penn’s appeal is hereby granted, and the trial court’s December 1, 2009 order is vacated. This Court’s March 31, 2011 order allowing supplemental briefing is also vacated. Because the sanction imposed by the Hearing Panel exceeds a three-month suspension and because no appeal was properly perfected, the Board is directed to file a copy of the Hearing Panel’s order for review by this Court in accordance with Tennessee Supreme Court Rule 9, section 8.4. |
Shelby | Supreme Court | |
Michael Angelo Coleman v. State of Tennessee
This appeal involves the role of expert testimony in proceedings to determine whether a prisoner who has been sentenced to death is intellectually disabled and thus barred from being executed under Tenn. Code Ann. § 39-13-203 (2010). An inmate facing execution filed a motion in the Criminal Court for Shelby County to re-open his post-conviction proceedings on the ground that he was intellectually disabled at the time he committed the crime for which he was convicted and on the ground that his trial counsel had been ineffective in investigating and presenting mitigating evidence. At the hearing, the prisoner presented expert testimony that his functional intelligence quotient (“I.Q.”) was actually lower than the raw test scores on his I.Q. tests and that he was mentally disabled for the purpose of Tenn. Code Ann. § 39-13-203(a). The State presented no contrary evidence. The trial court dismissed the prisoner’s motion to re-open his post-conviction petition after concluding that he had failed to prove that he was intellectually disabled and that he was procedurally barred from raising his ineffective assistance of counsel claim. The Court of Criminal Appeals affirmed the judgment of the trial court. Coleman v. State, No. W2007-02767-CCA-R3-PD, 2010 WL 118696 (Tenn. Crim. App. Jan. 13, 2010). We granted the prisoner’s Tenn. R. App. P. 11 application for permission to appeal. We find that Tenn. Code Ann. § 39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated. We have also determined that both the post-conviction trial court and the Court of Criminal Appeals properly determined that the prisoner’s claim involving the ineffective assistance of his trial counsel in connection with the investigation and presentation of mitigation evidence is procedurally barred. |
Shelby | Supreme Court | |
State of Tennessee v. Teddy Ray Mitchell
The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disputed testimony was properly admitted, the evidence was sufficient to support a conviction for disorderly conduct, and there was no violation of the right to free speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence is reinstated. |
Hamblen | Supreme Court | |
State of Tennessee v. Teddy Ray Mitchell - Dissenting
I write separately to dissent from the majority’s decision to affirm the defendant’s conviction for disorderly conduct. After giving proper deference to the jury’s verdict, I cannot agree that the evidence is sufficient to support Mr. Mitchell’s conviction for disorderly conduct. Moreover, I conclude that Mr. Mitchell’s conduct was protected as free speech. |
Hamblen | Supreme Court | |
David Lee Wright ex rel. Kaitlyn Lee Wright v. Anita J. Wright et al.
We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court. |
Fentress | Supreme Court | |
David A. Lufkin, Sr. v. Board of Professional Responsibility of the Supreme Court of Tennessee
An attorney who was suspended from the practice of law for two years and assessed costs associated with the suspension proceedings appeals to this Court for relief from all or a portion of the assessed costs. While this appeal was pending, the attorney filed a Chapter 7 bankruptcy petition, and his pre-bankruptcy debts were discharged by order entered by the Bankruptcy Court on December 10, 2010. We hold that the assessment of costs of the disciplinary proceeding was a debt that was discharged in the attorney’s bankruptcy case and is, therefore, no longer due and owing. Accordingly, the attorney’s appeal to this Court is moot. |
Davidson | Supreme Court | |
State of Tennessee v. Alecia Diane Cooper
In summary, we conclude that the two judgments of conviction violate the principles of double jeopardy, and the sentence, as currently structured, violates the express provisions of the misdemeanor sentencing statute. Accordingly, the judgment of the Court of Criminal Appeals is affirmed, but the case is remanded to the trial court for merger of the two convictions into a single offense for DUI and for imposition of a sentence compliant with our statutory guidelines. Costs are adjudged one-half to the State and one-half to the Defendant, for which execution may issue if necessary. |
Bedford | Supreme Court | |
State of Tennessee v. Richard Odom
The defendant was convicted of first-degree murder in the perpetration of rape. In the penalty phase of the trial, the jury imposed a sentence of death, finding three aggravating circumstances beyond a reasonable doubt: (1) the defendant was previously convicted of one or more violent felonies; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was committed during the defendant’s escape from lawful custody or from a place of lawful confinement. The Court of Criminal Appeals affirmed the conviction, but reversed the death sentence, holding that the trial court’s limitation on the mitigating evidence during the penalty phase required a new sentencing hearing. This Court affirmed. A second jury sentenced the defendant to death, concluding that the single aggravating circumstance, that the defendant had previously been convicted of one or more violent felonies, outweighed the mitigating circumstances beyond a reasonable doubt. The Court of Criminal Appeals affirmed. This Court reversed, holding that because the trial court had erroneously admitted detailed evidence of the defendant’s prior violent felony offense, a third sentencing hearing was required. The jury again imposed a sentence of death, concluding that two statutory aggravating factors, that the defendant had been previously convicted of a felony involving the use of violence to the person and that the murder was committed while the defendant was engaged in the commission of a robbery, had been established beyond a reasonable doubt, and further determining that the aggravating circumstances outweighed the evidence of the mitigating circumstances beyond a reasonable doubt. This sentence was affirmed by the Court of Criminal Appeals. Upon careful review of the entire record, we hold as follows: (1) the defendant’s constitutional right to a fair and impartial jury was not violated by the disqualification of a prospective juror; (2) the prosecutor’s closing argument did not result in the use of non-statutory aggravating factors in the jury’s weighing process warranting reversal of the death sentence; (3) the admission of photographs of the body did not constitute error; (4) the trial court’s instructions on parole did not violate the defendant’s right to due process of law and heightened reliability; (5) the mandatory criteria of Tennessee Code Annotated section 39-13-206(c)(1) are satisfied; and (6) the reduction of the amount of compensation sought by appellate defense counsel by a judge on the Court of Criminal Appeals did not require his disqualification from participating in this case. The judgment of the Court of Criminal Appeals is, therefore, affirmed. |
Shelby | Supreme Court | |
Thomas M. Gautreaux v. Internal Medicine Education Foundation, Inc.
Plaintiff requested records from a nonprofit foundation pursuant to the Tennessee Public Records Act. The nonprofit foundation refused the request, stating that the foundation was not a government agency and that the records were not public. Plaintiff filed a Petition for Access to Public Records in chancery court, which held that the records were available because the nonprofit foundation was the functional equivalent of a government agency. The Court of Appeals affirmed. We hold that the nonprofit foundation’s records are not available pursuant to the Tennessee Public Records Act because it is not the functional equivalent of a government agency. We also hold that its records are not available pursuant to Tennessee Code Annotated section 10-7-503(d) (1999) because the nonprofit foundation has no more than two full-time staff members. We therefore reverse the judgment of the lower courts and dismiss the case. |
Hamilton | Supreme Court | |
In Re: John Jay Hooker - Order
John Jay Hooker has filed a motion requesting this Court (1) to set aside its June 21, 2010 order directing the Clerk of the Appellate Courts to decline to accept any of his further filings in this case and (2) to rescind its January 7, 2010 order enforcing the October 20, 2008 order of the Chancery Court for Davidson County suspending his license to practice law for thirty days. Mr. Hooker has also requested that all the members of the Court recuse themselves from this proceeding because they “are prejudiced against him as a consequence of a contentious political dispute before the legislature . . . regarding the [c]onstitutionality of the [r]etention [e]lection [s]tatute.” In order to address Mr. Hooker’s first two requests, the Court must first address his renewed insistence that all the members of this Court are disqualified from any proceedings involving his law license. It is, therefore, ordered that the Clerk of the Appellate Courts is directed to accept and file the motion lodged by Mr. Hooker on January 14, 2011. It is further ordered that Mr. Hooker’s motion requesting all the members of this Court to recuse themselves from this proceeding is denied. |
Supreme Court | ||
Kristen Cox Morrison v. Paul Allen, et al.
After the death of her husband, the plaintiff filed suit against their agents/financial planners based upon several theories of recovery in regard to the termination of a life insurance policy from one company and the acquisition of a replacement policy from a second company. After initially contesting the award of benefits, the second company, which was also named as a defendant in the suit, settled with the plaintiff. At the conclusion of the bench trial as to the liability of the agents, the plaintiff was awarded substantial damages as to each policy based upon various theories of recovery: the agents’ failure to procure a life insurance policy as directed, negligence, negligent misrepresentation, breach of fiduciary duty, and violation of the Tennessee Consumer Protection Act. The Court of Appeals affirmed in part, but held that the damages in contract relating to the failure to procure should be offset by the amount of the plaintiff’s pre-trial settlement with the second insurance company. Because of the nature of the issues presented, this Court granted permission to appeal. As to the policy for which benefits were denied by the second company, we hold that (1) a cause of action may arise for the failure of the agents to procure a policy not subject to contest; (2) the claim for failure to procure may be actionable, notwithstanding the policy holders’ admission that they did not read the insurance application; and (3) because the settlement by the second life insurance company was not specifically resolved based upon contract, the agents are not entitled to a credit against damages caused by their failure to procure. As to the policy terminated by the plaintiff, we hold that the evidence preponderates against any award of damages based upon negligence, negligent misrepresentation, breach of fiduciary duty, or violations of the Tennessee Consumer Protection Act. Finally, we hold that the ad damnum clause in the complaint provided the agents with sufficient notice to support a damage award in the amount of $1,000,000 plus pre-judgment interest. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court for determination of post-judgment interest. |
Davidson | Supreme Court | |
Kristen Cox Morrison v. Paul Allen, et al. - Dissent
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Davidson | Supreme Court | |
Kristen Cox Morrison v. Paul Allen, et al. - Dissent
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Davidson | Supreme Court | |
Estate of Martha S. French v. Stratford House et al.
The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act. The trial court granted the defendants’ motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix’s application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals. We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals’ reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court. |
Hamilton | Supreme Court | |
Estate of Martha S. French v. Stratford House et al. - Dissenting
This appeal involves important questions regarding the process for adjudicating the liability of nursing homes for injuries to their residents. In particular, it requires this Court to articulate the principles that should be used to decide whether a claim based in part on the conduct of a certified nursing assistant (“CNA”) should be treated as a medical malpractice claim or as an ordinary negligence claim. The Court has determined that claims involving the adequacy of CNAs’ training, the sufficiency of the staffing at a particular nursing home, and the adherence of CNAs to a patient’s plan of care are ordinary negligence claims that can be substantiated without the introduction of expert proof. The Court has also decided that the negligence per se doctrine permits the use of federal and state regulations regarding the licensing of nursing homes to create and define the scope of the duty of care that nursing homes owe to their patients. I cannot concur with either decision. |
Hamilton | Supreme Court | |
State of Tennessee v. Genaro Dorantes
The defendant, who was extradited from Mexico to face charges for aggravated child abuse |
Davidson | Supreme Court | |
Blue Bell Creameries, LP v. Richard Roberts, Commissioner, Department of Revenue, State of Tennessee
Taxpayer is a Delaware limited partnership that produces, sells, and distributes ice cream in Tennessee and elsewhere. At issue in this appeal is the Tennessee Department of Revenue’s excise tax assessment on capital gains from a one-time stock transaction between Taxpayer and its holding company. Taxpayer sought a refund in chancery court, challenging the validity of the tax assessment on statutory and federal constitutional grounds. Both Taxpayer and the Department moved for summary judgment. The chancery court granted summary judgment to Taxpayer, and the Court of Appeals affirmed the judgment. Based on the uncontested facts in the record, we hold that Taxpayer’s capital gains were business earnings pursuant to the functional test provided in Tennessee Code Annotated section 67-4-2004(1) (Supp. 2000) and therefore subject to the excise tax. Additionally, we hold that the tax assessment was constitutional pursuant to the unitary business principle. We therefore reverse the judgment of the Court of Appeals and enter summary judgment for the Department. We remand to the trial court to determine the amount of excise tax related to Taxpayer’s capital gains. |
Davidson | Supreme Court | |
State of Tennessee v. Jeremy Garrett
The defendant was indicted separately for two different criminal episodes, one involving an aggravated robbery and the other involving a homicide and an especially aggravated robbery. On the State’s motion but over the defendant’s objection, and without conducting an evidentiary hearing, the trial court consolidated the indictments for a single trial. The jury convicted the defendant of all offenses charged, and the Court of Criminal Appeals affirmed. On appeal, the defendant contends that the trial court committed reversible error in consolidating the offenses. We hold that the trial court erred both as to methodology and as to result in consolidating the indictments. When a defendant objects to the State’s pretrial motion to consolidate offenses, the trial court must conduct a hearing and consider the motion under the severance provisions of Tennessee Rule of Criminal Procedure 14(b)(1), not the provisions of Rule 8(b). We also hold that a prosecutor should refrain from seeking the consolidation of offenses over a defendant’s objection unless the prosecutor has a good faith basis for arguing that the requirements of Rule 14(b)(1) will be met. The trial court’s error in ordering consolidation requires that we reverse the defendant’s conviction of aggravated robbery and remand for a new trial on that charge. The trial court’s error was harmless as to the defendant’s convictions for first degree felony murder and especially aggravated robbery, and we affirm those convictions. |
Shelby | Supreme Court | |
Bob Fannon, Individually and as a City Councilman for the City of LaFollette v. City of LaFollotte, et al.
An elected council member of the City of LaFollette filed a declaratory judgment action alleging that three other members of the council had violated the terms of the Open Meetings Act in the process of adopting a resolution to increase the pay of various city employees. The trial court, after a hearing, granted a temporary restraining order, restricting implementation of the pay raises until the City complied with the procedural requirements of the City Charter. The order did not address the Open Meetings Act allegations. At a subsequent meeting, the Council, apparently in accordance with the requisite guidelines, approved the pay raises. After the Plaintiff filed a motion for summary judgment and then a motion seeking attorney’s fees and costs, the trial court dismissed the Open Meetings Act claim as moot, but awarded fees and costs to the council member who had initiated the suit. The order did not address a challenge by the City to the council member’s standing to sue. On direct appeal by the City, the Court of Appeals confirmed that the council member had standing as a taxpayer, rather than in his official capacity, but reversed the award of attorney’s fees and costs. Because the litigation involves issues of public interest, this Court granted an application for permission to appeal. We hold that the council member had no standing to sue as a council member or a taxpayer, but that he did have standing based upon his allegations of an Open Meetings Act violation. As the prevailing party, he is entitled to an award of discretionary costs, but not attorney’s fees. The judgment is, therefore, affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion. |
Campbell | Supreme Court | |
Bob Fannon v. City of LaFollette et al. - Concurring
I concur with the Court’s conclusion that Mr. Fannon has standing under Tenn. Code Ann. § 8-44-106(a) (2002) to seek judicial relief from his colleagues’ violation of the Sunshine Law [Tenn. Code Ann. §§ 8-44-101 to -111 (2002 & Supp. 2010)]. I also agree that Mr. Fannon was the prevailing party in the proceedings below and that he was entitled to recover discretionary fees under Tenn. R. Civ. P. 54.04(2) but not attorney’s fees. I am constrained to prepare this separate opinion because, unlike the Court, I have concluded that Mr. Fannon’s status as a public official provides an independently sufficient basis to confer standing on him to challenge the conduct of his fellow members of the LaFollette City Council. |
Campbell | Supreme Court |
