(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of May 5, 2008)

The Court granted review in two cases this week both dealing with final judgments for purposes of appellate jurisdiction.

• Final Judgments; Civil Cases

In Derek Davis v. Shelby County Sheriff's Dept., a former deputy sheriff was terminated after testing positive for marijuana. The administrative board upheld the county's decision. Former deputy sheriff then appealed to the chancery court, seeking review of the administrative board's decision. Former deputy sheriff then filed a motion to amend his petition to add claims. Without ruling on the motion to amend, the chancery court affirmed the decision of the board. However, the Court of Appeals dismissed the appeal finding that there was not a final judgment over which the Court could exercise appellate jurisdiction since the chancery court had failed to rule on former deputy sheriff's motion to amend and thus, the judgment was not final for failure to adjudicate all the claims between the parties. The Supreme Court granted review on May 5, 2008.

Prediction: It is well settled that appellate courts may only adjudicate final judgments; therefore, Sarah believes the basis for the Supreme Court's review is likely related to some other matter contained in the record or perhaps the lack thereof. David agrees that the deficiency in the appeal is a lack of a final judgment particularly in light of the appeal granted in State v. Byington, discussed next, which raises the same issue except in a criminal case.

• Final Judgments; Criminal Cases

In State v. Byington, the defendant was granted a delayed appeal because his attorney did not file a timely motion for a new trial. To remedy the problem another new trial motion was allowed but there was no order in the record overruling the new trial motion. The Court of Criminal Appeals recognized that "this case has been a procedural nightmare" but dismissed the appeal for lack of jurisdiction because there was no order denying the motion for a new trial: "Until the trial court denies the motion for new trial, this Court does not have jurisdiction to hear the appeal. ......Rule 25(a) of the Tennessee Rules of Appellate Procedure provides in part that "[a]fter filing notice of appeal the parties shall comply with the provisions of Rule 24 [Tenn. R. App. P.] and shall take any other action necessary to enable the clerk to complete the record." We interpret this to include a requirement that an appellant must ensure that the appellate record contains all documents necessary for the disposition of an appeal on its merits. Defendant in this case presented a timely filed motion for new trial. However, the record contains no written order denying the motion. Although Appellant filed a notice of appeal, the notice does not confer jurisdiction upon this Court. We, therefore, have no choice but to dismiss this appeal for lack of jurisdiction." The Tennessee Supreme Court granted review on behalf of Mr. Byington.

Prediction: David believes this is an appeal that never should have been granted. First the lawyer should have ensured the record was in proper shape before he filed his brief. Secondly, he could have avoided this problem by asking for the Order even after the appeal was filed. Third, the clerk should have included the Order since how else did the defendant know when to file the notice of appeal. If there was no such order the District Attorney should have prepared one. Lastly, the appellate court should have remanded the case for the Order to have been included. I suppose the Supreme Court could have just resolved this with an Order remanding it but what a mess: All for want of a nail.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 28, 2008)

The Court granted review in one case this week.

Writ of Error Coram Nobis

In Harris v. State, Tenn. Crim App.(filed December 3, 2007) the Court of Criminal Appeals remanded the case for an evidentiary hearing as to the significance of a letter "from Bill" which ostensibly exonerated the defendant: "Bill confessed to killing the victim." The prosecutor did not have the letter until after the trial. Later investigation disclosed who "Bill" might be. The Court held: " For this reason, we conclude that the record is insufficient for this Court to determine whether the letter and additional documentation would constitute newly discovered evidence. Therefore, we reverse the lower court's decision with regard to this issue and remand for a hearing to determine whether due process considerations warrant the tolling of the statute of limitation for coram nobis review. In this hearing, the lower court must determine whether Petitioner has sufficient evidence to prove that Mr. Foster wrote the letter in question. If the lower court determines that the addition of the handwriting analysis report and the documents regarding Mr. Foster constitute newly discovered evidence, then a hearing on the merits of the coram nobis petition should be held." The Tennessee Supreme Court granted the state's Rule 11 application.  

Prediction: David thinks this fact-bound case presents an arguably unlawful extension of the very limited nature of the Writ of Error Coram Nobis and will be reversed.

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 21, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 14, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of April 7, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 31, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 24, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 17, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 10, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of March 3, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted by the Tennessee Supreme Court through the Week of February 25, 2008)

• Death Penalty; Ineffective Assistance of Counsel; Standard of Review

In Dellinger v. State the defendant was sentenced to death for homicide. The Court of Criminal Appeals affirmed the denial of post-conviction relief. The Tennessee Supreme Court granted review. The defendant's attorney raised a multitude of case-specific grounds so it is difficult to determine which issues are of primary interest to the Tennessee Supreme Court. David's review of the Court of Criminal Appeal's opinion suggests that the Supreme Court is interested in the standard of review. The defendant contended that the Tennessee Supreme Court replaced the reasonable probability standard of proof applied in Strickland with one that impermissibly requires a petitioner to prove his claim of ineffective assistance of counsel by clear and convincing evidence. It is true that claims of ineffective assistance use the "reasonable probability standard" whereas Tennessee law imposes a clear and convincing evidence standard for post conviction cases. Judge Tipton's opinion did a good job of explaining the distinctions between findings of fact and legal conclusions. Still, this may present an opportunity for the Court to clarify the standard. A related claim concerns an allegation of actual innocence which would result in a more deferential standard of review than that applied to claims of constitutional error unaccompanied by a claim of innocence.

Prediction: David thinks our Supreme Court may focus on the sophisticated claim-of-innocence issues and find that it falls within the post conviction statute but that in this case it will not alter the result. A powerful showing of innocence is already considered in such cases since it measures the degree of prejudice necessary to prevail on other issues: in a close case even a slight error can result in relief. Nevertheless, David believes that Due Process would cover any claim where the evidence strongly suggests actual innocence.

• Agency Relationship For In Personam Jurisdiction

In Creech v. Addington, the Court of Appeals addressed alleged claims of misrepresentation at a meeting in Gatlinburg concerning investments in casino barges operating on the Mississippi. The plaintiffs thought this was a good bet and bought into it. Not surprisingly the scheme failed and the plaintiffs sued for recovery arguing they were "led down the river." The Court of Appeals affirmed some of the judgments and reversed others. The Supreme Court granted the defendant's appeal presumably on the primary issue of jurisdiction over non-resident defendants. The question concerned the scope of the agency relationship - if any - between the those that made the presentation and the target defendants. This is complicated by the special verdicts as to the agency relationship because some of the plaintiffs attended the meeting while others relied on representations made at the meeting.

Prediction: David thinks this is a case to explore the scope of agency relationship as it relates to the minimum contacts test for in personam jurisdiction. As to how it will be resolved David sees a total new trial with more specific special verdicts being required as to all the plaintiffs left standing in the case. I think the defendants have the better of this issue which, while it may not break new law, will clarify the scope of out-of-state jurisdiction when acting through an ostensible agent.

• Public Education Employee Collective Bargaining Agreements

In Metropolitan Nashville Ed. Assoc. v. Metropolitan Bd. Of Public Ed., a dispute arose between the teachers' association and the board of education concerning the reinstatement of a high school mathematics teacher who had also served as head coach of the boys' baseball and basketball teams. The parties submitted the dispute to arbitration wherein the arbitrator directed that the teacher be reinstated to both his teaching and coaching positions under the collective bargaining agreement. As a result of the board's refusal to reinstate the teacher to the coaching position, the teachers' association filed a complaint in chancery court. The court granted the board summary judgment finding that the arbitrator exceeded its authority in interpreting the agreement. On appeal, the court found that the trial court erred in granting the board summary judgment finding that the interpretation of the agreement with respect to the coaching position was within the province of the arbitrator. The Supreme Court reversed and remanded the case to the Court of Appeals for reconsideration in light of the substantially similar case of Lawrence County Ed. Assoc. v. Lawrence County Bd. of Ed, where the Court held that the director of schools has the power to transfer a tenured teacher as to their coaching responsibilities, without regard to a collective bargaining agreement, so long as that transfer does not affect the employee's position as a teacher.

• Discovery of Liability Insurance Coverage

In James G. Thomas, Jr. v. Elizabeth Oldfield, M.D., the trial court ordered Defendants in a medical malpractice action to produce information regarding liability insurance coverage during the course of pre-trial discovery pursuant to Tenn. R. Civ. P. 26. On an interlocutory appeal, the court reversed holding that information regarding the liability insurance coverage was not discoverable under Tenn. R. Civ. P. 26 as it bore no connection to any claim or defense in the suit; was neither admissible nor reasonably calculated to lead to the discovery of admissible evidence; and was not sought for the preparation of the requesting party's case for trial. The Supreme Court granted review on February 25, 2008.

Prediction: There is much debate about the usefulness of requiring parties to exchange liability insurance coverage during pre-trial discovery in order to facilitate settlement. However, Sarah believes it is likely that the Supreme will affirm. David thinks there is a slight chance the Court may "overrule"" the Farm Bureau which has been fighting this change in the legislature for years.

• Abatement of Suit for Divorce and Nunc Pro Tunc Judgments

In Edwinna Ruth Blackburn v. Heath Bradley Blackburn, the court approved the parties' divorce and settlement agreement on June 6, 2005 in open court. On October 30, 2005, husband died in an automobile accident prior to the entry of the final decree of divorce. Wife subsequently filed a suggestion of death and a motion to dismiss her divorce complaint arguing that her divorce suit abated upon the death of husband since the court failed to enter a final judgment prior to husband's death. Finding that wife's attorney had submitted a proposed judgment to husband's counsel on June 13, 2005 and wife had held herself out to the court as unmarried, the trial court instead entered the proposed judgment nunc pro tunc. On appeal, the court upheld the trial court's finding that it granted the parties a divorce at the June 6, 2005 proceeding. The Supreme Court granted review on February 25, 2008.

Prediction: Sarah believes the Supreme Court will likely reverse. The court only speaks through its orders and until such time that a ruling has been reduced to a writing and entered on the minutes of the court, it is inchoate and has not force whatsoever, see Goolsby v. Upper Cumberland Oil, Inc., 34 S.W.3d 309, 313 (Tenn.Ct.App.2000), therefore; the divorce suit abated upon husband's death. David agrees.

• Timing of Lease Renewals

In Mike Ellis v. Pauline S. Sprouse Residuary Trust, landlord leased property to farmer for a five-year term beginning January 1, 1997, renewable for a second five-year term at farmer's option with rent due on or before January 31 of each year. Farmer farmed the land from 1997 through 2001 and "probably" gave his intent to renew the lease for a second five-year term in January 2002. Farmer continued to farm the land in 2002, 2003, and 2004, paying rent in January. In May 2004, prior landlord sold the property to new landlord. New landlord demanded that farmer vacate the property at the end of 2004, alleging that farmer had failed to renew his lease and that he was merely a holdover tenant. Farmer vacated the premises under protest and filed suit. The jury returned a verdict in favor of farmer finding that he had properly renewed the lease for the five-year period and that he was entitled to lost profits and punitive damages. On appeal, the court reversed finding that farmer was merely a holdover tenant because farmer had failed to renew the lease before the expiration of the first lease. The Supreme Court granted review on February 25, 2008.

Prediction: Sarah believes the Supreme Court will likely reverse finding that there was material evidence to support the jury's verdict. David knows nothing about property law and has no opinion.

• Duty of Care & Foreseeability

In Diane Downs, Individually and as Natural parent of Ryan Cody Downs v. Mark Bush, the mother of decedent filed a wrongful death action against friends of decedent with whom decedent had been partying on night of his death. On the drive home, friends placed decedent in the bed of the truck because he was intoxicated and nauseous. At some point decedent jumped or fell out of the truck and then was seen intentionally running across the interstate before being struck by a vehicle and killed. Defendants filed summary judgment alleging that they owed no duty to decedent, they did not breach any duty, and decedent's injuries were a result the decedent intentionally running into traffic. The trial court granted Defendants summary judgment without stating its grounds. On appeal, the court affirmed finding that each Defendant was entitled to summary judgment based on a lack of duty as well as a lack of foreseeability. The Supreme Court granted review on February 25, 2008.

Prediction: The Supreme Court will affirm the court's decision to grant Defendants summary judgment based on a lack of duty; however, the Court will likely reverse on the issue of foreseeability. The Court of Appeals opinion is well-reasoned however in such a close case, foreseeability is best left to the province of the trier of fact rather than disposed of on summary judgment.

(An Analysis of Reviews Granted the Week of February 19, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of February 11, 2008)

NO REVIEWS WERE GRANTED THIS WEEK

(An Analysis of Reviews Granted the Week of February 4, 2008)