Raybin and Richter Tennessee Supreme Court Hot List - Law Firm Hollins, Raybin & Weissman, P.C. . Attorneys Nashville, Tennessee

(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 and Sarah Richter (who is now Sarah Perky; congratulations!!) 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.

Current CASES PENDING REVIEW IN THE SUPREME COURT of TENNESSEE
as of February 1, 2010.

•· Failure to Provide Sentencing Notice

In State v. Cooper, August 03, 2009 the defendant was convicted of aggravated rape. Although the defendant was put on notice of his prior record by notice of prior bad acts the State did not file the notice of the "three strikes" sentencing under after the trial. The defense lawyer did not object and so the matter was resolved on appeal under the stricter plain error standard. The Court of Criminal Appeals found no prejudice and no plain error and affirmed. The Tennessee Supreme Court granted review on February 1, 2010. Prediction: Prejudice leaps off the page here. This fellow was sentenced to life without parole. The statutory remedy for a tardy pretrial notice is a mandatory continuance. But if the state fails to give any notice until after trial, you don't need a statute to say that the State is out of luck. Simple waiver analysis ends that discussion. This will be reversed. If there is no notice on the "three strikes" it is the state which is "out!"

•· Application of the Sale-for-Resale Exemption to the Use Tax

In CAO Holdings, Inc. v. Loren Chumley, Commissioner of Revenue, State of Tenn., the Commissioner of Revenue assessed a tax based on taxpayer's use of an airplane which had been purchased out of state. Taxpayer sought review from the Department, but was denied relief following an informal hearing. Taxpayer appealed and the chancery court reversed, finding that, because (1) taxpayer provided the seller with a certificate of resale, (2) taxpayer immediately leased the airplane such that it transferred possession and control of the plane to the user, and (3) taxpayer was a validly organized business which observed all corporate formalities, the sale-for-resale exemption pursuant to Tenn. Code Ann. § 67-6-102(34)(A) applied to the transaction. On appeal, the court affirmed. The Supreme Court granted review on January 25, 2010.

Prediction: The Tennessee Supreme Court will likely address the dissenting opinion of Judge Clement which argues that because the corporate taxpayer was the primary user of the airplane, the primary purpose of the airplane was not "leasing" as required by the sale-for-resale exemption and thus, the exemption does not apply. Sarah believes the Court will reverse relying on the grounds set forth in Judge Clement's well-reasoned dissent.

•· Workers Compensation

In Padilla v. Twin City Fire Insurance Co., the Court granted review in a Workers Compensation case on December 21, and requested briefing on the following question: "When an employee suffers an injury in the workplace as a result of a "neutral force" assault, is there a presumption that the injury is compensable, or does the employee bear the burden of proving that the assault was related to the employment?"

•· Subject Matter Jurisdiction under Tenn. Code Ann. § 9-8-307(a)(1)(E) ; Care and Custody

In Candace Mullins v. State of Tennessee, Mother filed wrongful death action on behalf of minor child who was murdered while in the care of a relative after he had been removed from Mother's home by the Tennessee Department of Children Services ("DCS"). Mother alleged that if the caseworker assigned to the minor child's case had properly investigated an earlier allegation of abuse in the relative's home, the child would have been removed prior to the murder. The Claims Commission held that it did not have subject matter jurisdiction to hear Mother's claim pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(E) because the minor child was not in the care, custody or control of the State at the time of the alleged negligence. On appeal, the court affirmed finding that the minor child was in the care, custody and control of a relative rather than a State agency at the time of the alleged negligence; therefore, the Claims Commission did not have subject matter jurisdiction. The Supreme Court granted review on December 14, 2009.

Prediction: The Tennessee Supreme Court will likely address whether DCS has a duty to supervise temporary placements of children for the juvenile court and whether such supervision constitutes "control" within the meaning of Tenn. Code Ann. § 9-8-307(a)(1)(E). Sarah believes the Court will affirm the decision of the Court of Appeals. David disagrees; the lower courts are too restrictive of the care and custody issue. David thinks it will be reversed.

•· Standard of Review of Arbitration Award

In Pugh's Lawn Landscape Co., Inc. v. Jaycon Development Corp., Appellant appealed the trial court's order confirming an arbitration award entered in favor of Appellee. The arbitration agreement permitted either party to appeal the arbitrator's decision directly to the Court of Appeals and specified that the Court would conduct a de novo review of the arbitrator's decision as if it had been reached by the trial court. The Court of Appeals found that Tennessee's arbitration statutes did not permit the parties to expand the scope of judicial review. Accordingly, the Court applied the standard of review specified in the statute and affirmed the trial court's order confirming the arbitration award. The Supreme Court granted review on December 14, 2009.

Prediction: The Tennessee Supreme Court will likely address whether parties to an arbitration agreement can agree to modify the statute setting forth the standard by which courts review arbitration awards. Sarah believes the Court will affirm the decision of the Court of Appeals. David agrees.

•· Requirements of Binding Arbitration

In Elizabeth Sams Tuetken v. Lance Edward Tuetken, Mother appealed the trial court's decision to modify the arbitrator's award in a dispute concerning the parties' parenting plan and child support obligations, alleging that modification of the arbitrator's award was impermissible under the Uniform Arbitration Act. On appeal, the court held that parties entered into a non-binding dispute resolution proceeding under Tennessee Supreme Court Rule 31 and thus, the Uniform Arbitration Act was inapplicable and the trial court's decision to modify the arbitrator's award should be affirmed. The Supreme Court granted review on December 14, 2009.

Prediction: The Tennessee Supreme Court will likely address the conditions under which a party may agree to binding arbitration. Sarah believes the Court will affirm the decision of the Court of Appeals finding that Father did not voluntarily agree to binding arbitration.

•· Search and Seizure ; "Knock and Talk"

In State v. Talley, "the record reflects that in August 2005, the appellant lived in a condominium building on Thirty-First Avenue North in Nashville. The building's front door was always locked, and residents gained entry to the building by entering an access code into a keypad outside the main door. On August 16, 2005, detectives went to the building after receiving a tip that the appellant was selling drugs from his condominium. When the detectives arrived and found the building's front door locked, they called their department to obtain the access code, which was on file. While waiting for the code, a man exited the building and let the detectives inside. The detectives went to the appellant's condominium on the second floor and knocked on the door. The appellant was not home, but Kimberly Knight answered the door. She told the officers she had been living in the condominium with the appellant for about three weeks, and she gave the officers permission to come inside. In plain view, the detectives saw a glass crack pipe and a knife with a white residue on it. They secured the scene and obtained a search warrant for the condominium and the appellant's place of business. Searches revealed controlled substances and child pornography at both locations. The appellant was arrested, and he stated that he was addicted to cocaine and that he exchanged pills with his friends for money. Subsequently, the appellant filed motions to suppress the evidence and his statement. In pertinent part, he claimed in the motions that the evidence and the statement resulted from an unlawful search because the detectives gained warrantless, unreasonable entry to the private condominium building." The Court found that the entry into the building did not violate the defendant's expectation of privacy. However, the court said "the evidence at the suppression hearing established that after the detectives entered the building, they immediately went upstairs to the appellant's condominium and knocked on the door. According to Charles Reasor's testimony, this would have taken only one to two minutes. Therefore, factor one, the temporal proximity of the illegal seizure and the consent, weighs against attenuation. As to factor two, the presence of intervening circumstances, the detectives knocked on the door and Knight opened it. The detectives asked to speak with the appellant, and Knight told them the appellant was not there. The detectives then asked to enter the condominium but did not verbally inform Knight that they were detectives investigating a crime. We conclude factor two also weighs against a finding of attenuation. Next, we consider the third factor, the purpose and flagrancy of the official misconduct. Detective Simonik gave contradictory testimony about the identity of the informant, testifying on direct examination that the informant was anonymous but testifying on cross-examination that he got the informant's name. Moreover, although the detectives had not received any information that Knight was involved in the appellant's alleged criminal activities, they asked to enter the condominium even though the appellant was not there. Finally, when asked at the suppression hearing why the detectives did not end the investigation when the detectives learned the appellant was not present, Detective Simonik said, "I wanted to come inside and talk, to see if there was anything in plain view, where I could obtain a search warrant. There happened to be stuff in plain view in order for me to obtain that search warrant." The third factor also weighs against a finding of attenuation. Therefore, had we determined that the officers entered the building unlawfully, the State's failure to show the consent was sufficiently attenuated from the entry into the building would have required suppressing the evidence." The search was upheld however because the Court found the entry lawful. The Tennessee Supreme granted review on November 23, 2009. Prediction: David will not predict this one since it is his case. Here is his Application.

•· Recovery Limitations for Impairment of a Hospital Lien

In Shelby County Health Care Corp., et al. v. Nationwide Mutual Ins. Co., Hospital sued Insurance Company for damages arising from Insurance Company's alleged impairment of Hospital's hospital lien. The trial court granted Hospital summary judgment finding that Hospital perfected its lien under Tenn. Code Ann. § 29-22-101, and that Insurance Company impaired that lien pursuant to Tenn. Code Ann. § 29-22-104. However, the trial court limited Hospital's recovery to the amount of coverage under the insurance policy. On appeal, the court affirmed the finding that Hospital perfected its lien and that Insurance Company impaired the lien but allowed Hospital to recover the total amount of the lien rather than the insurance policy limits.

The Supreme Court granted review on November 23, 2009. Prediction: The Tennessee Supreme Court will likely address whether an insurance company that impairs a perfected hospital lien is liable only up to the amount of the insurance coverage limits or whether the insurance company may be liable for the total amount of the lien. Sarah believes that the Tennessee Supreme Court will reverse and limit a hospital's recovery to the amount of the policy limits.

•· Jury Instructions; Inferences

In State v. Ralphelle James, the defendant was convicted of theft of property valued at $1,000 or more and aggravated burglary. He challenged a jury instruction permitting the petit jury to infer guilt of theft and burglary from his possession of stolen property. He also argued that the convicting evidence for his aggravated burglary conviction was legally insufficient. Lastly, the defendant challenged the trial court's procedure of "permitting jurors to submit questions to the witnesses and by permitting answers to such questions to reopen direct and cross examination of the witnesses so questioned." The Court of Criminal Appeals affirmed: "The defendant first argues that Tennessee should abandon its Criminal Pattern Jury Instruction 42.20, upon which the trial court largely modeled its instruction, because "the jury need not be instructed on matters which are entirely within their basic rational understanding and common sense." We disagree. Our supreme court has approved substantially similar jury instructions and determined that a trial court may appropriately instruct the jury that it may infer theft or knowledge of stolen property from the possession of stolen property."

The Supreme Court granted review on November 23, 2009. Prediction: The Tennessee Supreme Court will likely grapple with the entire notion of "inferences" which do nothing more than aid the government in proving its case. The prosecution can argue these issues but a judge has no business in telling a jury to "infer" this or that. The inferences are inconsistent with the government's obligation to prove guilt beyond a reasonable doubt and, in David's opinion will evaporate from the legal landscape.

• Interpretation of the Physical Custody Requirement in the Tennessee Adoption Statutes

In In re: S.E.J., Donald Jordan, et al. v. Donald Roberson, et al., both the maternal and paternal grandparents filed competing adoption petitions after the child's father was sentenced to death for killing the child's mother. The trial court compared the relative fitness of the grandparents and granted the petition of the paternal grandparents. On appeal, the court concluded that the paternal grandparents did not meet the physical custody requirement set forth in Tennessee's adoption statute, Tenn. Code Ann. § 36-1-116(f)(1), since they only exercised monthly visitation with the child, whereas, the maternal grandparents exercised temporary custody of the child. Therefore, the court reversed and granted the adoption petition of the maternal grandparents. The Supreme Court granted review on November 16, 2009.

Prediction: The Tennessee Supreme Court will likely address whether the physical custody requirement in the Tennessee adoption statutes is applicable when a party files an intervening adoption petition. Sarah believes that the Tennessee Supreme Court will likely hold the physical custody requirement inapplicable in such instances and affirm the decision of the trial court. David agrees.

• Sufficiency of Evidence; Destruction of Evidence

In State v. Majors the defendant was convicted of evidence tampering. On the evening of October 12, 2005, seven officers with the Metropolitan Nashville Police Department executed a search warrant for an apartment at 621 Charles E. Davis Boulevard in Nashville. Officer William Traughber testified that he was the first of the officers to enter the apartment. He noted that all of the officers at the apartment that evening were wearing "raid vests" that were emblazoned with the department's logo, the officer's badge, and the word "police." He said that as the officers approached the apartment, the door opened and a man exited through the door. Officer Traughber arrested this person, and as he did, he looked up the stairs and saw the defendant sitting at a table in the apartment's kitchen. He said that as he was detaining the person at the front door, he looked up the stairs and saw the defendant run from the kitchen table and disappear from view. Officer Traughber testified that he and the other officers executing the search warrant yelled out "police" and "search warrant" upon entering the apartment, although he gave inconsistent testimony as to whether he arrested the man at the front door before or after the police announced their presence. However, he insisted that the defendant "absolutely saw us and heard us scream police" before his arrest. Officer Traughber said that after the defendant disappeared from his view, he heard a toilet flush; when asked to elaborate on the amount of time that elapsed between the defendant's disappearance and the toilet flushing, the officer said that the two events were "instantaneous." [However, there was no testimony as to what went down the toilet] While the evidence of the defendant's guilt was entirely circumstantial, we conclude that the entirety of the evidence was so cogent as to exclude every reasonable theory other than the one the jury adopted through its guilty verdict-that the defendant altered or destroyed cocaine by flushing it down the toilet. The defendant is therefore denied relief on this issue.

Judge Witt filed a dissenting opinion: "The mind easily recoils against the proposition that the defendant's flushing activity could have resulted in a conviction of even a minimal drug-possession offense, and yet, the instant offense is exactly that; it is predicated upon the possession or control of a "thing" or "evidence." In conclusion, I would have held that the evidence was insufficient to support the conviction of tampering with evidence."

The Supreme Court granted review on October 19, 2009. Prediction: Without evidence as to what the defendant flushed down the toilet, the majority takes circumstantial evidence to new lows. The dissent makes the better case. This will be reversed.

• Insurance Broker Liability

In Kristen Cox Morrison v. Paul Allen, et al., Wife sued the insurance company for failure to pay on Husband's life insurance policy and the insurance brokers for failure to procure an enforceable life insurance policy, various torts and violation of the Tennessee Consumer Protection Act ("TCPA"). Wife settled with the insurance company before trial and won judgments against the brokers based on failure to procure an enforceable life insurance policy ($1,000,000.00); negligence, negligent misrepresentation, and breach of fiduciary duty ($300,000.00); and violation of the TCPA (an additional $300,000.00). The Defendants appealed, claiming that they should receive a credit for the amount of the settlement with the insurance company and that the other awards were improper for various reasons. The Court of Appeals affirmed the $1,000,000.00 award but found that a credit for the settlement was appropriate and reduced the amount for a total breach of contract verdict of $100,000.00. The Court of Appeals also affirmed the tort award and the finding of a violation of the TCPA. The Supreme Court granted review on October 19, 2009. Prediction: We believe this will be affirmed.

• Vicarious Liability; Interpretation of the Rule 41.01 and the Savings Statute

In Joann Abshure, et al. v. Jeremiah Upshaw, M.D., et al., Plaintiff Joann Abshure filed a medical malpractice action against individual Defendants/Physicians and Defendant Hospital. Following Plaintiffs' second Tennessee Rule of Civil Procedure 41.01 voluntary dismissal of individual Defendants, Defendant Hospital moved for summary judgment asserting two alternate and independent reasons for dismissal. First, they asserted that, because the Abshures' claim against it was based solely on vicarious liability, and because the Abshures had nonsuited their claim against their agent in July 2005 and could not sue him again, and because the statute of repose had run with respect to their agent, extinguishing both the Abshures' remedy and right of action, they could not be held vicariously liable for the alleged negligence of their agent. They further asserted that vicarious liability under an apparent agency theory had been eliminated by the Abshures' execution of "certain documents." The trial court awarded Hospital summary judgment upon concluding that the evidence demonstrated negligence on part of one Defendant/Physician only, and Plaintiffs had failed to assert a claim of vicarious liability against Hospital for the alleged negligence of its agent, Defendant/Physician prior to twice dismissing the Physician. The trial court determined Plaintiffs' cause of action had been extinguished where the statute of repose applicable to claim against Physician had expired, and that Plaintiffs had conferred on Physician an affirmative right not to be sued again. The Court of Appeals reversed in part, affirmed in part, and affirmed the award of summary judgment to Defendant Hospital. The Supreme Court granted review on October 19, 2009. Prediction: The Court has tightened up summary judgment; this will be reversed.

• Service of Process

In Billie Gail Hall, as Surviving Spouse of Billy R. Hall v. Douglas B. Haynes, Jr., M.D. and Medsouth Healthcare, P.C., the Plaintiffs filed a medical malpractice action against the Defendant Corporation and its employee, the Defendant Physician. The Plaintiffs attempted to serve process in person on both the Corporation and the Physician at the Corporation's business address. Service was accepted on behalf of the Physician by a co-worker, who was not specifically authorized to accept service for him. Service was accepted on behalf of the Corporation by an employee of the Corporation who was not an officer, managing agent, or chief agent, and who was not specifically authorized to accept service for the Corporation. Both Defendants received a copy of the summons and complaint. The Plaintiffs then filed an amended complaint and attempted to serve both Defendants via certified mail. The return receipts for both Defendants were signed by an employee of the corporation who was not an officer, managing agent, or chief agent of the Corporation, and was not specifically authorized to accept service of process on behalf of either the Physician or the Corporation. The employee who signed the return receipts was, however, authorized to sign for certified mail. The Defendants filed a motion for summary judgment based in part on insufficiency of service of process. The trial court denied the motion for summary judgment, relying on the Court of Appeals decision in Boles v. Tennessee Farmers Mutual Insurance Co. The Defendants were granted interlocutory appeal. After reconsidering the analysis in Boles, the Court of Appeals reversed the trial court's decision, finding that service was not effective on either Defendant and the trial court erred in denying the Defendants' motion for summary judgment. The Supreme Court granted review on October 19, 2009. Prediction: We believe this will be affirmed perhaps in a split decision offering guidance in this quicksand area of the law.

• Application of the United States Supreme Court's decision in United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007)

In Gray's Dispoal Co., Inc. v. Metro Gov't of Nashville, Davidson County, privately-owned garbage haulers ("Appellants") sued metropolitan government ("Metro") challenging the constitutionality of the tipping fees; Metro filed a separate action against Appellants for past-due tipping fees. The trial court granted summary judgment in favor of Metro and Appellants appealed. On December 31, 2002, the Court ruled in Metro's favor and remanded the matter instructing the trial court to calculate the amount of tipping fees Appellants owed Metro for the period after November 5, 1997. Pending a hearing on remand, Appellants sought to recover the amount of tipping fees paid Metro before November 5, 1997, by filing a separate action in the same court. The trial court dismissed Appellants' action based on the doctrines of res judicata and collateral estoppel. The final hearing on remand was held June 19, 2007, more than four years after the Court's decision in the first appeal. In April 2007, just prior to the hearing, the Supreme Court of the United States issued an opinion, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007), which Metro alleged abrogated the appellate decision in 2002. Abiding by the limited instructions for remand, the trial court declined to consider United Haulers or Appellants' request for a set-off of fees paid prior to November 5, 1997 and determined the amounts owed Metro. Metro's motion to alter or amend the judgment was denied. Both parties appealed. The Court determined that Appellants' second attempt to recover the tipping fees paid prior to November 5, 1997, was barred by the doctrines of res judicata and collateral estoppel and affirmed the trial court's decision with respect to United Haulers. The Supreme Court granted review on October 5, 2009.

Prediction: Sarah believes that the Tennessee Supreme Court will likely affirm the finding that Appellant's second attempt to recover the tipping fees paid prior to November 5, 1997, was barred by the doctrine of res judicata and collateral estoppel. However, the Tennessee Supreme Court will likely apply the holding of the United States Supreme Court in United Haulers to the unpaid tipping fees issue in this matter instead of relying on the doctrine of the law of the case. David agrees.

• DUI Stop; "Busted" Taillight

In State v. Brotherton, the Court of Criminal Appeals considered a certified question of law regarding the validity of the traffic stop that resulted in the defendants arrest finding the stop unlawful. The trooper said that it was approximately 12:20 in the morning and that he noticed the defendant's taillight was "busted" when he passed him. The trooper said that he believed the taillight was a clear violation of the law, but he acknowledged that he did not make a close inspection of the light. He testified that the sole reason for the traffic stop was the broken taillight. He acknowledged that the light was operational. However, he opined that the red tape placed over the brake light had weathered and allowed light to show which was not red. Thus, the issue was whether the taillight on the car driven by the defendant was "in good condition and operational" according to Tennessee Code Annotated section 55-9-402(c). The trial court upheld the stop because it found that the taillight was not in "good condition" even though the defendant had repaired the damage to the cover with taillight repair tape. The defendant contends that his taillight was "in good condition"; therefore, the trooper did not have reasonable suspicion to stop him. The Court held:

It would be unreasonable to conclude that the legislative intent of including the term "good condition" in the statute meant that every person in the state operating a motor vehicle had to keep it in mint, factory condition. The intention of the statute is to make Tennessee's roads and highways safe for all persons who travel on them. While we agree that having a light covered largely in red tape is not the optimum situation, we do recognize that the defendant made an attempt to maintain his vehicle in proper working order. This is not a situation where the light was no longer working so that a person driving behind the vehicle would not be provided a warning either that there was a vehicle in front of him or that the vehicle was preparing to slow down by applying the brakes. The trooper testified that the light was working; it just emitted some degree of white light through a weathered part of the repair tape. Otherwise, it provided the proper warning and safety measures. In fact, the brake light working adequately was what drew the officer to notice the defendant's vehicle on the night of the incident. We conclude that the trooper lacked reasonable suspicion to make the traffic stop. Based on the foregoing and the record as a whole, the judgment of the trial court is reversed and the indictment is dismissed.

The Tennessee Supreme Court granted review on September 28, 2009. PREDICTION: In David's view, probably more cars have been stopped because of a "busted taillight" than all other causes combined; the proverbial "rolling probable cause." This jury-rigged taillight probably did not measure up here since it is what attracted the officer to the car in the first place. The issue is not that the taillight was red, but rather if it was similar to the other light and was appropriately visible. It may not have been enough for a ticket for bad equipment in retrospect but that is not the test for stopping the car in the first place. This will be reversed in a split decision.

• Habeas Corpus; Relief from Illegal Sentence

Terrance Lavar Davis v. State, involved another hybrid guilty plea with bits and pieces of sentences inside and outside permissible punishments. Smith agreed to a Range I sentence of twenty-two years each for two counts of possession for resale of more than 26 grams of cocaine in a Drug-Free School Zone, with a one hundred percent service of sentence. He argued that the sentence was illegal because this offense does not carry A 100% RED date. The Court of Criminal Appeals held:

Clearly, the lengths of the sentences in this case are within the limits proscribed by the statute. Furthermore, the petitioner would have been free to agree to a sentence outside his offender classification for a length up to sixty years without offending the jurisdiction of the trial court to impose such a sentence. However, with regards to the release eligibility reflected in the judgments and admittedly agreed to by the petitioner, the attached documents clearly reflect a release eligibility of one hundred percent. The governing statute regarding release eligibility for a violation of the Drug-Free School Zone Act can ... provides for release eligibility upon the "service of the entire minimum sentence for [the] defendant's appropriate range." ...Therefore, a defendant sentenced as a Range I offender is eligible for release after the completion of fifteen years' imprisonment. We further note that a violation of the Drug-Free School Zone Act is not one of the enumerated offenses for which the legislature has mandated a defendant serve one hundred percent prior to consideration for release. ....Thus, a Range I sentence of twenty-two years with a one hundred percent release eligibility exists nowhere within the sentencing authority of the Drug-Free School Zone Act. Therefore, ... this court concludes that the sentence in this case was imposed without jurisdiction conferred by statute and is therefore "void and subject to attack in a habeas corpus proceeding." ... Furthermore, despite the State's assertion to the contrary, this court cannot conclude that a bargained-for sentence that results in a more severe release eligibility status than that allowed by the statute is any less erroneous than a bargained-for sentence that results in a less severe release eligibility status than that allowed by statute. ... Therefore, we conclude that the habeas court erred in summarily dismissing the petition for a writ of habeas corpus because the sentence imposed is in direct contravention to the statute regarding release eligibility for violation of the Drug-Free School Zone Act, rendering it void on its face. Because it is apparent from the record that the illegal release eligibility was a bargained-for element of the sentence, the habeas court shall remand the case to the trial court of conviction to allow a withdrawal of the guilty plea or, in the alternative, for resentencing upon the original plea. ... .

The Supreme Court granted review on August 24, 2009. PREDICTION: This is clearly a erroneous sentence and should be summarily voided. However, the Supreme Court has construed Habeas Corpus out of existence as it relates to unlawful sentences. Only post-conviction filed within a year will suffice and thus the prisoner is stuck with his bargained-for sentence. This is not an unconscionable result since the defendant should not be able to void a bargained-for sentence even if palatably illegal years after the plea when the State's case may be too ancient to resurrect. The problem is: suppose this was a non-bargained for sentence imposed by a court? Presumably the sanctity of limited habeas corpus remedies would preclude even this person from relief if he or she waited beyond a year. So this will probably be reversed because of a lack of remedy. The Supreme Court should however, use this case as a vehicle to suggest that trial judges refuse to take such "unnatural" plea agreements as being unlawful.

• Doctrine of Corporate Liability in Medical Malpractice Cases

In Debra M. Barkes, Individually and as Surviving Spouse of Jewell Wayne Barkes, Deceased v. River Park Hosp., Inc. and River Park Hosp. (TN), Wife brought medical malpractice action for the wrongful death of Husband who died at home after being examined in the emergency room the same day. Husband was examined, diagnosed and discharged by a nurse practitioner without being seen by a physician. The only direct claim against Hospital was whether Hospital was liable because personnel failed to follow a written policy requiring that every patient presented to the emergency room be seen by a physician. The jury returned a verdict exonerating all of the individual health care providers involved in the care of Husband; however, the jury found that Hospital was 100% at fault for Husband's death. Hospital appealed contending the jury's verdict was inconsistent and irreconcilable because the jury found that none of the health care providers were at fault, the only basis for upholding the jury's verdict against Hospital was upon the doctrine of corporate liability. Tennessee has not adopted the doctrine of corporate liability. The Court of Appeals reversed and remanded the case for a new trial. The Supreme Court granted review on August 24, 2009.

Prediction: Sarah believes that the Supreme Court will likely reject the doctrine of corporate liability which has been accepted only be a minority of jurisdictions and affirm the decision of the Court of Appeals. David agrees.

• Triggering of Statute of Limitations in Inverse Condemnation Cases

In B&B Enterprises of Wilson County, LLC, et al. v. City of Lebanon, et al., the City denied approval of Plaintiffs' plans for a subdivision on February 26, 2002. Plaintiffs filed a petition for common law writ of certiorari on April 12, 2002, challenging denial of the plans. On December 16, 2004, the Court of Appeals affirmed the decision of the chancellor finding that the City abused its discretion in denying approval of the plans. On December 2, 2005, Plaintiffs filed an inverse condemnation action against the City. The City moved for summary judgment arguing that the action was time barred since the triggering event in a regulatory taking case such as this was when the plans were denied by the City. Plaintiffs asserted that the action was timely because it was filed within one year of the court's final decision in the writ of certiorari action. The trial court denied the City's motion and the City appealed. On appeal, the court held that the triggering event occurred when Plaintiffs knew the City was depriving them of the economic use of their property, or April 12, 2002 and therefore, reversed and remanded the case with instructions to grant the City summary judgment. The Supreme Court granted review on August 24, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the triggering event in an inverse condemnation action is the date a landowner realizes the government is depriving it of its economic use of its property.

• Discovery Rule in Medical Malpractice Actions

In Lou Ella Sherrill, et al. v. Bob T. Souder, M.D., et al., Patient filed medical malpractice action against Doctor for prescribing a medication allegedly improper for long-term use. The trial court granted Doctor summary judgment under the discovery rule finding that more than one year had lapsed since Plaintiffs knew or should have known of Patient's injuries and thus, Plaintiffs' action was barred by the statute of limitations. On appeal, the court affirmed. The Supreme Court granted review on August 24, 2009.

Prediction: Sarah believes that the Supreme Court will likely also affirm. David disagrees since the discovery here was hotly contested and thus Summary Judgment was not appropriate.

• Standard of Care Applicable to Physician's Assistants

In Melissa Michelle Cox v. M.A. Primary and Urgent Care Clinic and Austin Adams, the trial court found that the deposition of Patient's expert physician failed to establish a genuine issue of material fact with respect to the requirements of Tenn. Code Ann. § 29-26-115(a). Specifically, the trial court found that Patient's expert physician could not testify as to the standard of care applicable to a physician's assistant who rendered care to Patient. The trial court granted summary judgment to Defendant Doctor and Clinic. On appeal, the court determined that the standard of care applicable to a physician's assistant is that of the supervising physician and thus, Patient's expert physician could testify as to the standard of care applicable to a physician's assistant. The Supreme Court granted review on August 17, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse finding that the standard of care applicable to a physician's assistant is different from the standard of care applicable to a physician.

• Reporting Requirement in Retaliatory Discharge Claim

In Gary M. Gossett v. Tractor Supply Co., Inc., Employer discharged at-will Employee allegedly as a result of Employee's refusal to participate in illegal data reporting practices. The trial court granted summary judgment to Employer finding that since Employee failed to report the illegal practices, he could not maintain an action for retaliatory discharge pursuant to Collins v. AmSouth Bank, 241 S.W.3d 879 (Tenn.Ct.App.2007). On appeal, the court reversed holding that a common-law retaliatory discharge may be actionable upon an employee's refusal to participate in an illegal act or in contravention of an established public policy. The Supreme Court granted review on August 17, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the reporting of an illegal practice is not a condition precedent to establishing a common-law claim for retaliatory discharge.

• Negligence and Medical Malpractice in Nursing Home Death Cases

In The Estate of Martha S. French v. The Stratford House, et al., Administratrix of estate filed a personal injury and wrongful death claim against nursing home owners and operators on behalf of nursing home resident. The trial court granted Defendants summary judgment as to all claims except those related to medical malpractice. On appeal, the court held that the trial court properly dismissed Administratrix's (1) negligence claim because the gravamen of Administratrix's cause of action sounded in medical malpractice; (2) negligence per se claim because state and federal regulation of nursing homes do not create a cause of action separate and apart from medical malpractice; and (3) Tennessee Adult Protections Act ("TAPA") claim because the gravamen of Administratrix's cause of action sounded in medical malpractice. However, the court found that the trial court erred in dismissing Administratrix's claim for punitive damages under Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn.2008). The Supreme Court granted review on August 17, 2009.

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

• Sufficiency of the Evidence; Criminal; DNA Evidence

In State v. James Rae Lewter the defendant was convicted of burglary. The Court of Criminal Appeals reversed:

Here, the proof showed that a burglary and theft occurred at Dr. Hamilton's office on January 31, 2006. The only evidence linking Lewter to these offenses was a white shirt, containing skin cells matching Lewter's DNA, that was left at the scene of the crime. Special Agent Everett testified that the skin cells could remain on the shirt for several years. Unlike a fingerprint or a blood sample taken from the scene, the presence of the shirt with Lewter's DNA does not prove that Lewter was present at the time of the burglary and theft. We note that Lewter made no incriminating statements regarding these crimes. In addition, no witnesses, including Justice, who pleaded guilty to these offenses, placed him at the crime scene. Because there was no other evidence, direct or circumstantial, to make the presence of the shirt at the dental office incriminating, the State failed to provide sufficient evidence to support Lewter's convictions. Therefore, we reverse and vacate Lewter's convictions and dismiss the indictment.

The Supreme Court granted review on August 17, 2009.

Prediction: David believes that the Supreme Court will likely reverse since the DNA evidence here is sufficient.

• Ineffective Assistance of Appellate Counsel

In Frazier v. State the undisputed proof reflects that the defendant shot the victim, Anthony Eugene Thomas, multiple times and, thereby, ended the victim's life. This incident occurred at around 1:00 a.m. on December 28, 1997, at an establishment referred to as "Skinny Miller's." While the defendant does not deny shooting the victim, he claimed and maintains that he acted in self-defense. On appeal post conviction appeal, Petitioner contends Counsel was ineffective because he: (1) failed to request a jury instruction on second degree murder as a "result-of-conduct" offense; (2) failed to appeal the issue of the jury instruction on second degree murder; and (3) failed to raise in Petitioner's motion for new trial the issue involving an allegedly biased juror. As to the jury instruction the lawyer did not cite an unreported case which reversed because of an improper jury instruction on second-degree murder. The Court of Criminal Appeals found this was not ineffective assistance of counsel:

In the case presently before us, Petitioner's brief was filed after the Supreme Court's holding in Ducker but before this Court's holdings in Dupree and Page. Oral argument was held two months after this Court's holding in Dupree. Counsel admittedly did not move to supplement his brief with the Dupree case or bring the case to this Court's attention during oral argument. This, however, was not "outside the wide range of professionally competent assistance," Strickland, ...., for the issue was not settled until the release of the opinions in Page and in the supreme court's opinion in State v. Faulkner, 154 S.W.3d 48, 59 (Tenn. 2005), which were after Petitioner's direct appeal had been completed. Thus, the record supports the trial court's finding that Counsel was effective in this regard. Petitioner is not entitled to relief on this issue.

The Supreme Court granted review on August 17, 2009.

Prediction: David believes that the Supreme Court will likely reverse since the improper jury instruction was fatal to this defendant's trial. Even though this will be analyzed under the stricter plain error standard, the defendant here was severely prejudiced because the erroneous instruction went to the most important element of second degree murder which was contested at the trial. It could not have been harmless. The issue is interesting because it deals with ineffectiveness of an attorney on appeal not reading the unpublished cases as they are decided.

• Uniform Commercial Code

In Re: Music City, United States Bankruptcy, Court for the Middle District of Tennessee certified a question of law which the Supreme Court of Tennessee agreed to resolve on August 10, 2009: Whether the consignment of an R.V. by a consumer (not another business) to a Tennessee R.V. dealer, for the purpose of selling that R.V. to a third person, is a transaction covered under § 47-2-326 of the Uniform Commercial Code, as adopted in Tennessee.

• The Original Tortfeasor Rule

The original tortfeasor rule generally holds that if one is injured by the negligence of another, and these injuries are aggravated by medical treatment, either prudent or negligent, the negligence of the wrongdoer causing the original injury is regarded as the proximate cause of the damage subsequently flowing from the medical treatment. The original tortfeasor's remedy would then arguably lie in an action for contribution against the medical provider. In Alice J. Banks v. The Elks Club Pride of TN 1102, et al., Plaintiff fell and injured herself at Elks Lodge. Plaintiff then treated with Physician, who operated at the wrong level of Plaintiff's spine during surgery. Thereafter, Plaintiff entered Nursing Home where her alleged lack of care worsened her injuries. Plaintiff sued Elks Lodge for premises liability and Physician for medical malpractice. Physician moved to dismiss arguing that under the common law original tortfeasors rule, Elks Lodge was the proximate cause of Physician's malpractice. The trial court disagreed and refused to dismiss Physician. Elks Lodge and Physician later amended their answers to allege fault against Nursing Home; however, the trial court denied the motions citing the original tortfeasors rule. The Supreme Court granted a Rule 9 review on December 15, 2008. Because this case has spawned a number of briefs from competing sides we have including the primary briefs below as items you can access. Thanks to Matt Russell with Stewart & Wilkinson, who sent us the briefs.

Permission to Appeal and the Court's order
Elk's Lodge principal brief
Boyce Brief
Amicus brief, TDLA
Amicus brief - Tennessee Association of Justice
Banks' principal brief
Elks Lodge Reply Brief
Boyce reply brief

And now, Our Prediction: The Supreme Court will likely address whether the original tortfeasor rule survived the adoption of comparative fault. The Court of Appeals has upheld the original tortfeasor's liability for subsequent medical complications in numerous other cases. Sarah believes that the Supreme Court has granted review of this case in order to abolish the original tortfeasor rule which is clearly at odds with comparative fault. David agrees but would note that the original tortfeasor rule is essentially the same as in criminal cases. See Odeneal v. State, 157 S.W. 419 (Tenn.1913) (when one inflicts injury one assumes the risk attendant to it including death from an allegedly inappropriate surgical procedure).

• Grandfathering Under Private Acts

In Smith County Regional Planning Commission v. Hiwassee Village Mobile Home Park, LLC, Planning Commission brought suit seeking civil penalties and injunctive relief against Mobile Home Park alleged to be in violation of a private act regulating mobile home parks in the county. The trial court found that Mobile Home Park was not protected by a grandfather provision and ordered injunctive relief to bring Mobile Home Park into compliance with the private act. On appeal, the court affirmed. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse the finding by the trial court that the mobile home park was abandoned and therefore, hold that Mobile Home Park was grandfathered in under the private act.

• Criminal - Guilty Plea Failure to Advise of Direct or Collateral Consequences

In Ward v. State, 2009 WL 113236 (Tenn.Crim.App.,2009) the defendant pled guilty to aggravated sexual battery and received an effective sentence of thirteen and one-half years. Later he filed a petition for post-conviction relief, alleging that his guilty pleas were not knowingly, intelligently, and voluntarily made and that he received the ineffective assistance of counsel. Ward asserted that trial counsel rendered ineffective assistance by not informing him that registration as a sexual offender and that he would be on community supervision for life was a consequence of his guilty pleas. The Court of Criminal Appeals held that the community supervision and sex offender registration was only collateral to the plea and thus the plea would not be set aside:

A plea is not "voluntary" if it results from ignorance, misunderstanding, coercion, inducements, or threats. ........The trial court must determine if the guilty plea is "knowing" by questioning the defendant to make sure he fully understands the plea and its consequences. ...........This requirement is limited to the direct consequences of the plea; the failure of the trial court to explain the collateral consequences of a conviction will not render a guilty plea involuntary. .......This issue appears to be one of first impression in Tennessee. In its order denying the petition, the post-conviction court canvassed case law from other jurisdictions and found, as we have set out, that most jurisdictions considering the issue have held that sexual offender registration is a collateral consequence of a guilty plea. .........We agree with the conclusion of the post-conviction court that the sexual offender registry requirement is a collateral consequence of a defendant's guilty plea for the registration requirement is remedial and regulatory, not punitive or penal. Our conclusion is supported by the findings made by the General Assembly when it enacted the Registration Act. The General Assembly declared that the "primary governmental interest" furthered by the Registration Act was "protecting vulnerable populations from potential harm," and that continued registration of offenders was necessary "[t]o protect the safety and general welfare of the people of this state." ....... The General Assembly also declared that, in making certain information about sexual offenders publicly available, it did not intend for the information to be used to inflict retribution or additional punishment on those offenders. Id. § 40-39-201(b)(8). In addition, we also note that the Sixth Circuit discussed the Registration Act in Cutshall v. Sundquist, 193 F.3d 466 (6th Cir .1999), and determined that the Act served legitimate regulatory purposes and did not impose punishment. Accordingly, we conclude that the post-conviction court did not err in determining that the sexual offender registry requirement is a collateral consequence of a defendant's guilty plea..........On appeal, the petitioner additionally argues that the post-conviction court failed to consider the application of Tennessee Code Annotated section 39-13-524(a), which provides: In addition to the punishment authorized by the specific statute prohibiting the conduct, any person who, on or after July 1, 1996, commits a violation of § 39-13-502, § 39-13-503, § 39-13-504, § 39-13-522, or attempts to commit a violation of any of these sections, shall receive a sentence of community supervision for life. In the petitioner's view, "[t]he purpose of this statute, which applies to sex offenders, is clearly to be part of the sentence for the offense, rather than a regulatory scheme having only collateral connection to the sentence."........Our review indicates that our supreme court has yet to address this issue, but Nevada and New Jersey courts, in looking at similar statutory provisions, have concluded that lifetime supervision is a direct, not collateral, consequence of a plea. We decline to follow the New Jersey and Nevada decisions, previously mentioned, believing the better approach is that taken by Judge Thomas in his dissent in Parker. In Parker, Judge Thomas likened the obligations of community supervision for life under Tennessee Code Annotated section 39-13-524(a) to prerequisites for a sex offender's release on parole and concluded that "the specifics of community supervision for life are ... more of a collateral consequence of a guilty plea as opposed to a substantial consequence. ......Given the protective and rehabilitative aims of sex offender community supervision and the similarities to regular parole, by extension of our supreme court's reasoning in Jaco, we conclude that community supervision is not punishment but, instead, a collateral consequence of the petitioner's guilty plea. Because the sexual offender registry and community supervision requirements were collateral consequences of the petitioner's guilty plea, the trial court was not required to inform the petitioner of these requirements before accepting his plea. Although the better practice is to inform defendants of the requirements, we cannot conclude that the trial court's omission violated a clear and unequivocal rule of law. Therefore, the petitioner has not established the existence of one of the five prerequisites for plain error relief, and our analysis need go no further. The petitioner is not entitled to relief.

Judge Tipton dissented "from the majority opinion's holding that lifelong community supervision is not a direct punitive consequence of the petitioner's pleading guilty to aggravated sexual battery. Tennessee expressly makes life supervision a part of the sentence. See T.C.A. § 39-13-524 (providing for "a sentence of community supervision for life")." The Tennessee Supreme Court granted review on April 27, 2009.

PREDICTION: David believes this is not even close. Being sentenced to 13 years in prison and then not being told you will be on parole-like community supervision for the rest of your life is hardly some "collateral consequence." The Court is confusing a specific sentence - albeit a sentence on parole-like supervision - with the cases holding that a judge need not address parole eligibility at the time of taking a plea. The possibility of parole is conjectural and thus arguably collateral. The certainty of lifetime sex offender supervision at the end of the "prison portion" of the sentence is absolute and is for a term for the offender's life. The statute compels "lifetime supervision" and, indeed, it is so much a part of the sentence that the judgment form can be later amended if that part of the sentence is not imposed at the time of the plea. State v. Bronson, 172 S.W.3d 600 (Tenn.Crim.App. 2005). Thus, the failure to address the lifetime supervision at the time of the plea is per se erroneous. Indeed one has to but observe the uniform judgment document to see that the lifetime supervision is one of the sentencing "check blocks." Lest anyone think that sex-offender supervision is a "walk in the park," one has but to look at the list of supervision conditions that includes everything short of tattooing bar codes on the offenders. See the sample conditions form here which include not only the "standard" parole conditions but a host of "special sex offender" restrictions such as mandatory polygraphs, curfews and electronic monitoring. The sex offender registration requirement is a much closer question; given that the legislature has now required a fee to register (at one time it was free) this is probably punitive enough to constitute a "sentence" for which advice must be given, certainly by the lawyer and probably by the judge at the time of the plea. This will be reversed.

• Interpretation of Chapter 118 of the Private Acts of 1987; Taxes

In Home Builders Assoc. of Middle Tenn. v. Williamson County, et al., Homebuilders filed a Complaint for declaratory judgment against County seeking interpretation of Chapter 118 of the Private Acts of 1987 under which County levied additional adequate facilities taxes on Homebuilders based upon its audit of actual square footage built. The trial court granted County summary judgment finding that County could calculate taxes at the time of the issuance of the certificate of occupancy rather than the time the building permit was issued. On appeal, the court affirmed. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the Legislature intended to allow County to levy the tax at the time of issuance of the certificate of occupancy or the time the building permit is issued.

• Classification of Marital Assets

In Lee Medical, Inc. v. Paula Beecher, et al., Husband (an attorney) received $17 million attorney's fee award seven months after Wife filed for divorce. The trial court classified the fee as a marital asset subject to equitable division. On appeal, the court affirmed the classification of the fee as marital property and the division of the marital estate. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm finding that the attorney's fee award constituted marital property. David disagrees because there was no collusion to obtain the funds until after the divorce.

• Discovery of Findings from Internal Peer Investigation

In Kimberly Powell v. National Healthcare of Cleveland, Inc., d/b/a Cleveland Community Hosp., the trial court allowed the discovery of the infectious rate at Hospital which an infection control nurse performed at the instruction of Hospital's quality control committee. Pursuant to a Rule 9 appeal, the Court of Appeals affirmed setting forth the parameters of the discovery. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm but address the dissent of J. Susano.

• Federal Preemption under the Tennessee Trade Practices Act

In Samuel D. Leggett, et al. v. Duke Energy Corp., et al., Plaintiffs sued Natural Gas Companies under the Tennessee Trade Practices Act alleging that Natural Gas Companies conspired unlawfully to increase the wholesale prices of natural gas. The trial court granted Natural Gas Companies' motion to dismiss on the basis of federal preemption. On appeal, the court reversed and remanded the case for further proceedings. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely find that Plaintiffs' claims are subject to federal preemption. David agrees.

• Causation in Retaliatory Discharge Claim

In Gerry G. Kinsler v. Berkline, LLC, Employee filed action for retaliatory discharge after being terminated from his employment with Employer, three days after backing out of a workers' compensation settlement. The trial court granted Employer summary judgment finding that timing alone was insufficient to withstand Employer's motion for summary judgment. On appeal, the court reversed and remanded holding that proof of close temporal proximity alone can establish causation and genuine issues of material fact concerning Employer's explanation for termination preclude summary judgment. The Supreme Court granted review on April 27, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm the holding that proof of close temporal proximity alone can establish causation but reverse as to whether Employer presented a legitimate non-pretextual reason for discharging Employee.

• Surrender of Parental Rights v. Termination of Parental Rights

In re: The Adoption of A.E., E.E., and E.E., father consented to the termination of his parental rights but appealed, in relevant part, on the grounds that his surrender was procedurally deficient. The court found that the trial court properly granted mother's petition to terminate parental rights. The Supreme Court granted review on April 6, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse and explain the difference between the surrender of parental rights and the termination of parental rights and the procedural safeguards associated with each.

• Criminal Statute - Theft of Services

In State v. Sheryl Ann Marshall, et al the defendants were each charged with one count of theft of services from Gallatin Housing Authority valued between $1,000.00 and $10,000.00. The defendants underreported their income to obtain public housing at a lower rate. The defendants moved to dismiss the indictments, arguing that these circumstances were not within the purview of the theft of services statute. See Tenn.Code Ann. § 39-14-104. The trial court granted the motion, concluding that occupancy of a residence pursuant to a lease term was not a service under the plain meaning of the statute. The State appealed and the Court of Criminal Appeals affirmed the dismissal agreeing that the defendants did not receive a "service" within the purview of the theft of services statute.

"First, the public housing provided by GHA does not constitute a "public service" under the "services" definition. The Defendants correctly point to the statutory rule of construction " ejusdem generis." Ejusdem generis means that "where general words follow special words which limit the scope of the statute, general words will be construed as applying to things of the same kind or class as those indicated by the preceding special words." .... In section 39-11-106, the phrase "other public service" is preceded by an enumerated list of services, mostly utilities. As noted by the trial court, the Defendants did not receive a "public service" but rather if they paid their rent, "these services [would] be provided." Second, public housing is not equivalent to "accommodations in hotels, restaurants or elsewhere" as these accommodations are transitory and temporary in nature. The trial court thoroughly analyzed the provisions of the lease and determined that the housing received by the Defendants was not an accommodation within the plain meaning of the statute. We agree that occupancy of a dwelling pursuant to a lease term is not an accommodation within the scope of the theft of services statute. Moreover, a service or accommodation was not provided when the Defendants renewed their respective leases and recertified to GHA that their income was accurate. To conclude that the present circumstances fall under the meaning of the "services" definition would impermissibly extend the coverage of the statute. Finally, as noted by the trial court, our legislature has criminalized certain actions in similar situations; for example, TennCare fraud codified at Tennessee Code Annotated section 71-5-2601; communications theft codified at Tennessee Code Annotated section 39-14-149; destruction or interference with utility lines, fixtures, or appliances codified at Tennessee Code Annotated section 39-14-411; and unauthorized water connections codified at Tennessee Code Annotated section 65-27-107. Under the present statute, "public service" does not include developments by a public housing authority. Our legislature has not yet seen fit to criminalize the behavior at issue...Based upon the foregoing reasoning, we conclude that the public housing received by the Defendants does not fall within the "services" definition for purposes of the theft of services statute. The order of the trial court dismissing the indictments against the Defendants is affirmed.

The Tennessee Supreme Court granted review on March 23, 2009. PREDICTION: The trial judge and the Court of Criminal Appeals were correct. Our legislature passes dozens of bills each year. They can create a new criminal offense if desired to "solve" this problem without a court doing violence to the rule of strict construction of criminal statutes which should dictate the result here.

• Summary Judgment

In Joseph Davis, et al. v. Patrick J. McGuigan, et al., homeowners filed suit against appraiser for intentional and negligent misrepresentation and violation of the Tennessee Consumer Protection Act. Appraiser moved for summary judgment on all claims. The trial court denied Appraiser's motion on the negligent misrepresentation claim, but dismissed the intentional misrepresentation claim and the Tennessee Consumer Protection Act claim. During the course of the proceedings, the trial court also excluded certain witnesses who were tendered as experts. Both parties appeal. On appeal, the court affirmed the grant of summary judgment on both claims and declined to address the remaining issues for lack of justifiability.

The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely affirm the dismissal of homeowners, intentional misrepresentation claim but reverse the dismissal of homeowners' Tennessee Consumer Protection Act claim since appraiser failed to show that homeowners could not establish a causal link the alleged misrepresentation and their alleged injury.

• Procedure for Appeal of Suspension by Board of Education

In Joseph Bailey, et al. v. Blount County Board of Education, non-tenured teacher employed was suspended for ten days without pay upon charges of inappropriate conduct. Several months later, the Board terminated teacher's employment. Teacher and his wife filed a complaint alleging injuries as the result both the suspension and the termination. Upon the Board's motion for summary judgment, the trial court dismissed the complaint with prejudice upon the ground that plaintiffs failed to exhaust all administrative remedies before filing suit. On appeal, the court determined that the Board's decision terminating teacher's employment was void ab initio and therefore, reversed the trial court's summary judgment as to teacher's termination claims. However, the court affirmed the trial court's grant of summary judgment as to teacher's ten-day suspension claims upon the ground that it was barred under the applicable statute of limitations. The Supreme Court granted review on March 16, 2009.

Prediction: Sarah believes that the Supreme Court will likely reverse the grant of summary judgment as to teacher's ten-day suspension claims and affirm in all other respects.

• Surrender of Parental Rights v. Termination of Parental Rights

In In re: The Adoption of A.E., E.E., and E.E., father consented to the termination of his parental rights but appealed, in relevant part, on the grounds that his surrender was procedurally deficient. The court found that the trial court properly granted mother's petition to terminate parental rights. The Supreme Court granted review on April 6, 2009.

• Criminal Statute - Theft of Services

• Summary Judgment

The Supreme Court granted review on March 16, 2009.

• Procedure for Appeal of Suspension by Board of Education

Prediction: Sarah believes that the Supreme Court will likely reverse the grant of summary judgment as to teacher's ten-day suspension claims and affirm in all other respects.

• Robbery; Violence AFTER the Theft

In State v Swift the defendant argued that pursuant to the Tennessee Supreme Court's holding in State v. Owens, 20 S.W.3d 634, 641 (Tenn.2000), in order to sustain an aggravated robbery conviction, the state was required to establish beyond a reasonable doubt that the use of violence or placing another in fear occurred contemporaneously with the taking. The defendant asserted that because these two events did not occur contemporaneously, he could not have been found guilty of aggravated robbery. The Court of Criminal Appeal's Opinion, in relevant part, was as follows:

After [store employee] Czyrnik found the empty game cases, he went to the store's loss prevention desk, which was located at the front of the store, near the exit. Czyrnik told the loss prevention worker, Curtis Odom, that a man had stolen two PlayStation games. At that point, the defendant walked toward the desk. Czyrnik explained that the store's policy when dealing with a potential shoplifter was to approach the person without making a scene and ask the person to step into an office to fill out some paperwork. Czyrnik said that Odom attempted to speak to the defendant, but the defendant threw a punch at Odom, which missed. Odom and Czyrnik then attempted to grab the defendant, and the defendant again threw a punch, this time at Czyrnik. This punch also missed. Czyrnik said that the two employees cornered the defendant in the lobby outside the store's exit doors, but Czyrnik observed a knife in the defendant's hand, and the two employees backed off. Czyrnik said that he observed the defendant reaching at his pants when he initially approached the two employees at the loss prevention desk, so he presumed that the defendant was reaching for the knife at that point. He also said that seeing the defendant with a knife put him in fear of his safety.

Our supreme court has held that to sustain a robbery conviction, "the use of violence (fear) must precede or be concomitant or contemporaneous with the taking to constitute robbery" .... The defendant, basing his argument upon our supreme court's opinion in Owens, asserts that his aggravated robbery conviction must be overturned because his placing the two store employees in fear was not contemporaneous with his taking of the computer games. However, the facts of this case can be distinguished from those of Owens. In Owens, the defendant grabbed an article of clothing and fled the store without paying for the merchandise. Two store employees chased the defendant several blocks before the defendant dropped the merchandise and brandished a box cutter at the employees. The defendant was later convicted of robbery, but the Tennessee Supreme Court reversed, concluding that "[t]his evidence [was] not sufficient to establish violence or fear preceding or contemporaneous with the taking of property. Indeed ... the use of violence or fear was subsequent to the taking and temporally remote." The facts of this case are similar to one considered by this court in which we concluded that the defendant's use of violence was contemporaneous with his taking of property. In State v. Mario Merritt, .... the defendant and two other persons were observed taking several items of clothing from a Memphis department store. As the defendant walked past the store's cash registers and toward the store's exit, he was confronted by a loss prevention employee. .. The defendant then pointed a gun at the employee and ordered him to get onto the ground. Id. The employee refused, and an altercation ensued.. A second employee arrived, and the defendant shot this employee before leaving the store. ... This court affirmed the defendant's conviction, concluding that the facts of Owens were "clearly distinguishable from the [facts of Mario Merritt ] in which the violence was contemporaneous with the taking of the clothing." ... Similarly, the defendant's placing the Best Buy employees in fear was concomitant or contemporaneous to the taking of the store's merchandise, which occurred as he attempted to leave the store with the merchandise. Accordingly, we affirm the defendant's aggravated robbery conviction.

The Tennessee Supreme Court granted limited review on February 24 "only with regard to Mr. Swift's first issue - whether the evidence is insufficient to justify finding the appellant guilty of aggravated robbery rather than theft and aggravated assault where the violence or intimidation occurred after the taking was complete."

PREDICTION: The issue is characterized that the "violence or intimidation occurred after the taking was complete." The issue should be WHEN was the taking completed? A taking need not be instantaneous or a discreet point in time, but is like a wide-receiver at a football game: undisputed control. While the thief is still menacing the employees to make his escape from the curtilage of the store, he doesn't have undisputed control so the theft isn't complete. Any other result would transform this to an "armed shoplifting." It certainly is a closer case than some David has seen but here the conviction will be affirmed.

• Amended Motion for New Trial; Timeliness

The issue in State v. Hatcher, 2008 WL 4071829, Tenn.Crim.App., 2008 was whether the AMENDED motion for a new trial was filed in a timely fashion. On January 28, 2005, Appellant was found guilty of first degree murder which carries a mandatory life sentence and two counts of attempted murder. On February 22, 2005, Appellant's first trial counsel filed a motion for new trial. The trial court entered the final judgments, including the order of sentence, on October 4, 2005. A sentencing hearing and hearing on a motion for new trial were heard jointly on October 4, 2005. At the conclusion of the hearing on the motion for new trial, the trial court denied the motion and appointed new counsel for Appellant. The trial court also stated that newly-appointed counsel would be allowed to file an amended motion for new trial. On November 2, 2005, newly-appointed counsel filed a "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial." In this motion, newly-appointed counsel argued that the trial court still had jurisdiction of Appellant's case because no notice of appeal had yet been filed. On the same date, the trial court filed an order granting the filing of an amended motion for new trial. On May 2, 2006, newly-appointed counsel filed an amended motion for new trial. The trial court held a hearing on the motion on July 31, 2006. The trial court entered an order denying the amended motion on the same date as the hearing. On August 30, 2006, Appellant filed a notice of appeal. The State argues that pursuant to Rules 29(e) and 33(b) of the Tennessee Rules of Criminal Procedure a motion for judgment of acquittal or motion for a new trial must be filed within thirty days of the date of entry of the order of sentence. Appellant's amended motion for new trial was filed after the thirty days. Therefore, according to the State, Appellant's appeal is not properly before the Court. The Court of Criminal agreed and declined to consider the grounds raised in the Amended Motion for a New Trial. The Tennessee Supreme Court granted review on February 17, 2009.

PREDICTION: If you look only at the absurd "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial" it is astounding that the Supreme Court would grant review here; it is pointless. The Court of Criminal Appeals was exactly correct. The problem is that the trial judge granted the motion (!) which arguably kept the case alive so that the erstwhile amended motion for a new trial WAS timely. That is the theory I suppose. Clearly the new lawyer had to have time to review the record to file amendments but the solution was to file a skeleton, first amended motion and then continue the hearing until more meat could be put on the bones and THEN file an indisputably timely, second amended motion for a new trial . There is no such thing as a motion to delay the filing of a time-sensitive pleading. Thus, there is and never should be such a thing as an Order granting a delay in the filing of a time sensitive pleading. It is a non-event. It would be the same as asking a court to extend the statute of limitations. Here the Supreme Court may be sensitive to the new lawyer relying on a trial judge's grant of an extension of which the judge had zero authority to grant. The Court of Criminal Appeals did not address that issue at all when I suspect that will be the center of the Supreme Court's resolution of the appeal. However, I cannot see the Supreme Court giving any weight to the trial judge's order. Any contrary result would end in chaos. The solution here is to deny the defendant relief on direct appeal, hope the defendant files a post conviction petition which should be granted on the spot and the defendant allowed a delayed appeal as a result of ineffective assistance of counsel. In this fashion the late-raised issues can be addressed on collateral relief. In fairness the defendant was convicted of murder which generated an automatic life sentence. The other counts required later sentencing hearings which meant the murder conviction and the other convictions were on two separate time tracks. That can be confusing but that still is no excuse for filing a "Motion Requesting Trial Court to Enter Order Permitting Counsel to File an Amended Motion for New Trial" and, worse, no excuse for the judge granting such a thing. As noted, the skeleton amended motion for new trial would have done the trick.

• Criminal Law; Expert Witness, Lesser Included Offenses

In State v. Brown, 2008 WL 2687702, Tenn. Crim. App. July 02, 2008, the defendant, was convicted by a Shelby County Criminal Court jury of first degree felony murder in the perpetration of aggravated child abuse and aggravated child abuse. ... In this direct appeal, he claims (1) that the trial court improperly allowed evidence of the defendant's bad acts without conducting a hearing as required by Tennessee Rule of Evidence 404(b), (2) that the trial court committed plain error in allowing a state's expert witness to testify about the victim's cause of death without establishing a proper foundation, (3) that the court erred in failing to replace a juror who indicated she had some knowledge of one of the state's witnesses, (4) that the trial court failed to give instructions on lesser offenses, and (5) that he is entitled to a new trial based upon prosecutorial misconduct during closing argument. We hold that although the state made an improper rebuttal argument, the error was harmless, and the remaining issues are without merit. We affirm the judgments of the trial court. ....Next, the defendant claims that the trial court erred in allowing Doctor Gunther to testify about the victim's cause of death without having established a proper foundation for her opinion. His specific complaint is that the witness offered expert opinion testimony about the victim's cause of death based upon her examination of slides made of the victim's preserved brain in 1999, despite the original autopsy having been performed in 1996 and the original slides having been lost in the interim. The defendant concedes that the defense did not make a contemporaneous objection to the evidence at trial but argues for relief on the basis of plain error. The state argues that no plain error has been shown...... In order for this court to reverse the judgment of a trial court, the error must be "of such a great magnitude that it probably changed the outcome of the [proceedings]," and "recognition should be limited to errors that had an unfair prejudicial impact which undermined the fundamental fairness of the trial." We hold that although the record clearly establishes what occurred in the trial court and does not reflect that the defendant waived the issue for tactical reasons, the defendant cannot establish that a clear and unequivocal rule of law was breached, that a substantial right was adversely affected, or that consideration of the issue is necessary to do substantial justice. The record reflects that Doctor Gunther performed the autopsy of the victim in September and October 1996. She acknowledged on cross-examination that slides and her report of the pathology work done on samples of the victim's brain were misplaced and that she took new samples from the victim's preserved brain, made new slides, and examined them in 1999 and created an addendum to her 1996 report. She explained, "And I recall that November of 1996 was about the time the histology laboratory, which had been kept in the Department of Pathology for decades, was being shut down and downsized, and all the slides were being moved to Memphis Pathology Laboratory. And I expect they got lost in the shuffle." She said she could have testified from her own memory and from the report of the neuropathologist, but in order to be complete, she took new samples from the victim's brain, which had not been misplaced and was preserved in formalin, and she repeated the examination procedure. She said her findings in 1999 were consistent with her 1996 conclusion that the victim died from shaken baby syndrome. We perceive no breach of a clear and unequivocal rule of law in the admission of the evidence nor any effect on a substantial right of the defendant. We note, as well, Doctor Schmidt's testimony was consistent with that of Doctor Gunther with respect to the cause of the victim's injury and resulting death. Even if Doctor Gunther's testimony had been erroneously admitted, we would be unable to conclude, based upon the additional testimony of Doctor Schmidt, that consideration of the issue was necessary to do substantial justice. For these reasons, we hold that the defendant cannot establish all of the prerequisites to plain error relief. .......In his next issue, the defendant argues that the trial court erred in failing to instruct the jury on the lesser offenses of the felony murder charge. The state argues that the defendant is not entitled to relief because there were no facts from which an inference of guilt of second degree murder could be drawn, that the defendant invited error as to the lesser included offense of criminally negligent homicide by requesting that lesser offense instructions not be given, that there was no proof of recklessness to support a reckless homicide charge, and that any error in the failure to charge reckless homicide was harmless. Pursuant to the statute in force at the time of the offenses on trial, the trial court was required "to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so." T.C.A. § 40-18-110(a) (1997). Thus, when the evidence introduced by either party was susceptible of inferring guilt of a lesser offense, the trial court was required by this statute to charge such lesser offense. ...An instruction was not required, though, if the record contains no evidence to support a conviction for the lesser offense. ... In this regard, "the trial court must consider the evidence in the light most favorable to the existence of the lesser included offense and if the evidence so considered permits an inference of guilt of a lesser offense, the trial court must give instructions as to that lesser offense." ......The record reflects that the trial court informed the parties that it would be instructing the jury on felony murder without any lesser offenses. Despite the state bringing Trusty to the court's attention and stating that the defense proof might call for an instruction on criminally negligent homicide as a lesser offense, the defendant declined lesser included offense instructions. Without regard to the defendant's desire regarding lesser included offense instructions, the trial court had an independent duty to instruct the jury on all applicable lesser included offenses. .... Thus, the defendant's failure to request the instructions is not determinative [under the law at the time].Second degree murder is "a knowing killing of another[.]" T.C.A. § 39-13-210(a)(1). "A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result." .... Considered in the light most favorable to the existence of the offense, the evidence in the present case would not support a conviction of second degree murder. There was no evidence the defendant acted knowingly in causing the victim's death. The defendant's theory of the case was that he did nothing to harm the victim and that she was injured when she fell down a flight of stairs. No instruction was required on the lesser offense of second degree murder....'Reckless' refers to a person who acts recklessly with respect to ... the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that ... the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint....Considered in the light most favorable to the existence of the lesser included offense, the evidence does not support a conclusion that the defendant was aware of a substantial and unjustifiable risk of the victim's death. The defendant testified that he had seen the victim walk up and down the stairs before. There was no evidence he realized any danger in placing her at the top of the stairs. The trial court did not err in not instructing the jury on reckless homicide. 'Criminal negligence' refers to a person who acts with criminal negligence with respect to the ... result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that ... the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint....T.C.A. § 39-11-302(d). Considering the evidence in the light most favorable to the existence of the lesser offense, the evidence supported an instruction on criminally negligent homicide. The defendant's proof would support a conclusion that the defendant should have been aware of a substantial and unjustifiable risk that leaving the victim unattended at the top of the stairs would result in her death. Therefore, we must consider whether the failure to give the instruction was harmless beyond a reasonable doubt. .... In that regard, we note that although the defendant offered evidence that the victim was injured by falling down the stairs, his proof did not address the inconsistency of that account with the nature and magnitude of the victim's injuries. All of the medical proof refuted the accuracy of the defendant's account. Additionally, the jury's rejection of the defendant's theory of accidental injury is evident by its separate verdict of aggravated child abuse. We hold that the failure to give the instruction on criminally negligent homicide was harmless beyond a reasonable doubt.

On January 26, 2009 the Tennessee Supreme Court granted review.

PREDICTION: The Court gave no hint as to which issue was worthy of review. David believes the lesser included offense issue may have some merit because the quality of the defense proof does not drive the harmless error train. The fact that the jury had no other option but an all or nothing option dilutes the harmless of the failure to instruct on negligent homicide. The expert witness issue may have some traction but David thinks that relief here, if any, will come on the instruction issue. If the defendant prevails it will be a close, split decision.

• Minimum Contacts to Establish Personal Jurisdiction

• Violations of the Tennessee Consumer Protection Act

• Interpretation of Antenuptial Agreement

In Melba B. Homra, et al. v. Harold Elliot Nelson, husband and wife entered into an antenuptial agreement whereby husband agreed to pay for wife's daily necessities. When wife became unable to care for herself because of advancing Alzheimer's, a dispute arose between husband and wife's attorneys-in-fact as to whom was responsible for the costs associated with wife's care. The trial court held that under the antenuptial agreement, husband was responsible for the costs of wife's care. On appeal, the court affirmed. The Supreme Court granted review on October 27, 2008.

PREDICTION: Sarah believes that the Supreme Court will likely affirm but address Judge Williams' dissenting opinion.

• Unconscionable Arbitration Clauses

In Bridgett Hill, et al. v. NHC Healthcare/Nashville, LLC, et al., administrators of decedent's estate filed a wrongful death action against the nursing home. The nursing home filed a motion to compel arbitration based on an arbitration provision in the admission agreement signed by decedent. The trial court found the arbitration clause unenforceable because it was unconscionable and thus denied the nursing home's motion. The Court of Appeals affirmed, agreeing that the arbitration clause was unconscionable. The Supreme Court granted review on August 25, 2008.

Prediction: Sarah believes that the Supreme Court will affirm; however, the Court will likely address Judge Clement's concurring opinion concerning whether a nursing home has the affirmative duty to explain an arbitration provision and provide the parties to the contract a copy of all relevant arbitration rules. David agrees but there may well be a dissent arguing the freedom to contract prevails over the court stepping in to determine what is "fair." This case certainly transcends the nursing home industry.

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