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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.

Cases Pending Review in the Supreme Court of Tennessee
as of August 30, 2010.

After two months of reviewing a host of Applications for Permission to Appeal, the Supreme Court released a twenty-nine page list of denials and grants. There were eleven grants of review in civil and criminal cases which is the greatest number of cases granted in one week since the Hot List began two years ago.

• Dismissal of General Sessions Appeal

In James Crowley, et al v. Wendy Thomas, Defendant Motorist appealed in circuit court from an adverse judgment in general sessions court. After Plaintiff Victim filed an amended complaint to add his wife as an additional plaintiff and assert additional claims, the Defendant moved to dismiss the appeal and affirm the general sessions judgment. The Court of Appeals affirmed the trial court’s dismissal of Defendant’s appeal, recognizing “the long-standing principle that an appellant may dismiss his appeal from a judgment of the general sessions court at any time prior to trial in circuit court, the result of which is the reinstatement of the general sessions judgment.” The Supreme Court granted Plaintiffs’ application for review on August 25.

Prediction: Sarah believes that the Court will reverse, finding that defendant could not dismiss a de novo appeal to the trial court after plaintiff amended the complaint. David agrees, otherwise the other party could unilaterally terminate the case

• Rehabilitative v. In Futuro Alimomy

In Gonsewski v. Gonsewski, Wife appealed the trial court’s decision to deny Wife any form of spousal support, including attorney’s fees. The marriage lasted twenty-one years. On appeal, the Court of Appeals denied rehabilitative alimony because Wife is a college graduate and has been employed by the state for sixteen years. However, the court granted Wife $1,250 per month for alimony in futuro because of a discrepancy of income of $60,000: “Wife is the economically disadvantaged spouse, and Wife's earning capacity will not permit her to maintain a standard of living after the divorce that is reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to Husband.” The Court also remanded for a determination of reasonable attorney’s fees upon finding that, as the disadvantaged spouse, Wife’s income and marital assets received will not provide her with a revenue source with which to pay. The Supreme Court granted Husband’s application for review on August 25.

Prediction: Sarah believes that the Court will reverse the award of alimony in futuro due to the legislative preference against such an award. Instead, Sarah believes that the Court will award Wife transitional alimony and affirm the award of attorney’s fees to Wife.

• Intentional Acts Under the Government Tort Liability Act

In Dalton Reb Hughes and wife, Sandra Hines Hughes v. The Metropolitan Government of Nashville and Davidson County, Metro Public Works Employee sued Metro and the Driver of a front end loader, who also worked for Metro. The trial court found that Driver made a loud noise with the machine that caused plaintiff to injure himself while jumping over a guardrail for safety. The Court of Appeals held that the Government Tort Liability Act did not shield Metro because (1) Driver’s “horseplay” was within the scope of his employment and (2) Driver acted negligently – not intentionally – and a civil action for assault requires an intent to harm which had not been shown. The Court viewed the first issue as extremely close and discussed several cases. The Court also reviewed many cases and statutes in its distinction between negligent and intentional conduct. The Supreme Court granted Defendants’ application for review on August 25.

Prediction: Sarah believes that the Court will affirm the decision of the Court of Appeals.

• Qualified Immunity in a 1983 Suit

In Dorothy King, R.N. and Patricia Battle, R.N., et al v. Virginia Betts, Commissioner of the Tennessee Department of Mental Health and Developmental Disabilities, in her individual capacity, et al, December 18, 2009, two Nurses brought a Section 1983 civil rights suit against their government Employer for alleged retaliation for speaking out against hospital policy. The trial court granted summary judgment and judgment on the pleadings to Employer. The Court of Appeals reversed the summary judgment because it found a factual dispute about the alleged conduct constituting the retaliatory action. The Court also reversed the judgment on the pleadings, which was based on qualified immunity. Although the trial court held that the right allegedly violated was not clearly established in the context of the case, the Court wrote that summary judgment was not appropriate because it was unclear whether Nurse was speaking pursuant to her official duties or as a private citizen, and “[a]ny determination for the purpose of summary judgment that Appellees' actions were reasonable would be premature as factual disputes remain concerning what the conduct was.” The Supreme Court granted Defendants’ application for review on August 25.

Prediction: Sarah believes that the Court will reverse finding that Metro was entitled to qualified immunity. David disagrees.

• Municipality Land Annexation

In City of Harriman, Tennessee vs. Roane County Election Commission, et al, two neighboring towns in Roane County attempted to annex common territory that is outside the “urban growth boundary” of each but within the “rural area” of the county. The Court of Appeals identified the dispositive issue as follows: “Was the trial court correct in concluding that Tenn.Code Ann. § 6-58-111(d)(1) requires that a municipality seeking to annex by ordinance territory laying outside of its approved urban growth boundary must amend its urban growth boundary following the procedure in Tenn.Code Ann. 6-58-104?” The Court answered in the negative and vacated, holding that a municipality may expand outside of a growth plan if it either (1) proposes an amendment to its urban growth boundary or (2) conducts its annexation by referendum. Because the parties stipulated that the City of Harriman complied with all formal requirements, the Court concluded that it had successfully annexed by ordinance. The Supreme Court granted Kingston’s application for review on August 25.

Prediction: Sarah believes that the Court will reverse, finding that merely “proposing” an amendment to an urban growth boundary is contrary to the legislative purpose of the statute.

• Right to Jury Trials in Ouster Actions

In State of Tennessee ex rel. Robert L. Wolfenbarger, III., et al, vs. Scott Moore, et al, “citizen plaintiffs” filed an ouster suit against Scott Moore and Paul Pinkston, Knox County Commissioners. The trial court found that Moore, but not Pinkston, should be removed from office. The Court of Appeals reversed the judgment in favor of Pinkston and remanded for a new trial because the trail court erred by denying Citizen Plaintiffs’ request for a jury trial. The Ouster Act provides that ouster actions “shall be conducted in accordance with the procedures of court of chancery,” and Tenn. Code Ann. § 21-1-103 provides for jury trials in chancery court. This statute was intended to give a broad right to jury trial unless “expressly excepted” by another statute. Smith County Education Association v. Anderson, 676 S.W.2d 328, 337 (Tenn. 1984). Because the Ouster Act does not “expressly” preclude jury trials, the Court of Appeals held that the trial court erred in denying Plaintiffs’ request. The Supreme Court granted Pinkston’s application for review on August 25.

Prediction: Sarah believes the Court will affirm, finding that parties are entitled to request a trial by jury in an ouster action. David disagrees; that would be a dramatic change in the law.

• DUI; Sentencing

In State v. Cooper, Tenn.Crim.App. (February 16, 2010) the trial court ordered the defendant to serve one hundred percent of her eleven month, twenty-nine day DUI sentence in confinement, with the provision that after ninety days of service she could apply for furlough to attend in-patient rehabilitation and, upon successful completion, serve the remainder of her sentence on probation in an after-care program. The Court of Criminal Appeals found that the trial court correctly considered the possibility of rehabilitation when it sentenced a defendant to total confinement, with the ability to shorten her sentence by completing an in-patient alcohol treatment, when the defendant adamantly denied having alcohol abuse issues in a DUI case. Defendant was a successful and accomplished registered nurse. At sentencing she testified that she had worked at a in-patient alcohol treatment program and based on this experience she did not have an alcohol abuse problem because she did not drink alone, drink consistently, or binge drink. Defendant also stated that she had not stopped drinking entirely after her arrest because she was not an alcoholic. Defendant also testified that she only remembered having two drinks the night she was arrested while having a blood alcohol level of .22. The proof also showed that the Defendant had earlier been convicted of attempted assault and disorderly conduct, both Class C felonies, in 2005. Sixteen days before her conduct that resulted in the DUI conviction and sentence that is the subject of this appeal, she was arrested in Illinois for driving while intoxicated, a charge for which she was later convicted.

Prediction: While some would wonder why the Court granted review here, it has to do with the question of the 75% cap on misdemeanor sentences and if this applies to DUI sentences. Further, the 100% sentence here would result in far more time in confinement than for a felony under the little known determinate release statute. While the defendant here is not a poster child for a sentence modification, David thinks this will be pushed back to 75%.

• Writ Of Error Coram Nobis

In Wlodarz v. State, Tenn.Crim.App. (May 19, 2010) the defendant entered a best interest plea to murder. He filed a writ of error coram nobis claiming that a ballistics report was newly discovered evidence or that he did not know about the report when he entered a “best interest” guilty plea. The trial court found held that, even if the reports were new evidence, it was not persuaded that the report invalidated Petitioner's pleas. It reasoned that, because Petitioner entered best interest pleas, he did not necessarily agree with all the evidence, but he still accepted guilt in exchange for avoiding a potential death sentence. Given Petitioner's intelligence and awareness of the issues, the trial court concluded, the additional evidence did not show that his pleas were not knowingly and voluntarily entered. The Court of Criminal Appeals affirmed; “Petitioner testified that he did not see the reports until February 2008, and the coram nobis court accepted that testimony as true. Regardless, that was the basis for Petitioner's earlier post-conviction petition. .. Petitioner was unable to meet the burden for his post-conviction petition, and we will not re-litigate that issue now.”. The Supreme Court granted review on August 25, 2010 and requested the parties brief the question of whether a guilty pleaded conviction is even subject to a writ of error coram nobis.

Prediction: The Supreme Court will hold that a writ of error coram nobis is not a “back door” vehicle to challenge a guilty plea. This will be affirmed.

• Disorderly Conduct

In State v. Mitchell, Tenn.Crim.App.,2010 (March 31, 2010) the Court of Criminal Appeals held that the evidence was insufficient to support a defendant's conviction for disorderly conduct. Officers testified that the defendant was very irate and struck officers with a flagpole when told he could not take the flagpole into a political protest. However, a video recording of the incident did not show the defendant striking an officer with the flagpole. Additionally, the officers did not testify that they felt threatened by the defendant. Judge Ogle dissented “In my view, the videos of the incident are not inconsistent with the officers' testimony. The videos show that the eagle end of the defendant's flagpole came into contact, albeit briefly, with Officer Wallen during the incident. When the defendant was informed he could not bring his flagpole into the rally, he became confrontational, loudly taunting the officers to get the attention of other rally attendees, getting into the officers' faces, and prodding Officer Wallen with the flagpole. Additionally, the videos show that a crowd was gathering around the defendant, shouting encouragement to him. The jury viewed the videos and heard the testimony of the witnesses. I would conclude that a reasonable trier of fact could have found that the defendant's behavior was threatening.” The Supreme Court granted review on August 25, 2010.

Prediction: The flag-waving defendant is up the pole on this one. The Supreme Court will reverse and affirm the conviction. While videos may be great for determining probable cause to stop a car in a DUI case, they are no substitute for live testimony at a jury trial.

• Double Jeopardy

In State v. Watkins, Tenn.Crim.App. (March 1, 2010) the Court of Criminal Appeals held that double jeopardy prevented defendant from being sentenced to consecutive terms for same criminal conduct and thus sentences were merged. Defendant was sentenced for four years for reckless homicide and twenty five years for aggravated child abuse arising from same conduct which caused the death of the thirteen month old victim. The evidence which supported defendant‘s convictions were identical as both convictions rested on the same act, namely the impact he caused between the victim's head and the stairway wall. The defendant did not raise the issue in the motion for new trial and thus the appellate court considered the issue under the stricter plain error standard. The Supreme Court granted review on August 25, 2010.

Prediction: Hopefully, that the issue arises as a plain error standard should not trouble the Supreme Court at all. These dual convictions should not stand otherwise every murder could also have a separate reckless endangerment charge tacked on as well. Conceptually, the homicide here should merge with the child abuse since the latter carries far more time. David does not see this case being reversed since the appellate merger was proper albeit in a plain error context.

• Guilty Plea; Ineffective Assistance Of Counsel

In Calvert v. State, Tenn.Crim.App. (March 26, 2009) the defendant pled guilty but was not informed about the lifetime supervison. Although counsel admitted failing to provide this information, the post-conviction court concluded that the petitioner had failed to establish that he would not have pleaded guilty had he been aware of this information. The court accredited counsel's testimony that the petitioner's primary concern was the length of any incarcerative sentence to be imposed and recognized that the sentence afforded the petitioner under the plea agreement was “decades” less than the potential sentence he would have faced following a jury conviction. The Court of Criminal Appeals affirmed. The Supreme Court granted review on August 25, 2010.

Prediction: David is surprised this was not just remanded for reconsideration in light of Marcus Ward v. State which held the trial court was required to advise the defendant of the mandatory sentence of lifetime community supervision because it is a punitive and direct consequence of the guilty plea. Presumably, here we are not talking about the trial judge’s failure to warn, but the lawyer’s failure to advise of the lifetime supervision. This is a distinction without a difference and the plea will be set aside.

• Death Penalty – Motion to Re-Open Post Conviction Petition

In Coleman v. State, the defendant filed a motion to reopen his post-conviction petition for the limited purpose of determining whether he was mentally retarded, as would render him ineligible for the death penalty. The court held that the petitioner failed to establish by clear and convincing evidence that he was mentally retarded at the time of the offense. On a test administered shortly after the petitioner's incarceration, the petitioner had a full-scale IQ of 80 which rendered the petitioner eligible for the death penalty. The proof established that the petitioner failed to meet the bright-line mark of an IQ of 70 for establishing mental retardation at the time of the offense. The Supreme Court granted review on June 21, 2010.

Prediction: David believes the standard to reopen a post conviction petition is different than if the defendant should be sentenced to death. This will be remanded.

• Prevailing Party Attorney’s Fees and Costs, Open Records Act

In Bob Fannon, individually and as a city Councilman for the City of LaFollette v. City of LaFollette et al., the trial court awarded Plaintiff attorney’s fees, costs and discretionary costs in an action for declaratory judgment finding that Plaintiff was the “prevailing party.” On appeal, the court reversed, finding that Plaintiff was not the “prevailing party” and therefore, the trial court erred in awarding Plaintiff attorney’s fees and costs on that basis. The Supreme Court granted review on June 21, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely reverse finding that Plaintiff is entitled to an award of attorney’s fees and costs for pursuing an action to force the city’s compliance with its charter and the Open Records Act.

• Child Abuse

In State v. Dorantes, Tenn.Crim.App., November 30, 2009, the defendant was convicted by a Davidson County jury of first degree felony murder during the perpetration of aggravated child abuse and aggravated child abuse by infliction of injury. Dorantes argues: (1) the record is insufficient to support both his conviction for first degree felony murder based on aggravated child abuse and his conviction for aggravated child abuse; (2) the trial court erred in admitting certain photographs of the victim's body; (3) the trial court erred when it refused to provide a special jury instruction that ensured that the verdicts were based on acts of abuse rather than a continuing course of neglect; and (4) the trial court erred in denying his motion to require the State to make an election of offenses. The court held that the evidence is insufficient to support the aggravated child abuse conviction. The judgment of the trial court for the felony murder conviction was affirmed. Judge Tipton dissented: "I note that the aggravated child abuse instruction given to the jury by the trial court provided that an essential element was "that the defendant did knowingly, other than by accidental means, treat a child in such a manner as to inflict injury." It did not provide the jury with the alternative of aggravated child neglect or of aggravated abuse through child neglect. Under these circumstances, I do not believe we are in a position to replace a jury finding regarding one offense with a judicial finding of another offense that was not submitted to the jury. I would reverse both the felony murder and aggravated child abuse judgments of conviction and dismiss the charges." On May 13, 2010, The Supreme Court granted BOTH the State's application for review and that of the defendant. Prediction: The majority found the evidence showed that Dorantes knowingly failed to provide the victim with any medical assistance which resulted in the victim's serious bodily injuries which is neglect but the dissent makes the better argument that the felony murder alleged affirmative abuse. This could have all been solved by a more specific indictment alleging the abuse and neglect in separate courts. David thinks the evidence is sufficient to sustain one conviction but the case will be reversed on the election issue and or the companion jury instruction question.

• Mandatory Joinder

In State v. Cedric Johnson Tenn.Crim.App., November 30, 2009 the State's sole issue in this appeal is whether the trial court erred in finding that Johnson's attempt to file a false offense report was part of the same criminal episode as the aggravated robbery. It argues that the offenses were not part of the same criminal episode because they were independently motivated and were not closely connected in either time or place. In response, Johnson argues that the trial court correctly ruled that the two offenses constituted a single criminal episode under Rule 8(a). The Court held that "under the existing authority and after weighing the above arguments, we conclude that the aggravated robbery and the false offense report were part of a single criminal episode. Johnson's attempt to file a false report was clearly an effort to conceal his involvement in the aggravated robbery that occurred some twelve hours earlier. Although the offenses were separated in time and place, the separation was not significant enough to overcome the obvious connection between the two offenses. We acknowledge that the two offenses do not necessarily involve proof of each other, as emphasized by the Commentary for ABA Standard S 13-1.2. See 2 ABA Standards for Criminal Justice, S 13-1.2, Commentary (2d ed. 1980 & Supp.1986). However, we believe our holding is consistent with the policy behind the mandatory joinder rule. Rule 8(a) was created in part "to avoid piecemeal litigation." Baird, 88 S.W.3d at 621 (citing King, 717 S.W.2d at 308). The failure to consolidate the two indictments amounted to piecemeal litigation because the prosecutor was aware of the aggravated robbery charge when Johnson was indicted for the false offense report charge. Accordingly, the trial court did not err in finding that the two offenses should have been consolidated pursuant to Rule 8(a)." Judge Glenn dissented , "The separation of the two offenses by hours and distance, in addition to the fact that they could be prosecuted separately without proof as to the defendant's actions which had resulted in the remaining charge, makes clear that they were not a single criminal episode" On May 11, 2010, The Supreme Court granted the State's application for review. Prediction: The majority cited David's book several times as authority and David is tempted to predict that both he and the majority are correct. Under these facts, however, Judge Glenn has the better argument on this admittedly close case. This will be reversed and we will get some better definition of the "criminal episode" concept.

• Search and Seizure

State v. Ingram Tenn.Crim.App.,October 21 2009 the defendant was confronted at a gas station, some money recovered used in an earlier drug sale and the defendant consented to a search of a house. The court found the initial search unlawful and reversed the conviction for the earlier drug sale but not the later search of the home. On May 12, 2010, The Supreme Court granted BOTH the State's application for review and that of the defendant. Prediction: David believes the search of the person will be upheld. The officers had abundant probable cause and because the money was evidence of a just-committed crime they could seize it. Whether there was an arrest is irrelevant.

• Joinder of Offenses

State v. Garrett, Tenn.Crim.App., November 19, 2009 the defendant was charged with aggravated robbery and in a separate indictment first degree felony murder; and especially aggravated robbery. The trial court subsequently granted the State's motion to consolidate the two indictments without conducting a hearing, and, following a jury trial, the defendant was convicted as charged. The Court held that although the trial court did err in failing to conduct a hearing on the motion to consolidate, the error was harmless. "In the present case, the evidence presented was more than sufficient to support the convictions, and we conclude that no "injurious effect" resulted to the defendant. The evidence presented with regard to all the charges was essentially of the same evidentiary quality. The defendant was implicated by a co-defendant who was present during the commission of all the crimes. As noted infra, that co-defendant's testimony was adequately corroborated by other evidence in the record. Additionally, the testimony of the defendant's uncle places the defendant and the co-defendants in the presence of the stolen vehicles shortly after the commission of each incident. We conclude that there is no basis for saying that any of the offenses, when compared to the others, evinces a weakness that suggests the jury convicted on the basis of the defendant's propensity to steal cars in order to obtain the rims. As such, the error which occurred was harmless, and the defendant is not entitled to relief on this issue" On May 12, 2010, The Supreme Court granted the defendant's application for review Prediction: David believes this will be reversed. The Court of Criminal Appeals failed to consider the evidentiary link between the two groups of offense. They were two "similar " robbery offenses but the cases lacked a significant "link" to support joinder. Prejudice was certainly not outweighed here. That there was no hearing on consolidation is beside the point but might have avoided what will be a reversal.

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