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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 March 2, 2010.

• Rule 11 Sanctions

In Thomas & Associates, Inc. v. Homes By Design, Inc. and Tennessee American Contractors, Inc., prior to the trial of the case, Plaintiff filed a Rule 11 motion for sanctions contending that the filing of Defendant's counterclaim violated Rule 11. Thereafter, the case went to trial on Plaintiff's complaint and Defendant's counterclaim. At the close of the proof, Defendant voluntarily dismissed its counterclaims. After the trial was concluded, the trial court held that Defendant and its attorneys violated Rule 11 because the evidence presented at trial revealed that the counterclaim had no basis in fact or law and they failed to dismiss the counterclaim when the motion for sanctions was filed. On appeal, the Court of Appeals reversed the imposition of Rule 11 sanctions determining that the trial court applied an incorrect legal standard by evaluating the issue with the wisdom of hindsight instead of examining the circumstances existing at the time the counterclaim was signed by the attorneys, and for imposing sanctions on Defendant for failing to voluntarily dismiss its counterclaim, because Rule 11 does not impose a duty to review or reevaluate a pleading once filed or to take affirmative steps thereafter to dismiss a previously filed pleading. The Supreme Court granted review on March 1, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals and clarify that pursuant to Tenn. R. Civ. P. 11, the trial court should test the signer's conduct by inquiring what was reasonable to believe at the time of signing the pleading. David disagrees: if facts later come to light that make the pleading wholly frivolous there should be a duty to mitigate and correct.

• Tennessee Excise Tax Law

In a major decision of wide consequences, the Tennessee Department of Revenue assessed an excise tax on a non–domiciliary subsidiary corporation which conducted business in the state based on income earned outside the state as a result of the parent corporation's redemption of outstanding stock held by the subsidiary. The Department's tax assessment was based on a determination that the income was taxable as "business earnings" under the Tennessee Excise Tax Law. The trial court found that the subsidiary and its parent corporation were not part of a unitary business relationship and, consequently, that the tax assessment was unconstitutional. On appeal, the Court of Appeals affirmed, finding that the entities were not part of a unitary business relationship Blue Bell Creameries, L.P. v. Loren L. Chumley, Commissioner, Department of Revenue, State of Tennessee,. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals and hold that the tax assessment against Plaintiff was unconstitutional. David disagrees and thinks the tax will be upheld in a split decision.

• Rule 60 Motion to Set Aside Judgment

In Stephanie H. Hewitt v. Joseph Cook, Mother filed a contempt petition against Father for failure to pay child support and also sought a judgment for the past–due support. In September 2006, Father was found in contempt and Mother was awarded a judgment. Father paid neither the judgment nor the current support obligation. In January 2007, Mother filed another contempt petition. After the second contempt petition was filed, Father's attorney withdrew from representing him. A hearing was held on Mother's contempt petition in August 2007, but Father did not attend. In September 2007, the trial court entered another order finding Father in contempt and awarding Mother another judgment. In March 2008, Father filed a Rule 60 motion for relief from the judgment, arguing that he did not have notice of the August 2007 hearing, was never sent a copy of the judgment, and only learned of the judgment in December 2007. The motion also sought the recusal of the trial judge. The trial court denied Father's Rule 60 motion and motion for recusal. On appeal, the court affirmed. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely reverse holding that the failure to comply with Tenn. R. Civ. P. 58 invalidated the judgment. David agrees.

• Summary Judgment and Directed Verdict

In Michael Sanford v. Waugh & Co., Inc., et al., Plaintiff was a creditor of an insolvent corporation that owed him in excess of $1 million under the terms of a promissory note. Plaintiff sued the corporation and its owner to enforce the note. Defendants were former officers and directors of the corporation who instituted a direct action against Plaintiff shortly after the filing of his complaint alleging he fraudulently misrepresented the financial condition of the company. During the pendency of both actions, Defendants began winding down the corporation and disposing of assets in which Plaintiff claimed a security interest. Plaintiff believed Defendants were acting to enrich themselves and avoid paying Plaintiff under the note. After Defendants voluntarily dismissed their action against Plaintiff, Plaintiff sued Defendants for breach of fiduciary duty, fraudulent conveyance, and malicious prosecution, abuse of process, conspiracy, and conversion. The trial court dismissed the abuse of process, breach of fiduciary duty, and conversion claims on summary judgment, limited the scope of Plaintiff's claim for fraudulent conveyance and conspiracy, and denied summary judgment on the malicious prosecution claim. Following Plaintiff's proof, the trial court granted a directed verdict in favor of Defendants on Plaintiff's claim for punitive damages but denied the motion on the malicious prosecution and fraudulent conveyance claims. The jury returned verdicts in favor of Plaintiff awarding $51,000 in damages for malicious prosecution, $176,222 in damages for fraudulent conveyance, and found that Defendants conspired both to maliciously prosecute their claim against Plaintiff and to fraudulently transfer corporation assets. Both parties appealed issues on summary judgment, evidentiary rulings, and directed verdicts. The court determined that Plaintiff sufficiently pled a cause of action for civil conspiracy based on facts alleged in the amended complaint and that Plaintiff was entitled to assert a claim for breach of fiduciary duty directly against Defendants. The court reversed the directed verdict granted in favor of Defendants on punitive damages and remanded for a new trial based on those issues. The court further found that summary judgment was proper on Plaintiff's conversion claim and affirmed the trial court's decisions allowing the claims for fraudulent conveyance and malicious prosecution to proceed to the jury. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely address whether a creditor may bring a direct cause of action against the officers and directors of an insolvent corporation and affirm the decision of the Court of Appeals allowing Plaintiff to assert a claim for breach of fiduciary duty against Defendants. This is a very important issue and may extend the reach against the officers of a corporation.

• Summary Judgment in Medical Malpractice Action

In Donna Faye Shipley, et al. v. Robin Williams, M.D., in reliance on plaintiff's experts, the trial court granted defendant doctor's motion for partial summary judgment on the medical malpractice claim pertaining to defendant's failure to admit plaintiff into the hospital. The trial court later granted the defendant doctor summary judgment on the remaining malpractice claims finding that the plaintiff's medical expert proof previously relied upon by defendant failed to comply with Tenn. Code Ann. S 29–26–115. On appeal, the court reversed the grant of partial summary judgment on the failure to admit claim since the defendant doctor relied solely on plaintiff's experts, whose testimony was later found inadmissible. The court also reversed the summary judgment of the remaining malpractice claims since the defendant doctor never presented proof to negate an element of those claims. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals. David agrees.

• Tennessee Title Pledge Act

In Dawn Brown, et al. v. Tennessee Title Loans, Inc., Plaintiffs allegedly obtained loans from the defendant and, were allegedly charged interest and fees, including a "redemption premium," not allowed by the Tennessee Titled Pledge Act ("the Act"). The trial court granted defendant's motion to dismiss all claims based on alleged violations of the Act, holding that the Act does not afford a private right of action. The trial court granted plaintiffs' motion for an interlocutory appeal pursuant to Tenn. R. App. P. 9. Plaintiffs filed a timely application for permission to appeal to the Court of Appeals, which the court accepted to consider "the sole issue of whether the Tennessee Title Pledge Act ["the Act"], Tenn. Code Ann. S 45–15–101, et. seq. [(2007)] provides . . . a private right of action." Defendant is a "title pledge lender" as defined in the Act. On appeal, the court vacated the order of dismissal and remanded the matter for further proceedings. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely affirm the decision of the Court of Appeals and hold that the Tennessee Title Pledge Act provides a private right of action.

• Tennessee False Claims Act; "qui tam claim"

In Knox County, Tennessee, ex rel., v. Environmental Termite & Pest Control, Inc., et al v. Arrow Exterminators, Inc., et al, Plaintiff filed an action as a "qui tam claim" pursuant to the Tennessee False Claims Act. Tenn. Code Ann. S 4–18–101 et seq. The trial court awarded plaintiff proceeds from the settlement under the Act and both parties appealed. On appeal, the court held that plaintiff did qualify under the statute as an original source, and the trial court had jurisdiction to award a recovery. However, the court further held there was not sufficient evidence to affirm the award and therefore, vacated the award and remanded the matter pursuant to Tenn. Code Ann. S 27–3–128. The Supreme Court granted review on February 22, 2010.

Prediction: Sarah believes the Tennessee Supreme Court will likely address the requirements to qualify as an original source under the Tennessee False Claims Act and affirm the Court of Appeals finding that Plaintiff qualified as an original source for purposes of the statute. David agrees.

• 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.

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