State of Tennessee v. John T. Freeland, Jr. - Concur
We concur fully with all of the Court’s opinion except for Section II(B)(iv) containing the proportionality analysis. After conducting our own independent proportionality analysis, we concur with the majority’s conclusion that Mr. Freeland’s sentence of death is not disproportionate to the sentences imposed on other similar offenders who have committed similar crimes. |
Madison | Supreme Court | |
Greg Parker, Et Al. v. Holiday Hospitality Franchising, Incorporated, Et Al.
We granted permission to appeal in this premises liability action to address two issues: (1) whether the undisputed facts establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not vicariously liable for the negligence of independent contractors; and (2) whether disputes of material fact remain concerning the property owner’s actual or constructive notice of the defective condition created by the independent contractor’s negligence. We hold that the undisputed facts do not establish either exception to the general rule of non-liability and that the undisputed facts establish that the property owner had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court granting the property owner summary judgment is reinstated. |
Roane | Supreme Court | |
Terri Ann Kelly v. Willard Reed Kelly
This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone. A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision. |
Hamilton | Supreme Court | |
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee
A federal bankruptcy court entered judgment denying a Nashville attorney’s application for approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and clown” and demanding that he provide a written apology for denying the fee application. The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel’s judgment to include additional violations for misconduct associated with the attorney’s briefs filed in the district court but affirmed the remainder of the hearing panel’s judgment. The attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the attorney’s email violated the rule against ex parte communications and was also sanctionable as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s thirty-day suspension from the practice of law. |
Davidson | Supreme Court | |
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
I concur in the lead opinion’s conclusions that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b) and 3.5(e) and that “an attorney may be disciplined pursuant to [RPC]8.2 only if the false statement is communicated to a third party.” I disagree, however, with the lead opinion’s conclusion that “the record lacks any indication that Mr. Hancock sent the email to anyone other than Judge Paine.” I would instead hold that the record contains substantial and material evidence establishing that Mr. Hancock sent an email to third parties. As a result, I would affirm the hearing panel’s judgment that Mr. Hancock violated RPC 8.2(a)(1). In all other respects, I concur in the lead opinion’s decision affirming Mr. Hancock’s thirty-day suspension from the practice of law. |
Davidson | Supreme Court | |
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
I concur in the lead opinion’s conclusions that (1) Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b); (2) the disciplinary authority of this Court is not preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a judicial or legal official be communicated to a third party; and (4) the chancery court erred by modifying the judgment of the hearing panel to include violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(e), and the imposition of a thirty-day suspension. Because I cannot find a basis to suspend Mr. Hancock for his offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in this case. |
Davidson | Supreme Court | |
Andrew Spencer v. Norfolk Southern Railway Company
The plaintiff, who was injured while pulling a switch for his employer, Norfolk Southern Railway, filed suit for negligence under the Federal Employers’ Liability Act. The jury returned a verdict in favor of the defendant railroad. The Court of Appeals, ruling that the trial court had provided an erroneous jury instruction, reversed the jury verdict and granted the plaintiff a new trial. Because we find that the instruction qualifies as “substantially accurate” in the context of the entire charge, we reverse the judgment of the Court of Appeals and reinstate the verdict of the jury. |
Hamilton | Supreme Court | |
Dennis Michael Harris et al. v. Mickey Deanne Haynes et al.
We granted permission to appeal to determine whether a governmental fund established in accordance with Tennessee Code Annotated sections 29-20-401 to -408 (2012), which allows governmental entities to pool resources in order to address liabilities created under the Governmental Tort Liability Act, is subject to the uninsured motorist coverage requirements of Tennessee Code Annotated sections 56-7-1201 to -1206 (2008). We hold that such funds are statutorily exempt from the insurance statutes and therefore the requirements of the uninsured motorist statute do not apply. Accordingly, we affirm the Court of Appeals’ judgment upholding the trial court’s decision granting summary judgment to Tennessee Risk Management Trust and remand to the trial court for further proceedings consistent with this decision. |
Anderson | Supreme Court | |
State of Tennessee v. Noura Jackson
The defendant was charged with the June 2005 first degree premeditated murder of her mother. The jury convicted her of second degree murder after a trial in which the evidence was entirely circumstantial. The Court of Criminal Appeals affirmed her conviction and sentence, although the judges on the Panel were not unanimous as to the rationale for the decision. We granted the defendant’s application for permission to appeal. We hold that the lead prosecutor’s remark during final closing argument at trial amounted to a constitutionally impermissible comment upon the defendant’s exercise of her state and federal constitutional right to remain silent and not testify. We also hold that the prosecution violated the defendant’s constitutional right to due process by failing to turn over until after trial the third statement a key witness gave to law enforcement officers investigating the murder. The State has failed to establish that these constitutional errors were harmless beyond a reasonable doubt. Therefore, we vacate the defendant’s conviction and sentence and remand for a new trial. |
Shelby | Supreme Court | |
Quantel Taylor v. State of Tennessee
The petitioner pled guilty to charges of attempted first degree murder, second degree murder, and especially aggravated robbery. Later, he filed a petition for post-conviction relief, claiming that his trial counsel was ineffective and that his guilty pleas were not knowingly and voluntarily made. When the petitioner subpoenaed his three co-defendants to testify at the post-conviction hearing, the State filed a motion to quash because the co-defendants were all incarcerated. The post-conviction court granted the State’s motion. The Court of Criminal Appeals ruled that the post-conviction court had erred, but held that the error was harmless under the circumstances. We hold that the post-conviction court committed prejudicial error by applying an incorrect legal standard and by failing to consider whether the proposed testimony by the co-defendants was material to the petitioner’s claim of ineffective assistance of counsel. Because the record is insufficient for the issue to be resolved on appeal, we remand for the post-conviction court to reconsider the motion to quash under the proper standard. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the post-conviction court for additional proceedings consistent with this opinion. Tenn. R. App. P. 11 |
Crockett | Supreme Court | |
Mack Phillips, Et Al. v. Montgomery County, Tennessee, Et Al.
We granted permission to appeal to determine whether article I, section 21 of the Tennessee Constitution requires a government to compensate a property owner for a regulatory taking of private property. We hold that article I, section 21 encompasses regulatory takings in the same manner as the Takings Clause of the Fifth Amendment to the United States Constitution. Accordingly, we reverse the judgment of the Court of Appeals dismissing the property owners’ complaint alleging a state constitutional regulatory takings claim and remand this matter to the trial court for further proceedings consistent with this decision. |
Montgomery | Supreme Court | |
R. Sadler Bailey v. Board of Professional Responsibility
The Board of Professional Responsibility instituted a lawyer disciplinary proceeding against an attorney based on complaints it received from a judge and opposing counsel regarding the attorney’s disruptive behavior during trial proceedings. A hearing panel found that the attorney had violated several Rules of Professional Conduct and suspended him from the practice of law for sixty days. On appeal, the Chancery Court for Shelby County affirmed the hearing panel’s finding that the attorney had violated several ethical rules but reversed the suspension, instead recommending a public censure. The Board of Professional Responsibility appealed to this Court. We reverse the Chancery Court’s reduction of discipline and reinstate the hearing panel’s imposition of a sixty-day suspension. |
Shelby | Supreme Court | |
Cha Yang v. Nissan North America, Inc. et al.
The employee suffered bilateral shoulder injuries in January and March of 2008. After undergoing separate surgeries on each shoulder, the employee agreed to a voluntary buyout of his employment. Later, he filed suit for workers’ compensation benefits. The trial court awarded temporary total disability benefits and assessed a 90% permanent partial disability award after determining that the employee’s permanent partial disability benefits were not capped at one and one-half times the impairment rating. The employer appealed and, pursuant to Tennessee Supreme Court Rule 51, the case was referred to a Special Workers’ Compensation Appeals Panel. The Panel ruled that the employee’s benefits should have been capped at one and one-half times his impairment rating and reduced the award of permanent partial disability benefits to 37.5%. We granted the employee’s motion for full Court review and have determined that because the employee acted reasonably by accepting the voluntary buyout for reasons related to his work injuries, the award for permanent partial disability is not subject to the one-and-one-half-times cap. The judgment of the Panel is, therefore, modified to the extent that the trial court’s award for permanent partial disability benefits is reinstated, but otherwise affirmed. |
Rutherford | Supreme Court | |
Wilma Griffin v. Campbell Clinic, P.A.
The plaintiff filed a civil action in the general sessions court asserting a health care liability claim against the defendant. Following a trial, the general sessions court entered judgment in the defendant’s favor. The next day, the plaintiff filed a notice of appeal and deposited $211.50 with the general sessions court clerk, which represents the amount of the standard court cost of $150 for an appeal to the circuit court required by Tennessee Code Annotated section 8-21-401(b)(1)(C)(i) plus state and local litigation taxes. The circuit court dismissed the plaintiff’s appeal, concluding that it lacked subject matter jurisdiction because the plaintiff failed to file a bond “with good security . . . for the costs of the appeal” under Tennessee Code Annotated section 27-5-103. The Court of Appeals reversed the trial court’s judgment, concluding that payment of the standard court cost is sufficient to perfect an appeal from the general sessions court to the circuit court. After a thorough review of the statutory scheme at issue, we conclude that the plaintiff’s cash bond was sufficient to perfect her appeal to the circuit court. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings. |
Shelby | Supreme Court | |
Mary C. Smith v. UHS of Lakeside, Inc., et al.
This appeal involves the manner in which a trial court granted motions for summary judgment in a proceeding involving the death of a patient whose treatment for viral encephalitis was delayed because he was also being assessed for involuntary commitment to a psychiatric hospital. The widow of the deceased patient filed suit against three health care providers in the Circuit Court for Shelby County. In her original complaint and four subsequent amended complaints, the widow asserted eight causes of action against one or more of the providers. The trial court eventually granted a series of summary judgments dismissing all the claims against one of the providers without explaining the grounds for its decisions and requested counsel for the provider to prepare appropriate orders “establish[ing] the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared detailed orders adopting all the arguments the provider had made in favor of its summary judgment motions, and the trial court signed these orders over the widow’s objections. The widow appealed, arguing that the trial court had failed to provide reasons for its decisions and that the orders did not accurately reflect what had occurred at the summary judgment hearings. The Court of Appeals vacated the disputed orders because the trial court had failed to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the provider’s application for permission to appeal. We have determined that the record establishes that the contested orders were not the product of the trial court’s independent judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P. 56.04. |
Shelby | Supreme Court | |
State of Tennessee v. Glover P. Smith
The defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the defendant’s motion for new trial, the trial court affirmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the defendant fabricated evidence. Both the State and the defendant appealed. The Court of Criminal Appeals reinstated the defendant’s convictions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. We granted the defendant permission to appeal. Although we affirm the Court of Criminal Appeals’ reinstatement of the defendant’s convictions for fabricating evidence, we conclude that two of the defendant’s convictions for making a false report should be dismissed because the evidence is insufficient to support these convictions. We also conclude that three of the defendant’s convictions for making a false report are multiplicitous and therefore dismiss two of those convictions. We affirm the Court of Criminal Appeals in all other respects. |
Rutherford | Supreme Court | |
Fletcher Whaley Long v. Board of Professional Responsibility of the Supreme Court of Tennessee
A Hearing Panel of the Board of Professional Responsibility determined that an attorney had violated multiple disciplinary rules and imposed a public censure. The attorney appealed, and the trial court affirmed the Hearing Panel’s decision. On appeal to this Court, the attorney raises a number of issues, including a facial constitutional challenge to Tenn. Sup. Ct. R. 9. After reviewing the evidence and the applicable law, we reject the attorney’s constitutional challenge to Tenn. Sup. Ct. R. 9, and we conclude that his other issues are without merit. We therefore affirm the judgment of the trial court. |
Montgomery | Supreme Court | |
Guadalupe Arroyo v. State of Tennessee - Dissent
In January of 2002, Guadalupe Arroyo (the “Petitioner”) pled guilty to two counts of vehicular homicide. The trial court imposed two twelve-year sentences to be served consecutively—an effective sentence of twenty-four years. The Petitioner successfully appealed to the Court of Criminal Appeals on the basis that the trial court had imposed consecutive sentencing based upon the “dangerous offender” classification in Tennessee Code Annotated section 40-35-115(b)(4) (2010) without first addressing the requisite factors set forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). A second appeal on the same issue also resulted in a second remand to the trial court. In a third sentencing order, the trial court held that the sentences were reasonably related to the severity of the offenses and were necessary to protect the public, grounds essential for the imposition of consecutive sentences based upon the “dangerous offender” classification. Id. at 938; see also State v. Pollard, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *9-10 (Tenn. Dec. 20, 2013). The reasons cited were as follows: [One,] during the prior sentencing hearing the [Petitioner] admitted to underage drinking on a daily basis, confirmed in the pre-sentence report; Two, the [Petitioner] admitted to driving without a license daily; and Three, the [Petitioner] has been illegally within this country since his arrival. |
Knox | Supreme Court | |
Guadalupe Arroyo v. State of Tennessee
The defendant pleaded guilty to two counts of vehicular homicide. The trial court sentenced the defendant to two consecutive twelve-year terms for an effective sentence of twenty-four years. The defendant twice appealed the sentence to the Court of Criminal Appeals, which twice remanded the case to the trial court for resentencing. Each time, the trial court imposed a twenty-four-year sentence. The defendant did not appeal the third sentencing order. Later, the defendant filed a petition for post-conviction relief, alleging that his trial counsel provided ineffective assistance of counsel by failing to appeal the third sentencing order. At the post-conviction hearing, trial counsel testified that he and the defendant discussed the futility of a third appeal and the defendant agreed that no appeal would be filed. The defendant denied that he and his trial counsel discussed a third appeal. Trial counsel did not file a Tenn. R. Crim. P. 37(d)(2) waiver of appeal. The post-conviction court found trial counsel to be more credible than the defendant. Based on that finding, the trial court dismissed the petition, ruling that the defendant knew of his right to appeal and waived that right. The Court of Criminal Appeals affirmed. We hold that the defendant had the burden of proving by clear and convincing evidence that he did not know of his right to appeal or that he otherwise did not waive that right. His trial counsel’s failure to file a written waiver of appeal was not per se deficient performance, but was a fact properly considered by the trial court on the issue of whether trial counsel rendered effective representation. Based on the credibility determinations made by the post-conviction court, we hold that the defendant failed to prove by clear and convincing evidence his allegations of ineffective |
Knox | Supreme Court | |
Richard Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC et al.
Sixty days prior to filing his complaint, the plaintiff in this health care liability action sent written notice of his potential claim to each of the health care providers that would be named as defendants. Tenn. Code Ann. § 29-26-121(a)(1) (2012 & Supp. 2013). The plaintiff served the pre-suit notice by certified mail, return receipt requested, as permitted by statute. Id. § 29-26-121(a)(3)(B). In his subsequent complaint, the plaintiff alleged that he had complied with the statutory requirement of pre-suit notice, id. § 29-26-121(b), but the plaintiff failed to file with the complaint “an affidavit of the party mailing the [pre-suit] notice establishing that the specified notice was timely mailed by certified mail, return receipt requested,” id. § 29-26-121(a)(4). The defendants moved for dismissal of the lawsuit, citing the plaintiff’s failure to file with the complaint an affidavit of the person who had sent the pre-suit notice by certified mail. The defendants did not allege that the lack of the affidavit resulted in prejudice. Instead, the defendants contended that the pre-suit notice statute demands strict compliance with all its requirements and that dismissal is the mandatory remedy for noncompliance. The trial court “reluctantly” agreed with the defendants and dismissed the complaint. The Court of Appeals affirmed but noted the “harsh results” strict compliance produces in cases, such as this one, where no prejudice is alleged. We granted the plaintiff’s application for permission to appeal. We hold that the statutory requirement of an affidavit of the person who sent pre-suit notice by certified mail may be satisfied by substantial compliance. We also hold that the plaintiff substantially complied with the statute. Accordingly, the judgment of the Court of Appeals affirming the trial court’sdismissal of the complaint is reversed; the complaint is reinstated; and this matter is remanded to the trial court for further proceedings. |
Montgomery | Supreme Court | |
State of Tennessee v. Kiara Tashawn King
The defendant pled guilty to aggravated burglary and theft of property over five hundred dollars. The trial court imposed concurrent, Range I sentences of five years and one year and six months, respectively, all to be served on probation. On appeal, the defendant contended that the trial court erred by imposing excessive sentences and by denying her application for judicial diversion. The Court of Criminal Appeals affirmed. We granted the application for permission to appeal in order to clarify the appropriate standard of appellate review for the grant or denial of judicial diversion. We hold that when the trial court places on the record its considerations for the grant or denial of judicial diversion, the determination should be given a presumption of reasonableness on appeal and reviewed for an abuse of discretion. In the absence of appropriate considerations on the record, the appellate court should either remand for reconsideration or perform a de novo review. After our own de novo review of this record, we hold that the defendant is not entitled to judicial diversion. |
Marshall | Supreme Court | |
Larry O. Evans v. Fidelity & Guaranty Insurance Company
An employee sustained a compensable injury. The trial court ruled that the employee’s partial disability award should be apportioned to the arm. The employee has appealed, asserting that the award should have been apportioned to his thumb. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with Tennessee Supreme Court Rule 51. We affirm the judgment. |
Coffee | Supreme Court | |
Jose Rodriguez a.k.a. Alex Lopez v. State of Tennessee
The petitioner, a Mexican citizen, entered a guilty plea to the misdemeanor charge of patronizing prostitution and was granted judicial diversion. After successfully completing his diversion, the petitioner’s criminal record was expunged. More than three years after the entry of his plea, the petitioner filed a petition for post-conviction relief alleging that trial counsel failed to advise him of the potential immigration consequences of his guilty plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court dismissed the petition as time-barred. The Court of Criminal Appeals held that a petitioner whose record has been expunged may not obtain post-conviction relief and affirmed the trial court’s summary dismissal of the petition. We granted the petitioner permission to appeal. Following our review, we conclude that a guilty plea expunged after successful completion of judicial diversion is not a conviction subject to collateral review under the Post-Conviction Procedure Act. We therefore affirm the judgment of the Court of Criminal Appeals. |
Davidson | Supreme Court | |
Roger David Hyman v. Board of Professional Responsibility of the Supreme Court of Tennessee
A hearing panel of the Board of Professional Responsibility determined that a Knoxville attorney violated a number of the Rules of Professional Conduct and recommended his suspension from the practice of law for six months and his attendance at six hours of ethics and professionalism coursesin addition to those mandatedby Tennessee Supreme CourtRule 21, section 3.01. The attorney timely filed a petition for certiorari in the Circuit Court for Knox County under Tennessee Supreme Court Rule 9, section 1.3. In his petition, the attorneyalleged thatthe hearing panel improperlyconsidered his disciplinaryhistoryand that his six-month suspension was excessive. The circuit court affirmed the judgment of the hearing panel. After a thorough review of the record, we affirm. |
Knox | Supreme Court | |
John Jay Hooker et al. v. Governor Bill Haslam et al.
We granted permission to appeal to determine whether certain provisions of the Tennessee Plan, Tenn. Code Ann. §§ 17-4-101 through 17-4-109 (2009), which governs the way in which Tennessee appellate judges are initially selected and thereafter stand for reelection, violate the Tennessee Constitution. We hold that the issue of the constitutional validity of the Judicial Nominating Commission/gubernatorial appointment process under the Tennessee Plan is moot, and we decline to rule on this issue. We further hold that the retention election portion of the Tennessee Plan satisfies the constitutional requirement that the judges of the appellate courts be elected by the qualified voters of the State and does not violate the Tennessee Constitution. We likewise hold that the election of judges to the Tennessee Court of Appeals and the Court of Criminal Appeals of Tennessee on a statewide basis does not violate the Tennessee Constitution. Accordingly, the portion of the judgment of the Court of Appeals with respect to the issue of the constitutional validity of the Judicial Nominating Commission/gubernatorial appointment process under the Tennessee Plan is vacated and that claim is dismissed. We affirm the portions of the judgment of the Court of Appeals with respect to the constitutional validity of the retention election portion of the Tennessee Plan and the constitutional validity of the election of Tennessee intermediate appellate court judges on a statewide basis. |
Davidson | Supreme Court |
