Board of Professional Responsibility v. James T. Allison
This is a direct appeal of a trial court judgment that modified a hearing panel’s order suspending an attorney from the practice of law for sixty days. The trial court did not disagree with the hearing panel’s findings regarding the attorney’s misconduct but determined that the punishment was too harsh and, instead, ordered a public censure. After an independent review of the record, we conclude that the hearing panel’s findings that the attorney commingled his personal funds with client funds, paid personal bills out of his trust account, failed to maintain proper trust account records, and failed to timely respond to Board inquiries were supported by substantial and material evidence and that this conduct violated the Rules of Professional Conduct. These violations, coupled with the aggravating factor that in 1998, the attorney was publicly reprimanded for commingling his personal funds with trust account funds and for paying personal expenses from his trust account, warrant the sanctions imposed by the hearing panel which require that the attorney be suspended from the practice of law for sixty days, that his trust account be monitored for a period of one year following reinstatement of his law license, that he submit trust account bank statements and ledger sheets every thirty days during this one-year period, and that he pay all costs of the proceeding. Accordingly, we reverse the trial court’s judgment to the extent that it modifies the sanctions imposed by the hearing panel. |
Shelby | Supreme Court | |
State of Tennessee v. Joey DeWayne Thompson
The defendant was initially charged with premeditated first degree murder and felony murder of one victim (Counts I and II in the indictment) and the attempted first degree murder of a second victim (Count III). He was found guilty of the lesser-included offense of second degree murder on the first count, a mistrial resulted on the second count, and, as to the third count, the jury acquitted the defendant on the primary charge but returned a guilty verdict of attempted second degree murder, a lesser-included offense. On direct appeal, the Court of Criminal Appeals, because of error in the instructions to the jury, reversed the convictions on Counts I and III and remanded for a new trial. Prior to the second trial, the State voluntarily dismissed Count III, the attempted second degree murder charge, and prosecuted the defendant only on Count I, for second degree murder, and Count II, for felony murder, both of the first victim. After the jury returned verdicts for the lesser-included offenses of voluntary manslaughter on Count I and second degree murder on Count II, the trial court imposed sentence and merged the two convictions. The defendant appealed, contending that because the prior jury had in effect returned a verdict of acquittal on the attempted first degree murder of the second victim, and because the alleged attempted first degree murder was the only possible predicate offense to support the felony murder charge in the retrial, the trial court had erred by allowing the |
Knox | Supreme Court | |
State of Tennessee v. Joey DeWayne Thompson - Concurring
I concur with the Court’s decision to affirm Mr. Thompson’s conviction and sentence for |
Knox | Supreme Court | |
Frank Barrett d/b/a Barrett Construction Company v. Tennessee Occupational Safety and Health Review Commission
This case presents a constitutional question of first impression: whether monetary penalties assessed by an administrative agency are subject to the fifty-dollar limitation of article VI, section 14 of the Constitution of the State of Tennessee. For the reasons discussed below, we hold that article VI, section 14 applies only to the judicial branch of government and therefore is inapplicable to monetary penalties assessed by an administrative agency, which is part of the executive branch. We therefore affirm the judgment of the Court of Appeals. |
Davidson | Supreme Court | |
Iris Kay Snodgrass v. Robert H. Snodgrass
We granted permission to appeal in this divorce case to address whether a spouse’s 401(k) account is a “retirement or other fringe benefit right[] relating to employment” under Tennessee Code Annotated section 36-4-121(b)(1)(B) such that any increase in the account’s value that accrues during the marriage is marital property. We hold as follows: (1) the parties’ 401(k) accounts are “retirement or other fringe benefit rights relating to employment”; (2) the entire net amount by which the parties’ 401(k) accounts increased in value during the period of the parties’ marriage is marital property; (3) the premarital balances in the parties’ 401(k) accounts remain their separate property; (4) Husband did not transmute his entire 401(k) account to marital property when he made a single withdrawal for marital purposes; and (5) the trial court correctly divided the parties’ defined benefit pensions by reference to the monthly income each spouse was receiving rather than by reference to the present cash value of each spouse’s pension. The judgment of the Court of Appeals is affirmed in part and reversed in part. Tenn. R. App. P. 11; Judgment of the Court of Appeals Affirmed in Part, Reversed in Part |
Loudon | Supreme Court | |
Cracker Barrel Old Country Store, Inc., et al. v. Richard Epperson, et al.
We accepted Cracker Barrel’s application for permission to appeal to determine whether the |
Davidson | Supreme Court | |
State of Tennessee v. Travis Young
This appeal involves the sentencing of a defendant who shot and seriously wounded a victim during an armed robbery and then two days later led law enforcement authorities on a lengthy and dangerous high-speed chase in an attempt to evade arrest. A Shelby County jury convicted the defendant of numerous offenses arising out of these incidents, and the trial court imposed an effective sixteen-year sentence. On the defendant’s first appeal, the Court of Criminal Appeals vacated the sentences and remanded the case for a new sentencing hearing after concluding that the trial court’s sentencing findings were inadequate. On remand, the trial court imposed the same sixteen-year sentence. On the defendant’s second appeal, the Court of Criminal Appeals made its own sentencing findings and imposed an effective seventeen-year sentence on the defendant. We granted the defendant’s Tenn. R. App. P. 11 application. We now hold that theCourt of Criminal Appeals exceeded its authority under Tenn. Code Ann. § 40-35-401(c)(2) (2006) by increasing the defendant’s effective sentence from sixteen to seventeen years. We also hold (1) that the Sixth Amendment to the United States Constitution does not require that the facts necessary for the imposition of consecutive sentences be determined by a jury, (2) that the Court of Criminal Appeals made adequate findings with regard to its decision to impose consecutive sentences, and (3) that the record contains sufficient evidence to sustain a decision to impose an effective sixteen-year sentence on the defendant. |
Shelby | Supreme Court | |
Arthur Creech, et al. v. Robert R. Addington, et al.
The eleven Plaintiffs, investors in a real estate development in Tunica, Mississippi, suffered losses when the financing for hotels on the tracts of land they had leased failed to materialize. Five of the Plaintiffs first learned of the investment opportunity in 1993 while attending a presentation by real estate agents Lloyd and Betty Link in Gatlinburg. After suit was filed against several Defendants based upon breach of oral and written contracts, the trial court entered an order of dismissal as to the Links and other of the Defendants and, later, granted a motion for summary judgment in favor of D.C. Parker and Richard Flowers, the owners of the land. When judgments had been entered as to all of the Defendants, the Plaintiffs appealed, but only as to Parker and Flowers. The Court of Appeals reversed, holding that whether an agency relationship existed between Parker and Flowers, as principals, and the Links, and whether the Links had been guilty of misrepresentation were disputed questions of fact. Upon remand, a jury found that the Links were the agents of Parker and Flowers, who were vicariously liable for fraudulent misrepresentations made by the Links. Damages were awarded to the Plaintiffs. In a second appeal, this time by Parker and Flowers, the Court of Appeals affirmed as to those five Plaintiffs who had attended the presentation in Gatlinburg, but remanded for a new trial as to those who did not. We granted an application for permission to appeal to consider whether the order of dismissal in favor of the agents precluded any adjudication of vicarious liability as to the principals. |
Sevier | Supreme Court | |
In the Matter of M.L.P.
This appeal involves an action to terminate the father’s parental rights filed jointly by the prospective adoptive parents and the temporary guardians of the child. The Juvenile Court found that the father did not abandon his child because the child’s temporary guardian interfered with the father’s attempts to visit the child. The Court of Appeals reversed, concluding that the father abandoned the child pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i) by willfully failing to visit the child for over four months. We affirm the judgment of the Court of Appeals. The case is remanded to the juvenile court to determine whether termination of the father’s parental rights is in the best interests of the child. |
Shelby | Supreme Court | |
Terrance N. Carter v. Rickey Bell - Dissenting
I respectfully dissent. In my view, our legislature has granted trial courts with broad statutory authority to transfer claims filed in the wrong jurisdiction under the remedial provisions found in Tennessee Code Annotated section 16-1-116 (Supp. 2008). Moreover, this Court has traditionally encouraged the disposition of colorable claims on the merits rather than on procedural grounds. In consequence, I would reverse the judgment of the Court of Criminal Appeals and remand to the trial court for a transfer of the claim to the court having jurisdiction under the Post-Conviction Procedure Act. |
Davidson | Supreme Court | |
Terrance N. Carter v. Rickey Bell
This appeal involves the application of the transfer provisions in Tenn. Code Ann. § 16-1-116 (Supp. 2008) to habeas corpus petitions challenging a criminal conviction. The petitioner, who was incarcerated in Davidson County, filed a petition for a writ of habeas corpus in the Criminal Court for Davidson County. The trial court promptly denied the petition on its merits. Rather than filing a petition seeking post-conviction relief, the petitioner appealed the dismissal of his habeas corpus petition to the Court of Criminal Appeals. For the first time on appeal, the petitioner, invoking Tenn. Code Ann. § 16-1-116, requested the Court of Criminal Appeals to transfer his habeas corpus petition to Maury County, where he had been convicted, for consideration as a post-conviction petition. The Court of Criminal Appeals declined to transfer the habeas corpus petition to Maury County and affirmed the denial of the petition. Carter v. Bell, No. M2006-01363- CCA-R3-HC, 2007 WL 2744998 (Tenn. Crim. App. Sept. 21, 2007). We affirm the judgment of the Court of Criminal Appeals. |
Davidson | Supreme Court | |
State of Tennessee v. David Harold Hanson
The defendant, charged with two counts of aggravated child abuse, was convicted only upon thesecond count. While upholding the propriety of the jury instructions, the Court of Criminal Appealsreversed, ruling that the state had failed to establish that the defendant had knowingly inflicted theinjuries. We granted review in order to determine whether the evidence was sufficient to establishthat the defendant acted knowingly and by non-accidental means. Because the trial court providedadequate instructions and because the circumstantial evidence, as accredited by the jury, establishedthe essential elements of the offense, the judgment of the Court of Criminal Appeals is reversed andthe conviction and sentence is reinstated. |
Anderson | Supreme Court | |
Derek Davis v. Shelby County Sheriff's Department
The issue in this appeal is whether the Shelby County Civil Service Merit Board had cause to terminate Derek Davis’ employment for violating the Department’s drug-free workplace program. Upon review, we find that: (1) the Court of Appeals applied the incorrect standard of review in reviewing the Board’s decision; (2) the positive urine specimen test result was admissible evidence for the Board to consider; and (3) the Board’s decision to terminate Mr. Davis’ employment was not arbitrary or capricious and was supported by evidence that is both substantial and material. Accordingly, we reverse the decision of the Court of Appeals and reinstate the trial court’s judgment. |
Shelby | Supreme Court | |
Cheryl Brown Giggers, et al., v. Memphis Housing Authority, et al. - Concurring/Dissenting
I fully concur in the majority’s conclusion that Memphis Housing Authority (“MHA”) owed a duty to its tenants to take reasonable steps to prevent them from suffering harm, and I concur in the reversal of the trial court’s grant of summary judgment. I write separately to reaffirm my view that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 375 (Tenn. 2008) (Holder, J., concurring and dissenting). |
Shelby | Supreme Court | |
Cheryl Brown Giggers et al., v. Memphis Housing Authority, et al.
The plaintiffs, survivors of a tenant shot and killed by the criminal act of another tenant, filed suit against the defendant housing authority, alleging negligence and breach of contract for failure to provide a safe premises. The trial court granted summary judgment in favor of the housing authority and the Court of Appeals affirmed. We granted review to determine whether the housing authority owed a duty of care, an essential component of the claim, under the theory of negligence. Because the potential for violence in the housing project was reasonably foreseeable and the gravity of the harm outweighed the burden on the housing authority to have taken reasonable protective measures, the judgment is reversed and the cause is remanded to the trial court for further proceedings. |
Shelby | Supreme Court | |
James G. Thomas, Jr., Brother and Next of Kin of Karen G. Thomas, Deceased v. Elizabeth Oldfield, M.D.
The plaintiff filed interrogatories and requests for production seeking information concerning the defendants’ liability insurance coverage. When the defendants objected to providing this information, the plaintiff filed a motion to compel discovery pursuant to Tennessee Rule of Civil Procedure 37.01. The trial court ruled that the information was subject to discovery pursuant to Tennessee Rule of Civil Procedure 26.02 and granted the plaintiff’s motion to compel and the defendants’ request for an interlocutory appeal. The Court of Appeals reversed the trial court’s order, holding that information concerning the defendants’ liability insurance coverage was not discoverable under Rule 26.02. We affirm the judgment of the Court of Appeals. |
Davidson | Supreme Court | |
James G. Thomas, Jr., Brother and Next of Kin of Karen G. Thomas, Deceased v. Elizabeth Oldfield, M.D. et al.
The plaintiff filed interrogatories and requests for production seeking information concerning the defendants’ liability insurance coverage. When the defendants objected to providing this information, the plaintiff filed a motion to compel discovery pursuant to Tennessee Rule of Civil Procedure 37.01. The trial court ruled that the information was subject to discovery pursuant to Tennessee Rule of Civil Procedure 26.02 and granted the plaintiff’s motion to compel and the defendants’ request for an interlocutory appeal. The Court of Appeals reversed the trial court’s order, holding that information concerning the defendants’ liability insurance coverage was not discoverable under Rule 26.02. We affirm the judgment of the Court of Appeals. |
Davidson | Supreme Court | |
U.S. BANK, N.A., as Servicer for the Tennessee Housing Development Agency v. Tennessee Farmers Mutual Insurance Company
The issue presented in this case is whether the commencement of foreclosure proceedings constitutes an increase in hazard for notice purposes under a standard mortgage clause in an insurance policy. The parties to this dispute are the bank that loaned funds to a homeowner for the purchase of a house and the insurance company that issued a personal fire and extended coverage insurance policy on the premises. After the homeowner became delinquent on her payments, the bank began foreclosure proceedings by notifying the homeowner of its intent to foreclose on the house. No notification of the foreclosure was given to the insurance company which insured the house against fire loss. Before the foreclosure process was complete, the homeowner filed for bankruptcy, which stayed the foreclosure proceedings. Thereafter, the house was destroyed by fire. The insurance company refused to pay the insurance proceeds to the bank on the theory that the commencement of foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company under the policy. The bank filed suit against the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act The trial court granted partial summary judgment to the bank, concluding that the bank’s failure to give the insurer notice of the foreclosure proceedings did not invalidate the insurance coverage. The Court of Appeals reversed, finding that the bank’s initiation of foreclosure proceedings amounted to an increase in hazard under the policy and the bank’s failure to provide notice precluded coverage. After careful review, we conclude that commencement of foreclosure proceedings does not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, no notice was required to be given to the insurance company. Accordingly, we reverse the judgment of the Court of Appeals. |
Gibson | Supreme Court | |
James A. Dellinger v. State of Tennessee
We granted this appeal to decide an issue of first impression: whether a freestanding claim of actual innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post- Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through -122. We have also chosen to discuss the petitioner’s ineffective assistance of counsel claims and the burden of proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief. The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct burden of proof to the petitioner’s ineffective assistance of counsel claims; and (3) the petitioner was not denied the effective assistance of counsel. We hold that a claim of actual innocence based on new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the Court of Criminal Appeals’ denial of relief, however, because the petitioner has not met his burden of proof to support such claim. We also hold that the post-conviction trial court applied the correct burden of proof to the petitioner’s ineffective assistance of counsel claims. To provide clarity in the law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally, we hold that the petitioner was not denied the effective assistance of counsel. We affirm the judgment of the Court of Criminal Appeals in all other respects. |
Blount | Supreme Court | |
James A. Dellinger v. State of Tennessee - Order
On August 13, 2008, James A. Dellinger, the petitioner, filed a Motion for Disclosure of Evidence Favorable to the Appellant Pursuant to Brady v. Maryland and the Federal and State Constitutions Regarding State Witness Charles Harlan. The State filed a response to the motion on August 22, 2008. This Court denied Dellinger’s motion in an order dated August 26, 2008. |
Blount | Supreme Court | |
Penny Foreman v. Automatic Systems, Inc.
In this appeal, we determine the extent of Employee’s disability as a result of her June 24, 2004, work-related back injury. Prior to this work-related injury, Employee had been treated intermittently for back problems since 1995. The trial court determined that the June 24 injury caused only a temporary aggravation of Employee’s pre-existing condition and that this aggravation had resolved itself by September 7, 2004. On appeal, the Special Workers’ Compensation Appeals Panel agreed that Employee sustained only a temporary aggravation of her pre-existing condition. However, a majority of the Appeals Panel determined that Employee’s temporary aggravation had not reached maximum recovery until November 2, 2005, and thus, Employer should be responsible for Employee’s disability benefits and medical expenses until that time. Upon review of the record, we hold that the record does not preponderate against the trial court’s findings. Accordingly, we reverse the Appeals Panel and reinstate the trial court’s judgment. |
Rutherford | Supreme Court | |
Clarence Trosper vs. Armstrong Wood Products, Inc. - Dissenting
The Court in this case has reversed the holding of the Special Workers’ Compensation Appeals Panel that Mr. Trosper failed to prove that his preexisting osteoarthritis was permanently worsened by work he performed in the winter of 1997-1998. Based on a selective review of the evidence, the Court has concluded that Mr. Trosper is entitled to workers’ compensation benefits because his work “advanced the severity” of his osteoarthritis. I respectfully disagree that Mr. Trosper has carried his burden of proof in this case. |
Scott | Supreme Court | |
Clarence Trosper vs. Armstrong Wood Products, Inc.
Following surgeries on both of his hands, the employee filed suit seeking workers’ compensation benefits on the theory that the repetitive nature of his work in the employer’s flooring business exacerbated a pre-existing, but dormant, arthritic condition. The trial court found that the employee’s work duties had worsened his osteoarthritis and awarded 40% permanent partial disability to each hand. The trial court also awarded temporary total disability benefits for the time during which the employee was recuperating from the surgeries and unable to work. The Special Workers’ Compensation Appeals Panel reversed the trial court, holding that the employee’s condition was neither caused nor aggravated by the work he performed for the employer. Because the evidence does not preponderate against the trial court’s finding of causation and the award of benefits, we reverse the decision of the Appeals Panel and affirm the judgment of the trial court. |
Scott | Supreme Court | |
Lon Cloyd vs. Hartco Flooring Company
In this workers’ compensation appeal, we initially made a referral 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 Code Annotated section 50-6-225(e)(3). We then granted direct review. The employee filed suit for workers’ compensation benefits, claiming that he suffered a work-related injury to his wrist, which caused an aggravation of the underlying dormant arthritic condition in his right wrist. In response, the employer asserted that the employee’s arthritis was not causally related to his employment and argued that the severity of the pre-existing condition was not advanced by his work activities. The trial court awarded benefits, concluding that the employee had sustained a 36% permanent partial impairment to his right extremity and was entitled to future medical treatment and discretionary costs. The employer has appealed, contending that the trial court erred by finding that the employee had sustained an injury that was causally related to his work activities and by ruling that the statute of limitations had not expired. Because the evidence does not preponderate against the judgment of the trial court, we affirm. |
Scott | Supreme Court | |
Lon Cloyd vs. Hartco Flooring Company - Concurring
I concur with the Court’s conclusion that Mr. Cloyd’s scapholunate dissociation with radiolunate osteoarthritis is a compensable workers’ compensation injury. Mr. Cloyd had the burden of proving that his work-related activities caused his disabling condition. This required him to present expert evidence of causation. Glisson v. Mohom Int’l, Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn. 2006) (holding that except for the most obvious cases, employees must present expert medical evidence to establish that their injury was caused by their work-related activities). This evidence was provided by Dr. William Kennedy. |
Scott | Supreme Court |
