Supreme Court Opinions

Format: 06/15/2018
Format: 06/15/2018
Rose Coleman v. Bryan Olson
M2015-00823-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Ross H. Hicks

When a divorce complaint is filed and served, a statutory injunction goes into effect prohibiting both parties from changing the beneficiary on any life insurance policy that names either party as the beneficiary without the consent of the other party or a court order. See Tenn. Code Ann. § 36-4-106(d)(2) (2010). Jessica Olson sued her husband, Bryan Olson, for divorce. A week later, Ms. Olson, while seriously ill, changed the beneficiary on her life insurance policy from her husband to her mother. Ms. Olson died a few days later. Her mother, Rose Coleman, collected the life insurance benefits. Ms. Coleman sued Mr. Olson for grandparent visitation under Tennessee Code Annotated section 36-6-306 (2010). Mr. Olson responded that he did not oppose visitation, and therefore, Ms. Coleman was not entitled to court-ordered visitation. In addition, Mr. Olson countersued to recover the life insurance benefits. The trial court awarded the insurance benefits to the Olsons’ child, finding that Ms. Olson had intended to remove Mr. Olson and substitute their child as the insurance beneficiary. The trial court ordered Ms. Coleman to pay the remaining life insurance funds into the court registry, to account for her expenditures, and to pay a judgment for expenditures that did not benefit the child. The trial court also granted Ms. Coleman’s petition for grandparent visitation. The Court of Appeals reversed, awarding the life insurance benefits to Mr. Olson based on Ms. Olson’s violation of the statutory injunction and its consideration of Mr. Olson’s financial needs. In addition, the Court of Appeals reversed the trial court’s award of visitation to Ms. Coleman. We hold that (1) Ms. Olson violated the statutory injunction under Tennessee Code Annotated section 36-4-106(d)(2) when she removed Mr. Olson as her life insurance beneficiary; (2) the Olsons’ divorce action abated when Ms. Olson died and the statutory injunction became ineffective; (3) a trial court, after the abatement of a divorce action, may remedy a violation of the statutory injunction after considering the equities of the parties; (4) the trial court erred by awarding the life insurance benefits to the Olsons’ child based on the pleadings and the evidence; (5) the Court of Appeals erred by awarding the life insurance benefits to Mr. Olson without sufficient evidence of the equities of the parties; (6) the trial court, on remand, may remedy the violation of the statutory injunction by awarding all or a portion of the life insurance benefits to either or both parties after hearing additional evidence and considering the equities of the parties; and (7) Ms. Coleman was not entitled to court-ordered grandparent visitation absent Mr. Olson’s opposition to visitation. We affirm in part and reverse in part the judgment of the Court of Appeals; we reverse and vacate the judgment of the trial court and remand to the trial court for further proceedings. 

Montgomery County Supreme Court 06/15/18
Athlon Sports Communications, Inc. v. Stephen C. Duggan, et al
M2015-02222-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Chancellor Ellen H. Lyle

We granted permission to appeal in this case to address the methods by which a trial court may determine the “fair value” of the shares of a dissenting shareholder under Tennessee’s dissenters’ rights statutes, Tennessee Code Annotated sections 48-23-101, et seq. In doing so, we overrule Blasingame v. American Materials, Inc., 654 S.W.2d 659 (Tenn. 1983), to the extent that Blasingame implicitly mandates use of the Delaware Block method for determining the fair value of a dissenting shareholder’s stock. We adopt the more open approach espoused in Weinberger v. UOP, Inc., 457 A.2d 701, 712-13 (Del. 1983), in which the Delaware Supreme Court departed from the Delaware Block method and permitted trial courts to determine fair value by using any technique or method that is generally acceptable in the financial community and admissible in court. This approach allows trial courts to utilize valuation methods that incorporate projections of future value, so long as they are susceptible of proof as of the date of the corporate action and not the product of speculation. In this dissenters’ rights case, the defendant minority shareholders were forced out of the corporation as a result of a merger, and the corporation petitioned the trial court to determine the fair value of the minority shareholders’ stock. Both parties presented expert testimony regarding the valuation of the dissenting shareholders’ stock, and both experts assumed that Blasingame required use of the Delaware Block method to value the stock. However, both experts also valued the dissenting shareholders’ stock under more modern approaches, such as the discounted cash flow method. After a bench trial, the trial court discredited the testimony of the dissenting shareholders’ expert and credited the testimony of the corporation’s expert. The trial court’s order indicates that it may have based its decision on the premise that Blasingame compelled use of the Delaware Block method to determine stock value. Consequently, we remand to the trial court to reconsider its determination on valuation in light of our decision to partially overrule Blasingame

Davidson County Supreme Court 06/08/18
Board of Professional Responsibility Of The Supreme Court of Tennessee v. Charles Edward Daniel
E2017-01170-SC-R3-BP
Authoring Judge: Justice Cornelia S. Clark
Trial Court Judge: Chancellor Telford G. Forgety, Jr.

This direct appeal arises from a disciplinary proceeding against a Knoxville attorney. A hearing panel (“Hearing Panel”) of the Board of Professional Responsibility (“Board”) found that the attorney had violated Rule 8.4(b) and (c) of the Tennessee Rules of Professional Conduct (“RPC”) by misappropriating funds from his law partnership in a manner intended to conceal his actions from his law partners. The Hearing Panel suspended him from the practice of law for three years but ordered the entire suspension served on probation. We conclude that the Hearing Panel did not abuse its discretion by suspending rather than disbarring the lawyer but did abuse its discretion by probating the entire suspension. Accordingly, we modify the Hearing Panel’s judgment to include one year of active suspension. In all other respects, the Hearing Panel’s judgment is affirmed.

Knox County Supreme Court 06/08/18
Tiffinne Wendalyn Gail Runions, Et Al. v. Jackson -Madison County General Hospital District, Et Al.
W2016-00901-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Donald H. Allen

The Tennessee Health Care Liability Act, Tennessee Code Annotated section 29 26 121(a)(1) (2012 & Supp. 2017), requires a person who asserts a potential health care liability claim to give written pre-suit notice of the claim to each health care provider that will be named a defendant at least sixty days before the complaint is filed. The question we address is whether the trial court erred by allowing the plaintiff to amend her complaint, after the expiration of the statute of limitations, to substitute as a defendant a health care provider to which the plaintiff had not sent pre-suit notice. The health care provider the plaintiff sought to substitute had knowledge of the claim based on pre-suit notice the plaintiff had mistakenly sent to another potential defendant. We hold that the plaintiff did not comply with the mandatory pre-suit notice provision of Tennessee Code Annotated section 29-26-121(a)(1) because she did not give written pre suit notice of the potential claim to the health care provider she later sought to substitute as a defendant after the expiration of the statute of limitations. Although the health care provider learned about the claim based on the pre-suit notice the plaintiff sent to another potential defendant, this form of notification did not comply with the notice requirement of section 29-26-121(a)(1). Because the plaintiff did not comply with Tennessee Code Annotated section 29-26-121(a)(1), the 120-day filing extension under Tennessee Code Annotated section 29-26-121(c) is not applicable. Under Tennessee Rule of Civil Procedure 15.03, the filing date of the proposed amended complaint may relate back to the filing date of the original complaint. The plaintiff, however, filed the original complaint after the expiration of the statute of limitations. As a result, the plaintiff’s motion to substitute the health care provider is futile because the amended suit would be subject to dismissal based on the expiration of the one-year statute of limitations. The trial court erred by allowing the plaintiff to amend her complaint. We reverse the trial court and the Court of Appeals and remand this case to the trial court for further proceedings. 

Madison County Supreme Court 06/06/18
In Re: James Carl Cope, BPR #03340
M2016-02144-SC-BAR-BP
Authoring Judge: Justice Roger A. Page
Trial Court Judge:

This Court suspended attorney James Carl Cope pursuant to Tennessee Supreme Court Rule 9, section 22.3, based on his federal felony conviction for insider trading and referred the matter to the Board of Professional Responsibility (“Board”) to initiate proceedings to determine his final discipline. A hearing panel (“Panel”) imposed a final discipline of twenty-five months’ suspension, retroactive to the date of his initial suspension by this Court, which was on October 25, 2016. Neither the Board nor Mr. Cope appealed this judgment. The Board petitioned this Court for an order enforcing the Panel’s judgment. Pursuant to Tennessee Supreme Court Rule 9, section 15.4(b) and (c), we determined that the punishment imposed by the Panel appeared inadequate and proposed that it be increased. Mr. Cope subsequently requested oral argument, which we granted. We now consider whether the punishment imposed by the Panel is appropriate under the circumstances of this case and is in uniformity with prior disciplinary decisions in this state. Following a thorough review of the record and the law, we conclude that it is not. Therefore, we modify the Panel’s judgment to impose the twenty-five-month suspension prospectively from the filing of this opinion.

Supreme Court 05/04/18
State of Tennessee v. Christopher Minor - Concurring
W2016-00348-SC-R11-CD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Roy B. Morgan

Christopher Minor was sentenced to serve additional time in prison for violations of the criminal gang offense statute, Tennessee Code Annotated section 40-35-121(b) (2014). While his case was on appeal, the Court of Criminal Appeals in State v. Bonds, 502 S.W.3d 118, 157 (Tenn. Crim. App. 2016), declared that a portion of the criminal gang offense statute was unconstitutional. Today, the Court vacates Mr. Minor’s convictions for violating the criminal gang offense statute. It is only fair that Mr. Minor should not have to serve additional time in prison for violating a statute that an appellate court declared unconstitutional while his appeal was pending. 

Madison County Supreme Court 04/11/18
State of Tennessee v. Christopher Minor
W2016-00348-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Roy B. Morgan

We granted this appeal to clarify the interplay among appellate review preservation requirements, the plain error doctrine, and the retroactive application of new rules. We conclude that a new rule applies retroactively to cases pending on direct review when the new rule is announced but does so subject to other jurisprudential concepts, such as appellate review preservation requirements and the plain error doctrine. Accordingly, the Court of Criminal Appeals’ decision in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016), perm. app. denied (Tenn. Aug. 18, 2016), declaring the criminal gang offense statute, see Tenn. Code Ann. § 40-35-121(b) (2014), unconstitutional applies to the defendant’s appeal because it was pending on direct review when Bonds was decided. Nevertheless, we evaluate the defendant’s entitlement to relief by applying the plain error doctrine because the defendant failed to challenge the constitutionality of the statute in the trial court. We conclude that the defendant has established the criteria necessary to obtain relief pursuant to the plain error doctrine. Therefore, we reverse that portion of the Court of Criminal Appeals’ decision denying the defendant relief and vacate the defendant’s convictions under the criminal gang offense statute. We remand this matter to the trial court for resentencing on the defendant’s remaining convictions in accordance with the sentencing classification ranges established by the specific statutes creating the offenses, without any classification or sentence enhancement pursuant to the criminal gang offense statute.

Madison County Supreme Court 04/11/18
Brittany Noel Nelson, et al v. Charles W. Myres, et al.
M2015-01857-SC-R11-CV
Authoring Judge: Judge Roger A. Page
Trial Court Judge: Judge Joe Thompson

The primary issue in this appeal is whether a surviving spouse maintains priority to file a wrongful death action when the decedent’s child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent’s death. The trial court dismissed the daughter’s wrongful death complaint, but the Court of Appeals reversed the trial court, ruling that under the circumstances presented in this case, the surviving spouse was disqualified from filing the wrongful death action. Because the wrongful death statutes do not include an exception to the spousal priority rule and because the surviving spouse did not waive his right to file the wrongful death action, we hold that the trial court properly dismissed the daughter’s wrongful death action. The judgment of the Court of Appeals is reversed and the cause remanded to the trial court. 

Sumner County Supreme Court 03/05/18
Board of Professional Responsibility of The Supreme Court of Tennessee v. Robin K. Barry
M2016-02003-SC-R3-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Senior Judge Ben H. Cantrell

This is an appeal from attorney disciplinary proceedings based on the attorney’s knowing conversion of client funds. In this case, disputed insurance funds were placed in the attorney’s trust account pending resolution of the dispute. Shortly after the disputed insurance funds were deposited, the attorney began to comingle funds in her trust account and use the insurance proceeds for her own purposes. At about the time the dispute over the insurance funds was resolved, the attorney moved out of state. In response to her client’s repeated inquiries about disbursement of the client’s share of the funds, the attorney stalled, made misrepresentations, and finally stopped communicating with the client altogether. After the client filed a complaint with the Tennessee Board of Professional Responsibility against the attorney, the hearing panel found violations of RPC 1.4, RPC 1.15(a) and (d) and RPC 8.4, which included the knowing conversion of client funds and the failure to communicate. The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction. The attorney now appeals to this Court, arguing that disbarment is not warranted. In the alternative, the attorney argues that the disbarment should be made retroactive to the date of her original temporary suspension. Under the circumstances of this case, we affirm the chancery court and disbar the attorney from the practice of law in Tennessee, and we decline to make the disbarment retroactive.

Davidson County Supreme Court 02/16/18
Sean K. Hornbeck v. Board of Professional Responsibility Of The Supreme Court of Tennessee
M2016-01793-SC-R3-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Special Judge Ben H. Cantell

In this attorney disciplinary appeal, upon petition by the Tennessee Board of Professional Responsibility, this Court ordered the temporary suspension of the attorney from the practice of law based on the threat of substantial harm he posed to the public. For a time, the attorney was placed on disability status; later he was reinstated to suspended status. Subsequently, after an evidentiary hearing, a hearing panel found multiple acts of professional misconduct, including knowing conversion of client funds with substantial injury to clients, submitting false testimony and falsified documents in court proceedings, engaging in the unauthorized practice of law, violating Supreme Court orders, and defrauding clients. The hearing panel determined that the attorney should be disbarred. On appeal to the chancery court, the attorney argued inter alia that the disbarment should be made retroactive to the date of his temporary suspension. The chancery court affirmed the decision of the hearing panel. On appeal to this Court, the attorney does not question the disbarment but argues that it would be arbitrary and capricious not to make his disbarment retroactive to the date of his temporary suspension, in order to advance the date on which he may apply for reinstatement of his law license. We disagree. In contrast to suspension, which contemplates that the lawyer will return to law practice, disbarment is not a temporary status. Disbarment is a termination of the individual’s license to practice law in Tennessee. Therefore, we decline to make the effective date of the attorney’s disbarment retroactive to the date of his temporary suspension. Accordingly, we affirm.

Davidson County Supreme Court 02/16/18
Chuck's Package Store Et Al. v. City of Morristown
E2015-01524-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Thomas J. Wright

From 2011–2014, a municipality charged alcoholic beverage retailers higher inspection fees than was authorized by the municipality’s ordinance. A group of alcoholic beverage retailers paid the excess fees, but not under protest. After the municipality denied the retailers’ requests for refunds, they sued the municipality for recovery of the excess collections and other damages. The municipality moved to dismiss, arguing that Tennessee Code Annotated sections 67-1-901, et seq., required the retailers to have paid under protest any disputed taxes before filing suit to recover the overpayments. The trial court disagreed and awarded the retailers a judgment for the overpayments, ruling that Tennessee Code Annotated sections 67-1-1801, et seq., applied and payment under protest was not required. The Court of Appeals affirmed. We hold that Tennessee Code Annotated sections 67-1-901, et seq., rather than sections 67 1-1801, et seq., apply to a suit to recover municipal taxes. Under section 67-1-901(a), the retailers were required to have paid under protest the disputed taxes before filing suit. Because the retailers did not pay the taxes under protest, they are not entitled to refunds.

Hamblen County Supreme Court 02/06/18
State of Tennessee v. LaJuan Harbison
E2015-00700-SC-R11-CD
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Steven Wayne Sword

A jury convicted LaJuan Harbison of four counts of attempted voluntary manslaughter and four counts of employing a firearm during the commission of a dangerous felony. The Court of Criminal Appeals reversed the convictions and remanded for a new trial, holding that the trial court erred in denying Harbison’s request for a separate trial, that his multiple convictions for employing a firearm during the commission of a dangerous felony violated the prohibition against double jeopardy, and that the evidence was insufficient to support one of the counts of attempted voluntary manslaughter and employment of a firearm during the commission of a dangerous felony. We granted the State’s application for permission to appeal to determine whether the trial court properly exercised its discretion by denying Harbison’s motion for severance; whether Harbison waived the double jeopardy issue; and if not, whether Harbison’s convictions for employing a firearm during the commission of a dangerous felony violate the prohibition against double jeopardy where he used one firearm but was convicted of multiple dangerous felonies against different victims. We hold that the trial court did not abuse its discretion in denying Harbison’s request for a separate trial; Harbison did not waive the double jeopardy issue; and his multiple convictions for employment of a firearm during the commission of a dangerous felony do not violate the prohibition against double jeopardy. We reverse the judgment of the Court of Criminal Appeals, reinstate Harbison’s three convictions for attempted voluntary manslaughter and three convictions for employment of a firearm during the commission of a dangerous felony, and remand to the trial court for resentencing and corrected judgments.

Knox County Supreme Court 01/09/18
Kenneth M. Spires, Et Al. v. Haley Reece Simpson, Et Al.
E2015-00697-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge J. Michael Sharp

We granted permission to appeal in this case to clarify when two Tennessee statutes would apply to preclude a parent who owes child support arrearages from recovering proceeds from a wrongful death lawsuit. In this case, the plaintiff and the decedent were married and had one child; the plaintiff abandoned the decedent and their son soon after the child was born. The plaintiff and the decedent never divorced. The decedent spouse died unexpectedly, and soon afterward the plaintiff surviving spouse filed this wrongful death action. At the time, the plaintiff surviving spouse owed child support arrearages for four other children unrelated to the decedent. The trial court dismissed the plaintiff surviving spouse from the wrongful death lawsuit based on a provision in Tennessee’s wrongful death statutes, Tennessee Code Annotated section 20-5-107(b) (2009 & Supp. 2017), and a similar provision in Tennessee’s intestate succession statutes, Tennessee Code Annotated section 31-2-105(b) (2015 & Supp. 2017). It held that these two statutes disqualified the plaintiff from filing the wrongful death action or recovering the proceeds from it because he never provided financial support for his child with the decedent spouse and because he had child support arrearages for his four children unrelated to the decedent spouse. The Court of Appeals affirmed in part and reversed in part. It held that the two statutes did not bar the plaintiff from commencing the lawsuit for the wrongful death of his spouse, but it also held that they precluded him from recovering proceeds from the wrongful death lawsuit until his outstanding child support arrearages were satisfied. Consequently, the Court of Appeals ordered that the plaintiff’s recovery from the wrongful death action be paid toward satisfaction of his child support arrearages for his four children who were unrelated to the decedent spouse. On appeal, we hold that the prohibitions in Tennessee Code Annotated sections 20-5-107(b) and 31-2-105(b) apply only when (1) the “parent” who seeks to recover in the wrongful death lawsuit is a parent of the decedent child, and (2) that parent’s child support arrearage is owed for the support of that decedent child. Therefore, neither statute is applicable under the facts of this case. Accordingly, the decisions of the lower courts are reversed and vacated insofar as they applied those two statutes to this case. We affirm the Court of Appeals’ holding that newly enacted wrongful death statutes regarding a surviving spouse’s waiver based on abandonment of a decedent spouse may not be applied retroactively.

Monroe County Supreme Court 12/27/17
C.W.H. v. L.A.S.
E2015-01498-SC-R11-JV
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Robert D. Philyaw

This is a custody case involving the minor children of unmarried parties. C.W.H. (hereinafter “Father”) and L.A.S. (hereinafter “Mother”) agreed to a modification of an existing parenting plan in 2013. Subsequently, Father learned information to which he was not privy during the settlement conference, namely, that Mother had relocated from her state of residence (Ohio) to Nevada with the parties’ minor children, where she was employed as a prostitute. Father filed a motion for an emergency temporary custody order and a temporary restraining order. Father prevailed in a hearing before the juvenile court magistrate and was designated as the primary residential parent. Mother requested a hearing before the juvenile court. Following a hearing, the juvenile court found a material change in circumstances and upheld the magistrate’s determination. Mother appealed to the Court of Appeals, which vacated and remanded the case for the juvenile court to conduct a best interest analysis. On remand, the juvenile court affirmed its earlier findings regarding a material change in circumstances and, in addition, concluded that changing the primary residential parent from Mother to Father was in the best interest of the children. Mother again appealed to the Court of Appeals, which concluded “that the evidence preponderate[d], in part but significantly, against the juvenile court’s factual findings,” reversed the juvenile court, and mandated that its order be carried out within twenty days. We granted Father’s application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 11 to decide, as set forth in Father’s application, whether “the Court of Appeals err[ed] in reversing the [juvenile court] and awarding Mother custody of the minor children” and whether “the Court of Appeals err[ed] in ordering the change in custody prior to an opportunity for the Father to appeal to this Court?” We answer both questions in the affirmative, reverse the decision of the Court of Appeals, and remand this matter to the juvenile court for further proceedings consistent with this opinion. 

Hamilton County Supreme Court 12/19/17
Derrick Hussey, Et Al. v. Michael Woods, Et Al.
W2014-01235-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Donna M. Fields

Tennessee Rule of Civil Procedure 60.02 allows a trial court to set aside a final judgment under certain circumstances, including when the judgment is void or “for any other reason justifying relief.” Here, a decedent’s mother, in her capacity as her unmarried son’s next of kin, filed a lawsuit seeking damages for his wrongful death. The case was settled and dismissed. Nearly twenty months later, the decedent’s alleged minor child filed a Rule 60.02 motion to set aside the order of dismissal and to be substituted as the plaintiff. The motion asserted that the child was the decedent’s next of kin and the proper party to pursue the wrongful death claim, based on the decedent’s execution of an acknowledgment of paternity and a Mississippi trial court order for support. The trial court denied the motion, finding it was not timely filed. The Court of Appeals vacated the trial court’s ruling, holding that the Rule 60.02 motion was not ripe for adjudication until the trial court conclusively established the child’s paternity. We find the Court of Appeals erred by focusing on issues surrounding the child’s paternity rather than reviewing the correctness of the trial court’s ruling on the Rule 60.02 motion. We hold that the trial court properly denied relief under Rule 60.02. The judgment of the Court of Appeals is reversed, and the judgment of the trial court is reinstated.

Shelby County Supreme Court 12/18/17
John Howard Story, Et Al. v. Nicholas D. Bunstine, Et Al.
E2015-02211-SC-R11-CV
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge Kristi M. Davis

The defendant attorneys in the instant legal malpractice case, Nicholas D. Bunstine, Brent R. Watson, and Jerrold L. Becker, individually and d/b/a Bunstine, Watson, McElroy & Becker, represented the plaintiffs, John Howard Story and David Bruce Coffey, in a lender liability lawsuit. In the underlying lender liability lawsuit, the trial court ultimately dismissed the case against two of the lender defendants, and the claims against the remaining lender defendant were later voluntarily dismissed. Thereafter, the plaintiffs filed the instant lawsuit against the defendant attorneys alleging legal malpractice. The trial court partially dismissed the case based on the expiration of the one-year statute of limitations for filing a complaint for legal malpractice. See Tenn. Code Ann. § 28-3-104(c)(1). Later, in response to the defendant attorneys’ motion for summary judgment, the trial court dismissed the plaintiffs’ remaining claim, determining that the claim was also barred by the statute of limitations. The Court of Appeals affirmed. We granted this appeal to address: (1) whether this Court’s opinion in Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995), in which we set forth a discovery rule for when the statute of limitations begins to run in a legal malpractice action, should be overruled; (2) whether an interlocutory ruling in underlying litigation constitutes a legally cognizable injury; (3) whether this Court should adopt either the continuous representation rule or the appeal-tolling doctrine for tolling the statute of limitations in legal malpractice actions; and (4) whether a subsequent action of an attorney that renders an interlocutory order final amounts to a separate and discrete act of malpractice such that the statute of limitations for that action does not begin until said action is taken. Following our review, we conclude that Carvell v. Bottoms is the accurate analysis for determining when a claim of legal malpractice accrues. In addition, we decline to adopt the two tolling doctrines proposed by the plaintiffs, and we further decline to hold that the trial court’s final judgment in the underlying case is required before there is an actual injury for purposes of the accrual of a claim for litigation malpractice. Nevertheless, we conclude that, in the case before us, the complaint fails to establish an actual injury prior to the date of the trial court’s final judgment in the underlying case. Consequently, the trial court erred in granting the motion to dismiss and in determining that the plaintiffs’ legal malpractice claims were time barred. Finally, we conclude that the trial court also erred in granting the defendants’ motion for summary judgment. In this case, the defendant attorneys’ alleged negligence, which purportedly rendered the interlocutory order in the underlying case final, constituted a distinct act of malpractice, and as such, the statute of limitations had not run on that claim at the time the plaintiffs filed this legal malpractice action. Therefore, we reverse the judgments of the trial court and the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion. 

Knox County Supreme Court 12/11/17
In Re Estate of Calvert Hugh Fletcher
M2015-01297-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Steven D. Qualls

A husband and wife deposited funds in a joint checking account designated with a right of survivorship. Later, the husband withdrew most of the funds from the joint account and placed the funds in a certificate of deposit issued solely in his name. After the husband’s death, a dispute arose between his surviving spouse and his children from a previous marriage regarding ownership of the certificate of deposit. The trial court, relying on Mays v. Brighton Bank, 832 S.W.2d 347 (Tenn. Ct. App. 1992), held that the certificate of deposit was an asset of the husband’s estate because the funds ceased to be entireties property when withdrawn from the joint account. The Court of Appeals reversed and, relying on In re Estate of Grass, No. M2005-00641-COA-R3-CV, 2008 WL 2343068, at *1 (Tenn. Ct. App. June 4, 2008), held that the certificate of deposit belonged to the surviving spouse because the funds were impressed with the entireties and could be traced to the joint account. We hold that once funds are withdrawn from a bank account held by a married couple as tenants by the entirety, the funds cease to be entireties property. Accordingly, the certificate of deposit issued to the husband from funds withdrawn from the joint bank account belongs to his estate, not his surviving spouse. We reverse the Court of Appeals and remand to the trial court for further proceedings.

Putnam County Supreme Court 12/06/17
State of Tennessee v. Kevin Patterson AKA John O'Keefe Varner AKA John O'Keefe Kitchen
M2015-02375-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Special Judge Walter C. Kurtz

We granted this appeal to determine whether deficiencies in the State’s timely filed notice of intent to sentence the defendant to life imprisonment without the possibility of parole as a repeat violent offender entitle the defendant to relief via the plain error doctrine. We conclude that, although imperfect, the timely filed notice fairly informed the defendant of the State’s intent to seek enhanced sentencing and triggered the defendant’s duty to inquire into the errors and omissions. Furthermore, the defendant has failed to establish that the deficiencies in the notice adversely affected his substantial rights—a necessary criterion for obtaining relief via the plain error doctrine. Accordingly, we reverse in part the Court of Criminal Appeals’ judgment, insofar as it set aside the defendant’s sentence of life without parole and remanded to the trial court for resentencing, and we reinstate the judgment of the trial court in all respects.

Coffee County Supreme Court 11/30/17
State of Tennessee v. Tabitha Gentry (AKA ABKA RE BAY)
W2015-01745-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge James M. Lammey

The primary issue in this appeal is whether Tennessee’s theft statute, Tennessee Code Annotated section 39-14-103, encompasses theft of real property. The defendant physically entered and occupied for over a week a vacant East Memphis house valued at more than two million dollars and filed documents with the Shelby County Register of Deeds Office purporting to reflect her ownership of the property. A jury convicted the defendant of theft of property valued at over $250,000 and aggravated burglary. The defendant challenges her convictions, arguing that Tennessee’s theft statute does not encompass theft of real property. We conclude that our theft statute applies to theft of real property by occupation, seizure, and the filing of a deed to the property and that the evidence is sufficient to support the defendant’s convictions. We also reject the defendant’s arguments that the trial court improperly limited her cross-examination of a prosecution witness and her closing argument. Accordingly, we affirm the judgment of the Court of Criminal Appeals upholding the defendant’s convictions and remanding to the trial court for resentencing.

Shelby County Supreme Court 11/29/17
Embraer Aircraft Maintenance Services, Inc. v. Aerocentury Corp.
M2016-00649-SC-R23-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Aleta A. Trauger

In this case, the petitioner had a repairman’s lien on personal property and filed an action in federal district court to enforce the lien by original attachment of the lien-subject property. During the pendency of the federal court action, the lien-subject property was sold to a purchaser and was no longer available for attachment, so the lienholder sought to reach the proceeds from the sale of the lien-subject property. The federal court then sought certification under Tennessee Supreme Court Rule 23 of two questions: (1) May a repairman’s lien arising under Tennessee Code Annotated section 66-19-101 (2015) be enforced by a method other than attachment of the lien-subject property itself? and (2) In Tennessee, under what circumstances, if any, may a court attach the proceeds of the sale of lien-subject property, or otherwise reach them with a judgment, where the owner has rendered attachment of the lien-subject property impracticable or impossible after the initiation of a foreclosure proceeding? We answer the first question by interpretation of Tennessee Code Annotated section 66-21-101 (2015), which addresses enforcement of a statutory lien by original attachment where the lien statute does not specify a method to enforce the lien. The lienholder has no statutory lien on the proceeds from the sale of the lien-subject property, and section 66-21-101 addresses only enforcement of a statutory lien. Accordingly, section 66-21-101 is not a statutory vehicle for the lienholder to reach the proceeds from the sale of the lien-subject property. Section 66-21-101 neither provides for nor excludes other remedies that may be available to the lienholder to reach the proceeds from the sale of the lien-subject property. The second question certified by the federal district court in this case is not a defined question of unsettled Tennessee law, but it is more in the nature of an open-ended inquiry regarding other remedies that might enable the lienholder to reach the proceeds from the sale of the lien-subject property. Such an open-ended inquiry is not suitable for certification under Tennessee Supreme Court Rule 23, and there is ample Tennessee case law available to the parties on other possible remedies, so we respectfully decline to address the merits of the second certified question.

Supreme Court 11/27/17
In Re Bentley D.
E2016-02299-SC-RDO-PT
Authoring Judge: Chief Justice Jeffrey S. Bivins
Trial Court Judge: Judge J. Eddie Lauderback

The trial court terminated the father’s parental rights. The father timely filed a notice of appeal signed by his attorney but not signed personally by the father. The Court of Appeals filed an order directing the father to show cause why his appeal should not be dismissed for lack of jurisdiction for failure to comply with Tennessee Code Annotated section 36-1-124(d), which states: “Any notice of appeal filed in a termination of parental rights action shall be signed by the appellant.” The father’s response to the show cause order included a challenge to the constitutionality of section 36-1-124(d). The Tennessee Attorney General filed a notice of intent to defend the constitutionality of the statute. This Court, upon its own motion, assumed jurisdiction over the case and directed the parties and the Attorney General to address the following issues: (1) whether failure to comply with Tennessee Code Annotated section 36-1-124(d) is a jurisdictional defect; and (2) whether Tennessee Code Annotated section 36-1-124(d) is unconstitutional based on separation of powers, due process, and/or equal protection grounds. We conclude that that the statute does not require a notice of appeal to be signed personally by the appellant. Because the timely notice of appeal signed by the father’s attorney satisfies the signature requirement, we hold that the father’s appeal is not subject to dismissal. This holding renders moot the other issues before us. We remand the case to the Court of Appeals for consideration of the merits of the father’s appeal.  

Washington County Supreme Court 11/22/17
In Re: Estate of J. Don Brock
E2016-00637-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Chancellor Jeffrey M. Atherton

We granted permission to appeal to determine whether the contestants—five of the decedent’s seven children—have standing to bring this will contest. The contestants were expressly disinherited by a will dated October 1, 2013, and admitted to probate and by a prior will, dated October 11, 2012, produced during this litigation. The trial court dismissed this will contest for lack of standing, concluding that two prior decisions of this Court—Cowan v. Walker, 96 S.W. 967 (Tenn. 1906) and Jennings v. Bridgeford, 403 S.W.2d 289 (Tenn. 1966)—required the dismissal. The Court of Appeals affirmed. Although we agree with the courts below that Cowan and Jennings include imprecise language that could be viewed as establishing a broad, bright-line rule that persons disinherited by facially valid successive wills lack standing, we conclude that those decisions are factually distinct and did not announce such a broad rule. We reaffirm the general rule, long recognized in Tennessee, that to establish standing a contestant must show that he or she would be entitled to share in the decedent’s estate if the will were set aside or if no will existed. The contestants here have satisfied this requirement by showing that they would share in the decedent’s estate under the laws of intestacy and under prior wills. Thus, the judgments of the trial court and Court of Appeals dismissing this will contest for lack of standing are reversed, and this matter is remanded to the trial court for further proceedings consistent with this decision. 

Hamilton County Supreme Court 11/22/17
State of Tennessee v. Antoine Perrier
W2015-01642-SC-R11-CD
Authoring Judge: Justice Roger A. Page
Trial Court Judge: Judge W. Mark Ward

We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues:  (1) the meaning of the phrase “not engaged in unlawful activity” in the self-defense statute, Tennessee Code Annotated section 39-11-611, and (2) whether the trial court or the jury decides whether the defendant was engaged in unlawful activity.  We hold that the legislature intended the phrase “not engaged in unlawful activity” in the self-defense statute to be a condition of the statutory privilege not to retreat when confronted with unlawful force and that the trial court should make the threshold determination of whether the defendant was engaged in unlawful activity when he used force in an alleged self-defense situation.  We further conclude that the defendant’s conduct in this case constituted unlawful activity for the purposes of this statute.  The defendant has also presented four other issues to this Court, arguing that the trial court erred by failing to properly instruct the jury on the lesser-included offenses of employing a firearm during the commission of a dangerous felony, that the second count of the indictment was deficient, that the trial court should have given the jury an instruction on the defense of necessity, and that the evidence was insufficient to support the defendant’s conviction for assault.  We affirm the judgments of the trial court and the Court of Criminal Appeals, albeit on separate grounds. 

Shelby County Supreme Court 11/21/17
Charles Grogan v. Daniel Uggla, Et Al. - Dissenting
M2014-01961-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge James G. Martin, III

The primary issue is whether a home inspector owes a duty of reasonable care to a homeowner’s guest. Viewing the facts in the light most favorable to the guest, as is required at the summary judgment stage, it was foreseeable that a negligent inspection of the home, and particularly the second-story deck railing, could result in a significant injury to a guest. The foreseeability and gravity of the harm outweighs the burden on the home inspector to protect against the harm. Due to the importance of home inspections, public policy favors the imposition of a duty of care on the home inspector. Therefore, a home inspector, as a matter of law, owes a duty of reasonable care to a guest of the homeowner. Here, a jury should have had the opportunity to decide whether the home inspector breached his duty of care. For these reasons, I dissent from the dismissal of the guest’s claim against the home inspector.

Williamson County Supreme Court 11/21/17
Charles Grogan v. Daniel Uggla, Et Al. - Concurring in Part and Dissenting in Part
M2014-01961-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge James G. Martin, III

I write separately in this case because I concur with part of the majority’s analysis and disagree with other parts of it. 

Williamson County Supreme Court 11/21/17