Tennessee Administrative Office of the Courts

In this direct appeal of a judicial disciplinary proceeding, we are asked to review the Court of the Judiciary’s decision that Cocke County General Sessions Court Judge John A. Bell violated various canons of the Tennessee Code of Judicial Conduct, resulting in sanctions that included a ninety-day suspension. The Court of the Judiciary found that Judge Bell violated the Code by taking nine months to decide the complainant’s personal injury action, re-hearing the case without disclosing to a new party that he had previously made findings against the new party as to liability and damages, and contacting through an attorney the self-represented complainant while the complainant’s case was still pending before him in General Sessions Court. We affirm the code violations with respect to the delay and the ex parte communication and affirm the sanctions.

Two municipalities sought to annex the same territory outside the urban growth boundaries for both municipalities set forth in the county’s growth plan. One municipality attempted to annex territory that was not within its urban growth boundary by proposing an amendment to the county growth plan and enacting an ordinance annexing the territory. A second municipality annexed the same territory by an annexation referendum pursuant to Tennessee Code Annotated sections 6-51-104 to -105 and 6-58-111(d)(2). We granted permission to appeal in this case to address the application of Tennessee Code Annotated sections 6-58-101 to -116 to these municipalities’ annexation efforts. After considering the related statutes, we hold that Tennessee Code Annotated section 6-58-111 requires an amendment to the county growth plan for a municipality to effect an annexation of territory beyond its urban growth boundary by ordinance. We reverse the judgment of the Court of Appeals and reinstate the chancery court’s order dismissing the case.

In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband’s employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products’ health risks. The jury found that the seller was at fault, but that her husband’s employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury. On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products’ manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings. This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.

This appeal involves the application of the mandatory joinder provisions in Tenn. R. Crim. P. 8(a)(1)(A). The defendant was charged with committing an aggravated robbery and was separately charged with initiating a false police report twelve hours later regarding his automobile that was somehow connected with the robbery. Approximately one month after he was indicted by a Shelby County grand jury for initiating a false police report, the defendant pleaded guilty to attempting to initiate a false police report. Thereafter, a Shelby County grand jury indicted the defendant for aggravated robbery. The defendant filed a motion in the Criminal Court for Shelby County seeking to dismiss the aggravated robbery indictment in accordance with Tenn. R. Crim. P. 8(a)(2) because the State had already prosecuted him separately on the initiation of a false police report charge. The trial court granted the defendant’s motion, and the State appealed to the Court of Criminal Appeals. A divided panel of the Court of Criminal Appeals affirmed the trial court’s judgment. State v. Johnson, No. W2008-01593-CCA-R3-CD, 2009 WL 4263653 (Tenn. Crim. App. Nov. 30, 2009). We granted the State’s application for permission to appeal to address the application of Tenn. R. Crim. P. 8(a)(1)(A) to offenses arising from the same criminal episode. We have determined that the two offenses involved in this case were not part of the same criminal episode and, therefore, that the Court of Criminal Appeals erred by relying on Tenn. R. Crim P. 8(a)(2) to dismiss the aggravated robbery charge.

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee’s conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy. The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers’ alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation. Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers’ counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. § 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009). We granted the sellers’ Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court’s decision to dismiss the purchasers’ counterclaim for fraudulent inducement.

We granted the defendant’s application for permission to appeal in this post-conviction proceeding to determine whether the defendant received ineffective assistance of counsel in conjunction with his guilty pleas to multiple sex offenses, because his counsel did not inform him about the mandatory lifetime community supervision consequence of some of his convictions. After a hearing, the post-conviction court denied relief upon its determination that the defendant’s legal representation was competent; the Court of Criminal Appeals affirmed. We hold that the defendant has demonstrated by clear and convincing proof that (1) his counsel’s performance fell below the objective standard of reasonableness because counsel did not advise him that, in addition to his effective ten-year sentence, a mandatory sentence of community supervision for life was a consequence of his guilty pleas; and (2) there was a reasonable probability that, but for counsel’s failure to properly inform him, the defendant would not have pled guilty and would have insisted on going to trial. We therefore reverse the judgment of the Court of Criminal Appeals and remand this matter to the original trial court for further proceedings consistent with this opinion.

We have reviewed the record to determine whether Mr. Penn’s petition for writ of certiorari satisfied the requirements identified in Cawood as necessary to confer subject matter jurisdiction upon the trial court. Because Mr. Penn’s petition failed to conform to Tennessee Code Annotated section 27-8-106, in that it was neither “sworn to” nor included language assuring that “it is the first application for the writ,” the trial court lacked jurisdiction to hear and decide his petition.

For these reasons, the Board’s motion to dismiss Mr. Penn’s appeal is hereby granted, and the trial court’s December 1, 2009 order is vacated. This Court’s March 31, 2011 order allowing supplemental briefing is also vacated. Because the sanction imposed by the Hearing Panel exceeds a three-month suspension and because no appeal was properly perfected, the Board is directed to file a copy of the Hearing Panel’s order for review by this Court in accordance with Tennessee Supreme Court Rule 9, section 8.4.

This appeal involves the role of expert testimony in proceedings to determine whether a prisoner who has been sentenced to death is intellectually disabled and thus barred from being executed under Tenn. Code Ann. § 39-13-203 (2010). An inmate facing execution filed a motion in the Criminal Court for Shelby County to re-open his post-conviction proceedings on the ground that he was intellectually disabled at the time he committed the crime for which he was convicted and on the ground that his trial counsel had been ineffective in investigating and presenting mitigating evidence. At the hearing, the prisoner presented expert testimony that his functional intelligence quotient (“I.Q.”) was actually lower than the raw test scores on his I.Q. tests and that he was mentally disabled for the purpose of Tenn. Code Ann. § 39-13-203(a). The State presented no contrary evidence. The trial court dismissed the prisoner’s motion to re-open his post-conviction petition after concluding that he had failed to prove that he was intellectually disabled and that he was procedurally barred from raising his ineffective assistance of counsel claim. The Court of Criminal Appeals affirmed the judgment of the trial court. Coleman v. State, No. W2007-02767-CCA-R3-PD, 2010 WL 118696 (Tenn. Crim. App. Jan. 13, 2010). We granted the prisoner’s Tenn. R. App. P. 11 application for permission to appeal. We find that Tenn. Code Ann. § 39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated. We have also determined that both the post-conviction trial court and the Court of Criminal Appeals properly determined that the prisoner’s claim involving the ineffective assistance of his trial counsel in connection with the investigation and presentation of mitigation evidence is procedurally barred. 

The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disputed testimony was properly admitted, the evidence was sufficient to support a conviction for disorderly conduct, and there was no violation of the right to free speech, the Court of Criminal Appeals is reversed. The judgment of conviction and sentence is reinstated.