Supreme Court Opinions

Format: 09/30/2016
Format: 09/30/2016
Chartis Casualty Company, et al v. State of Tennessee
M2013-00885-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Robert N. Hibbett, Commissioner, TN Claims Commission

Five groups of Pennsylvania-domiciled insurance companies filed complaints in the Tennessee Claims Commission seeking a refund of retaliatory taxes paid under protest. The Commissioner entered judgments denying the requested refunds, and the insurance companies appealed. The Court of Appeals affirmed the judgments. We granted permission to appeal to consider whether certain Pennsylvania workers’ compensation assessments result in a financial burden on Tennessee insurance companies doing business in Pennsylvania, thereby triggering the imposition of retaliatory taxes against the Pennsylvania insurance companies doing business in Tennessee. Because the workers’ compensation assessments must be paid by employer–policyholders in conjunction with their premium payments, the administrative task of collecting and remitting those payments does not qualify as a burden on the insurance companies for purposes of the retaliatory tax. The judgments of the Court of Appeals are, therefore, reversed.

Supreme Court 10/02/15
Richard Moreno v. City of Clarksville - Dissenting
M2013-01465-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Michael R. Jones

As early as 1799, the Superior Court of Law and Equity of Tennessee adopted the principle that the courts of this state should interpret the law in a manner that elevates “the justice of the case” over “technical formality.” Glasgow’s Lessee v. Smith, 1 Tenn. (1 Overt.) 144, 151 (1799). It is equally well established that “Tennessee law strongly favors the resolution of all disputes on their merits,” and that remedial statutes must “be given a broad and liberal construction in order to achieve this goal.” Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996). This case involves a claim brought pursuant to the Claims Commission Act and hinges on the construction of Tennessee Code Annotated section 20 1 119, a remedial statute intended to provide plaintiffs with a fair opportunity to add a non-party when a defendant alleges that the non-party was comparatively at fault for a plaintiff’s injury. Becker v. Ford Motor Co., 431 S.W.3d 588, 592 (Tenn. 2014). The majority has concluded that in this instance Richard Moreno (the “Plaintiff”) cannot invoke section 20 1 119 because it applies only when the defendant alleging comparative fault is named in a pleading described as a “complaint” rather than a “notice of claim,” the latter being the statutory term used to describe the pleading that commences an action under the Claims Commission Act. In my view, the majority’s interpretation of section 20 1 119 is contrary to the plain meaning of the statute, elevates form over substance, and violates the principle that claims should be decided on the merits whenever possible. I must, therefore, respectfully dissent.

Montgomery County Supreme Court 09/18/15
Richard Moreno v. City of Clarksville
M2013-01465-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Michael R. Jones

In this appeal, the claimant seeks to toll the statute of limitations on his claim against a municipality based on two statutes: (1) Tennessee Code Annotated § 20-1-119, the 90-day “window” in Tennessee’s comparative fault statute to name a non-party defendant as a comparative tortfeasor, and (2) Tennessee Code Annotated § 9-8-402(b), the tolling provision in the Tennessee Claims Commission Act that states that the filing of written notice of a claim against the State tolls all statutes of limitations as to other persons potentially liable to the claimant. The trial court dismissed the claimant’s complaint against the municipality. It held that, because the antecedent complaint against the State of Tennessee was filed in the Tennessee Claims Commission after expiration of the one-year limitations period, the 90-day window under Section 20-1-119 to file the lawsuit against the municipality, as a comparative tortfeasor, was never triggered. The Court of Appeals reversed, reasoning that the claimant’s written notice of his claim against the State, filed with the Division of Claims Administration before the one-year limitations period elapsed, was an “original complaint” within the meaning of Section 20-1-119, so the lawsuit against the municipality was timely. The municipality appeals. We hold that the complaint, not the written notice of a claim, is the “original complaint” under Section 20-1-119, so the 90-day window to name a non-party defendant as a comparative tortfeasor was never triggered in this case. We also hold that Section 9-8-402(b), the tolling provision in the Claims Commission Act, is not applicable to toll the statute of limitations for a claim against a municipality filed under Tennessee’s Governmental Tort Liability Act. Therefore, this action is time-barred. 

Montgomery County Supreme Court 09/18/15
State of Tennessee v. Rickey Alvis Bell, Jr. - Concurring In Part and Dissenting In Part
W2012-02017-SC-DDT-DD
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Joe H. Walker, III


I concur with the majority’s holdings as to the trial court’s denial of Mr. Bell’s motion to strike the death notice based on intellectual disability; the constitutionality of Tennessee Code Annotated section 39-13-203 that prohibits the execution of any intellectually disabled person; and the trial court’s denial of Mr. Bell’s motions for mistrial. I agree with the majority’s conclusion that the trial court erred by refusing to allow Mr. Bell to introduce evidence that Rick Harris, the victim’s husband, was having an affair with his ex-wife at the time the victim was murdered. However, I disagree that the error was harmless. In my view, the State failed to demonstrate beyond a reasonable doubt that this error did not affect the outcome of the trial. Because Mr. Bell was deprived of his constitutional right to present a defense and the State failed to show that the error did not affect the verdict, Mr. Bell is entitled to a new trial. For these reasons, I respectfully dissent from the majority’s holding that Mr. Bell is not entitled to a new trial and would pretermit the remaining issues.

Tipton County Supreme Court 09/10/15
State of Tennessee v. Rickey Alvis Bell, Jr.
W2012-02017-SC-DDT-DD
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Joe H. Walker

In this capital case, the jury convicted the Defendant, Rickey Alvis Bell, Jr., of two alternative counts of first degree felony murder, one count of especially aggravated kidnapping, and one count of aggravated sexual battery. The jury sentenced the Defendant to death for the first degree murder based on four aggravating circumstances. On direct appeal, the Court of Criminal Appeals affirmed the Defendant’s convictions. The Court of Criminal Appeals concluded that the record did not support two of the aggravating circumstances but nonetheless affirmed the death sentence. We now address the following issues: (1) whether the trial court erred in denying the Defendant’s motion to strike the death notice on the ground that he is intellectually disabled; (2) whether Tennessee’s statute prohibiting the execution of intellectually disabled persons is unconstitutional; (3) whether the trial court erred in denying the Defendant’s two motions for mistrial; (4) whether the trial court erred by refusing to allow the Defendant to adduce evidence that the victim’s husband was having an extramarital affair at the time the victim was murdered; (5) whether the evidence was sufficient to support the Defendant’s convictions; and (6) our mandatory review of the Defendant’s death sentence. Upon our thorough review of the record and applicable law, we affirm the Defendant’s convictions and death sentence.

Tipton County Supreme Court 09/10/15
David G. Young v. City of Lafollette, et al.
E2013-00441-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge John D. McAfee

We granted permission to appeal to address two issues: (1) Whether the Governmental Tort Liability Act (“GTLA”), Tenn. Code Ann. § 29-20-101 to -408 (2012 & Supp. 2014), applies to Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304 (2008 & Supp. 2009), claims against governmental entities; and (2) If the GTLA does not apply, whether a constitutional or statutory right to trial by jury applies to TPPA claims brought in circuit court. As to the first issue, we hold that the GTLA does not apply to TPPA claims because the TPPA is an independent and specific body of law, which removes governmental immunity and thus controls the adjudication of TPPA claims against governmental entities. As to the second question, we hold that there is no constitutional right to trial by jury for TPPA claims and that there is no statutory right to trial by jury for TPPA claims filed in circuit court. Accordingly, the judgment of the Court of Appeals is affirmed on the separate grounds stated herein, and this matter is remanded to the circuit court for further proceedings consistent with this decision.

Campbell County Supreme Court 08/26/15
Kighwaunda M. Yardley v. Hospital Housekeeping Systems, LLC.
M2014-01723-SC-R23-CV
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Aleta A. Trauger

We accepted a question of law certified by the United States District Court for the Middle District of Tennessee to determine whether a job applicant has a cause of action under the Tennessee Workers’ Compensation Act against a prospective employer for failure to hire if the prospective employer failed to hire the job applicant because that applicant had filed, or is likely to file, a workers’ compensation claim against a previous employer, and if such a cause of action exists, what standard should apply. We hold that there is no cause of action for failure to hire under the Tennessee Workers’ Compensation Act.

Supreme Court 08/21/15
State of Tennessee v. Courtney Knowles - Dissent
W2013-00503-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge James M. Lammey

“Hard cases, it has frequently been observed, are apt to introduce bad law.” Winterbottom v. Wright, 152 Eng. Rep. 403, 404 (1842). The same is true of “cases in which . . . moral indignation . . . is aroused” by egregious facts. Glanville Williams, The Sanctity of Life and the Criminal Law 105 (1957). The defendant here, convicted of the rape of a child and already serving a forty-year sentence for related federal offenses, deserves no sympathy. Because, however, constitutional principles sometimes get in the way of what might otherwise qualify as a just punishment, I must dissent from my colleagues. The fundamental principle at issue here is the right to a unanimous jury verdict, see Tenn. Const. art. I, § 6, which requires the State to elect the specific evidence it is relying upon for a conviction when the jury hears proof of more than one instance of sexual misconduct. State v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001). Regrettably, the State misidentified the factual basis for the charged offense in this instance. Because this error, although clearly inadvertent, served to undermine the fundamental right to a unanimous verdict, I believe that a new trial should be ordered.

Shelby County Supreme Court 07/31/15
State of Tennessee v. Courtney Knowles
W2013-00503-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge James M. Lammey

The dispositive issue in this appeal is whether an inaccuracy in the prosecution's election of offenses amounted to plain error that entitles the defendant to relief. Although the Court of Criminal Appeals erred by failing to subject the election issue to plain error analysis, we hold, after thoroughly reviewing the record pursuant to the plain error doctrine, that the election error does not entitle the defendant to relief. Despite the inaccuracy, the election was sufficiently specific to eliminate any substantial risk that the jury would return a non-unanimous verdict. Additionally, the defendant has failed to provide a complete record of the proceedings in the trial court. Accordingly, under these circumstances, we affirm, on the separate grounds stated, the Court of Criminal Appeals' judgment upholding the defendant's conviction of rape of a child.

Shelby County Supreme Court 07/31/15
Arthur B. Roberts et al. v. Robert Bailey et al.
M2013-01950-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Frank V. Williams, III

The plaintiffs filed suit against the defendants to settle a boundary dispute. During the litigation, the defendants, who had for years enjoyed the continuous and exclusive possession of their lands, discovered that their ancestors, husband and wife, had acquired title during the “gap years” and, in consequence, had owned the lands as tenants in common rather than tenants by the entirety. The defendants, proceeding as third-party plaintiffs, filed a motion to quiet title against third-party defendants, also descendants of their ancestors, who each claimed an ownership interest in the disputed lands by inheritance. The trial court granted summary judgment in favor of the third-party defendants. The Court of Appeals affirmed. On remand, the defendants/third-party plaintiffs amended their complaint, seeking to establish title by prescription. The trial court again denied relief, and the Court of Appeals affirmed, holding that the third-party defendants‟ “undisputed ignorance” of their status as co-tenants in common with their relatives precluded a “presumptive ouster” and, therefore, prevented the defendants/third-party plaintiffs from taking title by prescription. Because the undisputed facts establish that each of the elements of title by prescription has been satisfied, the Court of Appeals is reversed and the original defendants are awarded title by prescription. This cause is remanded to the trial court for further proceedings consistent with this opinion.

Loudon County Supreme Court 07/31/15
Homer L. Cody v. Board of Professional Responsibility of The Supreme Court of Tennessee
W2014-02003-SC-R3-BP
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Senior Judge Don R. Ash

A hearing panel of the Board of Professional Responsibility determined that a Memphis attorney should be suspended from the practice of law for 180 days based on his violation of Tenn. Sup. Ct. R. 8, Rules of Professional Conduct 1.7(a), 8.4(a), and 8.4(d). The trial court affirmed the decision of the Hearing Panel. After careful consideration, we affirm the judgment of the trial court.

Shelby County Supreme Court 07/27/15
Yarboro Sallee v. Tennessee Board of Professional Responsibility
E2014-01062-SC-R3-BP
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Don R. Ash

In this appeal from attorney disciplinary proceedings, the hearing panel of the Tennessee Board of Professional Responsibility suspended the law license of the appellant attorney for one year. The hearing panel determined that the attorney violated Rules 1.4, 1.5, 1.16, 4.4, and 8.4 of the Tennessee Rules of Professional Conduct. Its decision was based on, inter alia, the attorney’s failure to communicate with the client, excessive fees, withholding items from the client’s files after termination of her representation, and sending the clients’ new attorney emails threatening criminal prosecution of the former clients. The attorney sought judicial review of the hearing panel’s decision, and the trial court affirmed the decision of the hearing panel. The attorney now appeals to this Court. After a careful review of the record, we affirm. 

Knox County Supreme Court 07/23/15
State of Tennessee v. Ricco R. Williams - Dissenting
W2013-01897-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Joe H. Walker, III

A majority of this Court has determined that when a defendant is charged with the offenses of kidnapping and robbery as to different victims during a single criminal episode, the jury is not entitled to an instruction, pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), that in order to convict on the kidnapping charge it must first determine whether the removal or confinement of the kidnapping victim is “essentially incidental” to the contemporaneous robbery of another victim. Because I cannot agree with my colleagues that the White instruction is never applicable to these circumstances, for the reasons set forth in my separate opinion filed today in State v. Teats, No. M2012-01232-SC-R11-CD, I must respectfully dissent.

Lauderdale County Supreme Court 07/14/15
State of Tennessee v. Ricco R. Williams
W2013-01897-SC-R11-CD
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Joe H. Walker, III

This appeal presents the issue of whether a trial judge is required to give a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), when a defendant is tried on charges of kidnapping and robbery of different victims. The defendant, along with two accomplices, broke into a family’s home while they were sleeping. Brandishing weapons, the intruders forced the family members to remain in the living room while they ransacked the home. The intruders later fled with money and jewelry. At trial, a White jury instruction was neither requested nor given. The jury convicted the defendant of numerous charges, including five counts of especially aggravated kidnapping of the husband, wife, and three children; aggravated burglary of the husband’s residence; and two counts of aggravated robbery of the husband and wife. The Court of Criminal Appeals affirmed the convictions for especially aggravated kidnapping, aggravated burglary, and one count of aggravated robbery as to the husband and modified the conviction of aggravated robbery of the wife to aggravated assault. On review, we remanded the case for consideration in light of White. The Court of Criminal Appeals affirmed the convictions of especially aggravated kidnapping as to the three children, but, in light of White and State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), reversed the convictions of especially aggravated kidnapping as to the husband and wife and remanded those charges for a new trial. In this appeal, the defendant asserts that the trial court’s failure to give a White jury instruction as to the remaining three convictions for the especially aggravated kidnapping of the children constituted reversible error. In accordance with our opinion in State v. Teats, __S.W.3d__, No. M2012 01232 SC R11 CD (Tenn. 2015) released contemporaneously with this opinion, we hold that the White jury instruction was not required as to the offenses of especially aggravated kidnapping of the three children.

Lauderdale County Supreme Court 07/14/15
State of Tennessee v. Jerome Maurice Teats - Dissenting
M2012-01232-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Steve R. Dozier

A majority of this Court has determined that when a defendant is charged with the offenses of kidnapping and robbery as to different victims during a single criminal episode, the jury is not entitled to an instruction, pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012), that in order to convict on the kidnapping charge it must first determine whether the removal or confinement of the kidnapping victim is “essentially incidental” to the contemporaneous robbery of another victim. Because I cannot agree with my colleagues that the White instruction is never applicable to these circumstances, I respectfully dissent.

Davidson County Supreme Court 07/14/15
State of Tennessee v. Jerome Maurice Teats- Concurring
M2012-1232-SC-R11-CD
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Steve R. Dozier

I concur in Chief Justice Lee’s well-written majority opinion in this case. Under the law as it currently stands in Tennessee, the majority has correctly analyzed the issue presented. I write separately to note the same concerns expressed by Justice Bivins in his separate concurrence in our recent decision State v. Alston, namely, concerns about the far-reaching constitutional holding in the case that gives rise to this issue, this Court’s 1991 decision State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). See State v. Alston, No. E2012-00431-SC-R11-CD, --- S.W.3d ---, 2015 WL 2155690, at *9-10 (Tenn. May 5, 2015)(Bivins, J., concurring) (citing Anthony, 817 S.W.2d at 299).

Davidson County Supreme Court 07/14/15
State of Tennessee v. Jerome Maurice Teats
M2012-01232-SC-R11-CD
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge Steve R. Dozier

We granted review in this case to determine whether a trial judge is required to give a jury instruction based on our decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), when a defendant is tried on charges of kidnapping and robbery of different victims. The defendant and an accomplice forced their way into the back door of a restaurant, threatened the employees at gunpoint, and ordered them into a back storage area. While the accomplice guarded these employees, the defendant forced the restaurant manager to take him to the cash drawer, where he took the restaurant’s money. The defendant was indicted for aggravated robbery of the store manager and four counts of especially aggravated kidnapping of the other four employees. A jury convicted the defendant of all charges. On appeal, the defendant asserted that the trial judge’s failure to give the White jury instruction was reversible error. The Court of Criminal Appeals affirmed the convictions. We hold that a White jury instruction is not required when a defendant is charged with the offenses of kidnapping and robbery of different victims.

Davidson County Supreme Court 07/14/15
Stephen Michael West et al. v. Derrick D. Schofield et al.
M2014-02478-SC-R10-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Chancellor Claudia Bonnyman

We granted this extraordinary appeal to determine whether, in this declaratory judgment action, the death-sentenced inmates' claims challenging the constitutionality of a 2014 statute that designated electrocution as an alternative method of execution and the constitutionality of electrocution as a means of execution should be dismissed as unripe. Because the death-sentenced inmates are not currently subject to execution by electrocution and will not ever become subject to execution by electrocution unless one of two statutory contingencies occurs in the future, their claims challenging the constitutionality of the 2014 statute and electrocution as a means of execution are not ripe. Accordingly, we reverse the trial court's decision denying the defendants' motion to dismiss, dismiss the death-sentenced inmates' electrocution claims as unripe, and remand this matter to the trial court for further proceedings consistent with this decision.

Davidson County Supreme Court 07/02/15
Anne Payne v. CSX Transportation, Inc.
E2012-02392-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Dale C.Workman and Judge Harold Wimberly, Jr.

A railroad employee who was diagnosed with lung cancer filed suit against the railroad under the Federal Employers’ Liability Act, alleging that the railroad had negligently exposed him to asbestos, diesel exhaust fumes, and radioactive materials, all of which were contributing causes to his illness. The employee also alleged that the railroad was negligent per se by violating pertinent safety statutes or regulations. When the employee died prior to trial, his wife was substituted as plaintiff. By special verdict, the jury awarded the plaintiff $8.6 million, finding that the employee’s cancer and subsequent death were caused not only by the railroad’s negligence but also by its negligence per se. The jury also found that the employee was sixty-two percent at fault due to his history of cigarette smoking. After the return of the verdict, the trial court instructed the jury that because of its finding that the railroad had violated safety regulations, the Federal Employers’ Liability Act did not allow for a reduction of the amount of damages based upon the employee’s contributory fault, meaning that the plaintiff would receive the entire $8.6 million. The jury then deliberated for an additional eight minutes and returned with an amended verdict awarding the plaintiff $3.2 million “at 100%.” The trial court entered judgment on the amended verdict but later granted a new trial and entered an order of recusal. A substitute judge granted the railroad’s motion for summary judgment after excluding the plaintiff’s expert proof on the issue of causation. On appeal by the plaintiff, the Court of Appeals reversed the summary judgment and remanded with directions for the original trial judge to review the evidence and enter judgment on either the original $8.6 million verdict or the amended $3.2 million verdict. We hold that the plaintiff’s expert proof was properly admitted at trial, but that the original judge erred by granting the railroad’s motion for a new trial based on evidentiary and instructional issues, and committed prejudicial error in assessing the amount of damages to be awarded. Under these circumstances, the appropriate remedy is to remand for a new trial as to damages only.

Knox County Supreme Court 07/01/15
Action Chiropractic Clinic, LLC v. Prentice Delon Hyler, et al
M2013-01468-SC-R11-CV
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

Action Chiropractic Clinic, LLC brought suit against Prentice Delon Hyler and Erie Insurance Exchange to recover $5,010.00 as payment for chiropractic services. The trial court granted Erie Insurance Exchange’s motion for summary judgment. We granted review to determine whether the “Assignment of Rights” to Action Chiropractic Clinic as a health care provider executed by Mr. Hyler was a proper assignment. Upon a thorough review of the record and the applicable law, we conclude that the document in this case was not an effective assignment. Accordingly, we affirm the judgment of the Court of Appeals.

Davidson County Supreme Court 07/01/15
Clayton Arden v. Kenya I. Kozawa, M. D. et al
E2013-01598-SC-R11-CV
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge J. Michael Sharp

The primary issue presented is whether a health care liability case must be dismissed because the plaintiff sent the health care defendants pre-suit notice of the claim via a commercial carrier, FedEx, instead of using certified mail, return receipt requested, through the United States Postal Service. The defendants moved for summary judgment, asserting that the plaintiff failed to comply with the requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) (2012). The defendants did not allege they failed to receive notice or were prejudiced by the plaintiff’s method of service. The trial court dismissed the complaint, holding that strict compliance with the manner and proof of service requirements of Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) was required. The Court of Appeals affirmed, holding that substantial compliance was sufficient to satisfy the statutory content requirements of the notice, but that the plaintiff’s failure to send the notice by certified mail constituted deficient service. We hold that the manner and proof of service prescribed by Tennessee Code Annotated sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance. The defendants received notice and were not prejudiced by the manner of service. Therefore, the use of FedEx to deliver the notice and the filing of proof of service with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings.

Monroe County Supreme Court 06/30/15
State of Tennessee v. Terrence Justin Feaster
E2012-02636-SC-R11-CD
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Senior Judge Jon Kerry Blackwood

The defendant was convicted of attempted voluntary manslaughter, aggravated assault, and false imprisonment. After determining that the separate convictions for attempted voluntary manslaughter and aggravated assault did not violate double jeopardy, the trial court imposed consecutive sentences totaling twenty-six years, eleven months, and twenty-nine days. A divided panel of the Court of Criminal Appeals affirmed, finding no double jeopardy violation. This Court granted the defendant’s application for permission to appeal to determine whether due process safeguards prohibit the retroactive application of the double jeopardy standard adopted in State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), which was decided after the date of his offenses. The defendant argues that the former double jeopardy standard set out in State v. Denton, 938 S.W.2d 373 (Tenn. 1996), should apply. Because our ruling in Watkins cannot be classified as “unexpected” or “indefensible” by reference to prior law, due process does not preclude its retroactive application. The judgment of the Court of Criminal Appeals is affirmed.

Knox County Supreme Court 06/25/15
Richard A. Berent v. CMH Homes, Inc., et al
E2013-01214-SC-R11-CV
Authoring Judge: Justice Holly Kirby
Trial Court Judge: Judge Ward Jeffrey Hollingsworth

In this appeal, we are asked to overrule established precedent regarding the circumstances under which an arbitration provision in an adhesive consumer contract is rendered unconscionable and unenforceable based on non-mutual remedies, i.e., mandating arbitration for the consumer but reserving a judicial forum for the merchant. This case involves an adhesion contract for the sale of a manufactured home. The contract includes an arbitration provision under which the sellers retain the right to seek relief in a judicial forum for limited purposes. After the buyer took possession of the home, he filed a lawsuit against the sellers for breach of contract, and the sellers filed a motion to compel arbitration. The trial court denied the motion to compel. In reliance on this Court’s decision in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004), the trial court held that the non-mutuality of remedies in the arbitration provision rendered it unconscionable and invalid. The Court of Appeals affirmed, also relying on Taylor. We granted permission to appeal to address whether the ruling in Taylor is preempted by the Federal Arbitration Act under the reasoning in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), and to address whether Taylor should be overruled or modified in light of the current majority view in other jurisdictions on the validity of arbitration contracts that include non-mutual remedies. We hold that Taylor did not adopt a per se rule that any degree of non-mutuality of remedies in an arbitration provision in an adhesion contract renders the provision unconscionable and unenforceable. Consequently, the ruling in Taylor is not preempted by federal law. In addition, after reviewing the law in other jurisdictions, we decline to overrule or modify the ruling in Taylor. Applying Taylor to the contract in this case, we conclude that the sellers’ retention of a judicial forum for limited purposes does not render the arbitration agreement unconscionable. Accordingly, we reverse the decisions of the Court of Appeals and the trial court and remand to the trial court for further proceedings. 

Hamilton County Supreme Court 06/05/15
State of Tennessee v. Marlo Davis
W2011-01548-SC-R11-CD
Authoring Judge: Chief Justice Sharon G. Lee
Trial Court Judge: Judge W. Mark Ward

I concur in the Court’s opinion; however, I write separately to express my concerns about the delay in the trial of this case and the evidentiary problems caused by the delay. Quincy Jones was shot to death on November 9, 2006. The Defendant was arrested on November 13, 2006, and a preliminary hearing was held on January 17, 2007. At the hearing, Jarcquise Spencer testified about what he saw at the time of the murder, including his recollection of seeing the Defendant pull a gun, point it at the victim, and shoot him. 

Shelby County Supreme Court 06/03/15
State of Tennessee v. Marlo Davis
W2011-01548-SC-R11-CD
Authoring Judge: Justice Jeffrey S. Bivins
Trial Court Judge: Judge Mark Ward

The Defendant, Marlo Davis, was charged with alternative counts of first degree felony murder and first degree premeditated murder. The jury convicted the Defendant of second degree murder as a lesser-included offense of felony murder and of reckless homicide as a lesser-included offense of premeditated murder. The trial court subsequently merged the reckless homicide conviction into the second degree murder conviction and sentenced the Defendant as a Range II offender to forty years’ imprisonment. The Court of Criminal Appeals affirmed. We granted the Defendant permission to appeal and now address three issues: (1) whether the trial court committed reversible error by admitting as substantive evidence a prior statement and the preliminary hearing testimony of a testifying witness; (2) whether the evidence was sufficient to support the Defendant’s alternative convictions of second degree murder and reckless homicide; and (3) whether the jury’s inconsistent verdicts entitle the Defendant to relief. We hold that the trial court’s admission of the testifying witness’ prior statement and preliminary hearing testimony was not reversible error and that the evidence was sufficient to support the Defendant’s convictions. We also reject the Defendant’s argument that the jury’s inconsistent verdicts entitle him to relief. Accordingly, we affirm the trial court’s judgment of second degree murder.

Shelby County Supreme Court 06/03/15