Supreme Court Videos

Video recordings of oral arguments heard in Nashville before the Tennessee Supreme Court  beginning October 3, 2018 are available to view approximately 21 days after the oral argument.  You may access the video by clicking on the case number listed below. When the window opens, click on the Play icon on the lower left corner (it will say Opening, but click on the Play icon and the video will begin).

Tuesday, April 1, 2020, argument heard via Video Conference. See story relating to this historic event here.

Lataisha M. Jackson v. Charles Anthony Burrell et al. W2018-00057-SC-R11-CV

This healthcare liability action arose when the plaintiff, Lataisha Jackson, alleged that an employee, Charles Burrell, at Gould’s Salon Inc. d/b/a Gould’s Day Spa & Salon (“Gould’s”) sexually assaulted her while she was getting a massage. Ms. Jackson filed claims of vicarious liability, negligence, and negligent supervision, retention, and training against Gould’s. Gould’s filed a motion for summary judgment claiming, in part, that the negligence claims could not survive because Ms. Jackson failed to file a certificate of good faith, which is a pre-suit notice requirement under the Tennessee Health Care Liability Act (“THCLA”). In opposition, Ms. Jackson argued that the certificate of good faith was not required by law under the common knowledge exception to the THCLA. The trial court granted Gould’s motion for summary judgment based on Ms. Jackson’s failure to file the certificates of good faith and dismissed the claims with prejudice. Ms. Jackson appealed to the Court of Appeals but did not directly raise the issue of whether the common knowledge exception applied in this case. Gould’s, however, argued the issue in its brief. A majority of the intermediate court affirmed the grant of summary judgment in favor of Gould’s and held that the common knowledge exception did not apply and that, even if it did, Ms. Jackson waived the argument by not raising it as an issue on appeal. The dissent determined that the argument regarding the common knowledge exception was not waived and that the exception applied as related to Ms. Jackson’s negligence claims. On appeal to the Tennessee Supreme Court, Ms. Jackson contends that the issue of whether the common knowledge exception applies was not waived because she argued it in front of the trial court, Gould’s argued the issue in its brief on appeal, and Gould’s never raised the issue of waiver. Additionally, she argues that the common knowledge exception exempts her from having to file a certificate of good faith because, under the THCLA, the certificate is required for medical negligence and this a case of negligent supervision and retention of an employee. Gould’s argues that Ms. Jackson was required to file a certificate of good faith because the legislative intent shows that it is required for all health care liability claims, not just “medical” claims. Additionally, Gould’s contends that Ms. Jackson’s “skeletal” arguments in the trial court did not satisfy her burden of preserving the issue for appeal. Gould’s also contends that even if the argument is not waived, the common knowledge exception does not apply in this case because a determination of whether Gould’s acted negligently in hiring, retaining, or supervising an employee is not a matter within the common knowledge of a layperson.

Tuesday, February 11, 2020, arguments heard in Nashville, Tennessee.

Vickie S. Young, Individually and as Administrator of the Estate of Randall Josh Young, Deceased v. First Cardiology PLLC, et al - M2019-00316-SC-R11-CV

In this healthcare liability action, the plaintiff, Vickie Young, filed a wrongful death suit against the defendants, First Cardiology PLLC and Thomas Killian, M.D., alleging negligence and medical malpractice that resulted in her husband’s death.  Before trial, the defendants sought to exclude the plaintiff’s medical expert testimony on the basis that the expert was not licensed to practice medicine in Tennessee or a contiguous bordering state during the year preceding the relevant time period, as required by Tennessee statute.  The trial court denied the defendant’s motion to exclude the expert’s testimony, stating that the particular statute only applied to healthcare professionals who were practicing in a “health care profession requiring licensure,” and, at the time relevant to this case, the plaintiff’s expert was exempt from licensure as part of a post-graduate medical training program.  The trial court subsequently granted the defendants’ permission to file an interlocutory appeal, but the Court of Appeals denied the application.  The Supreme Court, however, granted review of the appeal.  Before the Supreme Court, the defendants argue that the competency requirements for medical experts are unambiguous in that the expert must have been licensed and practicing in Tennessee or a contiguous bordering state during the year preceding the date that the alleged injury or wrongful act occurred.  The plaintiff argues that the statute at issue does not apply to medical professionals who, like the expert in this case, were qualified to practice medicine under a waiver of licensure during the relevant time period. 

George H. Thompson, III v. Board of Professional Responsibility of the Supreme Court of Tennessee - M2018-02216-SC-R3-BP

This attorney-discipline case was initiated after a single complaint alleging that the attorney, Mr. George Thompson, allowed the statute of limitations in a client’s personal injury action to expire, prohibiting the client from refiling her claim or obtaining relief.  Mr. Thompson offered his client $5,000 in exchange for a release from liability concerning the case, but he did not advise his client that she should obtain independent legal counsel regarding the release.  Mr. Thompson stipulated to the acts of wrongdoing and that he violated the Rules of Professional Conduct.  As a result, the hearing panel found that a one-year suspension, thirty days active with the remainder on probation, was the appropriate measure of discipline given Mr. Thompson’s history of similar acts of wrongdoing and discipline.  The chancery court affirmed the hearing panel’s sanction.  On appeal to the Supreme Court, Mr. Thompson argues that thirty days active suspension would effectively eliminate his ability to carry on his solo practice and would force him to retire early.  Additionally, Mr. Thompson argues that he did not knowingly or intentionally violate the rules, so a suspension is not appropriate in this instance.  The Board argues that the hearing panel’s decision is not arbitrary or capricious and is supported by substantial and material evidence.

In re: Cumberland Bail Bonding - M2017-02172-SC-R11-CD

This case involves the challenge of a judicial district’s local rule of court, which requires a bonding agent to give notice to a defendant of all his or her court appearances and to be present at all of the defendant’s court appearances.  Here, Cumberland Bail Bonding failed to appear at a defendant’s hearing.  As a result, the trial court suspended Cumberland’s bonding privileges pending a hearing.  Cumberland filed a motion for reinstatement of bonding privileges, which was denied, and Cumberland appealed.  The Court of Criminal Appeals reversed the trial court’s order suspending Cumberland. It held that, while the notification requirement of the rule is within the trial court’s “inherent power” to regulate bonding companies, the appearance requirement is “arbitrary, capricious, and illegal” because it was “not apparent why the bonding company’s presence” is required at each appearance.  On appeal to the Supreme Court, the State argues that the appearance requirement is neither arbitrary nor capricious because “[t]he bondsman’s presence in court ensures that all parties timely receive relevant information about a defendant.”  Additionally, the State argues that the local rule does not conflict with any statute or rule and that the statutes regulating bonding agents did not abrogate the court’s inherent authority to regulate bonding agents through the local rule.  Cumberland argues that the local rule is inconsistent with Tennessee statute because “it modifies the statutory obligations of bonding companies” and that the appearance requirement is arbitrary and capricious.

Crouch Railway Consulting, LLC v. LS Energy Fabrication, LLC - M2017-02540-SC-R22-CV

This contract dispute arose after LS Energy Fabrication, LLC (Lonestar) hired Crouch Railway Consulting (Crouch) for engineering and planning services related to the construction of a railcar repair facility in Texas.  Lonestar is a Texas company, based out of Baytown Texas, and Crouch is a Tennessee company, based out of Brentwood, Tennessee.  Months in to the performance of the contract, Lonestar failed to make payments for work completed in two separate months.  Crouch filed a claim for breach of contract and unjust enrichment against Lonestar in Williamson County Chancery Court.  Lonestar filed a motion to dismiss for lack of personal jurisdiction, arguing that simply contracting with a Tennessee company is not enough to confer personal jurisdiction on the Williamson County court.  The trial court granted Lonestar’s motion to dismiss, but the Court of Appeals reversed.  Relying on Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560 (Tenn. 1981), the Court of Appeals held that Lonestar “purposefully directed its activity toward Tennessee by engaging a Tennessee engineering company to provide customized services, which were preformed primarily in Tennessee.”  Additionally, the Court of Appeals explained that the decision to require Lonestar to litigate in Tennessee was both “fair and reasonable.”  On appeal to the Tennessee Supreme Court, Lonestar argues that the Tennessee and United States constitutions require the nonresident defendant to “create a substantial connection with the forum state, not merely foresee the possibility of one day being sued there.”  Additionally, Lonestar argues that the Court’s focus should be on the company’s conduct and not simply foreseeability.  Crouch argues that Lonestar has “more than sufficient minimum contacts with Tennessee” because it “intentionally engaged Crouch,” knowing it was a Tennessee company, in specialized design and consulting services.  Additionally, Crouch argues that “subjecting Lonestar to personal jurisdiction in Tennessee is consistent with notions of fair play or substantial justice.”

Douglas Ralph Beier v. Board of Professional Responsibility of the Supreme Court of Tennessee - E2019-00463-SC-R3-BP

This attorney-discipline matter arose from two separate cases for which Mr. Beier represented one of the parties.  In the first case, the Board of Professional Responsibility alleged that Mr. Beier forged the signature on an affidavit and filed the document with the court.  In the second case, regarding a probate matter, the Board alleged that Mr. Beier not only misrepresented who the heirs of the estate were, but he also misrepresented the value of the probate estate to pad his contingency fee.  A hearing panel determined that Mr. Beier violated six separate Rules of Professional Conduct and that a two-year suspension, ninety days active suspension with the remainder on probation, was the appropriate sanction.  Both Mr. Beier and the Board filed petitions for review of the hearing panel’s judgment in the Hamblen County Chancery Court.  The chancery court determined that the hearing panel’s finding that Mr. Beier violated the rules was not arbitrary or capricious and was supported by substantial and material evidence.  Additionally, the chancery court held that Mr. Beier’s two-year suspension was appropriate but that the entirety of the sanction should be served as an active suspension.  On appeal to the Supreme Court, Mr. Beier argues that the findings and conclusions of both the hearing panel and the chancery court were arbitrary and capricious and not supported by the evidence.  Furthermore, Mr. Beier argues that the hearing panel did not adequately weigh similar attorney discipline matters in determining the appropriate sanction and that the chancery court inappropriately modified the service of the suspension.  The Board argues that the hearing panel’s determinations as to ethical violations were supported by substantial and material evidence and that the chancery court appropriately modified the sanction.

Tuesday, November 19, 2019 - Arguments heard in Kingsport, Tennessee as part of SCALES Project

Joshua Keller v. Jancie Casteel et al. - E2017-01020-SC-R11-CV

This case was initiated after Joshua Keller was terminated from his position as a firefighter with the city of Cleveland based on a criminal conviction and “disgraceful personal conduct.”  The decision to terminate Mr. Keller was made by the Fire Chief, in consultation with the City Manager, Human Resources, and the City Attorney.  Mr. Keller appealed the decision, and the City Manager upheld the termination. Mr. Keller then sought review of the termination in the chancery court, alleging violations of the Uniform Administrative Procedures Act and his procedural due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.  The chancery court granted Mr. Keller’s request to include federal claims, and the case was removed to the federal district court.  As to the federal claims, the district court held that Mr. Keller did not have a property interest in his employment, given that the Personnel Manual explicitly states that it does not create a contract.  Thus, the district court granted summary judgment in favor of the defendants and remanded the case to the chancery court for resolution of the state law claims.  The chancery court ultimately affirmed the decision of the City to terminate Mr. Keller’s employment, holding that the Personnel Manual did not create a contract.  The Court of Appeals reversed the chancery court decision and held that “the procedure utilized [by the City] was unlawful because the person who made the termination decision also affirmed the same decision on appeal,” even if “the City Manager acted with material evidence in support of her decision.”  The Court of Appeals reasoned that, while the Personnel Manual explicitly states it does not create a contract, it does provide for a right to an appeals process and judicial review of the decision.  On appeal to this Court, the City argues that Mr. Keller does not have a property interest in his employment entitling him to due process protections in termination proceedings.  Alternatively, the City argues that, even if he does have a property interest, the procedure satisfied due process.  Lastly, the City argues that even if Mr. Keller’s due process rights were violated, the Court of Appeals lacked authority to remand the case for a calculation of damages.

State of Tennessee v. Steve M. Jarman - M2017-01313-SC-R11-CD

The defendant, Steve M. Jarman, was convicted by a jury of voluntary manslaughter following the shooting death of his then girlfriend.  Prior to trial, Mr. Jarman sought to exclude evidence of his prior assault charge against the same victim, for which Mr. Jarman was acquitted. The trial court allowed the State to introduce the evidence at trial, reasoning that the evidence surrounding the acquitted charge was relevant to issues of motive and intent in the current case, and, under Tennessee Rule of Evidence 404(b), the prejudicial effect of the evidence did not outweigh its probative value.  The Court of Criminal Appeals reversed Mr. Jarman’s conviction for voluntary manslaughter and held that the trial court erred in admitting the evidence against Mr. Jarman.  The majority opinion of the intermediate court explained that it was bound by State v. Holman, 611 S.W.2d 411, 413 (Tenn. 1981), which categorically prohibits “acquitted-act” evidence from being introduced against a defendant in a subsequent trial.  The State sought review from the Supreme Court, arguing that the Court should reconsider its holding in Holman.  The State contends that an acquittal does not necessarily mean that the evidence fails to prove Mr. Jarman committed the act by clear and convincing evidence, which is the standard for admitting evidence of “other crimes” under Tennessee Rule of Evidence 404(b).  Additionally, the State argues that evidence of the acquitted charge was properly admitted in this case under Rule 404(b).  Mr. Jarman argues that Holman presents a fair and reasonable way to protect any person acquitted of a crime from having to defend oneself of that same charge in a subsequent trial.  Additionally, Mr. Jarman argues that the evidence in this case is inadmissible under the rules of evidence.

Wednesday, November 6, 2019 - Arguments heard in Jackson, Tennessee

Paul Zachary Moss v. Shelby County Civil Service Merit BoardW2017-01813-COA-R3-CV

This case was initiated after Paul Zachary Moss was terminated from his position as a firefighter with the Shelby County Fire Department.  While off-duty, Mr. Moss was arrested and charged with aggravated assault arising from an altercation at a political rally where Mr. Moss allegedly pulled out a gun and pointed it at two individuals.  Mr. Moss subsequently entered a best-interest plea to aggravated assault, for which he received judicial diversion.  Shortly thereafter, the Fire Department sent Mr. Moss a Notice of Proposed Major Discipline, which cited two charges: (1) that he had been convicted of a felony and (2) that he failed to give notice regarding his arrest.  Following a hearing, Mr. Moss was terminated.  In the termination letter, the Fire Department Chief referenced the two previously cited charges but also that Mr. Moss was dishonest during the hearing, failed to report a prior arrest, and engaged in troublesome conduct involving firearms, alcohol, and aggression towards others.  Mr. Moss appealed to the Shelby County Civil Service Merit Board, which affirmed the termination on the basis that there was adequate “cause” for Mr. Moss’s termination as required by the Shelby County Civil Service Merit Act.  The Merit Board upheld the termination, citing the conduct outlined by the Fire Chief in its reasoning.  Mr. Moss then sought review in the Chancery Court for Shelby County, which also affirmed the termination on the basis that, as a whole, the termination and review processes comported with due process and there was substantial and material evidence to support the decision of the Merit Board.  The Court of Appeals reversed the chancery court and held that the initial Notice of Proposed Major Discipline did not give Mr. Moss adequate notice or an opportunity to respond to the allegations against him, and that the deficiency was not cured when the termination letter or Merit Board decision referenced conduct unrelated to the political rally arrest that also contributed to Mr. Moss’s termination.  On appeal to the Supreme Court, the Merit Board argues that Mr. Moss was afforded due process because the proceedings as a whole provided him with adequate notice of the charges against him and an opportunity to refute those charges at different stages.  Mr. Moss argues that the charges in the initial Notice failed to give him adequate opportunity to respond to the additional conduct referenced by the Fire Chief in his termination letter and affirmed by the Merit Board, which violated his due process rights.  Additionally, Mr. Moss contends that he was not given the opportunity to confront his accusers or present evidence of unequal application of discipline across employee discipline cases.

Stephen P. Geller v. Henry County Board of Education W2017-01678-COA-R3-CV

This case involves the transfer of a Henry County Assistant Principal, Stephen Geller, from his position as assistant principal to a lower-paid position at an alternative school, based on Mr. Geller’s failure to hold an administrator’s license.  Mr. Geller brought suit and claimed his transfer violated Tennessee law regarding teacher transfers.  The Henry County Director of Schools (“the Director”) stated that he transferred Mr. Geller on the basis that it was “necessary to the efficient operation of the school system,” as provided by Tennessee statute.  The trial court upheld the transfer and determined that it was reasonable for the Director to conclude, based on his interpretation of “instructional leadership,” that all assistant principals required the license.  The Court of Appeals reversed and held that the Director’s decision was unreasonable and arbitrary because he failed to examine Mr. Geller’s actual responsibilities before determining he was required to obtain the license.  On appeal to the Supreme Court, the Henry County Board of Education contends that the transfer was proper because Mr. Geller was required to obtain the license because Mr. Geller spent at least 50% of his time on instructional leadership, and that even if Mr. Geller was not required to obtain the administrator’s license, the transfer was still proper under the teacher transfer statute.  The Board also argues that the Court of Appeals applied an incorrect standard of review on appeal.  Mr. Geller argues that transfer was not proper under the statute.  Specifically, Mr. Geller argues that the transfer was not necessary for the efficient operation of the school system and was not made according to the Board’s policies.

State of Tennessee v. Antonio Benson W2017-01119-CCA-R3-CD

The defendant, Antonio Benson, was convicted by a jury of first degree premeditated murder and received a life sentence.  Evidence at trial established that the victim punched Mr. Benson in the nose after he made multiple advances on her and demanded she perform oral sex on him.  Mr. Benson then shot the victim five to six times, killing her.  At trial, Mr. Benson requested a jury instruction on self-defense.  The trial court denied the request, holding that self-defense had not been fairly raised by the proof.  The Court of Criminal Appeals reversed, concluding that self-defense had been fairly raised by the evidence because it was “uncontroverted that the victim hit [Mr. Benson] in the nose before he shot her.”   Further, the intermediate court held that trial court should have given the instruction to allow the jury to determine whether the victim’s actions of punching Mr. Benson in the face raised a reasonable fear of death or serious bodily injury to Mr. Benson. On appeal to the Supreme Court, the State argues that the trial court is responsible for making the decision whether to charge the jury with self-defense based on whether the issue has been raised by the evidence, and, in this case, the evidence does not give rise to a reasonable or honest belief that Mr. Benson imminently feared for his life or the victim attempted or caused serious bodily injury to him.  Mr. Benson argues that even the slightest evidence of self-defense requires the trial court to give the jury instruction.

Roy Franks et al. v. Tiffany Sykes et al. – W2018-00654-COA-R3-CV

The appellants, Roy Franks and Cindy Edwards, filed two separate claims under the Tennessee Consumer Protection Act (“TCPA”) related to undiscounted hospital liens filed against them by Professional Account Services, Inc., on behalf of two different hospitals that provided medical treatment to the appellants for injuries sustained in unrelated car accidents.  The trial court dismissed the claim raised by Ms. Edwards on the basis of improper venue and the claim raised by Mr. Franks on the basis of failure to state a claim under the TCPA because the claim should have been brought under the Hospital Lien Act (“HLA”).  On appeal, the Court of Appeals modified the trial court’s order as to Mr. Franks’ claim “to reflect that the HLA is not the exclusive remedy” for the cause of action.  However, the court remanded for further proceedings on the basis that the underlying transaction, the medical treatment, is not a consumer transaction as defined by the TCPA.  As to Ms. Edwards’s claim, the Court of Appeals reversed the trial court with respect to venue but directed the trial court, on remand, to dismiss based on the failure to state a claim under the TCPA.  On appeal to the Supreme Court, the appellants argue that the TCPA applies to professionals, including medical doctors, in their business practices, and the transactions complained of in this case were taken by for-profit and debt-collection companies in exchange for drugs (goods) and medical treatment (services), within the scope of the TCPA.  Further, the appellants argue that their claims do not relate to the medical treatment per se but rather to the debt collection activity, which is a business practice and within the scope of the TCPA.  The appellees argue that the TCPA does not apply because the appellants were not consumers at the time the liens were filed and the hospital liens or debt collection activities were not created through fraudulent means.  The appellees also contend that any federal authority relied on by the appellants is not persuasive because Tennessee courts have a narrower interpretation of the Federal Trade Commission Act (“FTC Act”).  On behalf of the appellants as amicus curiae, the Tennessee Alliance for Legal Services argues that, because the TCPA explicitly states it should be construed consistently with the FTC Act, the TCPA also should be interpreted to include actions of original and third-party creditors and commercial aspects of the medical profession.

State of Tennessee v. Carl Allen - W2017-01118-CCA-R3-CD

This appeal stems from issues pertaining to the classification of the defendant, Carl Allen, on the Tennessee sexual offender registry (SOR) after his 1995 plea to sexual battery in the state of Florida.  In Tennessee, the Tennessee Bureau of Investigations (“TBI”) has the authority to determine whether a person is a sexual offender or violent sexual offender if convicted in another jurisdiction.  In 2010, charges were brought against Mr. Allen for failing to comply with statutory requirements of the SOR.  In 2012, the trial court dismissed the charges and ordered the TBI to reclassify Mr. Allen as a sexual offender, rather than a violent sexual offender, based on the facts of his underlying guilty plea.  In 2015, the TBI sought to intervene in the case, arguing that the trial court lacked jurisdiction to alter Mr. Allen’s classification.  Without conducting a hearing, the trial court vacated its 2012 order and reclassified Mr. Allen as a violent sexual offender based on the TBI’s argument that the TBI was the only agency with authority to change Mr. Allen’s classification.  Mr. Allen appealed, and the Court of Criminal Appeals remanded the case for a hearing.  Following the hearing, the trial court granted the TBI’s motion to intervene and vacated the portion of its 2012 order that ordered the TBI to reclassify Mr. Allen as a sexual offender.  Again Mr. Allen appealed, but the Court of Criminal Appeals dismissed the case on the basis that Mr. Allen did not have a right to appeal under Tennessee Rule of Appellate Procedure 3(b) but could challenge his classification directly with the TBI.  On appeal to the Supreme Court, Mr. Allen argues that Tennessee’s method for classifying out-of-state sexual offenders on the SOR violates due process and is unconstitutional ex post facto legislation.  Additionally, Mr. Allen contends that the TBI does not have standing to intervene in this matter and that the trial court was without authority to amend its 2012 order after it became final.  The TBI argues that it has standing to intervene under Tennessee Rule of Civil Procedure 24.01, despite the 2012 case being criminal, because the TBI was intervening solely as to the civil nature of the trial court order which directed the TBI to classify Mr. Allen as a sexual rather than violent sexual offender.  Similarly, the TBI contends that the trial court had authority to amend its 2012 order after 30 days because it was not changing the disposition of the dismissal in the criminal case, only the requirement that the TBI reclassify Mr. Allen.  Additionally, the TBI argues that it did not waive its right to appeal the trial court’s order in 2012 because it did not have notice of and was not a party to the proceedings.  The Supreme Court also has asked the parties to address how, under either Tennessee Code Annotated section 40-39-201, et, seq., or any published regulations: 1) the TBI classifies out-of-state sexual offenders for registration on the SOR; 2) the TBI notifies offenders of changes in classification; and 3) an offender, once classified or re-classified, can challenge a classification

Thursday, October 3, 2019

James A. Dunlap, Jr. v. Tennessee Board of Professional ResponsibilityM2018-01919-SC-R3-BP

Mr. Dunlap, a licensed attorney in the state of Georgia, was granted pro hac vice status to represent his client, a health care company, in its efforts to establish opiate treatment centers in Tennessee.  This matter was referred to the Board of Professional Responsibility after Administrative Law Judge Kim Summers (“the ALJ”) revoked Mr. Dunlap’s permission to appear pro hac vice in Tennessee.  The hearing panel of the Board determined that Mr. Dunlap violated his duty of candor and engaged in conduct involving dishonesty when he intentionally misled the ALJ by misrepresenting the status of his client’s federal case.  Further, the hearing panel determined that Mr. Dunlap attempted to improperly influence the ALJ by threatening to sue the ALJ in federal court for not complying with his requests.  Finally, the hearing panel determined that Mr. Dunlap’s actions, which it described as “duplicitous and bullying,” were prejudicial to the administration of justice.  As a result of its findings, the hearing panel suspended Mr. Dunlap from the practice of law in Tennessee for twelve months.  On appeal, the chancery court affirmed the hearing panel’s determinations as to Mr. Dunlap’s ethical violations and the imposition of suspension as the appropriate disciplinary sanction.  On appeal to the Supreme Court, Mr. Dunlap challenges the hearing panel’s factual findings underlying its determinations as to his ethical violations.  Mr. Dunlap also contends that there was no material harm as a result of his actions, and, therefore, a one-year suspension is unfair and disproportionate to any purported violations of the Rules of Professional Conduct.

·       Jeffery Todd Burke v. Sparta Newspapers, Inc. M2016-01065-SC-R11-CV

In this case, Jeffrey Burke sued Sparta Newspapers, Inc., (“Sparta”) for alleged defamatory statements published in an article in The Expositor regarding Mr. Burke’s indictment and arrest.  The trial court granted Sparta’s motion for summary judgment and dismissed the case, concluding that the article was based on an interview that constituted an official action of the government, so any alleged defamatory statements therein were protected by the fair report privilege.  Additionally, the trial court determined, as it related to the fair report privilege, that Mr. Burke failed to demonstrate actual malice on the part of Sparta.  The Court of Appeals reversed the trial court’s grant of summary judgment and held that the fair report privilege did not apply to this case because Tennessee courts have not extended the privilege to one-on-one interviews as constituting “an official action, official proceeding, or public meeting within the scope of the fair report privilege.”  Further, the Court of Appeals explained that even if it were to extend the fair report privilege to the type of one-on-one interview that occurred in this case, the article still would not be protected because it failed to convey to readers that the content was based on the detective’s statements as the public information officer in his official capacity.  Finally, the Court of Appeals held that Sparta waived any claim to its alternative ground that actual malice was required to prove defamation because Mr. Burke was a public figure or a limited purpose public figure.  The Supreme Court granted Sparta’s petition to determine three issues: (1) whether the Court of Appeals’ holding in the opinion that a fair and accurate report of on-the-record statements made by a sheriff’s department public information officer about a pending criminal case during an interview with a newspaper reporter does not qualify for protection under Tennessee’s fair report privilege is contrary to Tennessee law; (2) whether the Court of Appeals’ analysis of the supposed “distinction between reports of official actions or proceedings on the one hand and sources within the government on the other” is contrary to Tennessee law; and (3) whether the Court of Appeals’ requirement imposed by the opinion that, “[t]o rely on the fair report privilege, that article should be written in such a manner that an average reader can ‘understand the article (or the pertinent section thereof) to be a report on or summary of an official document or proceeding,’” is contrary to Tennessee law.

·       State of Tennessee v. Alexander R. Vance and Damonta Meneese - M2017-01037-SC-R11-CD

A jury convicted Defendant Alexander Vance and his co-defendant Damonta Meneese of second degree murder, first degree felony murder, especially aggravated robbery, and three counts of aggravated assault.  The trial court merged the second degree murder conviction into the felony murder conviction and imposed an effective sentence for all offenses of life imprisonment plus 21 years for each defendant.  Defendant Vance was the sole party to appeal.  Before Mr. Vance’s trial, an additional co-defendant was severed from the case due to issues regarding competency to stand trial.  This third party made previous statements to a detective that identified Mr. Vance and Mr. Meneese as participants in the alleged crime.  Mr. Vance’s counsel submitted a motion to exclude any statements made by the third party due to questions of his ability to provide “competent testimony.”  The trial court granted the motion.  During the trial, the State asked the trial court for permission to question the detective about the third party’s testimony, despite the trial court’s grant of the motion, because defense counsel opened the door on cross-examination by implying only one witness had provided information regarding the defendants’ involvement in the alleged crime.  Over both defendants’ objections, the trial court allowed the State to ask a limited question, specifically tailored toward informing the jury that there was another party who identified the defendants as participants without sharing the third party’s identity or the specific content of the statement.  The third party never was called as a witness in the trial.  The Court of Criminal Appeals affirmed the decision, holding that the trial court did not abuse its discretion when it determined that the defendants “had opened the door to the use of [the third party’s] statement to prevent the impression only a single witness identified the two [d]efendants as participants in the crime.”  On appeal to the Supreme Court, Mr. Vance argues that his Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed the State to admit inculpatory statements by a non-testifying witness under the doctrine of curative admissibility.  In addition, Mr. Vance argues that the trial court’s decision was contrary to its prior grant of motion related to this issue.  The Supreme Court has requested that two additional issues be addressed by both parties: (1) whether plenary or plain error review applies to the constitutional ground, when Mr. Vance included it in his motion for new trial but contemporaneously objected on other grounds; and (2) whether the admissibility of the evidence is controlled by the doctrine of curative admissibility.

Friday, May 31, 2019

Bonnie Harmon, et al. v. Hickman Community Healthcare Services, Inc. M2016-02374-SC-R11-CV

In this case, the children of a female inmate brought suit under the Health Care Liability Act when their mother died after receiving medical treatment for symptoms of drug and alcohol withdrawal while incarcerated at the Hickman County Jail. The plaintiffs claim negligence, negligent hiring, retention, and supervision against the defendant contractor that provides medical services at the jail. The trial court granted the defendant’s motion for summary judgment, and the plaintiffs appealed. The Court of Appeals reversed in part and affirmed in part the judgment of the trial court, holding that summary judgment was not appropriate in this case. As provided in the defendant’s application for permission to appeal, the issues before the Supreme Court are whether the trial court abused its discretion in denying the plaintiffs’ motion to revise its summary judgment decision and whether the plaintiffs’ level of diligence and reasons for submitting new evidence in response to the defendant’s motion for summary judgment were sufficient to require the trial court to consider this late-filed evidence.

Board of Professional Responsibility v. Loring Edwin JusticeE2017-01334-SC-R3-BP

This attorney-discipline matter stems from claims by the Board that Mr. Justice, upon an award for discovery sanctions and attorney’s fees and expenses, submitted a false itemized accounting of services and a false declaration in support of that accounting, and that he testified falsely as to that accounting. Furthermore, the Board alleged that the amount requested was “grossly exaggerated and unreasonable.” The hearing panel of the Board of Professional Responsibility determined that Mr. Justice violated various rules of professional conduct and imposed as his sanction a one-year suspension and twelve additional hours of continuing legal education on the subject of ethics. Both parties appealed to the Chancery Court for Knox County, which modified Mr. Justice’s sanction to disbarment. On appeal to the Supreme Court, Mr. Justice argues, among several other issues, that issues with the trial court record deprive Mr. Justice of his right to appeal and to due process, that substantial and material evidence does not support the hearing panel’s determination that Mr. Justice violated several Tennessee Rules of Professional Conduct, that the hearing panel and trial court violated Mr. Justice’s right against self-incrimination, and that the trial court erred in modifying Mr. Justice’s sanction to disbarment.

Thursday, May 30, 2019

In Re: Petition to Stay Effectiveness of Formal Ethics Opinion 2017-F-163M2018-01932-SC-BAR-BP

On March 15, 2018, the Board of Professional Responsibility issued a formal ethics opinion, Formal Ethics Opinion 2017-F-163, which pertains to the ethical responsibilities of prosecutors. The two main conclusions of the opinion were that a prosecutor’s ethical duties extend beyond his or her legal duties under current federal case law and that the timing for fulfilling the disclosure requirement under Tennessee Rule of Professional Conduct 3.8(d) is “as soon as reasonably practicable.” The Tennessee District Attorneys General Conference filed a petition to vacate the formal ethics opinion with the Tennessee Supreme Court and requested the Court stay the effectiveness of the opinion pending adjudication of the petition. The Court granted the stay, ordered briefing, and set the matter for oral argument. In addition to hearing oral argument by the Tennessee District Attorneys General Conference and the Board of Professional Responsibility, the Court also will hear oral arguments from amici curiae the United States of America, for the petitioner, and the Tennessee Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, and the three Federal Public Defenders for the Eastern, Middle, and Western Districts of Tennessee, for the respondent.

Melissa Martin, et al. v. Rolling Hills Hospital, LLC, et al. M2016-02214-SC-R11-CV

In this healthcare liability case, the plaintiff appealed from the trial court’s dismissal of the case for the plaintiff’s failure to comply with Tennessee statute by failing to provide the defendants with HIPAA-compliant authorizations for release of medical records.Accordingly, the trial court barred the action because it held that the plaintiffs were not entitled to an extension of the statute of limitations.The Court of Appeals determined that the plaintiff substantially complied with Tennessee law and that the defendants failed to establish that they were prejudiced by any deficiencies.The Tennessee Supreme Court granted the defendants’ applications for permission to appeal and ordered the parties to address, in addition to the issues raised in their applications, the following: the proper role of prejudice in the substantial compliance analysis and determination; and the proper burden of production and/or proof with respect to the presence or absence of prejudice for purposes of the substantial compliance analysis and determination, including whether the Court should consider the adoption of a rebuttable presumption of prejudice when the pre-suit notice is not accompanied by a medical authorization which is facially compliant with HIPAA.

Jennifer Elizabeth Meehan v. Board of Professional Responsibility of the Supreme Court of TennesseeM2018-01561-SC-R3-BP

This case involves an attorney, Ms. Jennifer Meehan, who pleaded guilty to bank fraud. As a result, the Tennessee Supreme Court summarily suspended Ms. Meehan and referred the matter to the Board of Professional Responsibility to appoint a hearing panel to determine the extent of final discipline. Following a final hearing on the matter, the Hearing Panel in this case determined that disbarment was the appropriate discipline. Ms. Meehan appealed to the Circuit Court for Davidson County which modified Ms. Meehan’s sanction, instead imposing a five-year suspension. The Board now appeals the trial court’s decision, arguing that the trial court substituted its judgment for that of the Hearing Panel and erred in modifying the sanction. Furthermore, the Board also argues that the trial court should not have ordered the suspension to be imposed retroactively to the date of Ms. Meehan’s summary suspension.

Wednesday, February 6, 2019

TWB Architects, Inc. v. The Braxton, LLC, et al. - M2017-00423-SC-R11-CV

This case stems from a contractual dispute related to architectural design services.  The trial court originally granted summary judgment in favor of the defendants, but the Court of Appeals reversed the trial court’s decision.  On remand, the trial court granted summary judgment in favor of the plaintiff architect, which was affirmed by the Court of Appeals.  The defendants ask the Supreme Court to decide whether the trial court properly entered summary judgment in favor of the plaintiff.  Specifically, the defendants argue that the parties’ intent was a factual inquiry that must be resolved by a jury and that the trial court failed to consider the defendants’ evidence provided to contradict and challenge the credibility of the testimony presented by the plaintiff.  

State of Tennessee v. Leroy Myers, Jr. - M2015-01855-SC-R11-CD

This appeal arises from the defendant’s conviction of reckless endangerment following a bench trial.  The defendant appealed his conviction, arguing that reckless endangerment is not a lesser-included offense of aggravated assault, the charged offense for which he was tried.  Additionally, the defendant argued that there was no amendment to the indictment to include reckless endangerment.  The Court of Criminal Appeals affirmed the judgment of the trial court, and the Supreme Court granted and remanded the case to the Court of Criminal Appeals for the purpose of supplementing the record.  The Court of Criminal Appeals, upon remand and after supplementation of the record, again affirmed the judgment of the trial court.  The defendant appeals again to the Supreme Court.  The defendant contends that no effective amendment to the indictment occurred before the trial court.  The State counters that the defendant actively sought consideration of the offense of reckless endangerment.

Polly Spann Kershaw v. Jeffrey L. Levy - M2017-01129-SC-R11-CV

This case is a legal malpractice lawsuit in which the plaintiff claims she suffered financial harm and was convicted of criminal contempt as a result of the defendant’s negligent representation of the plaintiff in her divorce case.  The defendant moved for summary judgment, arguing that the plaintiff’s claims were barred under the judicial estoppel doctrine.  The trial court granted summary judgment, and the Court of Appeals affirmed the trial court’s judgment.  The plaintiff argues before the Supreme Court that the doctrine of judicial estoppel should not apply when the defendant’s own negligence caused the plaintiff to “settle in a compromised position.”

State of Tennessee v.Hassan Falah Al Mutory - M2017-00346-SC-R11-CD

In this case, the defendant was convicted by a jury of reckless homicide, for which he received a three-year sentence.  The defendant appealed to the Court of Criminal Appeals, and oral argument was scheduled for November 14, 2017.  On November 6, 2017, counsel for the defendant filed a motion for abatement ab initio based on the defendant’s death.  The doctrine of abatement ab initio provides that a defendant’s conviction will be set aside if the defendant dies while a direct appeal is pending.  The State opposed the motion, arguing that the abatement doctrine is no longer viable in current Tennessee jurisprudence.  Following oral arguments on the motion, the Court of Criminal Appeals granted the defendant’s motion, and the Supreme Court granted the State’s application for permission to appeal.  The issue raised by the State before the Court is whether Tennessee should abandon the abatement ab initio doctrine. 

Rhonda Willeford, et al. v. Timothy P. Klepper, MD, et al. v. State of Tennessee - M2016-01491-SC-R11-CV

This is the second time the Court will hear oral arguments on this particular case.  The case originally was heard January 10, 2018.  On August 15, 2018, the Court ordered additional briefing on two issues.  Following the additional briefing on these issues by both parties, the Court determined additional oral argument also was required and docketed the case once more. The first issue the parties will address is, if the Court invalidates Tennessee Code Annotated section 29-26-121(f), as the plaintiffs advocate, whether the Court should narrow its prior holding in Alsip v. Johnson City Medical Center, 197 S.W.3d 722, 723-24 (Tenn. 2006), to prohibit ex parte interviews with treating healthcare providers only where such an interview would risk disclosure of private healthcare information not subject to discovery.  Second, the Court requested the parties to address what procedure the Court should adopt for trial courts to utilize in the event the Court does invalidate Section 29-26-121(f) and narrow the holding in Alsip as described in the first issue, to allow such ex parte interviews in appropriate circumstances while also safeguarding patients’ private nondiscoverable health information.

Marcus Deangelo Lee v. State of Tennessee - W2015-02143-SC-WRM-CO

In this matter, the Court, based upon its supervisory authority, has ordered the Shelby County General Sessions Court Clerk and other personnel to appear before the Court to explain the Clerk’s handling of the filings in the underlying case, as well as the Clerk’s practices and procedures for accepting pro se filings generally.  The Court previously had issued writs of mandamus requiring the Clerk to accept motions for filing from Mr. Lee.  On January 17, 2019, the Court issued two additional writs of mandamus.  One of the writs requires the Clerk to provide Mr. Lee with proof of an expunction, and the other requires the Clerk to accept a motion from Mr. Lee for filing.  On the same day that the Court issued these latest writs of mandamus, the Court also entered the order requiring the attendance of these individuals before the Court.

October 4, 2018

Glenn R. Funk v. Scripps Media, Inc., at al M2017-00256-SC-R11-CV -

This appeal stems from a defamation lawsuit brought by the District Attorney General for Davidson County against the owner of a television news station and one of its investigative reporters.   The plaintiff filed a motion to compel discovery, and the defendants argued that some of the information was privileged. The trial court granted the plaintiff’s motion to compel discovery, concluding that actual malice is an element of the fair report privilege and that the Tennessee Shield Law was not applicable because the defendants had asserted a defense based upon the source of the information. However, the Court of Appeals reversed the trial court as to these two determinations.  Before this Court, the plaintiff argues that the Tennessee fair report privilege may be defeated upon proof of actual malice and that the Tennessee Shield Law does not afford the defendants any relief based on the defense they raised.

Gregory J. Lammert, et al. v. Auto-Owners (Mutual) Insurance Company  M2017-02546-SC-R23-CV -

This case is before the Court because the Court accepted a certified question from the United States District Court for the Middle District of Tennessee.  The certified question is: “Under Tennessee law, may an insurer in making an actual cash value payment withhold a portion of repair labor as depreciation when the policy (1) defines actual cash value as ‘the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss,’ or (2) states that ‘actual cash value includes a deduction for depreciation’?”  The plaintiff argues that the “actual cash value” is determined by accounting for depreciation of materials but not labor.  The defendant, on the other hand, argues that labor is included in the replacement-less-depreciation methodology for determining “actual case value.”

Christopher Batey v. Deliver This, Inc., et al M2018-00419-SC-WCO-WC 

In this workers’ compensation case, the employee was awarded 275 weeks of permanent partial disability benefits based on the trial court’s finding that he was entitled to increased benefits under workers’ compensation law. The particular statute at issue, Tennessee Code Annotated section 50-6-207(3)(B), considers a meaningful return to work analysis to determine whether an employee should receive an additional award of workers’ compensation.  The employer now appeals that award, arguing that the employee’s case is not extraordinary and that he has failed to actively seek employment as required by Tennessee statute.  The employee argues that the evidence does not preponderate against the trial court’s award of permanent partial disability based on Employee’s extraordinary case.  The employee also argues that the trial court properly conducted the meaningful return to work analysis in determining that he was entitled to additional workers’ compensation benefits.

Coffee County Board of Education v. City of Tullahoma; Washington County School System, et al. v. The City of Johnson City, Tennessee; Sullivan County, Tennessee, et al. v. The City of Bristol, Tennessee, et al.; Bradley County School System, et al. v. The City of Cleveland, Tennessee; and Blount County Board of Education, et al. v. City of Maryville, Tennessee, et al.    M2017-00935-SC-R11-CV E2016-02583-SC-R11-CV E2016-02109-SC-R11-CVE2016-01030-SC-R11-CV E2017-00047-SC-R11-CV 

This set of cases has been consolidated for oral argument purposes only.  Generally, the issue before the Court in these cases is whether tax proceeds prior to July 2014 from liquor-by-the-drink taxes designated for “local schools” should be required to go to both the county and city schools when the taxes were passed only by a city referendum.  (Effective July 2014, the General Assembly amended the applicable statute to state that the tax is specifically for the benefit of the city schools if the city operates its own school system.) The County parties in these cases argue that they are entitled to a portion of the pre-July 2014 tax proceeds.  The City parties, on the other hand, argue that they are not required to share a distribution of the tax proceeds with the County parties.

New Rule Regarding Collaborative Family Law   IN RE: PETITION TO ADOPT A NEW RULE OF THE TENNESSEE SUPREME COURT CONCERNING THE PRACTICE OF COLLABORATIVE FAMILY LAW  ADM2017-01195

On June 13, 2017, the Tennessee Bar Association filed a petition with the Tennessee Supreme Court, asking the Court to create a new Supreme Court rule that would address the practice of “Collaborative Family Law.”  After soliciting and receiving written public comments, the Court determined that it would helpful to hear oral argument regarding the proposed new rule.  As a result, the Tennessee Bar Association will be provide a presenter at oral argument to address the proposed rule as well as the following three topics: “1) the general necessity for the proposed rule; 2) the appropriate regulation of compliance with the rule; and 3) the necessity of a training requirement, and if imposed, the administration of such a requirement.”

October 3, 2018

Abu-Ali Abdur’Rahman, et al. v. Tony Parker, et al  M2018-01385-SC-RDO-CV -

This case comes to the Court by way of the Court reaching down on its own initiative to expedite the appeal in this case.  The case involves a challenge by death row inmates to the State of Tennessee’s lethal injection protocol.  In January 2018, the Tennessee Department of Correction (“TDOC”) adopted a three-drug protocol as an alternative method of execution to the existing single-drug lethal injection protocol.  The TDOC subsequently eliminated the single-drug protocol, rendering the three-drug protocol the only available lethal injection method in Tennessee. The plaintiffs argue that the three-drug lethal injection protocol violates the prohibitions against cruel and unusual punishment in the United States Constitution and the Tennessee Constitution.

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV

This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent.  The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege.  The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee.  In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege.  The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.