Supreme Court Opinions

Format: 09/21/2014
Format: 09/21/2014
In Re Baby Et Al. - Concurring
M2012-01040-SC-R11-JV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Betty K. Adams Green

This case of first impression regarding the enforceability of an international traditional surrogacy contract will have far-reaching ramifications both in Tennessee and beyond. While I concur, in general terms, with the Court’s disposition of this particular case, I have chosen to write separately because I cannot concur with the Court’s conclusion that “traditional surrogacy contracts do not violate public policy as a general rule.” While the surrogate in this case may not have succeeded in demonstrating that this particular traditional surrogacy contract is unenforceable as against public policy, this case is not an appropriate vehicle for this Court to broadly declare that traditional surrogacy agreements, or any other surrogacy agreement for that matter, are consistent with Tennessee’s public policy.

Davidson County Supreme Court 09/18/14
In Re Baby Et Al.
M2012-01040-SC-R11-JV
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge Betty K. Adams Green

A man and woman who were unable to have children together entered into a contract with a woman who consented to act as a surrogate. The surrogate’s husband was also a party to the contract. The parties contracted for a “traditional surrogacy,” which involves the artificial insemination of the surrogate, who, after giving birth, is meant to relinquish the child to the biological father and the intended mother. Prior to the birth of the child, all parties filed a joint petition asking the juvenile court to declare the paternity of the child, grant custody to the intended parents, and terminate the parental rights of the surrogate. A magistrate for the juvenile court granted the petition. Less than a month later, the surrogate gave birth, and, following the advice of medical personnel, the parties agreed that the surrogate should breastfeed the child for a short period of time in the interest of providing the best possible nutrition. When the child was almost one week old, the surrogate filed a series of motions asking the magistrate to vacate the prior order, set aside the surrogacy contract, and award her custody. The magistrate denied the motions, the juvenile court judge upheld the ruling, and the Court of Appeals affirmed. This Court granted the surrogate’s application for permission to appeal to consider issues of public policy, subject matter jurisdiction, paternity, custody, and the termination of parental rights.

Davidson County Supreme Court 09/18/14
State of Tennessee v. John T. Freeland, Jr. - Concur
W2011-01828-SC-DDT-DD
Authoring Judge: Justice William C. Koch and Justice Sharon G. Lee
Trial Court Judge: Judge Roy B. Morgan, Jr.

We concur fully with all of the Court’s opinion except for Section II(B)(iv) containing
the proportionality analysis. After conducting our own independent proportionality analysis,
we concur with the majority’s conclusion that Mr. Freeland’s sentence of death is not
disproportionate to the sentences imposed on other similar offenders who have committed
similar crimes.

Madison County Supreme Court 09/17/14
State of Tennessee v. John T. Freeland, Jr.
W2011-01828-SC-DDT-DD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Roy B. Morgan

Following a bench trial, the defendant was convicted of first degree premeditated murder,
first degree felony murder, especially aggravated kidnapping, and tampering with evidence.
The trial court imposed a sentence of death based on three aggravating circumstances: (1) the defendant had previously been convicted of one or more felonies involving the use of
violence; (2) the murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or prosecution of the defendant; and (3) the murder was knowingly
committed while the defendant had a substantial role in committing a robbery. See Tenn.
Code Ann. § 39-13-204(i)(2), (6), (7) (2010 & Supp. 2013). The Court of Criminal Appeals
affirmed the defendant’s conviction and sentence. On automatic appeal to this Court, we
designated the following issues for oral argument: (1) whether the Court of Criminal Appeals
committed error by affirming the trial court’s determination that the defendant’s confessions
were freely and voluntarily made; and (2) whether under our mandatory review required by
Tennessee Code Annotated section 39-13-206(c)(1), the sentence of death is disproportionate or invalid. Having carefully considered the issues raised by the 2 defendant and the mandatory review provisions, we affirm the judgment of the Court of Criminal Appeals. We remand the case to the trial court, however, for the entry of a corrected judgment reflecting the trial court’s merger of the defendant’s convictions for first degree murder into a single conviction.

Madison County Supreme Court 09/17/14
Greg Parker, Et Al. v. Holiday Hospitality Franchising, Incorporated, Et Al.
E2013-00727-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Russell E. Simmons

We granted permission to appeal in this premises liability action to address two issues: (1) whether the undisputed facts establish either the accepted work doctrine exception or the nondelegable duty to the public exception to the general rule that property owners are not vicariously liable for the negligence of independent contractors; and (2) whether disputes of material fact remain concerning the property owner’s actual or constructive notice of the defective condition created by the independent contractor’s negligence. We hold that the undisputed facts do not establish either exception to the general rule of non-liability and that the undisputed facts establish that the property owner had neither actual nor constructive notice of the defective condition created by the independent contractor’s negligence. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the trial court granting the property owner summary judgment is reinstated.

Roane County Supreme Court 09/12/14
Terri Ann Kelly v. Willard Reed Kelly
E2012-02219-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Jacqueline S. Bolton

This appeal involves the standard that appellate courts should use to review a trial court’s decision regarding the credibility of a witness who testifies by telephone.  A mother of two children filed for divorce in the Circuit Court for Hamilton County. When the suit was filed, the parties’ daughter was living with her mother, and the parties’ son was living in Middle Tennessee with his father. Both parents sought custody of their son. When the case was tried, the mother’s first witness testified by telephone without objection from the father. The trial court designated the mother as the primary residential parent for both children, and the father appealed. The Court of Appeals declined to defer to the trial court’s decision to accredit the testimony of the witness who testified by telephone, and a majority of the panel then reversed the trial court’s custodyruling. Kellyv.Kelly,No.E2012-02219-COA-R3-CV, 2013 WL 4007832 (Tenn. Ct. App. Aug. 6, 2013). We find that the testimony of a witness who testified by telephone should be reviewed using the same deferential standard as a live witness. Accordingly, we reinstate the trial court’s custody decision.

Hamilton County Supreme Court 09/10/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
M2012-02596-SC-R3-BP
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Special Judge Donald P. Harris

I concur in the lead opinion’s conclusions that (1) Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b); (2) the disciplinary authority of this Court is not preempted by the Federal Rules of Bankruptcy Procedure; (3) discipline imposed pursuant to Tennessee Supreme Court Rule 8, RPC 8.2 requires that the false statement about a judicial or legal official be communicated to a third party; and (4) the chancery court erred by modifying the judgment of the hearing panel to include violations of Rules of Professional Conduct 3.2, 3.4(c), 8.4(a), and 8.4(d). I disagree, however, with the conclusion that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(e), and the imposition of a thirty-day suspension. Because I cannot find a basis to suspend Mr. Hancock for his offensive misbehavior, I would hold that a public reprimand is the appropriate sanction in this case.

Davidson County Supreme Court 09/03/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee - Concur
M2012-02596-SC-R3-BP
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Special Judge Donald P. Harris

I concur in the lead opinion’s conclusions that Mr. Hancock violated Tennessee Supreme Court Rule 8, RPC 3.5(b) and 3.5(e) and that “an attorney may be disciplined pursuant to [RPC]8.2 only if the false statement is communicated to a third party.” I disagree, however, with the lead opinion’s conclusion that “the record lacks any indication that Mr. Hancock sent the email to anyone other than Judge Paine.” I would instead hold that the record contains substantial and material evidence establishing that Mr. Hancock sent an email to third parties. As a result, I would affirm the hearing panel’s judgment that Mr. Hancock violated RPC 8.2(a)(1). In all other respects, I concur in the lead opinion’s decision affirming Mr. Hancock’s thirty-day suspension from the practice of law.

Davidson County Supreme Court 09/03/14
William Caldwell Hancock v. Board of Professional Responsibility of the Supreme Court of Tennessee
M2012-02596-SC-R3-BP
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Special Judge Donald P. Harris

A federal bankruptcy court entered judgment denying a Nashville attorney’s application for approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and clown” and demanding that he provide a written apology for denying the fee application. The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel’s judgment to include additional violations for misconduct associated with the attorney’s briefs filed in the district court but affirmed the remainder of the hearing panel’s judgment. The attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the attorney’s email violated the rule against ex parte communications and was also sanctionable as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s thirty-day suspension from the practice of law.

Davidson County Supreme Court 09/03/14
Andrew Spencer v. Norfolk Southern Railway Company
E2012-01204-SC-R11-CV
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The plaintiff, who was injured while pulling a switch for his employer, Norfolk Southern Railway, filed suit for negligence under the Federal Employers’ Liability Act. The jury returned a verdict in favor of the defendant railroad.  The Court of Appeals, ruling that the trial court had provided an erroneous jury instruction, reversed the jury verdict and granted the plaintiff a new trial. Because we find that the instruction qualifies as “substantially accurate” in the context of the entire charge, we reverse the judgment of the Court of Appeals and reinstate the verdict of the jury.

Hamilton County Supreme Court 08/29/14
Dennis Michael Harris et al. v. Mickey Deanne Haynes et al.
E2012-02213-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Donald R. Elledge

We granted permission to appeal to determine whether a governmental fund established in accordance with Tennessee Code Annotated sections 29-20-401 to -408 (2012), which allows governmental entities to pool resources in order to address liabilities created under the Governmental Tort Liability Act, is subject to the uninsured motorist coverage requirements of Tennessee Code Annotated sections 56-7-1201 to -1206 (2008). We hold that such funds are statutorily exempt from the insurance statutes and therefore the requirements of the uninsured motorist statute do not apply. Accordingly, we affirm the Court of Appeals’ judgment upholding the trial court’s decision granting summary judgment to Tennessee Risk Management Trust and remand to the trial court for further proceedings consistent with this decision.

Anderson County Supreme Court 08/26/14
State of Tennessee v. Noura Jackson
W2009-01709-SC-R11-CD
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Chris Craft

The defendant was charged with the June 2005 first degree premeditated murder of her
mother. The jury convicted her of second degree murder after a trial in which the evidence
was entirely circumstantial. The Court of Criminal Appeals affirmed her conviction and
sentence, although the judges on the Panel were not unanimous as to the rationale for the
decision. We granted the defendant’s application for permission to appeal. We hold that the
lead prosecutor’s remark during final closing argument at trial amounted to a constitutionally
impermissible comment upon the defendant’s exercise of her state and federal constitutional
right to remain silent and not testify. We also hold that the prosecution violated the
defendant’s constitutional right to due process by failing to turn over until after trial the third
statement a key witness gave to law enforcement officers investigating the murder. The State
has failed to establish that these constitutional errors were harmless beyond a reasonable
doubt. Therefore, we vacate the defendant’s conviction and sentence and remand for a new
trial.

Shelby County Supreme Court 08/22/14
Quantel Taylor v. State of Tennessee
W2012-00760-SC-R11-PC
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge Clayburn Peeples

The petitioner pled guilty to charges of attempted first degree murder, second degree murder,
and especially aggravated robbery. Later, he filed a petition for post-conviction relief,
claiming that his trial counsel was ineffective and that his guilty pleas were not knowingly
and voluntarily made. When the petitioner subpoenaed his three co-defendants to testify at
the post-conviction hearing, the State filed a motion to quash because the co-defendants were
all incarcerated. The post-conviction court granted the State’s motion. The Court of
Criminal Appeals ruled that the post-conviction court had erred, but held that the error was
harmless under the circumstances. We hold that the post-conviction court committed
prejudicial error by applying an incorrect legal standard and by failing to consider whether
the proposed testimony by the co-defendants was material to the petitioner’s claim of
ineffective assistance of counsel. Because the record is insufficient for the issue to be
resolved on appeal, we remand for the post-conviction court to reconsider the motion to
quash under the proper standard. The judgment of the Court of Criminal Appeals is reversed,
and the case is remanded to the post-conviction court for additional proceedings consistent
with this opinion.
Tenn. R. App. P. 11

Crockett County Supreme Court 08/21/14
R. Sadler Bailey v. Board of Professional Responsibility
W2013-01979-SC-R3-BP
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Senior Judge Paul G. Summers

The Board of Professional Responsibility instituted a lawyer disciplinary proceeding against an attorney based on complaints it received from a judge and opposing counsel regarding the attorney’s disruptive behavior during trial proceedings. A hearing panel found that the attorney had violated several Rules of Professional Conduct and suspended him from the practice of law for sixty days. On appeal, the Chancery Court for Shelby County affirmed the hearing panel’s finding that the attorney had violated several ethical rules but reversed the suspension, instead recommending a public censure. The Board of Professional Responsibility appealed to this Court. We reverse the Chancery Court’s reduction of discipline and reinstate the hearing panel’s imposition of a sixty-day suspension.

Shelby County Supreme Court 08/18/14
Mack Phillips, Et Al. v. Montgomery County, Tennessee, Et Al.
M2012-00737-SC-R11-CV
Authoring Judge: Justice Cornelia A. Clark
Trial Court Judge: Judge Ross H. Hicks

We granted permission to appeal to determine whether article I, section 21 of the Tennessee Constitution requires a government to compensate a property owner for a regulatory taking of private property. We hold that article I, section 21 encompasses regulatory takings in the same manner as the Takings Clause of the Fifth Amendment to the United States Constitution. Accordingly, we reverse the judgment of the Court of Appeals dismissing the property owners’ complaint alleging a state constitutional regulatory takings claim and remand this matter to the trial court for further proceedings consistent with this decision.

Montgomery County Supreme Court 08/18/14
Cha Yang v. Nissan North America, Inc. et al.
M2012-01196-SC-WCM-WC
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge J. Mark Rogers

The employee suffered bilateral shoulder injuries in January and March of 2008. After undergoing separate surgeries on each shoulder, the employee agreed to a voluntary buyout of his employment. Later, he filed suit for workers’ compensation benefits. The trial court awarded temporary total disability benefits and assessed a 90% permanent partial disability award after determining that the employee’s permanent partial disability benefits were not capped at one and one-half times the impairment rating. The employer appealed and, pursuant to Tennessee Supreme Court Rule 51, the case was referred to a Special Workers’ Compensation Appeals Panel. The Panel ruled that the employee’s benefits should have been capped at one and one-half times his impairment rating and reduced the award of permanent partial disability benefits to 37.5%. We granted the employee’s motion for full Court review and have determined that because the employee acted reasonably by accepting the voluntary buyout for reasons related to his work injuries, the award for permanent partial disability is not subject to the one-and-one-half-times cap. The judgment of the Panel is, therefore, modified to the extent that the trial court’s award for permanent partial disability benefits is reinstated, but otherwise affirmed.

Rutherford County Supreme Court 08/11/14
Wilma Griffin v. Campbell Clinic, P.A.
W2013-00471-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge James F. Russell

The plaintiff filed a civil action in the general sessions court asserting a health care liability claim against the defendant. Following a trial, the general sessions court entered judgment in the defendant’s favor. The next day, the plaintiff filed a notice of appeal and deposited $211.50 with the general sessions court clerk, which represents the amount of the standard court cost of $150 for an appeal to the circuit court required by Tennessee Code Annotated section 8-21-401(b)(1)(C)(i) plus state and local litigation taxes. The circuit court dismissed the plaintiff’s appeal, concluding that it lacked subject matter jurisdiction because the plaintiff failed to file a bond “with good security . . . for the costs of the appeal” under Tennessee Code Annotated section 27-5-103. The Court of Appeals reversed the trial court’s judgment, concluding that payment of the standard court cost is sufficient to perfect an appeal from the general sessions court to the circuit court. After a thorough review of the statutory scheme at issue, we conclude that the plaintiff’s cash bond was sufficient to perfect her appeal to the circuit court. We therefore affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.

Shelby County Supreme Court 07/21/14
Mary C. Smith v. UHS of Lakeside, Inc., et al.
W2011-02405-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Kay S. Robilio

This appeal involves the manner in which a trial court granted motions for summary judgment in a proceeding involving the death of a patient whose treatment for viral encephalitis was delayed because he was also being assessed for involuntary commitment to a psychiatric hospital. The widow of the deceased patient filed suit against three health care providers in the Circuit Court for Shelby County. In her original complaint and four subsequent amended complaints, the widow asserted eight causes of action against one or more of the providers. The trial court eventually granted a series of summary judgments dismissing all the claims against one of the providers without explaining the grounds for its decisions and requested counsel for the provider to prepare appropriate orders “establish[ing] the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared detailed orders adopting all the arguments the provider had made in favor of its summary judgment motions, and the trial court signed these orders over the widow’s objections. The widow appealed, arguing that the trial court had failed to provide reasons for its decisions and that the orders did not accurately reflect what had occurred at the summary judgment hearings. The Court of Appeals vacated the disputed orders because the trial court had failed to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405-COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the provider’s application for permission to appeal. We have determined that the record establishes that the contested orders were not the product of the trial court’s independent judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P. 56.04.

Shelby County Supreme Court 07/15/14
State of Tennessee v. Glover P. Smith
M2011-00440-SC-R11-CD
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Don R. Ash

The defendant was indicted on two counts of fabricating evidence and on six counts of making a false report arising out of the disappearance of his wife. A jury convicted the defendant on all counts, and the trial court imposed a sentence of one year in the county jail followed by six years on probation. After a hearing on the defendant’s motion for new trial, the trial court affirmed the convictions for making a false report but dismissed the convictions for fabricating evidence after concluding that no investigation was “pending” when the defendant fabricated evidence. Both the State and the defendant appealed. The Court of Criminal Appeals reinstated the defendant’s convictions for fabricating evidence, dismissed as multiplicitous two convictions for making a false report, and affirmed the remaining convictions and sentences. We granted the defendant permission to appeal. Although we affirm the Court of Criminal Appeals’ reinstatement of the defendant’s convictions for fabricating evidence, we conclude that two of the defendant’s convictions for making a false report should be dismissed because the evidence is insufficient to support these convictions. We also conclude that three of the defendant’s convictions for making a false report are multiplicitous and therefore dismiss two of those convictions. We affirm the Court of Criminal Appeals in all other respects.

Rutherford County Supreme Court 06/19/14
Fletcher Whaley Long v. Board of Professional Responsibility of the Supreme Court of Tennessee
M2013-01042-SC-R3-BP
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Senior Judge Don R. Ash

A Hearing Panel of the Board of Professional Responsibility determined that an attorney had violated multiple disciplinary rules and imposed a public censure. The attorney appealed, and the trial court affirmed the Hearing Panel’s decision. On appeal to this Court, the attorney raises a number of issues, including a facial constitutional challenge to Tenn. Sup. Ct. R. 9. After reviewing the evidence and the applicable law, we reject the attorney’s constitutional challenge to Tenn. Sup. Ct. R. 9, and we conclude that his other issues are without merit. We therefore affirm the judgment of the trial court.

Montgomery County Supreme Court 06/04/14
Guadalupe Arroyo v. State of Tennessee - Dissent
E2012-02703-SC-R11-PC
Authoring Judge: Chief Justice Gary R. Wade
Trial Court Judge: Judge Bobby R. McGee

In January of 2002, Guadalupe Arroyo (the “Petitioner”) pled guilty to two counts of vehicular homicide. The trial court imposed two twelve-year sentences to be served consecutively—an effective sentence of twenty-four years. The Petitioner successfully appealed to the Court of Criminal Appeals on the basis that the trial court had imposed consecutive sentencing based upon the “dangerous offender” classification in Tennessee Code Annotated section 40-35-115(b)(4) (2010) without first addressing the requisite factors set forth in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). A second appeal on the same issue also resulted in a second remand to the trial court. In a third sentencing order, the trial court held that the sentences were reasonably related to the severity of the offenses and were necessary to protect the public, grounds essential for the imposition of consecutive sentences based upon the “dangerous offender” classification. Id. at 938; see also State v. Pollard, No. M2011-00332-SC-R11-CD, 2013 WL 6732667, at *9-10 (Tenn. Dec. 20, 2013). The reasons cited were as follows: [One,] during the prior sentencing hearing the [Petitioner] admitted to underage drinking on a daily basis, confirmed in the pre-sentence report; Two, the [Petitioner] admitted to driving without a license daily; and Three, the [Petitioner] has been illegally within this country since his arrival.

Knox County Supreme Court 05/21/14