Tennessee Administrative Office of the Courts

Workers' Compensation Opinions

Format: 07/06/2020
Format: 07/06/2020
State of Tennessee v. Steve M. Jarman
M2017-01313-SC-R11-CD

Steve M. Jarman (“defendant”) was convicted of voluntary manslaughter for the death of his girlfriend, Shelly Heath (“victim”). At trial, the State was permitted to introduce evidence that the defendant allegedly assaulted the victim two years prior to her death, an act for which he was tried and acquitted. The defendant appealed his conviction, and the Court of Criminal Appeals reversed based, in part, on the acquitted-act evidence being used at trial. We accepted the State’s appeal to consider two issues: (1) whether the rule announced in State v. Holman, 611 S.W.2d 411 (Tenn. 1981), which prohibits the use of acquitted-act evidence against a defendant at a subsequent trial, should be overruled, and (2) if so, whether the trial court properly admitted the acquitted-act evidence as a prior bad act under Tennessee Rule of Evidence 404(b). After a thorough review of the case law in this area and the record before us on appeal, we expressly overrule our decision in Holman to the extent that it prohibits the use of acquitted-act evidence against a defendant in a subsequent trial under all circumstances. Additionally, we hold that it was not an abuse of discretion for the trial court to admit the acquitted-act evidence, pursuant to Rule 404(b), under the theory that it was relevant to show the defendant’s intent. We also hold that additional errors in admitting threats made by the defendant against the victim or the victim’s sister, not at issue in this appeal, were harmless. For reasons stated herein, we reverse the Court of Criminal Appeals’ decision and reinstate the defendant’s conviction.

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge: Judge Larry J. Wallace
Dickson County Supreme Court 07/06/20
David New v. Lavinia Dumitrache, Et Al.
W2017-00776-SC-R11-CV

A general sessions court entered a one-year order of protection prohibiting the plaintiff from having contact with the defendants, who are the plaintiff’s ex-wife and the couple’s minor child. The plaintiff failed to appeal the order within ten days as required by statute. Forty-two days later, he filed a document in the chancery court titled “Petition to Enroll and Certify A Foreign Judgment and Appeal in Nature of Writ of Error.” The plaintiff attached to his pleading an incomplete copy of the couple’s 2008 Texas divorce decree that granted him parenting time with the minor child and asked the chancery court to hold a new hearing and determine whether the general sessions court erred by issuing the order of protection. The plaintiff later filed a motion asking for interim parenting time with the child. The defendants filed a notice of limited appearance, and among other things, asked the chancery court to dismiss the action for lack of personal and subject matter jurisdiction. They also requested attorney’s fees and costs incurred in defending the action, relying on statutes to support these requests. The chancery court dismissed the action for lack of subject matter jurisdiction, finding the appeal untimely and the method of appeal obsolete, and also determining that the petition for enrollment was defective on its face because the defendant had attached an incomplete copy of the Texas decree. The chancery court initially denied the defendants’ request for attorney’s fees and costs but granted their motion to alter or amend and ultimately awarded attorney’s fees and costs totaling $25,398.21. The plaintiff appealed, challenging only the award of attorney’s fees. The defendants asked for an award of attorney’s fees incurred on appeal. Before reaching these issues, however, the Court of Appeals sua sponte held that the chancery court erred by dismissing the appeal for lack of subject matter jurisdiction, ruling that the “writ of error remains an avenue for review of judgments of general sessions courts.” Rather than remanding the matter to the chancery court for consideration of the merits of the plaintiff’s writ of error appeal, however, the Court of Appeals also addressed the defendants’ challenge to the award of attorney’s fees. The intermediate appellate court ruled that a statute authorized the chancery court to award the defendants’ attorney’s fees for defending against the plaintiff’s writ of error appeal but not for fees incurred defending against the plaintiff’s petition to enroll the Texas divorce decree. As a result, the Court of Appeals vacated the award of attorney’s fees and remanded to the chancery court for a hearing and a determination of the fees incurred solely in defense of the plaintiff’s writ of error appeal. The Court of Appeals denied the defendants’ request for attorney’s fees on appeal. This Court granted the defendants’ application for permission to appeal. We hold that the chancery court correctly concluded that the writ of error is no longer a viable method of appeal in this State and dismissed the untimely appeal for lack of subject matter jurisdiction. We also hold that the chancery court correctly dismissed the plaintiff’s request to enroll the Texas decree because he provided an incomplete copy of the decree. Finally, we hold that the chancery court correctly awarded the defendants’ attorney’s fees for defending against the plaintiff’s pleading and did not err by failing to limit the award to the writ of error appeal. For these reasons, we reverse the judgment of the Court of Appeals, reinstate the judgment of the chancery court in its entirety, and remand to the chancery court for a determination of the reasonable attorney’s fees the defendants have incurred and should be awarded for this appeal.

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Chancellor JoeDae L. Jenkins
Shelby County Supreme Court 06/29/20
Stephen P. Geller v. Henry County Board of Education
W2017-01678-SC-R11-CV

In this appeal, we apply the Teacher Tenure Act to the transfer of a tenured teacher, working as a school administrator, for lack of proper credentialing. The plaintiff school administrator challenges the decision of the director of schools to transfer him to a teaching position because the plaintiff did not have an administrator license. The trial court upheld the transfer. The Court of Appeals reversed. It held that a regulation required the director to review the administrative duties the plaintiff had performed in the past in order to determine whether an administrator license was required, and that the director’s failure to do so rendered his transfer decision arbitrary and capricious. Under Tennessee caselaw, judicial review of a school system director’s decision to transfer a teacher must be conducted in light of the director’s broad discretion to make such decisions. The proof showed that the director and the board of the school system had established certain priorities for its administrators. Absent an administrator license, in the upcoming school year, the regulation would have precluded the plaintiff from performing duties consistent with the school system’s priorities. Consequently, the director’s failure to consider the plaintiff’s past work did not render the transfer decision either arbitrary or capricious. Under these circumstances, we hold that the plaintiff failed to meet his burden of proving that the transfer decision was not made in good faith and was arbitrary, capricious, or improperly motivated. We reverse the decision of the Court of Appeals and affirm the trial court’s judgment in favor of the school board.

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Carma Dennis McGee
Henry County Supreme Court 06/15/20
Lataisha M. Jackson v. Charles Anthony Burrell, et al.
W2018-00057-SC-R11-CV

The question presented in this health care liability case is whether the plaintiff’s claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act (“the Act”). Our answer depends on whether the common knowledge exception applies— that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26- 122, and her claim is not subject to dismissal for noncompliance with this section. The trial court’s award of summary judgment is vacated.

Authoring Judge: Justice Sharon G. Lee
Originating Judge: Judge Valerie L. Smith
Shelby County Supreme Court 06/12/20
Joshua Keller v. Janice Casteel et al.
E2017-01020-SC-R11-CV

We granted permission to appeal in this case to address when an employee handbook may create a property interest entitled to due process protection. After the petitioner municipal firefighter pled guilty to a criminal charge, his employment was terminated. The firefighter filed a complaint for judicial review of the termination, asserting a due process claim based on the municipality’s personnel manual. The trial court and the Court of Appeals both held that the personnel manual gave the firefighter a property interest entitled to due process protection. We reverse that holding. In Tennessee, employment is presumed to be at-will. Employers, including governmental employers, may adopt policies and procedures to promote efficiencies and fair, consistent treatment of employees, and may put those policies and procedures in employee manuals or handbooks. In the absence of specific language showing the employer’s intent to be contractually bound, such policies and procedures do not change employees’ at-will status and do not create a constitutionally protectable property interest. In this case, the municipality’s personnel manual included an explicit statement that the municipality did not intend the procedures to be binding or constitute any type of contract. Such disclaimers preclude any finding that the employer intended to be bound by the terms of the employee handbook. Accordingly, we decline to hold that the employee handbook converted the employee’s at-will employment into a property interest entitled to due process protection.

Authoring Judge: Justice Holly Kirby
Originating Judge: Chancellor Jerri Bryant
Bradley County Supreme Court 06/12/20
Roy Franks et al. v. Tiffany Sykes et al.
W2018-00654-SC-R11-CV

A person who is injured because of an unfair or deceptive act or practice that affects the conduct of any trade or commerce has a cause of action under the Tennessee Consumer Protection Act of 1977 (“the Act”), Tennessee Code Annotated sections 47- 18-101 to -132 (2013 & Supp. 2019). We granted review to determine whether the Act applies to the business aspects of a health care provider’s practice. The plaintiffs were injured in car accidents and received hospital medical services. The hospitals did not bill the plaintiffs’ health insurance companies but filed hospital liens against the plaintiffs’ claims for damages arising from the accidents. The hospital liens were for the full amount of the hospital bills with no reduction for the plaintiffs’ health insurance benefits. The plaintiffs sued the hospitals, asserting the filing of undiscounted hospital liens was an unlawful practice under the Act. The trial court dismissed the case, ruling that the plaintiffs had failed to state a cause of action. The Court of Appeals affirmed, holding that the Act did not apply to a claim in which the underlying transactions involved medical treatment. We hold that the Act applies to health care providers when they are acting in their business capacities. The plaintiffs, who were consumers of medical services, may state a claim under the Act against the hospitals for conduct arising out of the hospitals’ business practices. We reverse and remand this case to the trial court for further proceedings.

Authoring Judge: Justice Sharon G. Lee
Originating Judge: Judge Kyle Atkins
Madison County Supreme Court 05/01/20
State of Tennessee v. Antonio Benson
W2017-01119-SC-R11-CD

The defendant, Antonio Benson, was convicted of first-degree premeditated murder and sentenced to life in prison. On appeal, the defendant contended that the proof at trial fairly raised the issue of whether or not he killed the victim in self-defense and that the trial court erred in refusing to instruct the jury on self-defense. The Court of Criminal Appeals agreed that self-defense should have been charged and concluded that the error was not harmless. The intermediate court therefore reversed the defendant’s conviction and remanded the case for a new trial. We granted this appeal to clarify the gatekeeping function of a trial court when assessing whether self-defense has been fairly raised by the proof and to consider the quantum of proof necessary for a court to charge a jury on selfdefense. We hold that self-defense was not fairly raised by the proof in this case because the defendant was not lawfully defending himself when he killed the victim. We, therefore, reverse the judgment of the Court of Criminal Appeals.

Authoring Judge: Justice Roger A. Page
Originating Judge: Judge Lee V. Coffee
Shelby County Supreme Court 04/30/20
Melissa Martin et al v. Rolling Hills Hospital, LLC et al
M2016-02214-SC-R11-CV

We granted permission to appeal to clarify the role of prejudice in a court’s determination of whether a plaintiff in a health care liability action substantially complied with the statutory pre-suit notice requirements of Tennessee Code Annotated section 29-26-121 (Supp. 2019) (“Section 121”) and to clarify the burdens each party bears when seeking to establish, or to challenge, compliance with Section 121. We hold that prejudice is relevant to the determination of whether a plaintiff substantially complied with Section 121, but it is not a separate and independent analytical element. We also hold that a plaintiff bears the initial burden of either attaching documents to her health care liability complaint demonstrating compliance with Section 121 or of alleging facts in the complaint demonstrating extraordinary cause sufficient to excuse any noncompliance with Section 121. A defendant seeking to challenge a plaintiff’s compliance with Section 121 must file a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a claim. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 307 (Tenn. 2012). A defendant’s Rule 12.02(6) motion must include allegations that identify the plaintiff’s noncompliance and explain “the extent and significance of the plaintiff’s errors and omissions and whether the defendant was prejudiced by the plaintiff’s noncompliance.” Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 556 (Tenn. 2013). One means of satisfying this burden is to allege that a plaintiff’s Section 121(a)(2)(E) medical authorization lacks one or more of the six core elements federal law requires for compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). See Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, and 42 of the United States Code). Once a defendant files a Rule 12.02 motion that satisfies this prima facie showing, the burden then shifts to the plaintiff either to establish substantial compliance with Section 121—which includes the burden of demonstrating that the noncompliance did not prejudice the defense—or to demonstrate extraordinary cause that excuses any noncompliance. In this case, the defendants met their burden by showing that the plaintiffs’ medical authorizations lacked three of the six core elements federal law requires for HIPAA compliance. This showing shifted the burden to the plaintiffs, and they failed to establish either substantial compliance or extraordinary cause to excuse their noncompliance. As a result of this noncompliance with Section 121(a)(2)(E), the plaintiffs were not entitled to the 120-day extension of the statute of limitations. Therefore, their first lawsuit, filed after the oneyear statute of limitations expired, was not “commenced within the time limited by a rule or statute of limitation,” Tenn. Code Ann.
§ 28-1-105(a) (2017), so the plaintiffs cannot rely on the one-year savings statute to establish the timeliness of this lawsuit. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s judgment dismissing the plaintiffs’ health care liability action as time-barred.

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Michael Binkley
Williamson County Supreme Court 04/29/20
Melissa Martin et al v. Rolling Hills Hospital, LLC et al (Concur in Part;Dissent in Part)
M2016-02214-SC-R11-CV

I agree with the majority’s clarification of the role of prejudice in the substantial compliance analysis required when a defendant challenges the plaintiff’s adherence to subsection (a)(2) of Tennessee Code Annotated section 29-26-121 (Supp. 2019) (“Section 121”).

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Michael Binkley
Williamson County Supreme Court 04/29/20
George H. Thompson, III v. Board of Professional Responsibility of the Supreme Court of Tennessee
M2018-02216-SC-R3-BP

This is an attorney discipline proceeding concerning attorney George H. Thompson, III, and his representation of a client in her personal injury action. After filing a nonsuit on his client’s behalf, the attorney failed to refile the case in a timely manner, which resulted in the client’s claim being barred by the applicable statute of limitations. The attorney later admitted his error and paid the client a sum of money to settle her potential claim against him; however, the attorney failed to advise the client in writing that she should seek independent legal counsel in reaching a settlement. The Board of Professional Responsibility (“Board”) filed a petition for discipline against the attorney, and a hearing panel (“Panel”) imposed a sanction of a one-year suspension with thirty days to be served as an active suspension and the remainder to be served on probation with conditions. The attorney sought review of the Panel’s decision in chancery court, and upon its review, the chancery court affirmed the Panel’s decision. The attorney has now filed a direct appeal to this Court. Following a thorough review of the record and applicable legal authorities, we affirm the judgment of the chancery court.

Authoring Judge: Justice Roger A. Page
Originating Judge: Senior Judge Don R. Ash
Davidson County Supreme Court 04/28/20
Vickie S. Young, Individually and as Administrator of the Estate of Randall Josh Young, Deceased v. Frist Cardiology, PLLC ET AL.
M2019-00316-SC-R11-CV

We granted review to determine whether a doctor is qualified to testify in a health care liability case as an expert witness under Tennessee Code Annotated section 29-26- 115(b) when the doctor was not licensed to practice medicine in Tennessee or a contiguous state within one year of the alleged injury or wrongful conduct, but was practicing under a licensure exemption. Section 29-26-115(b) provides that a doctor is competent to testify as an expert witness only if the doctor is licensed to practice medicine in Tennessee or a contiguous state and the doctor was practicing medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct. We hold that under Tennessee Code Annotated section 29-26-115(b), a doctor, who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice medicine in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct, does not meet the requirements of section 29-26-115(b) to testify as an expert witness in a health care liability action. We reverse and remand this case to the trial court for further proceedings.

Authoring Judge: Justice Sharon G. Lee
Originating Judge: Judge Joseph P. Binkley, Jr.
Davidson County Supreme Court 04/20/20
Ken Smith Auto Parts v. Michael F. Thomas
E2018-00928-SC-R11-CV

We granted permission to appeal in order to clarify the procedure circuit courts must follow when an original defendant in general sessions court appeals an adverse general sessions judgment to circuit court but then fails to appear for the de novo circuit court trial to prosecute his appeal.  In this case, when the defendant/appellant failed to appear in circuit court to prosecute his appeal, the circuit court dismissed the appeal and remanded the case to the general sessions court for execution of the general sessions judgment.  We hold this was error.  Under Tennessee Code Annotated sections 27-5-106 and -107, the circuit court should have instead entered its own default judgment against the defendant/appellant in the amount of the general sessions judgment, subject to execution in the circuit court, and assessed costs against the defendant/appellant and his sureties.  We also hold that, after the circuit court dismissed the appeal and remanded to general sessions court, the circuit court had subject matter jurisdiction under Rules 59 and 60 of the Tennessee Rules of Civil Procedure to grant the defendant/appellant’s timely motion to set aside its prior order.  The decision to grant or deny the defendant/appellant’s post-judgment motion was within the circuit court’s discretion.  Accordingly, we affirm the decision of the Court of Appeals.  

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Ward Jeffrey Hollingsworth
Hamilton County Supreme Court 04/17/20
In Re: Cumberland Bail Bonding
M2017-02172-SC-R11-CD

We granted this appeal to determine whether a trial court may suspend a bonding company for violating a local rule of court requiring an agent of the bonding company to be present at court appearances of defendants for whom the bonding company serves as surety. We conclude that the local rule does not conflict with state statutes and is not arbitrary, capricious, or unreasonable, and that the trial court did not err by suspending the bonding company for violating the local rule. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated. 

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Larry B. Stanley, Jr.
Van Buren County Supreme Court 04/06/20
Rhonda Willeford, Et Al. v. Timothy P. Klepper, M. D., Et Al.
M2016-01491-SC-R11-CV

We granted review in this case to determine whether Tennessee Code Annotated section 29-26-121(f) violates the separation of powers clause in the Tennessee Constitution. The statutory provision allows defense counsel to conduct ex parte interviews with patients’ non-party treating healthcare providers in the course of discovery in a healthcare liability lawsuit. We hold that section 29-26-121(f) is unconstitutional as enacted, to the limited extent that it divests trial courts of their inherent discretion over discovery. We also conclude that the statute can be elided to make it permissive and not mandatory upon trial courts. As such, we hold that the elided statute is constitutional. We vacate the trial court’s qualified protective order entered in this case and remand the case to the trial court for reconsideration based on the guidance set forth in this opinion. 

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge: Judge Jonathan L. Young
Overton County Supreme Court 02/28/20
Rhonda Willeford, Et Al. v. Timothy P. Klepper, M. D., Et Al. - Concurring In Part and Dissenting In Part
M2016-01491-SC-R11-CV

I concur in much of the majority’s excellent analysis, in its framing of the issues, and in its stated decision to adopt a substantive-versus-procedural test for whether a statute violates the separation of powers clause. I write separately because I must dissent from the majority’s holding that Tennessee Code Annotated section 29-26-121(f) is unconstitutional only to the limited extent that it makes ex parte interviews mandatory instead of permissive. I see no way to avoid holding that the statute is unconstitutional in its entirety.

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Jonathan L. Young
Overton County Supreme Court 02/28/20
Jodi McClay v. Airport Management Services, LLC - Concurring
M2019-00511-SC-R23-CV

I join fully in the majority’s conclusion that the statutory cap on noneconomic damages enacted by our legislature does not violate either the separation of powers clause or the equal protection clause in the Tennessee Constitution. A much closer question is presented on whether the statutory cap violates the clause in the Tennessee Constitution guaranteeing a right to trial by jury. I agree with the majority’s analysis and conclusion on this issue but write separately to further explain my reasoning. 

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Eli Richardson
Supreme Court 02/26/20
Jodi McClay v. Airport Management Services, LLC - Dissenting
M2019-00511-SC-R23-CV

I dissent. I would hold that Tennessee Code Annotated section 29-39-102(e) (2012) violates article I, section 6 of the Tennessee Constitution by usurping the jury’s essential and constitutionally protected fact-finding function.  

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Eli Richardson
Supreme Court 02/26/20
Jodi McClay v. Airport Management Services, LLC - Dissenting
M2019-00511-SC-R23-CV

The Tennessee Constitution guarantees that the “right of trial by jury shall remain inviolate.” Tennessee Code Annotated section 29-39-102 (2012) (“the damages cap statute”), which forbids awards for noneconomic damages that exceed $750,000 (or $1,000,000 in catastrophic injury cases), is an unconstitutional invasion of the right to trial by jury. Thus, it cannot stand.  

Authoring Judge: Justice Sharon G. Lee
Originating Judge: Judge Eli Richardson
Supreme Court 02/26/20
Jodi McClay v. Airport Management Services, LLC
M2019-00511-SC-R23-CV

We accepted certification of the following questions of law from the United States District Court for the Middle District of Tennessee regarding the constitutionality of Tennessee’s statutory cap on noneconomic damages, codified at Tennessee Code Annotated section 29-39-102: “(1) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate a plaintiff’s right to a trial by jury, as guaranteed in Article I, section 6, of the Tennessee Constitution?; (2) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate Tennessee’s constitutional doctrine of separation of powers between the legislative branch and the judicial branch?; (3) Does the noneconomic damages cap in civil cases imposed by Tenn. Code Ann. § 29-39-102 violate the Tennessee Constitution by discriminating disproportionately against women?” Upon review, we answer each of the District Court’s questions in the negative.

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge: Judge Eli J. Richardson
Supreme Court 02/26/20
State of Tennessee v. Alexander R. Vance and Damonta M. Meneese
M2017-01037-SC-R11-CD

We granted permission to appeal to the Defendant, Alexander R. Vance, to determine whether the trial court committed reversible error by permitting the State to elicit testimony about a statement made by a non-testifying codefendant whose trial was severed and whose statements were the subject of a motion in limine the trial court had granted. The trial court permitted the testimony after determining that defense counsel had “opened the door” during cross-examination and that the doctrine of curative admissibility permitted the testimony in order to correct a misleading impression created by the cross-examination. The defense objected to the testimony on various grounds. Those grounds did not include constitutional claims under the state and federal confrontation clauses. After the close of proof, the jury convicted the Defendant of one count of second degree murder, an alternative count of first degree felony murder, especially aggravated robbery, and three counts of aggravated assault. The trial court merged the second degree murder conviction into the first degree murder conviction and imposed an effective sentence of life imprisonment plus twenty-one years. In his motion for new trial, the Defendant reiterated his arguments against the admission of the “curative” testimony and raised for the first time a contention that the testimony violated his constitutional rights of confrontation. The Court of Criminal Appeals affirmed the trial court’s judgments. Applying plain error review to the Defendant’s constitutional claims, we hold that, while the trial court erred in admitting the contested testimony, substantial justice does not require that plain error relief be granted. We also hold that the Defendant is not entitled to relief on the claims he preserved for plenary review. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge: Judge J. Randall Wyatt
Davidson County Supreme Court 02/25/20
State of Tennessee v. Abbie Leann Welch
E2018-00240-SC-R11-CD

This appeal concerns the propriety of the defendant’s burglary conviction.  A Knox County grand jury indicted the defendant, Abbie Leann Welch, for misdemeanor theft in violation of Tennessee Code Annotated section 39-14-103, and burglary, a Class D felony, in violation of Tennessee Code Annotated section 39-14-402, for her involvement in a scheme to enter a Walmart retail store, steal merchandise, and have another individual return the merchandise for a gift card.  The defendant previously had been banned from Walmart retail stores for prior acts of shoplifting.  In this case, because the defendant entered Walmart without the effective consent of the owner—said consent having been revoked by letter—and committed a theft therein, the State sought an indictment for burglary rather than criminal trespass.  We hold that the plain language of the burglary statute does not preclude its application to the scenario presented in this case and that, because the statute is clear and unambiguous on its face, we need not review the legislative history to ascertain its meaning.  Application of the burglary statute in these circumstances does not violate due process or prosecutorial discretion.  We affirm the judgment of the Court of Criminal Appeals. 

Authoring Judge: Justice Roger A. Page
Originating Judge: Judge G. Scott Green
Knox County Supreme Court 02/19/20
State of Tennessee v. Abbie Leann Welch - Concurring
E2018-00240-SC-R11-CD

I write separately in this case because I respectfully disagree with one point in the majority’s analysis, namely, the conclusion that Tennessee Code Annotated § 39-14-402(a) is clear and unambiguous.

Authoring Judge: Justice Holly Kirby
Originating Judge: Presiding Judge G. Scott Green
Knox County Supreme Court 02/19/20
Board of Professional Responsibility v. James S. MacDonald
E2018-01699-SC-R3-BP

The Board of Professional Responsibility (“the Board”) filed a Petition for Discipline against James MacDonald (“Attorney”) based on a single complaint arising from his representation of Michael Huddleston.  A hearing panel (“the Panel”) was appointed and, after an evidentiary hearing, the Panel dismissed the Petition for Discipline and concluded that the Board “failed to sustain its burden of proving, by a preponderance of the evidence, that Attorney violated” any Rules of Professional Conduct (“RPC”).  Thereafter, the Board filed a petition for review of the Panel’s decision in the Knox County Chancery Court.  The chancery court reversed the Panel’s dismissal of all six rule violations and determined that the Panel’s conclusions were arbitrary and capricious and unsupported by the evidence.  In addition, the chancery court held that the Panel abused its discretion by applying an incorrect legal standard.  The chancery court found that Attorney violated all six rules alleged in the Board’s petition and imposed a public censure as punishment.  Attorney sought review in this Court, arguing that the chancery court incorrectly substituted its own judgment for that of the Panel’s and abused its discretion.  Upon review of the record and applicable law, we reverse the chancery court’s conclusion that Attorney violated RPC 3.3(b) and (c), 3.4(a) and (b), and 8.4(a), and we reinstate the Panel’s dismissal of those allegations.  Additionally, we hold that the chancery court was without authority to conclude that Attorney violated RPC 8.4(c), and this Court must treat the Panel’s failure to make a conclusion as a dismissal of the allegation.  Therefore, the Petition for Discipline against Attorney is dismissed in its entirety.

Authoring Judge: Chief Justice Jeffrey S. Bivins
Originating Judge: Chancellor Jerri Bryant
Knox County Supreme Court 02/14/20
James A. Dunlap, Jr. v. Board of Professional Responsibility Of The Supreme Court of Tennessee
M2018-01919-SC-R3-BP

A Board of Professional Responsibility hearing panel decided that an attorney should be suspended for one year for violating Tennessee Rules of Professional Conduct 3.3 (candor toward the tribunal), 3.5(a) (impartiality and decorum of the tribunal), 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (conduct that is prejudicial to the administration of justice). The attorney appealed, and the trial court affirmed. After careful review, we affirm the judgment of the trial court.

Authoring Judge: Justice Sharon G. Lee
Originating Judge: Senior Judge Don R. Ash
Davidson County Supreme Court 02/07/20
State of Tennessee v. Carl Allen a/k/a Artie Perkins
W2017-01118-SC-R11-CD

We granted this appeal to determine whether the criminal court had authority to grant motions filed by the Tennessee Bureau of Investigation (“TBI”) and to modify an order dismissing criminal prosecutions several years after the order became final.  Carl Allen (“Mr. Allen”) was indicted in November 2010 and February 2011 for violating certain reporting provisions of the Tennessee Sexual Offender Registration, Verification, and Tracking Act (“the Registration Act”) applicable to violent sexual offenders.  By a written order filed on February 3, 2012, the criminal court granted Mr. Allen’s motion to dismiss the indictments based on its determination that Mr. Allen’s 1995 Florida sexual battery conviction required him to comply only with the Registration Act’s reporting provisions relating to sexual offenders and not those relating to violent sexual offenders.  The State did not appeal the February 3, 2012 order; therefore, it became final thirty days after entry.  Almost three years later, in December 2014, the TBI returned to the criminal court and filed a motion to intervene in the dismissed criminal cases, citing Rule 24.01 of the Tennessee Rules of Civil Procedure, and a motion for relief from the February 3, 2012 order, citing Rule 60.02 of the Tennessee Rules of Civil Procedure.  The TBI argued that, in expressing the basis of its decision to dismiss the indictments, the criminal court exercised civil jurisdiction by ruling on Mr. Allen’s offender classification under the Registration Act.  The TBI asserted that the criminal court lacked authority to determine Mr. Allen’s offender classification and that the portion of its February 3, 2012 order doing so was void and should be vacated.  The criminal court agreed with the TBI’s arguments, and by a May 3, 2017 order, partially vacated its February 3, 2012 order.  Mr. Allen appealed.  The Court of Criminal Appeals dismissed his appeal without ruling on the merits after concluding that Mr. Allen had no right of appeal in these circumstances.  State v. Allen, No. W2017-01118-CCA-R3-CD, 2018 WL 6595352, at *4 (Tenn. Crim. App. Dec. 13, 2018), appeal granted, (Tenn. May 24, 2019).  We hold, as the TBI now concedes, that Mr. Allen had a right to appeal from the criminal court’s May 3, 2017 order that partially vacated its February 3, 2012 order.  We also hold that the criminal court was not exercising civil jurisdiction in its February 3, 2012 order when it granted Mr. Allen’s motion to dismiss the criminal indictments.  We further conclude that the criminal court had no authority to modify or partially vacate its February 3, 2012 order, except to correct clerical errors, oversights, or omissions in accordance with Tennessee Rule of Criminal Procedure 36.  Because the criminal court exceeded the authority Rule 36 provides, we vacate the May 3, 2017 order and confirm that the February 3, 2012 order remains intact and final.

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Paula L. Skahan
Shelby County Supreme Court 01/29/20