BSG, LLC v. Check Velocity, Inc.
A contract required payment of “fee residuals” from customers referred by BSG, LLC to Check Velocity, a company providing check re-presentment services. The contract provided that payment of fee residuals survived the termination of the agreement between the parties and continued until the “expiration of the Customer agreements as they may be renewed.” Two agreements were executed between a referred customer and Check Velocity. The first agreement, which expired by its own terms, provided for check re-presentment services. The second agreement continued the re-presentment services required by the first agreement and added additional services. In addition, other terms of the first agreement were changed, including a choice of law provision. We hold that the second agreement with additional services and changed terms was not a renewal of the first agreement. Accordingly, we reverse the Court of Appeals and affirm the trial court’s grant of summary judgment in favor of Check Velocity. |
Davidson | Supreme Court | |
R. Douglas Hughes et al. v. New Life Development Corporation et al.
This appeal involves the validity and effect of amendments to restrictive covenants for a residential development and amendments to the charter and bylaws for the homeowners’ association serving the development. After the death of the president of the original corporate developer, a successor developer purchased the original developer’s remaining property with the intent to continue to develop the property. Several homeowners filed suit in the Chancery Court for Franklin County, alleging that the successor developer’s new development plan violated restrictive covenants. The trial court granted the successor developer a judgment on the pleadings, and the homeowners appealed. The Court of Appeals remanded the case for further proceedings, principally on the question of whether a general plan of development, or the plat for the subdivision, gave rise to certain implied restrictive covenants. Hughes v. New Life Dev. Corp., No. M2008-00290-COA-R3-CV, 2009 WL 400635, at *9-10 (Tenn. Ct. App. Feb. 17, 2009). While the successor developer’s application for permission to appeal was pending, the homeowners’ association amended its charter and the restrictive covenants to address certain issues identified by the Court of Appeals. Thereafter, the homeowners filed a second suit, principally contesting the validity of the amendments. The trial court consolidated the two suits and granted the successor developer a summary judgment on all claims in both suits. However, the trial court also enjoined the successor developer from acting contrary to its corporate charter. The homeowners appealed a second time. On this occasion, the Court of Appeals concluded that the procedure used to amend the charter and restrictive covenants was valid but remanded the case with directions to determine whether these amendments were reasonable and to determine whether the plat supported the existence of implied restrictive covenants. Hughes v. New Life Dev. Corp., No. M2010-00579-COA-R3-CV, 2011 WL 1661605, at *9-11 (Tenn. Ct. App. Apr. 29, 2011). The successor developer filed an application for permission to appeal, asserting that Tennessee law did not support the Court of Appeals’ reasonableness inquiry and that the plat provided no basis for the existence of implied restrictive covenants. We have determined that the amendments were properly adopted and that there is no basis for implied restrictive covenants arising from a general plan of development or from the plat. |
Franklin | Supreme Court | |
Board of Professional Responsibility of the Supreme Court of Tennessee v. Thomas Ewing Cowan
This appeal involves a determination of the proper final discipline for an attorney who pleaded guilty to willful tax evasion. We hold that because ABA Standard for Imposing Lawyer Sanctions 5.11(b)applies to criminal acts such as those admitted by the attorney here, the trial court’s order of disbarment is affirmed. |
Carter | Supreme Court | |
M. Josiah Hoover, III v. Board of Professional Responsibility of the Supreme Court of Tennessee
This is an appeal from a judgment affirming the disbarment of an attorney. After considering evidence presented incident to five complaints against the attorney, a hearing panel designated by the Board of Professional Responsibility concluded that disbarment was warranted. On appeal, the trial court affirmed. In this appeal, the attorney has raised the following issues for review: (1) whether the panel erred by denying his motion to continue the hearing; (2) whether the panel erred by considering the attorney’s conduct in a case based upon a complaint by another attorney who had no involvement in the case; (3) whether the evidence supports the panel’s findings; (4) whether disbarment is an appropriate punishment; and (5) whether the trial court erred by denying the attorney’s post-judgment motion to supplement the record. We affirm the judgment. |
Knox | Supreme Court | |
In Re: Estate of Thomas Grady Chastain
The issue in this appeal is whether the statutory requirements for execution of an attested will prescribed by Tennessee Code Annotated section 32-1-104(1) (2007) were satisfied when the decedent failed to sign the two-page will but signed a one-page affidavit of attesting witnesses. We conclude that the decedent’s signature on the separate affidavit of attesting witnesses does not satisfy the statute requiring the testator’s signature on the will. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the trial court that the will was not properly executed is reinstated. |
Polk | Supreme Court | |
Jeanette Rea Jackson v. Bradley Smith
This appeal involves the efforts of a grandmother to obtain court-ordered visitation with her granddaughter in accordance with Tenn. Code Ann. § 36-6-306 (2010). Shortly after the death of her daughter, the grandmother filed a petition in the Chancery Court for McNairy County seeking visitation with her granddaughter. Following a two-day hearing, the trial court denied the grandmother’s request for visitation because she had failed to prove the statutory grounds necessary to permit a court to order grandparental visitation over a parent’s objection. The grandmother did not appeal this decision. After the decision became final, the Tennessee General Assembly amended the burden of persuasion in the grandparental visitation statute by creating a new rebuttable presumption that a child whose parent dies will be substantially harmed by the cessation of an existing relationship with a grandparent who is the parent of the deceased parent. Without alleging new facts and relying solely on the change in the statutory burden of persuasion, the grandmother filed a second petition in the trial court seeking visitation with her granddaughter. The trial court granted the child’s father’s motion to dismiss on the ground of res judicata. The Court of Appeals affirmed the trial court’s order. Jackson v. Smith, No. W2011-00194-COA-R3-CV, 2011 WL 3963589 (Tenn. Ct. App. Sept. 9, 2011). We granted the grandmother’s application for permission to appeal to determine whether the intervening change in the burden of persuasion in the grandparental visitation statute provided an exception to the operation of the res judicata doctrine. We have determined that it does not and that, without some material change in the facts, the doctrine of res judicata bars relitigation of the grandmother’s petition for grandparental visitation. |
McNairy | Supreme Court | |
State of Tennessee v. James Beeler
We accepted this appeal to determine whether a lawyer’s potential violation of the ethical rule governing communications with a person represented by another lawyer constitutes criminal contempt pursuant to Tennessee Code Annotated section 29-9-102(1), (2). Although a lawyer’s violation of an ethical rule may in some circumstances constitute criminal contempt, the evidence in this case is insufficient to support the “willful misbehavior” element of the offense of criminal contempt. Therefore, we reverse the judgment of the Court of Criminal Appeals, and we vacate Mr. Beeler’s conviction. |
Washington | Supreme Court | |
State of Tennessee v. Carl J. Wagner
We granted the State’s application for permission to appeal to determine whether the Court of Criminal Appeals erred by finding the evidence insufficient to support the defendant’s convictions of especially aggravated robbery and felony murder. Affording the State the strongest legitimate view of the evidence presented at trial and the reasonable and legitimate inferences that may be drawn from the evidence, we conclude that the evidence is sufficient to support the defendant’s convictions. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. |
Davidson | Supreme Court | |
State of Tennessee v. Travis Kinte Echols
The defendant, convicted of felony murder and sentenced to life in prison, appealed to the Court of Criminal Appeals alleging a number of errors in the conduct of the trial, particularly the trial court’s failure to suppress a statement the defendant had made to the police. The Court of Criminal Appeals ruled that the statement was the product of an unlawful arrest, but held that the admission of the statement qualified as harmless error. This Court granted the defendant’s application for permission to appeal in order to determine the propriety of the defendant’s arrest and to consider whether the Court of Criminal Appeals had used the appropriate standard of review in its harmless error analysis. Because the arrest of the defendant was supported by probable cause and there was no other prejudicial error during the course of the trial, the judgment is affirmed. |
Knox | Supreme Court | |
Curtis Myers v. Amisub (SFH), Inc., d/b/a St. Francis Hospital, et al.
The plaintiff filed a medical malpractice action against several health care providers and subsequently dismissed the lawsuit. He re-filed the action after the legislature enacted Tennessee Code Annotated section 29-26-121, which requires a plaintiff who files a medical malpractice suit to give health care providers who are to be named in the suit notice of the claim sixty days before filing the suit; and Tennessee Code Annotated section 29-26-122, which requires a plaintiff to file with the medical malpractice complaint a certificate of good faith confirming that the plaintiff has consulted with an expert who has provided a signed written statement that there is a good-faith basis to maintain the action. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and 122. The trial court denied the motion, finding that the plaintiff’s original suit constituted substantial compliance with the statutes’ requirements and that extraordinary cause existed to excuse compliance with the requirements of Tennessee Code Annotated section 29-26-121. Upon interlocutory appeal, the Court of Appeals reversed. We hold that the statutory requirements that a plaintiff give sixty days presuit notice and file a certificate of good faith with the complaint are mandatory requirements and not subject to substantial compliance. The plaintiff’s failure to comply with Tennessee Code Annotated section 29-26-122 by filing a certificate of good faith with his complaint requires a dismissal with prejudice. |
Shelby | Supreme Court | |
Daniel Renteria-Villegas et al. v. Metropolitan Government of Nashville and Davidson County et al.
We accepted a question of law certified by the United States District Court for the Middle District of Tennessee to determine whether the October 2009 Memorandum of Agreement between the United States Immigration and Customs Enforcement and the Metropolitan Government of Nashville and Davidson County, by and through the Davidson County Sheriff’s Office, violates the Charter of Nashville and Davidson County or other state law. We conclude that the Memorandum of Agreement does not violate the Charter or any other state law cited by the plaintiffs. |
Supreme Court | ||
State of Tennessee v. Wanda F. Russell
A defendant was indicted on four counts of theft. At trial, the trial court ruled that the defendant’s prior misdemeanor convictions for passing worthless checks were admissible to impeach her credibility pursuant to Tennessee Rule of Evidence 609, which states that a conviction punishable by less than one year of imprisonment is admissible if the crime involves dishonesty or false statement. See Tenn. Code Ann. § 39-14-121 (2010). The defendant elected not to testify, and the jury convicted her on three of the four counts of theft. We hold that the crime of passing worthless checks involves an element of dishonesty or false statement and that the trial court did not abuse its discretion when it determined that the defendant’s prior convictions could be used to impeach her credibility if she testified. We affirm the decision of the trial court. |
Rutherford | Supreme Court | |
Tina Marie Hodge v. Chadwick Craig
This appeal requires the Court to determine whether current Tennessee law permits the |
Maury | Supreme Court | |
Christian Heyne et al. v. Metropolitan Nashville Board of Public Education
This appeal involves the scope of the procedural due process rights of a public high school student facing discipline for an infraction of school rules of conduct. After injuring a younger student with his automobile on school property, the student was cited for an infraction of the student conduct rule proscribing reckless endangerment. The principal’s decision to suspend the student for ten days was upheld by a hearing board and a designee of the director of schools, and the school board declined to review the matter. Thereafter, the student and his family filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County seeking judicial review of the disciplinary decision. Following a hearing during which the trial court permitted the student and his family to present evidence regarding allegedly arbitrary, capricious, and illegal conduct by school officials that was not reflected in the record of the disciplinary proceedings, the trial court found that the school officials had violated the student’s procedural due process rights because one official had performed both prosecutorial and decision-making functions and because this official was biased against the student. The trial court also determined that the evidence did not support the conclusion that the student’s conduct amounted to reckless endangerment. Accordingly, the trial court directed the school system to expunge the student’s record and awarded the student and his family $371,845.25 in attorneys’ fees and $25,626.27 in costs. The Board of Education appealed, and the Court of Appeals reversed the trial court’s judgments. Heyne v. Metropolitan Nashville Bd. of Pub. Educ., No. M2010-00237-COA-R3-CV, 2011 WL 1744239 (Tenn. Ct. App. May 6, 2011). We affirm the judgment of the Court of Appeals. |
Davidson | Supreme Court | |
Fred T. Hanzelik v. Board of Professional Responsibility of the Supreme Court of Tennessee
This direct appeal involves a disciplinary proceeding against a Chattanooga lawyer arising out of his representation of two clients. A hearing panel of the Board of Professional Responsibility determined that the lawyer should be suspended from the practice of law for forty-five days. Following the lawyer’s appeal to the Chancery Court for Hamilton County, the trial court upheld the lawyer’s forty-five-day suspension after finding that the record supported the hearing panel’s findings that the lawyer had attempted to bill one client twice, had breached his ethical obligations to another client, and had failed to cooperate with the Board of Professional Responsibility during its extended investigation into his conduct. On this appeal, the lawyer insists (1) that the evidence does not support the hearing panel’s findings, (2) that the hearing panel erred by receiving into evidence a videotaped deposition given by one of his clients, (3) that the hearing panel failed to properly apply the American Bar Association Standards for Imposing Lawyer Sanctions, and (4) that the hearing panel failed to consider the discipline imposed on other lawyers for similar infractions. Based on our review of the record, we, like the trial court, affirm the hearing panel’s decision to suspend the lawyer’s license to practice law for forty-five days. |
Hamilton | Supreme Court | |
State of Tennessee v. Susan Renee Bise
Following a burglary in Greene County, the defendant was charged with two counts of aggravated burglary and two counts of theft of property. At the conclusion of the trial, the jury returned verdicts of guilt for one count of facilitation of aggravated burglary and for two counts of theft of property. After finding the presence of one enhancement factor, the trial court imposed concurrent three-year sentences for each offense. The Court of Criminal Appeals found that the enhancement factor did not apply and reduced each of the sentences to two years. Because we find that a sentence imposed by a trial court should be upheld so long as it is within the appropriate sentencing range and is otherwise in compliance with the purposes and principles of the sentencing statute, we reverse the sentence modification by the Court of Criminal Appeals and, upon review under an abuse of discretion standard with a presumption of reasonableness, reinstate the sentence imposed by the trial court. |
Greene | Supreme Court | |
Lacey Chapman v. Davita, Inc.
An employee filed a request for assistance with the Tennessee Department of Labor after she was injured at her workplace. After approximately six months of inaction by the Department, the employee filed a complaint for workers’ compensation benefits against her employer in Marshall County Circuit Court. The employer responded with a motion to dismiss asserting that the trial court lacked subject matter jurisdiction because the parties had not participated in the benefit review conference process. The trial judge did not dismiss the complaint but ordered the case to be held in abeyance pending further orders of the court. On extraordinary appeal to this Court, we hold that the trial court did not have subject matter jurisdiction of the case because the employee did not exhaust the benefit review conference process before filing suit as required by Tennessee Code Annotated section 50-6-203 (2008). The judgment of the trial court is reversed, and the employee’s complaint is dismissed without prejudice. |
Marshall | Supreme Court | |
Rondal Akers et al. v. Prime Succession of Tennessee, Inc. et al.
Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged |
Bradley | Supreme Court | |
Ready Mix, USA, LLC v. Jefferson County, Tennessee
The plaintiff, a producer of construction aggregates, acquired property with proven reserves for mining and quarrying operations. Afterward, Jefferson County enacted a comprehensive zoning ordinance limiting the use of the property to agricultural purposes. Before the passage of the ordinance, the plaintiff undertook various activities designed to establish business operations. When the county issued a stop work order, the plaintiff, without first receiving a decision from the county’s board of zoning appeals, filed a declaratory judgment action arguing that the portion of the property not previously subject to zoning qualified as a pre-existing non-conforming use, protected by Tennessee Code Annotated section 13-7-208 (1992). After concluding that the plaintiff was not required to exhaust its administrative remedies, the trial court ruled that the business activities on the property were “in operation” at the effective date of the ordinance for purposes of grandfather protection under section 137-208. Because the Court of Appeals held that the plaintiff had failed to exhaust its administrative remedies, the judgment was set aside. We hold that the trial court, under these circumstances, did not err by ruling that the plaintiff was not required to exhaust the administrative remedies. We further hold that the evidence does not preponderate against the trial court’s finding that the plaintiff had established operations sufficient to qualify for protection under Tennessee Code Annotated section 13-7-208. |
Jefferson | Supreme Court | |
Ready Mix, USA, LLC v. Jefferson County, Tennessee - Concur
I concur with the Court’s conclusion that the evidence does not preponderate against the trial court’s finding that Ready Mix, USA, LLC’s activities on its property established pre-existing use and, therefore, qualify for protection under Tenn. Code Ann. § 13-7-208 (2011). I base my decision entirely on our prior precedents construing Tenn. Code Ann. § 13-7-208 without any consideration, directly or indirectly, of the diminishing assets doctrine. |
Jefferson | Supreme Court | |
State of Tennessee v. Charles E. Lowe-Kelley
A defendant was sentenced following his conviction on two counts of first degree murder and nine counts of attempted first degree murder. Eighteen days later, his attorney filed a motion requesting a new trial and withdrew as counsel. The motion contained no specific grounds for relief. The trial court appointed replacement counsel. Several months later, replacement counsel amended the motion for new trial to allege specific grounds for relief. The trial court denied the amended motion for new trial. The Court of Criminal Appeals held that the original motion for new trial was a nullity because it contained no grounds for relief and that the trial court therefore did not have jurisdiction to permit the amendment of the motion for new trial. The Court of Criminal Appeals therefore considered the defendant’s specific grounds for relief as waived. We hold that the original motion for new trial met the requirements of Tennessee Rule of Criminal Procedure 33 despite its failure to allege specific grounds for relief and that the trial court retained jurisdiction to permit the amendment of the motion. The cause is remanded to the Court of Criminal Appeals to consider the defendant’s appeal of the denial of his amended motion for new trial. |
Maury | Supreme Court | |
Elliot H. Himmelfarb, M.D., et al. v. Tracy R. Allain
A patient discovered that a guide wire had been left in her vein during a prior medical procedure. She filed a medical malpractice action against the doctors who performed the procedure and the hospital where the procedure was performed. The patient voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41 when she was informed that another party was responsible for the presence of the guide wire. The doctors named in the original suitf iled a malicious prosecution action against the patient. The patient filed a motion for summary judgment alleging that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied the motion for summary judgment, and the Court of Appeals affirmed the trial court’s denial. We hold that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. We reverse the Court of Appeals and remand to the trial court for entry of summary judgment in favor of the patient and for further proceedings consistent with this opinion. |
Williamson | Supreme Court | |
State of Tennessee v. Wayne Donaldson
An officer stopped the defendant for a traffic violation. When the officer ordered the defendant out of his vehicle to sign the citation, he observed what appeared to be a bag of cocaine on the floorboard of the driver’s side. Charged with possession with intent to sell or deliver twenty-six grams or more of cocaine in a school zone, the defendant moved to suppress the evidence as the product of an unlawful seizure. The trial court sustained the motion, and the Court of Criminal Appeals affirmed. This Court granted the State’s application for permission to appeal. Because an officer, after making a lawful stop for a traffic violation, may routinely direct the driver outside of the vehicle, the order of suppression is reversed, and the cause is remanded for trial. |
Davidson | Supreme Court | |
Jerry Garrison et al. v. Rita Bickford et al.
Following an accident which claimed the life of their teenage son, the deceased’s parents filed claims for wrongful death and negligent infliction of emotional distress against the driver and owner of the car that struck their son. The parents also sought to recover from their own insurance company under the uninsured motorist provisions of their policy. The driverof the car settled, paying the deceased’s parents $25,000 for their wrongful death claim and $25,000 for their negligent infliction of emotional distress claim. The parents’ insurer paid them an additional $75,000 for the wrongful death claim but refused to pay any damages for their emotional injuries. The insurer contended that (1) emotional distress did not constitute “bodily injury” as defined in the policy, and (2) the “Each Person” limit in the policy had been met, here by exhausting any available coverage. The parents maintained that recovery for emotional harm was not precluded under the policy definition of “bodily injury” and that the “Each Person” limit had not been met. The trial court agreed with the parents and ruled in favor of coverage. The Court of Appeals reversed. We granted the parents’ application for permission to appeal to decide whether “bodily injury” as defined in the policy includes mental injuries standing alone. It does not. The judgment of the Court of Appeals is affirmed. |
Bledsoe | Supreme Court | |
Porsha Perkins v. Metropolitan Government of Nashville and Davidson County
An employee of an agency of the Metropolitan Government of Nashville and Davidson County (“Metro”) was discharged after she filed complaints with the Equal Employment Opportunity Commission and a lawsuit against Metro alleging employment discrimination. The employee appealed her termination to the Metro Civil Service Commission and eventually settled the appeal, receiving backpay and other consideration in exchange for her agreement not to apply for or accept future employment with the agencythat discharged her. The employee subsequently filed a complaint against Metro alleging, among other things, retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Metro filed a motion seeking summary judgment. The trial court granted the motion, reasoning that the employee could not establish that her termination constituted an adverse employment action because she had accepted backpay and agreed not to be reinstated as part of the settlement of her Civil Service Commission appeal. The Court of Appeals affirmed. We conclude that the employee’s acceptance of the settlement does not preclude her from establishing that her termination constituted an adverse employment action for purposes of her federal retaliatory discharge claims. We reverse the judgment of the Court of Appeals, vacate the judgment of the trial court granting Metro summary judgment, and remand this matter to the trial court for further proceedings consistent with this decision. |
Davidson | Supreme Court |
