Workers' Compensation Opinions

Format: 11/27/2021
Format: 11/27/2021
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
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
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
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
Bonnie Harmon, Et Al. v. Hickman Community Healthcare Services, Inc.
M2016-02374-SC-R11-CV

In this healthcare liability action, the trial court held that the plaintiffs’ sole expert witness was not competent to testify on causation and for that reason granted summary judgment to the defendant. The plaintiffs then filed a motion to alter or amend, proffering causation testimony from a new expert witness. The trial court denied the motion to alter or amend, and the plaintiffs appealed. The Court of Appeals, in a split decision, reversed the trial court’s denial of the motion to alter or amend. This Court granted permission to appeal. A trial court’s decision on a motion to alter or amend is reviewed under an abuse of discretion standard; this standard of review does not permit the appellate court to substitute its judgment for that of the trial court. We hold that the trial court’s decision in this case was within the range of acceptable alternative dispositions of the motion to alter or amend and was not an abuse of the trial court’s discretion. For this reason, we reverse the Court of Appeals and affirm the decision of the trial court.

Authoring Judge: Justice Holly Kirby
Originating Judge: Judge Deanna B. Johnson
Hickman County Supreme Court 01/28/20
In Re: Rader Bonding Company, Inc.
M2017-01687-SC-R11-CD

We granted this appeal to determine whether a surety remains obligated under a bond agreement entered on the defendant’s arrest for driving under the influence second offense when a subsequent indictment charged the defendant with driving under the influence fourth offense.  We conclude that sureties remain obligated pursuant to Tennessee Code Annotated sections 40-11-130(a)(1), -138(b) and this Court’s holding in Young v. State, 121 S.W.2d 533 (Tenn. 1938).  We hold, therefore, that the trial court did not abuse its discretion when it entered the final judgment of forfeiture against Rader Bonding Company, Inc. (“Rader”) for the total amount of the bond and declined to grant Rader’s motion to alter or amend.  Accordingly, we reverse that portion of the Court of Criminal Appeals’ decision holding that Rader should have been relieved from forfeiture on the $7,500 bond in connection with the defendant’s DUI charge and affirm its conclusion that Rader remains obligated on the $2,500 bond in connection with the defendant’s driving on a revoked license charge.

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Mark J. Fishburn
Davidson County Supreme Court 12/23/19
State of Tennessee v. Reuben Eugene Mitchell
E2017-01739-SC-R11-CD

The defendant, Reuben Eugene Mitchell, was convicted of one count of arson and one count of presenting a false or fraudulent insurance claim.  The Court of Criminal Appeals affirmed the defendant’s arson conviction but reversed his conviction for presenting a false or fraudulent insurance claim.  We granted the State’s application to appeal to address whether the proof at trial was sufficient to support the defendant’s conviction for presenting a false or fraudulent insurance claim.  Our review leads us to conclude that the evidence was sufficient.  Accordingly, we reverse in part the judgment of the Court of Criminal Appeals and reinstate the defendant’s conviction for presenting a false or fraudulent insurance claim. 

Authoring Judge: Justice Roger A. Page
Originating Judge: Judge Steven W. Sword
Knox County Supreme Court 12/20/19
Jeffery Todd Burke v. Sparta Newspapers, Inc.
M2016-01065-SC-R11-CV

This appeal requires us to determine whether the fair report privilege applies to a nonpublic, one-on-one conversation between a newspaper reporter and a detective of a county sheriff’s department, who also served as the public information officer for the sheriff’s department. The plaintiff sued the newspaper alleging that it had published defamatory statements the detective made about the plaintiff during the nonpublic, one-on-one conversation with the reporter. The newspaper moved for summary judgment based on the fair report privilege. The trial court granted the newspaper summary judgment, but the Court of Appeals reversed. We hold that the fair report privilege applies only to public proceedings or official actions of government that have been made public and does not apply to the nonpublic, one-on-one conversation at issue here. On this basis alone we affirm the judgment of the Court of Appeals reversing the trial court’s decision granting the defendant summary judgment and remand to the trial court for further proceedings.  

Authoring Judge: Justice Cornelia A. Clark
Originating Judge: Judge Amy V. Hollars
White County Supreme Court 12/05/19
State of Tennessee v. Michael Eugene Tolle
E2017-00571-SC-R11-CD

This is the third in a succession of three cases concerning Section 5 of the Public Safety Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code Annotated section 39-14-105, the statute providing for grading of theft offenses.  In 2012, before the amended version of the statute took effect, Michael Eugene Tolle, the defendant, pleaded guilty to theft of property in the amount of more than $500 but less than $1,000, a Class E felony at the time of the offense, and he was sentenced accordingly.  In 2017, following the revocation of his probation, the trial court applied the amended version of the statute, which graded theft in the amount of $1,000 or less as a Class A misdemeanor, and imposed a Class A misdemeanor sentence.  The State appealed.  The Court of Criminal Appeals, after determining that it had authority to consider the issue raised by the State, vacated the sentence and remanded for entry of a sentence reflecting his conviction for a Class E felony.  We granted the defendant’s application for permission to appeal in this case in order to consider (1) whether the State had the right to appeal the trial court’s revocation order, and (2) whether the defendant, who was originally sentenced under the prior version of the statute, may benefit from the lesser punishment under the amended version of the theft grading statute following the revocation of his probation.  We conclude that, pursuant to Tennessee Rule of Criminal Procedure 35, the intermediate appellate court acquired jurisdiction of the State’s claim when the defendant, in effect, filed a Rule 35 motion for reduction of sentence.  In addition, while we agree with the Court of Criminal Appeals’ determination that the Criminal Savings Statute applies to the amendments to Tennessee Code Annotated section 39-14-105, we also agree with its ultimate conclusion that the trial court exceeded its authority in modifying the offense class and sentence pursuant to the amended version of the statute following the revocation of his probation.  We, therefore, affirm the judgment of the Court of Criminal Appeals and remand to the trial court for the entry of a modified judgment consistent with this opinion.

Authoring Judge: Justice Roger A. Page
Originating Judge: Judge Bobby R. McGee
Knox County Supreme Court 11/27/19
State of Tennessee v. Ashley N. Menke
M2017-00597-SC-R11-CD

This appeal concerns Section 5 of the Public Safety Act of 2016, which took effect on January 1, 2017, and amended Tennessee Code Annotated section 39-14-105, the statute providing for grading of theft offenses.  In 2016, before the amended statute took effect, Ashley N. Menke, the defendant, entered a guilty plea without a recommended sentence for, among other things, theft of property in the amount of $1,000 or more but less than $10,000, a Class D felony at the time of the offense.  In sentencing the defendant after the amendment’s effective date, the trial court applied the amended version of the statute, which graded theft in the amount of $1,000 or less as a Class A misdemeanor, and sentenced the defendant accordingly for her theft of exactly $1,000.  The State appealed, and the Court of Criminal Appeals vacated the sentence and remanded to the trial court for resentencing within the applicable range for a Class D felony and consecutive alignment with the sentences for some of the defendant’s other charges.  We granted the defendant’s application for permission to appeal in this case with direction to the parties to particularly address the following issues: (1) whether the State was entitled to pursue an appeal as of right from the trial court’s decision, and (2) whether the Criminal Savings Statute, Tennessee Code Annotated section 39-11-112, should apply to the amendments of the theft grading statute.  We conclude that the State had a statutory right to appeal the sentence pursuant to Tennessee Code Annotated section 40-35-402(b)(1).  We further conclude, unlike the Court of Criminal Appeals, that the Criminal Savings Statute applies to the amendments to Tennessee Code Annotated section 39-14-105.  Thus, the amended theft grading statute was appropriately applied by the trial court even though the offense occurred before the amendment’s effective date.  Therefore, the judgment of the Court of Criminal Appeals is affirmed in part and reversed in part, and the judgment of the trial court is affirmed.

Authoring Judge: Justice Roger A. Page
Originating Judge: Judge Joe H. Thompson
Sumner County Supreme Court 11/27/19