Supreme Court seeks comment on Rule 31 revisions

The Tennessee Supreme Court today published for comment revisions to Rule 31 on court-annexed alternative dispute resolution. The proposal made by the court’s ADR Commission would require Rule 31 mediators who are licensed by another agency to be in good standing with that agency; establish a new designation for Rule 31 family mediators who are "Specially Trained in Domestic Violence"; provide for Rule 31 mediator designation for sitting judges upon retirement; permit non-lawyer mediators to use continuing education credits for licensing by another agency to satisfy mediation training requirements; and, establish new procedures for revocation and suspension of Rule 31 designations. Comments are due not later than Aug. 21. See the order and the proposed rule:

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


Court: TSC


Barry C. Scheck, Vanessa Potkin, and Colin Starger, New York, New York, and Paul R. Bottei and Kelley J. Henry, Nashville, Tennessee, for the appellant, Sedley Alley.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General, for the appellee, State of Tennessee.


In 1985, the Petitioner, Sedley Alley, was convicted of aggravated rape, kidnapping, and first degree murder. For the capital crime of first degree murder, the jury imposed the sentence of death. Petitioner Alley’s execution was scheduled for May 17, 2006; however, on May 16, 2006, the Governor, upon recommendation of the Tennessee Board of Probation and Parole, granted a fifteen-day reprieve to allow the Petitioner the opportunity to petition the trial court for DNA testing of “those additional items that were not included in his 2004 petition.” On May 19, 2006, Petitioner Alley filed a petition to compel testing of evidence under the Post-Conviction DNA Analysis Act of 2001. The post-conviction court denied the petition on May 31, 2006. Our supreme court, on June 2, 2006, rescheduled Petitioner Alley’s execution for June 28, 2006. See State v. Sedley Alley, No. M1991-00019-SC-DPE-DD (Tenn., at Nashville, June 2, 2006) (order). The Petitioner sought and was granted expedited review by this Court. Upon review of the record and the responses by both parties, we affirm the judgment of the post-conviction court.


Corrected. See Order issued 6-22-6: "The opinion shall be revised to eliminate references to the petitioner's effort to withdraw an unrelated post-conviction action."

Court: TSC


Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Jennifer L. Smith, Associate Deputy Attorney General; William Michael McCown, District Attorney General (Holton); and John W. Carney, Jr., District Attorney General, and Arthur Bieber, Assistant District Attorney General (Reid), for the Appellant, State of Tennessee.

Donald E. Dawson, Post Conviction Defender, and Kelly A. Gleason, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Daryl Keith Holton.

Kelly A. Gleason, Assistant Post-Conviction Defender, and Nicholas D. Hare, Assistant Post-Conviction Defender, Nashville, Tennessee, for the Appellee, Paul Dennis Reid, Jr.


We granted these appeals to determine whether a post-conviction trial court has the authority to consider petitions that are filed by the Post-Conviction Defender but are not verified under oath or signed by the petitioners. In Holton v. State, the post-conviction trial court entered an order staying Holton’s execution, appointing counsel, and requiring Holton to meet with counsel and a court-appointed mental health expert. In Reid v. State, the post-conviction trial court entered an order staying Reid’s execution, appointing counsel, and staying the post-conviction proceedings. In both cases, the Court of Criminal Appeals denied the State’s application for an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. After reviewing the records and applicable authority, however, we conclude that the post-conviction trial courts did not have the authority to consider the petitions because they had not been signed or verified under oath and because the Post-Conviction Defender did not establish a proper basis to initiate the proceedings as “next friend.” Accordingly, the post-conviction trial courts’ orders are vacated, and the petitions are dismissed.

Order correcting opinion.


Court: TWCA


Phillip R. Newman, Franklin, Tennessee, for appellant, Susan V. Cespedes.

Richard C. Mangelsdorf Jr., Nashville, Tennessee, for appellees, Sodexho Marriott Services, Inc., Sodexho, Inc., and Insurance Co. of the State of Pennsylvania.


This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the supreme court of findings of fact and conclusions of law. The employee appeals the trial court’s finding that the preponderance of the evidence failed to prove that the work accident caused the injury to her lower back. The judgment of the trial court is affirmed.


Court: TWCA


Jeffrey C. Taylor, Morristown Tennessee, attorney for appellant, Plus Mark, Inc.

J. Russell Pryor, Greeneville, Tennessee, attorney for appellee, Cynthia Fisher.


This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The trial court awarded the Employee a 50 percent vocational disability for bilateral carpal tunnel syndrome. The Employer appealjudgment of the trial court is affirmed.


Court: TCA


Louis W. Oliver, III, Hendersonville, Tennessee, for the appellant, Bobby A. Morris.

W. Bryan Brooks, Parks T. Chastain, and Scott T. Foster, Nashville, Tennessee, for the appellee, Lee’s Home Centers, Inc.


This appeal involves a dispute between a contractor and a material supplier regarding engineered wood I-joists. The contractor refused to pay for the I-joists because he believed they contributed to a structural failure in a house he had built. The supplier filed suit against the contractor in the Chancery Court for Robertson County. The contractor filed a counterclaim for breach of implied warranty of fitness for a particular purpose. The supplier moved for summary judgment on its claim and on the contractor’s counterclaim. The trial court granted the supplier’s motion and entered a $22,917.91 judgment for the supplier. The contractor takes issue on this appeal only with the dismissal of its counterclaim. We have determined that the trial court erred by dismissing the contractor’s counterclaim because the record contains genuine, material disputes with regard to the facts relevant to the counterclaim.


Corrected. The correction is a misspelled word on page 7.

Court: TCA


J. Mikel Dixon, Knoxville, Tennessee, for the appellant, Connie J. Norris.

Bruce A. Anderson, Knoxville, Tennessee, for the appellee, East Tennessee Children’s Hospital.

Robert H. Watson, Jr. and Nathan D. Rowell, Knoxville, Tennessee, for the appellees, Robert R. Madigan, M.D., and Cameron J. Sears, M.D.

James H. London and Margaret G. Klein, Knoxville, Tennessee, for the appellee, Howard C. Filston, M.D.

Dixie W. Cooper and Amy D. Hampton, Nashville, Tennessee, for the appellee, Donald H. Nguyen, M.D.


This is a medical malpractice case arising out of the postoperative treatment and care of Emit Greg Norris (“the child”), the minor child of Connie J. Norris (“the plaintiff”). At the conclusion of the plaintiff’s case-in-chief, the remaining defendants moved for a directed verdict. The trial court determined that the plaintiff had failed to present a prima facie case of acts or omissions of medical negligence that proximately caused the condition that resulted in the child’s death. Accordingly, the trial court granted the defendants’ motion and dismissed the plaintiff’s case. The plaintiff appeals. We affirm.


Court: TCA


Joel H. Moseley, Sr., Joel H. Moseley, Jr., Nashville, Tennessee, for the appellants, United Imports, Inc. and Farhad Soheilinia.

Charles K. Grant, Mark A. Baugh, Yanika C. Smith, Nashville, Tennessee, for the appellee, Fides Nzirubusa.


The buyer of a used car sued the dealer who sold it to her, alleging that after she paid off the car loan in full, the seller refused to release his lien and give her clear title to the vehicle unless she paid him additional money and persuaded her friends to buy cars from him. For his part, the dealer claimed that the buyer still owed on the car loan, and he denied the other allegations. He also argued that the buyer’s claim under the Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq, was time-barred because it was filed more than five years after she bought the car. After a full hearing on the merits, the trial court ruled for the buyer and held that the seller’s refusal to release his lien amounted to a continuing violation of the Act which prevented the running of the statute of limitations. The court awarded the buyer treble damages and attorney fees, both of which are authorized by the Tennessee Consumer Protection Act. We affirm.


Court: TCCA


Robert Wilson Jones, District Public Defender, Phyllis L. Aluko (on appeal) and Timothy J. Albers (at trial), Assistant Public Defenders, for the appellant, Henry Hawkins.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; William L. Gibbons, District Attorney General; and Alanda Horne Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.


A Shelby Count Criminal Court jury convicted the defendant, Henry Hawkins, of four counts of aggravated robbery, a Class B felony, and the trial court sentenced him as a Range II, multiple offender to seventeen years for each count of aggravated robbery with the first three counts to be served concurrently to one another and consecutively to the fourth count, for an effective sentence of thirty-four years in the Department of Correction. The defendant appeals, claiming (1) that the evidence was insufficient to support the verdict, (2) that the defendant was improperly impeached with a prior conviction, (3) that judicial comments abridged the defendant’s due process and jury trial rights, (4) that the trial court gave improper jury instructions, and (5) that the trial court erred in sentencing the defendant. We conclude that although the trial court erred in failing to charge attempted aggravated robbery, attempted robbery, aggravated assault, and assault as lesser included offenses of aggravated robbery, the error was harmless beyond a reasonable doubt. We affirm the judgments of the trial court.

Municipal Resident’s Eligibility for Enrollment in County School

TN Attorney General Opinions

Date: 2006-06-21

Opinion Number: 06-102


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