Court adopts rules revisions

The Tennessee Supreme Court has adopted extensive revisions to the state rules of practice procedure and evidence effective July 1, 2009, subject to ratification by the Tennessee General Assembly. The series of orders entered Jan. 8 were received today by the TBA. The amendments to the Rules of Appellate Procedure, Civil Procedure, Criminal Procedure, Juvenile Procedure and Rules of Evidence come as a result of the rules commission process employed by the court in developing and vetting rules proposals. Among the revisions to the rules are new rules on the discovery of electronically-stored information, the so-called "e-discovery amendments." In addition, a part of the package is a rule amendment recommended by the TBA as part of its 4ALL campaign. This proposal, developed by Danny Van Horn, makes explicit permission for residual funds from class action cases to be granted to the Tennessee Voluntary Fund for Indigent Civil Representation (TVFICR). The TVFICR is known colloquially as the cy pres fund.

Review all of the rules revisions

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01 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
08 - TN Court of Appeals
01 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

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Court: TSC


Catherine Y. Brockenborough, Donald E. Dawson, and Sara Willingham, Nashville, Tennessee, for the appellant, James A. Dellinger.

Robert E. Cooper, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E. Davidson, Assistant Attorney General; Jennifer L. Smith, Associate Deputy Attorney General; Michael L. Flynn, District Attorney General; and Rocky H. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

Wade V. Davies, Knoxville, Tennessee, for the amicus curiae, Tennessee Association of Criminal Defense Lawyers.

Patricia Head Moskal, Nashville, Tennessee, and Meir Feder, New York City, New York, for the amicus curiae, The Innocence Project.


We granted this appeal to decide an issue of first impression: whether a freestanding claim of actual innocence is cognizable in an initial petition for post-conviction relief under the Tennessee Post- Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 through -122. We have also chosen to discuss the petitioner's ineffective assistance of counsel claims and the burden of proof for prevailing on such claims. In 2003, the petitioner filed a petition for post-conviction relief. The post-conviction trial court denied his petition, and the Court of Criminal Appeals affirmed. The Court of Criminal Appeals held that: (1) a freestanding claim of actual innocence is not cognizable in an initial petition for post-conviction relief; (2) the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims; and (3) the petitioner was not denied the effective assistance of counsel. We hold that a claim of actual innocence based on new scientific evidence is cognizable in an initial petition for post-conviction relief. We affirm the Court of Criminal Appeals' denial of relief, however, because the petitioner has not met his burden of proof to support such claim. We also hold that the post-conviction trial court applied the correct burden of proof to the petitioner's ineffective assistance of counsel claims. To provide clarity in the law, however, we concurrently amend Tennessee Supreme Court Rule 28 section 8(D)(1). Finally, we hold that the petitioner was not denied the effective assistance of counsel. We affirm the judgment of the Court of Criminal Appeals in all other respects.


Court: TWCA


Kenneth Marshall Switzer, Nashville, Tennessee, for the appellant, Saturn Corporation.

Ann Buntin Steiner, Nashville, Tennessee, for the appellee, Danny Ray Gibbs, Sr.

Judge: KOCH

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. section 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. It involves the efforts of a retired employee of an automobile manufacturer to obtain workers' compensation benefits for an injury to his right shoulder that was diagnosed after his retirement and also to obtain reconsideration of an earlier award of workers' compensation benefits for a work-related injury to his left shoulder. Following a bench trial, the Circuit Court for Williamson County concluded that the retired employee had sustained a compensable injury to his right shoulder and awarded him benefits based on a thirty-two percent permanent partial disability to the body as a whole. The trial court also determined that the employee was neligible for reconsideration of the award for the injury to his left shoulder. On this appeal, the employer takes issue with the award for the injury to the employee's right shoulder, and the employee takes issue with the trial court's refusal to reconsider the award of benefits for the injury to his left shoulder. We have determined that the trial court properly declined to reconsider the award for the injury to the employee's left shoulder. We have also determined that the evidence does not preponderate against the trial court's conclusion that the injury to the employee's right shoulder was work- related. However, we have determined that the trial court erred by failing to limit the award of benefits for the injury to the right shoulder to the cap in Tenn. Code Ann. section 50-6-241(d)(1)(A) (2008).


Court: TWCA


Harry F. Burnette and Doug S. Hamill, Chattanooga, Tennessee for the appellant, Stephen DeFriese.

David F. Hensley, Chattanooga, Tennessee for the appellee, Southern Cellulose Products, Inc.

Judge: WADE

After the employee suffered an employment-related injury to his right extremity, for which he was entitled to workers' compensation, the employer filed suit contesting any award of benefits for the employee's claim that the injury aggravated his pre-existing bipolar disorder. The trial court awarded compensation for the injury to the right extremity, capped at 1.5 times the impairment rating, but denied compensation for aggravation of the pre-existing condition. The employee appealed. The appeal was referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for a hearing and a report of findings of fact and conclusions of law. The cause is remanded with instructions for a determination of whether the trial court had subject matter jurisdiction.


Court: TCA


Grant C. Glassford, Brentwood, TN, for Appellant.

Thomas F. Bloom, Nashville, TN; Larry H. Hagar, Madison, TN, for Appellee.


In this appeal, we are asked to determine whether the trial court erred in awarding Wife $5,015.00 as her share of the appreciation of the marital home. We are also asked to determine whether the trial court erred in awarding Husband $18,780.00 for attorney's fees when he made no claim for alimony, and failed to show both his need for such an award and Wife's ability to pay. We reverse the circuit court's award of $5,015.00 to Wife, and find that Wife is entitled to no appreciation of the marital home as she made no "substantial contribution to its preservation and appreciation" such that the appreciation became marital property. We affirm the circuit court's award of $18,780.00 to Husband for attorney's fees.


Court: TCA


Betty Lou Taylor, Hartsville, TN, for Appellant.

Sue Hynds Dunning, Gallatin, TN, for Appellee.

Bruce N. Oldham, Gallatin, TN, for Appellee.


This case involves the construction of a holographic will. Decedent died in 2006, and was survived by her four children. Her will states that one of her sons is to "have" the "home place." Two of the other siblings, the Appellees, contest the trial court's determination that the Decedent's will transfers fee simple title in the Decedent's real property owned at the time of her death to her son. Finding no error, we affirm.


Court: TCA


Betty Lou Graham, Jasper, Tennessee, Pro Se Appellant.

Scott N. Davis, Chattanooga, Tennessee for the Appellee, Board of Directors Lake Park Condominium Association.


Betty L. Graham ("Plaintiff") sued the Board of Director Lake Park Condo-Signal View ("Defendant") in General Sessions Court for Hamilton County. The General Sessions Court granted summary judgment to Defendant on eight of Plaintiff's ten claims and later dismissed the remaining two claims with prejudice. Plaintiff appealed to the Circuit Court for Hamilton County. The Circuit Court granted partial summary judgment to Defendant on the same eight claims as the General Sessions Court had but did so on the sole basis that the appeal to the Circuit Court was untimely as to those eight claims and, subsequently granted Defendant's motion to dismiss the remaining two claims. Plaintiff appeals to this Court. We reverse the grant of partial summary judgment on the eight claims, and affirm the dismissal of the other two claims.

IN RE: ADOPTION OF T.L.H., A Minor Child

Court: TCA


James Y. Ross, Sr., Waynesboro, TN, for Appellant.

Paul A. Bates, Lawrwenceburg, TN, for Appellees.


This is an appeal from an order terminating a father's parental rights and granting a stepfather's petition for adoption. Because the final order does not contain sufficient findings of fact and conclusions of law justifying the trial court's decision, we vacate the order and remand for further proceedings.


Court: TCA


Robin L. Miller and R. Wayne Peters, Chattanooga, Tennessee, for the appellant, Marta Molchko Myers.

Randall W. Morrison, Tullahoma, Tennessee, for the appellee, Phillip Dwight Myers.


In this divorce action, Wife appeals the trial court's classification and division of the marital estate and the decision to not award her alimony. The principal marital asset is Husband's interest in the business known as Myers Trucking; however, it was disputed whether the business and the commercial trucks used in the business were solely owned by Husband or whether the business was a partnership in which he only had a 50 percent interest. It was also disputed whether many of the business' valuable assets were owned by his parents. The trial court awarded Myers Trucking to Husband and awarded Wife $125,000 for her marital interest in the business without determining whether Husband solely owned the business or whether the business was a partnership equally owned by Husband and his father and without determining whether the business or the parents owned the trucks used in the business. We have determined the trial court failed to determine the ownership and value of the disputed assets and to value the marital property; therefore, the court could not have made an equitable distribution of the marital estate. We have also determined that the record is inadequate for us to determine these issues on appeal. Accordingly, we reverse the judgment of the trial court and remand for further proceedings.


Court: TCA


Jeffrey L. Levy, Nashville, Tennessee, for the appellant, Marian Neamtu.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Iveta Neamtu.


This is an appeal from a divorce action in which both Husband and Wife challenge various findings and rulings of the trial court. Husband appeals claiming the trial court erred in not finding Wife a non-credible witness, finding Wife is unable to work due to a lengthy illness, awarding Wife alimony in futuro, and requiring him to pay Wife's COBRA insurance. Wife appeals claiming that the trial court erred in its division of marital property and the amount of alimony awarded. We affirm the trial court's decision in all respects.


Court: TCA


Mark K. Green, Columbia, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services.

Dinah L. Clark, Guardian Ad Litem.


The trial court terminated Mother's parental rights on the grounds of abandonment for failure to provide a suitable home, non-compliance with the permanency plan, and persistence of conditions. We reverse.


Court: TCA


Roy P. Neuenschwander, Knoxville, Tennessee, for appellant, Jefferson Lee Young.

R. Kim Burnette, Knoxville, Tennessee, for appellee, Enerpac.


Plaintiff filed this action after the statute of limitations had run, and defendant moved to dismiss. Plaintiff attempted to invoke the discovery rule, claiming that his injuries had required surgery and he was sedated for a few days following the accident. The Trial Court granted the defendant summary judgment and plaintiff has appealed. We affirm the Trial Court on the grounds that the discovery rule was not applicable to the circumstances of this case.


Court: TCCA


J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Brittany Ann Kiestler.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; D. Michael Dunavant, District Attorney General; and P. Neal Oldham, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

After a bench trial, the Lauderdale County Circuit Court convicted the appellant, Brittany Ann Kiestler, of two counts of contributing to the delinquency of a minor and ordered her to serve eleven months, twenty-nine days on supervised probation. On appeal, the appellant contends that the evidence is insufficient to support her convictions. Upon review, we affirm the judgments of the trial court.


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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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