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Posted by: Karen Belcher on Jul 1, 2021

MURPHY, Circuit Judge. It has been almost a century since Congress enacted the Federal Arbitration Act. Yet this case suggests that the existing caselaw still leaves unclear how a defendant should go about raising an arbitration defense in a pending suit. Timothy Boykin filed an employment suit against Family Dollar Stores. Asserting that Boykin “e-signed” an arbitration contract covering his claims, Family Dollar moved to compel arbitration and dismiss Boykin’s complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3). The district court instead treated the motion as one for failure to state a claim under Rule 12(b)(6). But it relied on substantial outside-the-complaint evidence, rejecting Boykin’s sworn denial that he e-signed any contract as “self-serving.” The court dismissed Boykin’s suit and compelled arbitration.

We reverse. Although the Federal Arbitration Act requires a court to summarily compel arbitration upon a party’s request, the court may do so only if the opposing side has not put the making of the arbitration contract “in issue.” 9 U.S.C. § 4. The district court in this case should have evaluated whether Boykin adequately challenged the making of the contract using the standards that apply on summary judgment. And Boykin’s evidence created a genuine issue of fact over whether he electronically accepted the contract or otherwise learned of Family Dollar’s arbitration policy. Although his affidavit denying that he accepted the contract may have been “self-serving,” that description alone does not provide a valid basis to ignore it.

Posted by: Karen Belcher on Jul 1, 2021

The defendant, Chad M. Varnell, appeals the order of the trial court revoking his probation and ordering him to serve his original eight-year sentence in confinement. Upon our review of the record and the parties’ briefs, we reverse the judgment of the trial court and remand for a new hearing.

Posted by: Karen Belcher on Jul 1, 2021

This health care liability action arises from injuries suffered by a minor, Miyona Hyter, during her birth. Miyona Hyter, a minor by and through her next friend and mother, Brittany Borngne (“Plaintiff”) sued, among others, Dr. Michael Seeber who delivered the child via cesarean section and certified nurse midwife Jennifer Mercer who assisted with the birthing process. Plaintiff alleged that Nurse Mercer was negligent by failing to recognize concerning signs on the fetal monitoring strip and by failing to call Dr. Seeber for assistance sooner than she did. The Circuit Court for Hamilton County (“the Trial Court”), by agreed order, granted Dr. Seeber partial summary judgment on all claims of direct negligence against him; he remained in the case as a defendant only upon Plaintiff’s theory that he was vicariously liable for Nurse Mercer’s actions as her supervising physician. During his deposition, Dr. Seeber declined to answer questions that he argued required him to render an expert opinion regarding Nurse Mercer’s care during times that Dr. Seeber was not present and had no involvement in Plaintiff’s care. The Trial Court declined to require Dr. Seeber to answer questions that “call[] for an opinion by Dr. Seeber that asks him to comment on the actions of other healthcare providers and does not involve his own actions, as required by Lewis v. Brooks,” 66 S.W.3d 883, 887-88 (Tenn. Ct. App. 2001). After Nurse Mercer’s deposition, she submitted an errata sheet that substantively altered her answers to some of the questions. Plaintiff moved to suppress the errata sheet, arguing that Tenn. R. Civ. P. 30.05 does not allow a witness to make substantive changes to her deposition testimony. The Trial Court denied the motion but allowed Plaintiff the opportunity to reopen Nurse Mercer’s deposition and to fully cross-examine her at trial about the changes. The case proceeded to trial before a jury, which returned a verdict in Defendants’ favor. We hold that the Trial Court erred by refusing to order Dr. Seeber to answer the questions at issue in his deposition. Deeming this case distinguishable from Lewis v. Brooks, we reverse the Trial Court in its declining to compel Dr. Seeber to testify concerning the conduct of his supervisee, Nurse Mercer, and remand for a new trial. We also reverse the Trial Court in its decision to exclude proof of Miyona Hyter’s pre-majority medical expenses. We affirm the Trial Court as to the remaining issues.

Posted by: Karen Belcher on Jul 1, 2021

Plaintiff appeals from the trial court’s decision to deny his motion for discovery sanctions after granting a motion for summary judgment filed by the defendants. Discerning no reversible error, we affirm.

Posted by: Karen Belcher on Jul 1, 2021

As issues regarding contempt and attorney fees remain pending, the order appealed from does not constitute a final appealable judgment. As such, this Court lacks jurisdiction to consider this appeal.

Posted by: Karen Belcher on Jun 29, 2021

The Defendant-Appellant, Antonio Robinson, was convicted by a Shelby County jury of aggravated robbery, facilitation of aggravated assault, and criminally negligent homicide in violation of Tennessee Code Annotated sections 39-13-402, 39-11-403, 39-13-102, and 39-13-212. On appeal, the Defendant-Appellant claims: (1) the trial court erred in denying his motion to suppress, and (2) the evidence presented at trial was insufficient to support his convictions. Upon review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Jun 29, 2021

Question 1:

Does Tennessee Code Annotated § 67-4-605(c) require general sessions court clerks to report to the Department of Revenue all general sessions court judges who, pursuant to Tenn. Code Ann. § 40-25-123(b), suspend litigation taxes for indigent criminal defendants?

Opinion 1:

Yes. Tennessee Code Annotated § 67-4-605(c) requires a court clerk, including the clerk of a court of general sessions, to report a judge’s suspension of “any privilege tax on litigation.” The statute contains no exceptions.

Question 2:

If so, how does Tenn. Code Ann. § 67-4-605(b) apply to court clerks if they do not report general sessions court judges who suspend litigation taxes for indigent defendants?

Opinion 2:

Tennessee Code Annotated § 67-4-605(b) has no application to court clerks who do not report a judicial suspension of litigation taxes. Section 67-4-605(b) applies only to a clerk who fails or refuses to collect and pay over to the Department of Revenue litigation taxes that have not been judicially suspended, in which case it imposes liability for the tax on the clerk. Since § 67- 4-605(b) does not deal with a clerk’s failure to report a judicial waiver of a litigation tax, it simply has no application to general sessions court clerks who do not report a judicial waiver of litigation taxes for indigent defendants.

 

Posted by: Karen Belcher on Jun 29, 2021

GRIFFIN, Circuit Judge. Azam Rahimi believes Rite Aid Corporation defrauded the federal government of hundreds of millions of dollars by overcharging it for generic prescription drugs, so he filed suit under the False Claims Act (FCA) and several state-law analogues. The district court dismissed Rahimi’s FCA claim under the Act’s public-disclosure bar and declined to exercise supplemental jurisdiction over his remaining claims. We agree and affirm.

Posted by: Karen Belcher on Jun 29, 2021

The Defendant, Willie Austin Davis, was convicted by a Davidson County Criminal Court jury of aggravated criminal trespass, a Class A misdemeanor, based on his entering the property of a Nashville church from which he had been banned. On appeal, the pro se Defendant argues that he was denied a fair trial due to the trial judge’s failure to disclose his relationships with former and current members of the church and others. Following our review, we affirm the judgment of the trial court.

Posted by: Karen Belcher on Jun 29, 2021

To collect on its judgment, a judgment creditor served a garnishment on a bank. The garnishee bank initially responded that it held funds belonging to the judgment debtor, a limited liability company. Later, the bank responded “no accounts found.” The bank had two deposit accounts purportedly belonging to a different entity that shared the same name, address, and principal as the judgment debtor. The bank also had an escrow account of which the judgment debtor was a beneficiary. The judgment creditor argued that these three accounts were subject to the garnishment. The trial court disagreed. We affirm.


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