TBA Law Blog

Posted by: Christy Gibson on Jan 16, 2014

Tennessee Supreme Court decisions:

1.  Jim Hammond, Sheriff of Hamilton County v. Chris Harvey, 410 S.W.3d 306 (Tenn. 2013) (August 13, 2013).  Authority of Sheriff=s Civil Service Board.  Appeal from Hamilton County Chancery Court, Chancellor Brown.  Although T.C.A. '8-8-409 authorizes the Sheriff=s Civil Service Board to hear and determine appeals and complaints, it does not empower the Board with unlimited authority to order any remedy it chooses.  Absent proof that the sheriff violated state law or the civil service manual, the specific remedy of salary equalization is beyond the Board=s statutory authority.

2.  State v. Merriman, 410 S.W.3d 779 (Tenn. 2013) (August 16, 2013).  Dismissal for loss of evidence.  Appeal from Warren County Criminal Court, Judge Stanley.  This appeal involved a criminal case of DUI with a child under 18 years of age, Reckless Driving, Driving on a Suspended License, Violation of Implied Consent and Reckless Engagement with a Motor Vehicle.  The arresting officer initially testified at preliminary hearing that the incident at the stop was recorded.  However, the recording was lost before trial and never disclosed in the State=s discovery.  Defendant=s motion to dismiss was granted by the trial court due to the lost video tape.  State appealed.  The Court of Appeals provides a detailed analysis of the Ferguson analysis required to be used by the courts when ruling on a motion to dismiss for failure to preserve evidence and the applicability for hearing such motions filed pre-trial.  Applying a materiality standard, the Court found that the video recording had Apotentially@ exculpatory value and that therefore the State=s negligence for losing it is presumed.  The Court also found that there was no evidence comparable to the video recording which could have been obtained through other means. Since there was no blood or breath test results available, and no eyewitness to the stop, the only evidence of the defendant=s stop was the defendant=s word against the officer=s.  The trial court did not abuse its discretion in dismissing the DUI, reckless endangerment and reckless driving.

3.  Meals v. Ford Motor Co., 2013 WL 4673609 (TSC) (August 30, 2013).  Product liability/remittitur.  Appeal from Shelby County Circuit Court, Judge Fields.   Although the Court of Appeals has authority to suggest or require remittitur even though appellant does not request it, when the trial judge has approved the verdict sitting as thirteenth juror, in this case the court erred in remitting the verdict.  The Court reached its decision by considering the strongest legitimate view of all the material evidence supporting the verdict and assuming its truth, allowing all reasonable inferences and discarding any to the contrary.  The jury=s verdict was reinstated.

4.  State v. Smith, 2013 WL 4804845 (TSC) (September 10, 2013).  Communication by juror with witness during trial.  Appeal from Davidson County Criminal Court, Judge Norman.  The State=s medical examiner had been trained at Vanderbilt, and three seated jurors worked at Vanderbilt Medical Center but were not asked during voir dire if they knew the medical examiner.  During deliberations one of the jurors contacted the medical examiner using Facebook e-mail.  The contact was reported to the judge who then informed the attorneys.  Defendant was found guilty and his motion for new trial, based in part on the disallowance of questioning the juror about the Facebook exchange with the State=s witness, was denied.  The Court ruled that when the trial judge received competent and reliable evidence of extra-judicial communication between a juror and State witness, it was required to immediately conduct a hearing in open court to obtain all of the relevant surrounding facts and most likely to hear testimony about the relationship of the juror and witness and the effect of the communication on the juror=s ability to serve and any extraneous information the juror shared with the other jurors.  The case was remanded for hearing.

5.  Fair v. Cochran, 2013 WL 5005961 (TSC) (September 12, 2013).  Service of Process/Tenn. R. Civ. Pro. 3 and 4.03.  Appeal from Knox County Circuit Court, Judge Workman.  Suit for negligence in an auto accident was filed four months after the accident and process was issued upon filing.  Thirteen months after the suit was filed, the defendant moved to dismiss, arguing that he had not been served with process and plaintiff had failed to reissue process with one year of issuance of the original summons. Plaintiff admitted that the return of proof of process had not been filed with the court, but a person claiming to be defendant had been served nine days after the original summons had been issued.  The trial court dismissed the suit stating that the summons was not returned until 412 days after issuance.  Rule 3 does not require the return of proof of service of process, but only the issuance or service of process within 90 days to effect commencement of the suit to toll a statute of limitations.  Rule 4.03 does not require the return of proof of service of process to be filed within 90 days and does not define its requirement of Aprompt@ proof of service.  Nonetheless, nothing in Rule 4.03 implies that failure to promptly provide proof of service can render the commencement of the suit ineffective to toll the statue of limitations.  Case was remanded to the trial court for determination of whether process was served within 90 days of issuance of process.  If so, the suit was not barred by the statute of limitations.

6.  Armbrister v. Armbrister, 2013 WL 5688775 (TSC) (October 21, 2013).  Proof required for modification of parenting plan.  Appeal from Greene County Chancery Court, Chancellor Frierson.  The Tennessee Supreme Court overruled the Tennessee Court of Appeals thereby reinstating the trial court=s ruling that a parent seeking modification of a residential parenting plan is not required to prove that the facts related to the request for modification were unforeseeable at the time the parenting plan sought to be modified was entered.  A material change in circumstances affecting the children=s best interests must still be found for a modification to be justified and then the court must go through the process outlined in T.C.A.  '36-6-404(b).

Tennessee Courts of Appeal decisions:

1.  Williams v. City of Burns, Tennessee, 2013 WL 4068180 (Tenn. Ct. App.)(August 12, 2013).  Retaliatory discharge.  Appeal from Dickson County Circuit Court, Judge Burch.  This case was filed under the Tennessee Public Protection Act T.C.A. '50-1-304 (AWhistleblower Act@).  An officer claimed he was terminated because he had reported the sheriff to the Mayor for illegal activity (for requiring the officer to change citations to warnings).  The sheriff claimed the officer was fired for failure to follow the chain of command, ie. filing a grievance.  However, the sheriff being the employee who acted illegally would have meant that in order to comply with the chain of command the report would have gone to the person who acted illegally, making it likely that the proper chain of command never would have gotten to function. The reasons given for the officer=s termination were found to be pretextual and the trial court=s judgment was reversed.

2.  Tennessee Asphalt Co. v. Fultz, 2013 WL 5310527 (Tenn. Ct. App.)(September 20, 2013).  Personal liability for signature on contract.  Appeal from Knox County Chancery Court, Chancellor Moyers.  Defendant signed contract using his personal name, but intending it as a representative of his company.  Plaintiff contractor sent change orders and bills to the company and several documents listed the company as the property owner.  Defendant became unhappy with contractor=s work and refused to pay the remaining contractual fees which prompted the suit against defendant individually.  The Court determined that the trial court properly allowed parole evidence in the form of the site plans referenced in the contract and the subsequent change orders which identified the company as the property owner.

3.  Burchfield v. Renfree, 2013 WL 5676268 (Tenn. Ct. App.) (October 18, 2013).   Improper administration of trial.  Appeal from Knox County Circuit Court, Judge Wimberly.  This appeal resulted from a jury verdict for a doctor in a medical malpractice case.  The appeal raised numerous issues alleging errors in the administration of the trial.  The Court of Appeals reversed the judgment and ordered a new trial.  Ex parte communications between the judge and jury, the judge and defense counsel, and defense counsel and a juror=s husband were not found to constitute reversible error.   Reversible error was found when the trial court limited cross examination of the defendant doctor to 30 minutes since the plaintiff=s had already played portions of the doctor=s videotaped deposition during their case in chief.  The judge=s disparaging comments toward plaintiff=s counsel and his presentation of proof in the presence of the jury was also deemed to constitute reversible error.

4.  Raley v. City of Knoxville, 2013 WL 5874768 (Tenn. Ct. App.) (October 31, 2013). GTLA/Public Duty Doctrine.  Appeal from Knox County Circuit Court, Judge Workman.  Suit against the City of Knoxville for a tree which fell from private property onto a city street, killing a passing motorist.  Plaintiff relied on the exception of the immunity granted in GTLA for injury caused by a Adefective, unsafe or dangerous condition of any street owned or controlled by a government entity.@  T.C.A. '29-20-203(a).  Where the city had no ownership of the tree and there is no allegation that the tree was obstructing the roadway, the city had no right or duty to remove it from private property, even if the city had notice of the tree=s condition (leaning toward the street with a cracked trunk).  Immunity found under the GTLA pretermits applicability under the public duty doctrine. 


Editor:  Shelly Wilson, Robertson, Overbey, Wilson & Beeler