For the first time in history, on Wednesday the Tennessee Supreme Court will hold an oral argument by video conference. This new approach is part of efforts by courts at all levels to find innovative and creative ways to continue to conduct essential court business across the state. All of these efforts are part of the commitment to keep courts open during the COVID-19 pandemic, while balancing that priority with concerns for the health and well-being of all litigants, attorneys, judges, and employees of the court system. The first case listed below will be heard by video conference. The last three cases have been submitted on briefs by agreement of the parties. The details of the cases are as follows:
Lataisha M. Jackson v. Charles Anthony Burrell et al.– This healthcare liability action arose when the plaintiff, Lataisha Jackson, alleged that an employee, Charles Burrell, at Gould’s Salon Inc. d/b/a Gould’s Day Spa & Salon (“Gould’s”) sexually assaulted her while she was getting a massage. Ms. Jackson filed claims of vicarious liability, negligence, and negligent supervision, retention, and training against Gould’s.
Gould’s filed a motion for summary judgment claiming, in part, that the negligence claims could not survive because Ms. Jackson failed to file a certificate of good faith, which is a pre-suit notice requirement under the Tennessee Health Care Liability Act. In opposition, Ms. Jackson argued that the certificate of good faith was not required by law under the common knowledge exception to the THCLA.
The trial court granted Gould’s motion for summary judgment based on Ms. Jackson’s failure to file the certificates of good faith and dismissed the claims with prejudice. Ms. Jackson appealed to the Court of Appeals but did not directly raise the issue of whether the common knowledge exception applied in this case. Gould’s, however, argued the issue in its brief.
A majority of the intermediate court affirmed the grant of summary judgment in favor of Gould’s and held that the common knowledge exception did not apply and that, even if it did, Ms. Jackson waived the argument by not raising it as an issue on appeal. The dissent determined that the argument regarding the common knowledge exception was not waived and that the exception applied as related to Ms. Jackson’s negligence claims.
On appeal to the Tennessee Supreme Court, Ms. Jackson contends that the issue of whether the common knowledge exception applies was not waived because she argued it in front of the trial court, Gould’s argued the issue in its brief on appeal, and Gould’s never raised the issue of waiver. Additionally, she argues that the common knowledge exception exempts her from having to file a certificate of good faith because, under the THCLA, the certificate is required for medical negligence and this a case of negligent supervision and retention of an employee.
Gould’s argues that Ms. Jackson was required to file a certificate of good faith because the legislative intent shows that it is required for all health care liability claims, not just “medical” claims. Additionally, Gould’s contends that Ms. Jackson’s “skeletal” arguments in the trial court did not satisfy her burden of preserving the issue for appeal. Gould’s also contends that even if the argument is not waived, the common knowledge exception does not apply in this case because a determination of whether Gould’s acted negligently in hiring, retaining, or supervising an employee is not a matter within the common knowledge of a layperson.
Marty Holland v. State of Tennessee –The defendant, Marty Holland, pled guilty to attempted first-degree murder and especially aggravated robbery. The trial court sentenced the defendant to 17 years on each charge and ran the sentences concurrently with each other. According to the plea agreement, the trial court ordered the 17-year sentence to run concurrently with a federal sentence on an unrelated bank robbery charge and consecutively to an unrelated state theft charge.
The defendant filed for post-conviction relief, raising multiple issues, but he did not raise issues related to his state sentence running concurrently with his federal sentence. The post-conviction court denied the defendant’s petition. The defendant appealed the denial to the Court of Criminal Appeals on the sole issue that he received ineffective assistance of counsel. The Court of Criminal Appeals affirmed the post-conviction court’s denial of relief based on the issues raised in the petition but remanded the case to the post-conviction court for a hearing to determine “whether the [defendant] was advised of the consequences of entering a guilty plea based upon the agreement that his state sentence be served concurrently with a prior federal sentence,” an issue not raised in the petition or on appeal.
The Court of Criminal Appeals reasoned that the Board of Prisons has limited circumstances under which it allows a federal inmate to serve all or part of his or her sentence in state custody, and the record on appeal was devoid of federal documentation acknowledging that the defendant’s state and federal sentences would be served concurrently. On appeal to the Tennessee Supreme Court, the State argues that the Court of Criminal Appeals exceeded its authority in remanding this case to the post-conviction court for consideration of an issue that was not raised by the petitioner. The defendant argues that the appellate court had the authority to address the issue under the Rules of Appellate procedure and under the plain error rule. Furthermore, the defendant contends that allowing the post-conviction court to hold a hearing and address this “glaring error” would prevent needless litigation and promote fairness, as the post-conviction proceeding is the defendant’s only opportunity to challenge his guilty plea.
Antonio Howard v. State of Tennessee– In this criminal case, the defendant was convicted by a jury of especially aggravated robbery, six counts of aggravated rape, two counts of aggravated robbery, and three counts of aggravated assault. After trial, his counsel failed to file a timely motion for new trial. As a result, three of the five issues raised in his untimely filed motion were considered waived on direct appeal. Only two of the five issues, sufficiency of the evidence and sentencing, were available for plenary review on appeal because these claims are not required to be raised in a motion for new trial. The Court of Criminal Appeals declined to review the three other issues under the plain error doctrine and affirmed the defendant’s conviction and sentence.
The defendant then filed a petition for post-conviction relief, which claimed that his trial counsel was ineffective for failing to file a timely motion for new trial, which impeded his right to full appellate review. The post-conviction court acknowledged trial counsel’s deficiency but held that, pursuant to the standard in Strickland v. Washington, 466 U.S. 668 (1984), the defendant failed to prove he actually was prejudiced by this deficiency given the overwhelming proof of his guilt at trial. The post-conviction court denied the defendant’s petition.
On appeal, the Court of Criminal Appeals reversed, relying on Tennessee Supreme Court precedent, stating that there is a presumption of prejudice when the defendant indicates a desire to appeal and trial counsel fails to file a timely motion for new trial. The State appealed to the Tennessee Supreme Court and argues that the per se rule adopted by the Court should be overturned and that the standard in Strickland should apply when a motion for new trial is untimely. In such a case, according to the State, the defendant is not constitutionally deprived of an appeal, even though the scope of his direct appeal may be limited. Additionally, the State argues that Tennessee law and other state jurisdictions support applying the Strickland standard in this context to determine prejudice. The defendant contends that the presumption of prejudice under existing Tennessee Supreme Court precedent is still the appropriate standard because he was not afforded meaningful appellate review. Additionally, the defendant argues that requiring a petitioner to prove actual prejudice for legal claims he would have raised on appeal creates an unfair and unsurmountable hurdle, given that, typically, many petitioners initially proceed pro se in post-conviction proceedings.
David New v. Lavinia Dumitrache et al.– This civil dispute arose following the divorce of David New (“father”) and Lavinia Dumitrache (mother). Mother filed for an order of protection in General Sessions Court in Shelby County, Tn., for herself and the couple’s minor child against father following the child’s claims of abuse during visitation with the father. The general sessions court issued the orders of protection, and the court later supplemented its order and awarded mother attorney’s fees and discretionary costs in the amount of $7,500.
Father did not perfect an appeal in the chancery court within the 10-day limit but later filed an appeal in the nature of a writ of error and a petition to certify and enroll a foreign judgment regarding the Texas divorce decree. Mother filed separate motions to dismiss for both claims. The chancery court granted the motions to dismiss, finding the court lacked subject matter jurisdiction over the appeals from the orders of protection because they were untimely, and the court dismissed the writ of error as a claim not recognized under Tennessee law.
Mother then filed a motion to alter or amend, seeking attorney’s fees and costs, and the chancery court awarded her over $24,000 in fees and discretionary costs. Father appealed. The Court of Appeals first held that the chancery court had jurisdiction over the claims asserted by Father. Next, the Court of Appeals held that the chancery court had the authority to award Mother attorney’s fees as incurred in her defense of the writ of error but not in the defense of the petition to enroll the foreign judgment because Tennessee statute only allows attorney’s fees that are incurred during an appeal of an issuance or extension of an order of protection.
The Court of Appeals ultimately remanded the cases to determine the appropriate amount of attorney’s fees related solely to Mother’s defense of the writ of error. On appeal to the Supreme Court, Mother contends that the attorney’s fees she was awarded were not excessive and were so intertwined with issues related to the appeal from the issuance of the order of protection that the attorney’s fees cannot be ascertained solely on the defense of the writ of error. Father argues that Mother is not entitled to attorney’s fees on either claim because he was not appealing the issuance of the order of protection. Furthermore, Father contends that the dismissal of the claim of writ of error was based on faulty reasoning and cannot be the basis of an award of attorney’s fees. However, if the Court finds that attorney’s fees are appropriate under the circumstances, Father argues that he is entitled to an evidentiary hearing on the matter.
A copy of the video conference oral argument will be available approximately 48 hours after the conclusion of the argument. It will be available at: http://tncourts.gov/courts/supreme-court/oral-argument-videos