Judicial Selection Hits 'Stalemate'

Legislators have reached what Senate Majority Leader Mark Norris calls "the stalemate place" on how Tennessee's top judges should be selected and are now racing to delay a decision until next year. After a convoluted series of events, the Senate has before it two proposals for amending the state constitution. The two competing proposals are SJR183 by Norris, R-Collierville, and SJR710 by Sen. Brian Kelsey, R-Collierville. Norris's bill, as amended, would repeal the current constitutional provision declaring that top judges "shall be elected by the qualified voters of the state" and declare instead that the legislature is "authorized to establish, by law, a system of merit-based appointments with retention elections for the judges of the Supreme Court and for the judges of the intermediate appellate courts." Kelsey's measure would adopt a system similar to that used by the federal government. The governor would appoint the judges, subject to confirmation by the legislature. The News Sentinel has the story

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

01 - TN Supreme Court
00 - TN Workers Comp Appeals
00 - TN Supreme Court - Rules
03 - TN Court of Appeals
02 - TN Court of Criminal Appeals
04 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR
00 - TN Supreme Court - Disciplinary Orders









You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.


TN Supreme Court

SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TN Supreme Court


TN Court of Appeals

BANCORPSOUTH BANK v. 51 CONCRETE, LLC & THOMPSON MACHINERY COMMERCE CORPORATION

Court: TN Court of Appeals

Attorneys:

Jeffrey D. Germany and H. Chase Pittman, Memphis, Tennessee for Plaintiff/Appellant, BancorpSouth Bank.

W. Clark Washington and Christy F. Washington, Memphis Tennessee for Defendant/Appellee, 51 Concrete, LLC.

Scott A. Frick, Memphis, Tennessee for Defendant/Appellee, Thompson Machinery Commerce Corporation.

Judge: KIRBY

This is a conversion case. The appellant bank perfected its security interest in collateral for a loan by filing a UCC-1 statement. The debtor subsequently sold the collateral to appellee third parties, representing that there were no liens on the collateral. The appellee third parties later sold the collateral. The debtor defaulted on the loan to the appellant bank, and the bank obtained a default judgment against the debtor. The debtor then filed bankruptcy. The appellant bank filed this lawsuit against the appellee third parties for conversion, seeking the proceeds from the sale of the collateral. The trial court dismissed the case for lack of subject matter jurisdiction, holding that the bankruptcy court had exclusive jurisdiction. The trial court also adjudicated the bank’s claims for punitive damages and attorney fees. The bank now appeals. We reverse the trial court’s holding on its subject matter jurisdiction, vacate its rulings on the claims for attorney fees and punitive damages, and remand.


DESHON EWAN AND PATRICK EWAN v. THE HARDISON LAW FIRM AND JONATHAN MARTIN

Court: TN Court of Appeals

Attorneys:

Robert M. Fargarson, Daniel F. Peel, Ted S. Angelakis, and Daniel A. Seward, Memphis, Tennessee, for the Plaintiffs/Appellants Deshon Ewan and Patrick Ewan

Richard Glassman, Edwin E. Wallis, III, and Jonathan Stokes, Memphis, Tennessee, for the Defendants/Appellees The Hardison Law Firm and Jonathan Martin

Judge: KIRBY

This is an action for rescission of a release and settlement agreement based on fraud. The plaintiff was involved in a vehicular accident with a commercial driver. She and her husband filed a personal injury lawsuit against the driver and his employer. The parties settled the case for the limits of the defendants’ automobile liability insurance policy. The plaintiffs signed a release that included not only the defendants, but also the defendants’ attorneys and the insurance company. The plaintiffs later discovered that the defendants had a substantial general liability insurance policy. The plaintiffs then filed this lawsuit against the defendants’ attorneys, seeking to rescind the release based on the attorneys’ fraud, and a declaratory judgment that the general liability policy covered the plaintiffs’ injuries. In addition, the plaintiffs sought compensatory damages from the attorneys for all damages resulting from the fraud and for punitive damages. The attorney defendants filed a motion for summary judgment. Based on the language in the release, the trial court refused to consider extrinsic evidence of fraud and granted summary judgment in favor of the attorney defendants. The plaintiffs now appeal. We hold that the trial court erred in refusing to consider extrinsic evidence of fraud and reverse the grant of summary judgment in favor of the attorney defendants.


G. PERRY GUESS, EXECUTOR OF THE ESTATE OF C. CHARLTON HOWARD v. ELIZABETH G. FINLAY

Court: TN Court of Appeals

Attorneys:

C. George Caudle, Chattanooga, Tennessee, for the appellant, G. Perry Guess.

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellee, Elizabeth G. Finlay.

Judge: SUSANO

This case involves a dispute between G. Perry Guess (“the Executor”), 1 Executor of the Estate of C. Charlton Howard (“the Deceased”), and the Executor’s sister, Elizabeth G. Finlay (“the Survivor”), regarding the ownership of funds, following the death of the Deceased, in several bank accounts and certificates of deposit. The trial court awarded the bank accounts to the Executor and the CDs to the Survivor. The Executor claims he is also entitled to the CDs while the Survivor argues that she should have received all of the funds. We reverse that portion of the trial court’s judgment awarding the bank accounts to the Executor. We modify the judgment in favor of the Survivor so as to award to her all of the bank accounts as well as the CDs.


TN Court of Criminal Appeals

STATE OF TENNESSEE v. LETALVIS COBBINS, LEMARICUS DAVIDSON, and GEORGE THOMAS
With Dissenting Opinion

Court: TN Court of Criminal Appeals

Judge: GLENN, WOODALL

In view of the legal authorities and the reasoning which we have set out, we conclude that this is not a case in which a Rule 10 appeal is appropriate. By this order, we neither affirm nor deny the rulings of the successor trial court but, instead, conclude that the Rule 10 application of the State should be denied. Accordingly, for all of the reasons set forth above, the application for an extraordinary appeal is DENIED. Costs on appeal are taxed to the State of Tennessee.


STATE OF TENNESSEE v. JEROME NATHANIEL JOHNSON

Court: TN Court of Criminal Appeals

Attorneys:

Michael A. Little, Chattanooga, Tennessee, for the appellant, Jerome Nathaniel Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; J. Michael Taylor and Michael Bottoms, District Attorneys General; and Dan Runde and James W. Pope, III, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: GLENN

In this consolidated appeal, the defendant challenges the denial of his requests for pretrial diversion in both Maury County and Rhea County, the denial of his motions for writ of certiorari by the Maury County and Rhea County trial courts, and the denial of his motion for interlocutory appeal by the Rhea County trial court. He also argues that the pretrial diversion statute does not prohibit diversion for more than one offense. After review, we affirm the denials of pretrial diversion and motions for writ of certiorari. We also conclude that the Rhea County trial court should have granted the defendant’s motion for interlocutory appeal but such error is of no effect in light of this court’s grant of an extraordinary appeal. We further conclude that the pretrial diversion statute does not prohibit diversion for more than one offense charged in the same indictment.


TN Attorney General Opinions

City Councilmember's Receipt of TCRS Benefits While Holding Office

Court: TN Attorney General Opinions

Date: 2012-03-29

Opinion Number: 43


Tennessee Constitution’s Open Courts Clause

Court: TN Attorney General Opinions

Date: 2012-04-03

Opinion Number: 44


Limitations on Drug Testing as a Condition of Receiving Public Assistance

Court: TN Attorney General Opinions

Date: 2012-04-03

Opinion Number: 45


Interior Design by Non-Registrants Under Tenn. Code Ann. §§ 62-2-101 to -906

Court: TN Attorney General Opinions

Date: 2012-04-03

Opinion Number: 46


Today's News

Comment on 6th Circuit Proposed Procedure Changes

The Court of Appeals for the Sixth Circuit is proposing comprehensive amendments to the Sixth Circuit Rules and Internal Operating Procedures. Send your comments to the proposed changes to Clerk Leonard Green by July 12 to ca06-rules_comments@ca6.uscourts.gov


State's Appeal Denied in Christian/Newsom Case; Accusations Fly from DA's Office

A three-judge panel of the Tennessee Court of Criminal Appeals voted 2-1 on Friday to deny the state Attorney General's Office's application for extraordinary appeal of Special Judge Jon Kerry Blackwood's decision to grant new trials in the slayings of Channon Christian and Christopher Newsom. Blackwood ordered new trials for all four defendants in the case, but the state sought to appeal his rulings in only three, conceding there was proof former Criminal Court Judge Richard Baumgartner was impaired during Vanessa Coleman's trial. Appellate judges Alan E. Glenn and Thomas T. Woodall ruled the state fell short in its argument that Blackwood's decision was "fundamentally illegal" or "without legal authority." Judge Robert W. Wedemeyer disagreed with his colleagues, saying he would have granted the emergency appeal. Read more in the News Sentinel

In a March email obtained recently by the News Sentinel under the Tennessee Open Records Act, John Gill, special counsel to District Attorney General Randy Nichols, complained to the state Attorney General's Office about Blackwood, saying he "hates the News Sentinel, and I fear he is playing fast and loose with off the record emails and communications he states are to avoid the newspaper from knowing." Blackwood denied the allegations when asked by the News Sentinel.


Stage Set For 4 Executions After Lethal Injection Ruling

The Tennessee Court of Appeals last week issued an opinion affirming the decision of Davidson County Chancellor Claudia Bonnyman to uphold a new procedure set by the state Department of Correction to try to ensure a death row inmate is unconscious before fatal drugs are administered under the state's three-drug lethal injection process. Under this ruling, after a single dose of sodium thiopental is given, the warden will brush his hand over the inmate's eyelashes, call out the inmate's name and gently shake the inmate. If there is no response, he will give the go-ahead for the next two drugs. This ruling paves the way for the executions of four death row inmates. The News Sentinel has the story


Victim's Sister, Manson Family Member Work Together to Keep Killer Behind Bars

Last week in California, Debra Tate, younger sister of murdered actress Sharon Tate, testified at a parole hearing for mass murderer Charles Manson. The panel denied parole for Manson, 77, in his 12th and possibly final bid for freedom. Tate and Barbara Hoyt, a Manson family member whose testimony helped put the killers in prison, have bonded in their long quest to keep those responsible for the murders behind bars. Read about this unlikely friendship in the News Sentinel


ABA Policy Changes Prohibiting Nonlawyer Ownership of Law Firms No Longer Sought

At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms. "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures," co-chairs Jamie S. Gorelick and Michael Traynor said. "Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms." The ABA has more


Editorial: Good Candidates Hard to Find, No Matter Who Picks Them

In an editorial, the Times Free Press discusses the differing views about how judges in our state should be selected. "In addition to character, judges should be chosen on the basis of their knowledge of the law, which is something that voters may have a hard time judging," the paper says. "Good candidates are understandably difficult to find -- and hard to choose between -- regardless of who picks them." Read the editorial


New Board of Judicial Conduct Would Have More Accountability

The biggest difference between the new Board of Judicial Conduct, if signed by the governor, and the current system is that it has new provisions to hold judges more accountable, such as making it more difficult to dismiss complaints against them. The legislation would terminate the Court of the Judiciary in July and replace it with the 16-member Board of Judicial Conduct that would have a similar mission of ensuring that judges are ethical and fit to serve on the bench. The News Sentinel has this AP story


Opinion: What is Judicial Activism?

A Union University professor offers his take on judicial activism following President Obama's comments on the U.S. Supreme Court and health care law.  Read Sean Evans' column in the Jackson Sun as he looks at judicial activism and the differences on the court between "originalism" and “living Constitutionalists."


Tennessee to Share in Diabetes Company's Settlement

Diabetic supply firm AmMed Direct will pay an $18 million penalty to settle government claims that it wrongly billed Medicare for diabetes testing supplies and other products in a bait-and-switch scheme. The penalties, which also include a $2.8 million payment to a whistleblower in the long-running dispute, were revealed Friday by the U.S. Attorney’s Office. Most of the money -- $17.6 million -- will go to the U.S. government with the state of Tennessee getting $439,003 as part of the civil settlement. The Tennessean has the details


Benjamin Hooks Documentary and Conference This Week

The Benjamin L. Hooks Institute for Social Change at the University of Memphis will host the Red Carpet Premiere of "Duty of the Hour," a documentary on the life of Benjamin L. Hooks, April 20 from 5:30 to 8 p.m. at The Orpheum Theatre. The event is part of the Hooks Institute Annual Civil and Human Rights Conference taking place April 18-29. Learn more about the documentary and the conference or call the Hooks Institute at (901) 678-3974.


 
 

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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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