Judicial Evaluation Bill Set for House Consideration

Legislation to significantly revamp the Judicial Performance Evaluation Commission could be heard as early as tomorrow in a House Judiciary subcommittee. The bill (SB 1058/HB 1227), as amended last week in the Senate Judiciary Committee, removes all of the present Judicial Performance Evaluation Commission members, reconstitutes the body without any judges as members, allows the commission to rewrite evaluation criteria, and provides that if an incumbent appellate level judge is evaluated as “for replacement,” that judge may not stand for retention election. The resulting judicial vacancy would then be filled by gubernatorial appointment after a nominating commission recommendation. TBA President Jackie Dixon said action on this bill right now amounts to “changing the rules, the referees and the scorekeeping after the two minute warning.” Retention elections are set for November 2014 for all current Supreme Court, Court of Appeals and Court of Criminal Appeals judges.

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









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TN Supreme Court

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

Court: TN Supreme Court


TN Workers Comp Appeals

DAVID D. LAWRENCE v. MIDWESTERN INSURANCE ALLIANCE

Court: TN Workers Comp Appeals

Attorneys:

T. Joseph Lynch, Knoxville, Tennessee, for the appellant, Midwestern Insurance Alliance.

Mark E. Floyd, Knoxville, Tennessee, for the appellee, David D. Lawrence.

Judge: DANIEL

The employee alleged that his pre-existing heart failure was permanently worsened by an accidental inhalation of cement dust on the job. The workers’ compensation insurer for the employer asserted that the worsening of the heart failure was a natural progression of the condition and that the inhalation event had no permanent effect on the employee. Cardiologists testified in support of each side’s theory. The trial court found for the employee and awarded permanent total disability benefits. The insurer has appealed that decision. The appeal has been referred to the Special Workers’ Compensation Appeals Panel, pursuant to Tennessee Supreme Court Rule 51, for a hearing and a report of findings of fact and conclusions of law. We affirm the judgment of the trial court.


TN Court of Appeals

IN RE ANGEL S. F. ET AL.

Court: TN Court of Appeals

Attorneys:

Matthew A. Jared, Cookeville, Tennessee, for the appellant, William E. F.

John Milton Meadows, III, Livingston, Tennessee, for the appellant, Angela F.

Robert E. Cooper, Jr. Attorney General and Reporter, Jordan Scott, Assistant Attorney General, M. Anne Austin, and Derek C. Jumper, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s Services.

Judge: CLEMENT

The Juvenile Court of Putnam County terminated the parental rights of both parents to their three children on the grounds of substantial noncompliance with the permanency plans and persistence of conditions, and upon the determination that termination of both parents’ rights was in the best interests of their children. Both parents appeal. Finding the evidence clear and convincing, we affirm.


HILL BOREN, P.C. v. PATY, RYMER and ULIN, P.C. and JAMES ERIC HAMM

Court: TN Court of Appeals

Attorneys:

R. Sadler Bailey, Memphis, Tennessee, for the appellant, Hill Boren, P.C.

Selma Cash Paty, Chattanooga, Tennessee, for the appellee, Paty, Rymer & Ulin, P.C.

John W. Chandler, Jr., Chattanooga, TN, for the appellee, James Eric Hamm.

Judge: HIGHERS

This appeal involves a dispute over an attorney’s fee involving two law firms and their client. The parties originally entered into a contract whereby both law firms would jointly represent the client as a plaintiff in a personal injury suit. Two years later, the client discharged one of the law firms. The other firm continued to represent the client, and when the case settled over a year later, the remaining firm retained the entire contingency fee. The discharged firm sued the client and the other firm, alleging that it was entitled to a share of the contingency fee and asserting numerous causes of action. The defendants claimed that the discharged firm was limited to quantum meruit. The trial court granted summary judgment to the defendants on all claims. The plaintiff law firm appeals. We affirm.


GENE B. COCHRAN, ET AL. v. CITY OF MEMPHIS, TENNESSEE

Court: TN Court of Appeals

Attorneys:

Richard L. Winchester, Jr., Memphis, Tennessee, for the appellants, Gene B. Cochran, Don S. Jamison, William L. Kegler, Roger B. Rice, Barry L. Knight and Dr. E. Sidney Birdsong.

Allan J. Wade, Brandy S. Parrish, Memphis, Tennessee, for the appellee, City of Memphis.

Judge: HIGHERS

The South Cordova Area was annexed in November 2001. In December 2001, Plaintiffs timely filed a complaint challenging the South Cordova Area annexation. In 2011, however, the complaint was dismissed “without prejudice” for failure to prosecute. Thereafter, Plaintiffs filed a second complaint challenging annexation, but the trial court dismissed the complaint for failure to state a claim. We affirm.


KHOURY L. KINNARD v. TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

Court: TN Court of Appeals

Attorneys:

Khoury L. Kinnard, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; William Young, Solicitor General; and Shauna Jennings, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Department of Correction.

Judge: DINKINS

Certiorari proceeding in which an inmate sought review of disciplinary board proceeding finding him guilty of possession/use of a cell phone. The trial court granted motion to dismiss the proceeding on the ground that it sought to challenge the correctness of the disciplinary board’s decision. Finding no error, we affirm the decision of the trial court.


TN Court of Criminal Appeals

JOHN DOE v. MARK GWYN, DIRECTOR OF THE TENNESSEE BUREAU OF INVESTIGATION, ET AL.

Court: TN Court of Criminal Appeals

Attorneys:

Douglas A. Trant, Loretta G. Cravens, and Troy S. Weston, Knoxville, Tennessee, for the appellant, John Doe.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney General, for the appellees, Mark Gwyn, Director of the Tennessee Bureau of Investigation, et al.

Judge: WITT

The petitioner, John Doe, filed a petition for habeas corpus relief in the Sullivan County Criminal Court to challenge his guilty-pleaded, 1995 attempted aggravated sexual battery conviction arising in that same court. Specifically, the petitioner, whose three-year sentence was suspended, challenged his conviction based upon sanctions imposed upon him by 2004 and 2007 changes to the sexual offender registration law. The habeas corpus court summarily dismissed the petition, and the petitioner appeals. We affirm the order of the habeas corpus court.


STATE OF TENNESSEE v. JONATHAN KYLE HULSE

Court: TN Court of Criminal Appeals

Attorneys:

T. Craig Smith, Johnson City, Tennessee, for the appellant, Jonathan Kyle Hulse.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Tony Clark, District Attorney General; and Erin D. McArdle and Dennis Dwayne Brooks, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: TIPTON

The Defendant, Jonathan Kyle Hulse, was found guilty by a Washington County Criminal Court jury of aggravated rape, a Class A felony; especially aggravated kidnapping, a Class A felony; and unauthorized use of a vehicle, a Class A misdemeanor. See T.C.A. §§ 39-13- 502 (2010) (aggravated rape), 39-13-305 (2010) (especially aggravated kidnapping), 39-14- 106 (2010) (unauthorized use of a vehicle). He was sentenced as a violent offender to twenty-nine years for each of the Class A felonies and to eleven months and twenty-nine days for the misdemeanor. The trial court ordered that the felony convictions be served consecutively, for an effective fifty-eight-year sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support the especially aggravated kidnapping conviction, (2) his dual convictions for aggravated rape and especially aggravated kidnapping violate due process principles, and (3) the trial court erred in admitting evidence of the deceased victim’s statements about the crimes as excited utterances. We affirm the judgments of the trial court.


BILLY RAY IRICK v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

C. Eugene Shiles, Jr., and Howell G. Clements, Chattanooga, Tennessee, for the appellant, Billy Ray Irick.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney General; Randall Eugene Nichols, District Attorney General; and Leland Price and Kenneth Irvine, Jr., Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: PAGE

Petitioner, Billy Ray Irick, filed a motion to reopen his error coram nobis proceedings or, in the alternative, a second petition for writ of error coram nobis. In his pleading, he reasserted the grounds underlying his first petition for the writ and added claims of judicial misconduct pertaining to the judge in his first coram nobis proceedings. The coram nobis court in the instant case denied relief, and this appeal follows. Discerning no error, we affirm the judgment of the coram nobis court.


ROBERT LAMONT MOSS, JR. v. STATE OF TENNESSEE

Court: TN Court of Criminal Appeals

Attorneys:

Chad Davidson, Nashville, Tennessee, for the appellant, Robert Lamont Moss, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: PAGE

On October 5, 2005, a Davidson County jury convicted petitioner of aggravated rape, two counts of aggravated kidnapping, and theft over $500 but less than $1,000. The trial court sentenced him to an effective term of seventeen years in the Tennessee Department of Correction. This court affirmed his convictions and sentences on direct appeal. State v. Robert Lamont Moss, Jr., No. M2006-00890-CCA-R3-CD, 2007 WL 4245082, at *9 (Tenn. Crim. App. Dec. 4, 2007), perm. app. denied (Tenn. April 7, 2008). Subsequently, petitioner filed petitions for post-conviction relief and writ of error coram nobis. Following a hearing, the post-conviction court denied the post-conviction petition on the merits and the coram nobis petition as time-barred. On appeal, petitioner argues that (1) trial and appellate counsel provided ineffective assistance; (2) his right to due process was denied by the trial court’s denial of funds for the defense to hire experts in eyewitness reliability and shoe print identification; and (3) he is entitled to a writ of error coram nobis. Discerning no error, we affirm.


STATE OF TENNESSEE v. LARRY LEE ROBERTSON

Court: TN Court of Criminal Appeals

Attorneys:

Heather Haufler, Hendersonville, Tennessee, for the appellant, Larry Lee Robertson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Lawrence R. Whitley, District Attorney General, and Sallie W. Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Larry Lee Robertson, pled guilty to selling oxycodone in Sumner County in October of 2010. He received a sentence of six years on probation. In May of 2012, a probation violation warrant was filed alleging that Appellant violated the terms of his probation by using intoxicants to excess and pleading guilty to a public intoxication charge. After a hearing, the trial court revoked Appellant’s probation and ordered him to serve his sentence in confinement. Appellant filed a timely notice of appeal. After a review of the record and authorities, we determine that the trial court did not abuse its discretion in revoking Appellant’s probation as there was evidence to support the conclusion of the trial court that a violation of the conditions of probation occurred. Accordingly, the judgment of the trial court is affirmed.


Kingsport Home School Wins First Mock Trial Championship

Kingsport Area Christian Home Education Association (KACHEA) claimed the state high school mock trial championship title this past weekend, defeating Montgomery Bell Academy of Nashville. The 33rd annual Tennessee State High School Mock Trial Competition was sponsored by the TBA Young Lawyers Division and involved 14 teams and 200 volunteers, including lawyers, law students and paralegals. In addition, sitting judges in the state presided over the trial rounds, with Tennessee Supreme Court Justice William Koch presiding over the championship match. The Kingsport team now will represent Tennessee at the National High School Mock Trial Competition in Indianapolis, Ind., May 9-11.


DCS Revises Child Death Rates Upward

The Tennessee Department of Children’s Services (DCS) has revised its child death statistics upward. Since January, it has reported that 73 children brought to its attention died in 2012, but it now says the correct number is 105. For 2011, the number of children who died has increased 47 to 91. Newly appointed DCS Deputy Director Scott Modell said those numbers are now accurate, and blamed previous problems on errors in the agency’s computer system, the fact that data was not kept in one central place, and a lack of agreement on how to define the deaths of certain children. The Tennessean has more.


County Submits School Board Plan to Judge

The Shelby County Commission has submitted a plan to convert its current school board to a 13-member single-district body to U.S. District Judge Samuel “Hardy” Mays. The lines closely follow, but are not identical to, the 13 districts to be used in county commission races in 2014, according to the Memphis Daily News. Ten of the seats would be up for election in 2014 with the remaining three on the ballot in 2016. All terms will be staggered. The plan also exempts current Memphis city schoolteachers from a requirement that they live within county limits. A previous version had required them to move into the county within five years.


Former Jackson Lawyer Indicted for Bank Fraud

Clay McCormack, 49, of Jackson, was indicted Monday for his alleged role in a financial scheme. The indictment charged McCormack, an attorney with the Jackson law firm of Teel, McCormack & Maroney, with fraudulently obtaining loan proceeds from federally insured mortgage lenders. The U.S. Attorney announced the charge, saying McCormack teamed up with local real estate investor James Lee Bishop to act as his closing agent. According to an article in the Jackson Sun, McCormack certified that lenders were paid off via check after the closing, but would then void the checks and within days reissue them to Bishop, who in turn passed off the funds as having come from investors. McCormack also faces charges that he made false statements by creating false documentation and submitting it to the banks.


County Considering New Justice Center

In an ongoing effort to deal with overcrowding and decertification of its detention center, the Greene County Commission held a meeting this week to hear proposals for a new $40 million Justice Center that would include a jail, courthouse and offices for the sheriff's department. The Greeneville Sun has the story.


Collateral Source Bill Deferred for Study

Legislation set for consideration in the Senate Judiciary Committee today to limit the effect of the collateral source rule in litigation (SB 1184/HB 978) will be studied over the off-legislative session instead. The Senate sponsor, Jim Tracy, R-Shelbyville, expressed his intention that the bill be first on the Senate Judiciary Committee calendar in 2014. The TBA has opposed the change in Tennessee tort law.


House Blocks Student Nondiscrimination Policies

The Tennessee House on Monday voted 75-21 to deny public universities the ability to impose nondiscrimination policies on student organizations. The bill, according to Knoxnews, did not include private institutions like Vanderbilt University or Rhodes College, which had led Gov. Bill Haslam to veto a similar measure last year. Rep. Mark Pody of Lebanon, who sponsored the bill, said the legislation is designed to prevent colleges from requiring student groups to open membership and leadership positions to students that do not share their beliefs.


ABA Releases Program to Help Achieve Pay Equity

Firms seeking to address gender-based pay inequities have a new resource in the ABA Toolkit for Gender Equity in Partner Compensation. In explaining the initiative, ABA President Laurel G. Bellows said the proposal is intended to encourage law firm leaders to talk about potential changes in both compensation and hiring models, and provide practical ways to help firms deal with the issue. Read more about the initiative.


Former Memphis Bar President Dies

Memphis attorney James E. Leary died March 13. A graduate of the Southern University School of Law, Leary opened a law practice in Memphis in July 1954. In 1976, he was admitted to practice before the U.S. Supreme Court. Leary served simultaneously as president of the Memphis Shelby County Bar Association and the Tennessee Defense Lawyers Association in 1970-1971. He retired in 1981. A veteran of World War II, Leary was a member of the Military Order of the World Wars and served as commander of the Memphis chapter from 1987-1988 and as commander of the Tennessee Department for one year. Funeral services were held March 17 at Memorial Park Funeral Home with burial at Memorial Park Cemetery. Read more about his life in The Commercial Appeal.


Davidson County Lawyer Suspended

The Tennessee Supreme Court suspended the law license of Davidson County lawyer James D. McWilliams on March 19 based upon his plea of guilty to the serious crime of felony child abuse. The court also ordered the Board of Professional Responsibility to institute a formal proceeding to determine the extent of final discipline. Download the BPR notice.


First Administrative Suspensions of 2013 Issued

On Feb. 26 and March 11, the Tennessee Supreme Court suspended a number of Tennessee-licensed attorneys who did not pay their annual registration fee to the Board of Professional Responsibility and did not file a mandatory compliance statement that eligible client funds are held in accounts participating in the Interest on Lawyers’ Trust Accounts (IOLTA) program. Those who have complied with the rules since the orders were issued, and for whom notification of a status change has been received from the Board of Professional Responsibility, are noted as reinstated. See the lists and download the orders on the TBA website.


 
 

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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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