4 new applicants round out field for Supreme Court seat
There are now 17 applicants for the vacant seat on the state's high court, including four attorneys who just met today's deadline: Criminal Court Judge Steve Dozier of Nashville, Administrative Law Judge Andrei Lee of Nashville, Circuit Court Judge Charles Creed McGinley of Savannah and Criminal Court Judge Lillie Ann Sells of Cookeville. Four candidates previously considered for the vacancy who were allowed to reapply by the Judicial Selection Commission include: Court of Appeals Judge Frank C. Clement Jr. of Nashville, J. Houston Gordon of Covington, Court of Appeals Judge William C. Koch Jr. and George T. "Buck" Lewis of Memphis. Download a final list of candidates:
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Howard H. Vogel
ESTATE OF IRENE C. DOOLEY, ET AL. v. RENEE HICKMAN
J. Arnold Fitzgerald, Dayton, Tennessee, for the appellant, Renee Hickman.
William G. McPheeters, Dayton, Tennessee, for the appellees, Estate of Irene C. Dooley, Wayne
Copeland and William G. McPheeters.
Following the death of Irene C. Dooley (the decedent), the co-executors of her estate filed this
petition against the decedent's attorney in fact, Renee Hickman (the respondent). The estate's
petition seeks an accounting for all monies received by the respondent from the decedent's
accounts and the reimbursement of any money found to have been wrongfully received by the
respondent. Particularly at issue is a $21,000 check written by the respondent on the decedent's
account and cashed by the respondent for her personal benefit. The respondent claims that the
decedent instructed her to write the check and to take the money as payment for her services.
The trial court ruled that the Dead Man’s Statute (the Statute) precluded the respondent from
testifying with respect to this alleged conversation with the decedent. At the hearing below, the
estate called the respondent as a witness and inquired into what was done with the proceeds of
the $21,000 check. After answering the estate's questions on the subject, the respondent raised
an objection, arguing, as she does on this appeal, that the estate waived the application of the
Statute by calling her as a witness and by specifically soliciting testimony regarding the
disposition of the proceeds from the $21,000 check. The trial court held that the limited scope of
the estate's questioning did not constitute a waiver of the restrictions of the Statute. In its
judgment, the trial court ordered the respondent to reimburse the estate for the $21,000. The
respondent appeals. We affirm.
STEPHANIE ANN THURMAN HARTMAN v. DARYL O'BRIEN HARTMAN
Lucy C. Wright, Chattanooga, Tennessee, for the appellant, Stephanie Ann Thurman Wallace.
Mechelle Story, Spring City, Tennessee, for the appellee, Daryl O’Brien Hartman.
Susan E. Arnold, Dayton, Tennessee, Guardian Ad Litem for the children, Grayson McKenna
Hartman and McKenzie Daryl Emerson Hartman.
In this post-divorce proceeding, Daryl O'Brien Hartman (Father) and Stephanie Ann Thurman
Wallace, formerly Hartman (Mother), sought to modify the parties' residential schedule
pertaining to their children. That schedule, which was a part of the parties' Marital Dissolution
Agreement (the MDA), provided that Grayson McKenna Hartman and McKenzie Daryl
Emerson Hartman (collectively the children) would reside with Father in Rhea County during
the time Mother was working in Atlanta. The MDA stipulated that when Mother was not
working in Atlanta, she would have custody of the children. Two years after the divorce, Father
filed a petition seeking primary custody, alleging that, contrary to the contemplation of the
parties at the time of the divorce, Mother had failed to return to Tennessee and assume equal
parenting time with the children. Father also requested that Mother be required to pay child
support. Mother responded by filing a counterclaim seeking a modification of the custody
arrangement. She alleged that Father's excessive drinking and lack of steady employment
justified a modification. The trial court awarded Father custody, a judgment which we later
vacated. This case was remanded back to the trial court with instructions to conduct a hearing on
the comparative fitness of the parents. After a hearing, the trial court again awarded primary
custody to Father. Mother appeals, arguing (1) that the trial court abused its discretion in
concluding that Father was the more fit parent; and (2) that the trial court unreasonably delayed
the proceedings that followed this Court's remand. We affirm.
FLETCHER WHALEY LONG v. JESSICA L. McALLISTER-LONG
George E. Copple, Jr., Nashville, Tennessee, for the appellant, Jessica L. McAllister-Long.
John E. Herbison, Nashville, Tennessee, for the appellee, Fletcher Whaley Long.
This appeal involves a post-divorce criminal contempt petition. Approximately four years after the
divorce, the former wife filed a petition in the Chancery Court for Robertson County seeking to hold
the former husband in criminal contempt for willfully breaching the provisions in the parties' marital
dissolution agreement requiring him to pay and to indemnify her for certain marital debts. The
husband moved to dismiss the petition for failure to allege that he had violated a court order and for
failure to comply with Tenn. R. Crim. P. 42(b). The trial court denied the wife's motion to amend
her petition and dismissed the petition because it did not contain an explicit allegation that he had
willfully violated a court order. We have determined that the wife's petition alleges willful
violations of the parties' divorce decree and that it also satisfies all the requirements of Tenn. R.
Crim P. 42(b). Therefore, we conclude that the trial court erred by dismissing the wife's contempt
JOHN LYKINS, ET AL. v. KEY BANK USA, NA, ET AL.
Michael D. Kellum, Johnson City, Tennessee, for the appellants, John Lykins and Cathy Lykins.
Lawrence W. Kelly, Atlanta, Georgia, for the appellees, Key Bank, USA, NA, and Premiere
John Lykins and Cathy Lykins (the plaintiffs) entered into a lease-to-purchase agreement for
real property owned by Martha Sadler. The plaintiffs took possession of a house on the property
and began making Sadler's mortgage payments to the defendant Key Bank, USA, NA (the
bank). Later, Martha Sadler died. Thereafter, the plaintiffs had discussions with the
administratrix of Sadler's estate. They reached an understanding with her regarding the
property. The plaintiffs claim that when they tried to secure financing to purchase the property,
they were informed that Sadler owed the bank more than the administratrix had indicated. The
plaintiffs ceased making payments in October, 2003. While they were attempting to ascertain
exactly how much was owed on the mortgage, the bank initiated foreclosure proceedings and
sold the house. The plaintiffs filed suit and obtained an injunction prohibiting the bank from
evicting the plaintiffs pending a hearing. Approximately 11 months later, the trial court
dismissed the plaintiffs' complaint with prejudice based upon a finding that the plaintiffs had
failed to respond to discovery requests and had failed to prosecute their action. The plaintiffs
appeal. We affirm.
JAMES W. MCDONNELL, JR., ET AL. v. CONSECO LIFE INSURANCE COMPANY, ET AL.
Glen Reid, Jr., and Douglas A. Black, Memphis, Tennessee, for the appellants, James W.
McDonnell, Jr., Faith McDonell Campbell, Annie McDonnell Durell and James W. McDonnell, III.
Martin B. Bailey, Knoxville, Tennessee, for the appellee, Conseco Life Insurance Company.
Eugene J. Podesta, Jr., Memphis, Tennessee for the appellee, McDonnell Insurance, Inc.
Plaintiffs James W. McDonnell, Jr., Faith McDonnell Campbell, Anne McDonnell Durell, and James
W. McDonnell, III, appeal the trial court's grant of summary judgment holding that their causes of
action are barred by applicable statutes of limitation. Because we find that the trial court failed to
execute a final order disposing of all of Plaintiffs' asserted causes of action, we dismiss this appeal
for lack of subject matter jurisdiction under Rule 3(a) of the Tennessee Rules of Appellate
JOHN MICHAEL SHEALY, ET AL. v. POLICY STUDIES, INC. d/b/a CHILD SUPPORT SERVICES OF TENNESSEE, ET AL.
Paul G. Summers, Attorney General and Reporter, Stuart F. Wilson-Patton, Senior Counsel, and
Warren A. Jasper, Assistant Attorney General, Nashville, Tennessee, for the appellants
Tennessee Department of Human Services and Gina Lodge, Commissioner.
Bridget J. Willhite, Athens, Tennessee, for the appellants Policy Studies, Inc., and Connie Bell.
William J. Brown, Cleveland, Tennessee, for the appellees John Michael Shealy and David
In two separate and unrelated divorce cases, the plaintiffs in the instant case - John Michael
Shealy and David Lebron Reagan - were each paying child support to their respective former
spouses as required by court orders. Pursuant to the provisions of Tenn. Code Ann. Section 36-5-
103(f), certain child support orders in Tennessee are subject to review by the Department of
Human Services (DHS) at least once every three years. When the plaintiffs' child support
orders were reviewed in accordance with the statute, DHS issued administrative orders in each
case summarily increasing the amount of the plaintiffs' child support obligations and
implementing wage assignments. The plaintiffs then "joined forces" and filed this action
challenging the constitutionality of Tenn. Code Ann. Sections 36-5-103(f) and 36-5-501 on the basis
that these statutes violate both due process and the separation of powers doctrine. The plaintiffs
successfully obtained a restraining order enjoining enforcement of the administrative orders.
Thereafter, the plaintiffs' former wives filed petitions in their respective divorce proceedings
seeking an increase in child support. The petitions were eventually resolved by the entry of
agreed orders which increased the amount of each of the plaintiffs' child support payment and
decreed payment of same by way of wage assignment. After entry of the agreed court orders,
DHS entered administrative orders dismissing all of its previous administrative orders and
decreeing that the latter orders were held "for naught." Tenn. Code Ann. Section 36-5-103(f) was
substantially amended effective January 1, 2005. On April 21, 2005, the trial court entered an
order holding that Tenn. Code Ann. Section 36-5-501 and the pre-January 1, 2005, version of Section 36-5-
103(f) were unconstitutional. DHS appeals. We conclude that all of the plaintiffs' claims are
moot, vacate the judgment of the trial court, and remand with instructions to dismiss this case.
Diane V. Vannucci, Individually and as Executrix of the Estate of Julie Vannucci Barney, Deceased, ET AL. v. MEMPHIS OBSTETRICS AND GYNECOLOGICAL ASSOCIATION, P.C., ET AL. AND DIANE V. VANNUCCI, Individually, and as Executrix of the Estate of Julie Vannucci Barney, Deceased and DIANE V. VANNUCCI for the use and benefit of the heirs at law of Julie Vannucci Barney, Dec'd., and DIANE V. VANNUCCI, for the use and benefit of ROBERT ALLEN BARNEY, III, A Minor v. W. B. MOSS, INDIVIDUALLY, and W. B. MOSS, M.D., P.C.
Judge: ALAN E. HIGHERS
Following the untimely diagnosis of her cervical cancer, the plaintiff filed a medical malpractice suit against several doctors and the laboratory that interpreted her test results. In addition to her individual suit, the plaintiff sued on behalf of her minor son for loss of consortium. Shortly after filing the lawsuit, the plaintiff died. The executrix of her estate was substituted as a plaintiff in the case. Some of the named defendants sought to enter into a settlement with the minor, who was the only beneficiary of any proceeds to be derived from the suit. Pursuant to section 34-1-121 of the Tennessee Code, the settling parties petitioned the trial court to approve the settlement. At the hearing, the trial court excluded the non-settling defendants from participating in the hearing. The trial court subsequently entered an order approving the settlement, but the court sealed the contents of the settlement. Thereafter, the non-settling defendants moved the trial court judge to recuse herself, arguing that she could no longer impartially preside over the remainder of the case by virtue of having heard disputed facts during the ex parte settlement hearing. When the trial court denied their motion, the non-settling defendants applied for and received the trial court's permission to seek an interlocutory appeal to this Court. We decided to grant the non-settling defendants' application for an interlocutory appeal to address the narrow issue of whether the trial court erred when it denied the motion to recuse. After reviewing the record, we affirm the trial court's decision to deny the Appellants' motion for recusal.
Description of Correction: The opinion has been changed to correct the spelling of "Canon" on pages 8 and 10.
JESSIE MARCELLA VITTETOE (TEFFT) v. JOHNNY DWAIN VITTETOE
William A. Mynatt, Jr., Knoxville, Tennessee, for Appellant, Jessie Marcella Vittetoe (Tefft).
Carl R. Ogle, Jr., Jefferson City, Tennessee, for Appellee, Johnny Dwain Vittetoe.
This appeal involves a post-divorce dispute between the parents of three minor children. A year
after the parties were divorced, the noncustodial father petitioned to modify the final decree to
reduce his child support payment, to relieve him from the obligation to reimburse the mother for
the children's health insurance premiums, and to claim the children as exemptions on his federal
tax return. After a hearing, the chancellor found that there had been no material and substantial
change in circumstances and denied the father's requests to modify the decree regarding child
support and health insurance premiums, but modified the decree to grant the father the right to
claim one child as a tax exemption every year and to claim one child in alternating years. After
careful review of the evidence and the applicable law, we hold that because the chancellor found
no material and substantial change in father's circumstances, he erred in modifying the final
decree of divorce as to the income tax dependency exemptions. Accordingly, we reverse and
vacate the decision of the chancellor.
STATE OF TENNESSEE v. EARNEST BANKS
Garland Erguden, (on appeal) and Jennifer Johnson and Harry Sayle (at trial), Assistant Public
Defenders, Memphis, Tennessee, for the appellant, Earnest Banks.
Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Scot Bearup, Assistant District Attorney
General, for the appellee, State of Tennessee.
The defendant, Earnest Banks, was convicted by a Shelby County jury of aggravated burglary and
sentenced to nine years in the Department of Correction as a Range II multiple offender. On appeal,
he challenges the sufficiency of the convicting evidence. Following our review of the record and the
parties' briefs, we affirm the judgment of the trial court.
| Legal News
|TBA files supplemental comment on fee dispute rule
|In a supplemental comment filed today with the Supreme Court, the TBA responded to concerns about the constitutionality of a new fee dispute resolution rule. The TBA cited cases from four other state appellate courts and two federal courts in support of the position that the fee dispute resolution rule is constitutional.
|Download the filing here
|Justice Anderson to continue sitting with Supreme Court
|Just days after retiring from a long legal and judicial career, Justice E. Riley Anderson will don his robe and sit as a special judge on the Tennessee Supreme Court when it meets Sept. 6 - 7 in Knoxville. The docket lists 11 cases, including arguments concerning the validity of the Knox County charter. Also joining the court in Knoxville will be its newest justice, Judge Gary R. Wade of Sevierville, who will be sworn in Sept. 1.
|Read the court's press release
|Attorney questions ethics of ethics law
|Lebanon City Attorney Andy Wright is seeking a legal opinion from the Board of Professional Responsibility as to whether he can serve as both the city attorney and the city ethics compliance officer. He was named to the ethics position in an ordinance passed by the city last week. The BPR's response will have statewide ramifications. All Tennessee cities and counties must pass a model ethics ordinance by the middle of next year. The model ordinance developed to guide localities designates the city attorney as the ethics compliance officer, though it does allow local governments to designate the individual of their choice.
|Read more in the Lebanon Democrat
|Ceremonial swearing-in set for Wade
|In addition to being sworn in as the newest justice of the Tennessee Supreme Court on Sept. 1, Gary R. Wade will enjoy a local swearing-in ceremony Sept. 22 on the lawn of the Sevier County Courthouse, reports the Mountain Press. Gov. Phil Bredesen will conduct the ceremony.
|Bar prep company ordered to pay for copying exam questions
|In a ruling that will fundamentally alter the way many American law students prepare for the bar exam, a federal judge in Philadelphia concluded that Multistate Legal Studies Inc. illegally copied questions from the multi-state bar examination for use in its bar exam preparation courses and ordered the company to pay more than $11.9 million to the National Conference of Bar Examiners.
|Read the full article in Philly.com
|How New Orleans' legal system failed
|This week's issue of Newsweek Magazine carries an article about the post-Katrina collapse of the New Orleans criminal justice system and the courageous effort to rebuild it by the Orleans Indigent Defender Board.
|Read the article
|Indicted senator resigns chairmanship
|Tennessee state Sen. Jerry Cooper resigned today as chairman of the Commerce, Labor and Agriculture Committee, Nashville Public Radio reported this afternoon. Cooper has been charged with bank fraud, mail fraud and conspiracy. Senate rules automatically strip indicted lawmakers of their chairmanships unless they appeal to the Ethics Committee within 10 days. A number of Cooper's colleagues encouraged him not to challenge the rule.
|Judge Clayton says he'll stay
|In the wake of Judge-elect Larry Trail's death, incumbent Circuit Court Judge James Clayton has said he intends to continuing holding the seat for two years until a special election is called. Trail defeated Clayton, an independent, in the Aug. 3 election but died Aug. 20, two weeks before being sworn into office. Clayton said he has until Sept. 1 to inform the Administrative Office of the Court of his plans. But some argue that the position should be filled through the normal vacancy process, reports the Daily News Journal.
|Nasville attorney suspended
|On August 23, the Supreme Court suspended the
law license of Denielle V. Young for a period of one year. Young previously had pleaded guilty to the criminal offense of passing worthless checks.
|Download the BPR's press release