TBA president comments on criticism of judges

TBA President Buck Lewis today responded to postings on several blogs and media reports that have been critical of Tennessee judges for commenting on the current debate over the administration of Justice in Tennessee. Lewis said, in part, "Recently, harsh critics of our judicial selection system of merit selection, performance evaluation and retention elections for Tennessee's appellate judges have unfairly assailed Supreme Court Justices and other members of the judicial branch for expressing their viewpoints in support of the current system. These critics have suggested that it is inappropriate or even unethical for judges to comment on matters related to the way in which judges are selected. Judges, and particularly Supreme Court Justices, who lead a separate and co-equal branch of government have a responsibility to speak for that branch. There is no legal or ethical prohibition restraining that responsibility, nor should there be."

Read Lewis' full comments now

TODAY'S OPINIONS
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CRACKER BARREL OLD COUNTRY STORE, INC. ET AL. v. RICHARD EPPERSON ET AL. RICHARD EPPERSON ET AL.

Court: TSC

Attorneys:

Nancy S. Jones and Kristin J. Hazelwood (at trial), Nashville, Tennessee, and C. Dewees Berry (on appeal), Nashville, Tennessee, for the appellants, Cracker Barrel Old Country Store, Inc., and Cracker Barrel Associates, LLC.

Richard M. Smith (at trial), Nashville, Tennessee, and William T. Ramsey and Jonathan H. Wardle (on appeal), Nashville, Tennessee, for the appellees, Richard Epperson and Timothy Causey.

Judge: CLARK

We accepted Cracker Barrel's application for permission to appeal to determine whether the contractual language - "[a]ll costs and expenses of any suit or proceeding shall be assessed against the defaulting party" - creates a contractual right to attorney fees for the successful party in a lawsuit. We determine that neither this contractual language nor the doctrine of judicial estoppel creates a right to recover such fees. Accordingly, the Court of Appeals' judgment denying an award for attorney fees is affirmed.

http://www.tba2.org/tba_files/TSC/2009/crackerbarrel_050109.pdf


JAMES R. SEIBER v. REEVES LOGGING ET AL.

Court: TSC

Attorneys:

Robert E. Cooper, Jr., Attorney General and Reporter; Dianne Stamey Dycus, Deputy Attorney General; and Juan G. Villasenor, Assistant Attorney General (on appeal); and Ronald W. McNutt, Assistant General Counsel (at trial), for the appellant, Second Injury Fund.

John D. Burleson and James V. Thompson, Jackson, Tennessee, for Reeves Logging.

Richard T. Matthews, Columbia, Tennessee, for the appellee, James R. Seiber.

Judge: KOCH

This appeal involves the Second Injury Fund's obligation to pay workers' compensation benefits to an employee whose employer did not have workers' compensation liability insurance when the employee sustained a work-related injury that left him permanently and totally disabled. The employee filed suit against his employer in the Circuit Court for Wayne County seeking workers' compensation benefits. Because he had sustained a previous work-related injury, the employee also named the director of the Second Injury Fund as a defendant. Following a bench trial, the trial court concluded that the employee's injury had left him "permanently and totally occupationally disabled." The trial court awarded the employee $286,616 and allocated 15% of the liability to the employer and 85% to the Second Injury Fund. After both the employer and the Second Injury Fund appealed, the employee settled his claim against the employer. This Court elected to hear the case directly in accordance with Tenn. Code Ann. Section 50-6-225(e)(1) (2008). We have determined that the trial court erred by requiring the Second Injury Fund to pay workers' compensation benefits to the employee because the employer was not "properly insured" within the meaning of Tenn. Code Ann. Section 50-6-208(a)(2) (2008) when the employee was injured.

http://www.tba2.org/tba_files/TSC/2009/seiberjr_050109.pdf


T/U/A AUSTIN W. DUKE, v. TERESA DUKE SIMMONS

Court: TCA

Attorneys:

Harlan Dodson, III., Donald Capparella and Amy J. Farrar, Nashville, Tennessee, for Appellant, Teresa Duke Simmons.

Overton Thompson, III., and Blaine H. Smith, Nashville, Tennessee, for Appellee, Austin W. Duke.

Judge: FRANKS

Petitioner had created an irrevocable trust in 2004, naming his daughter as trustee, but subsequently brought this action to remove her. After an evidentiary hearing, the Trial Court removed the trustee, appointed a substitute trustee, and awarded attorney's fees to petitioner. The trustee who was removed has appealed the award of attorney's fees from the trust fund. We affirm.

http://www.tba2.org/tba_files/TCA/2009/dukea_050109.pdf


HENRY EDDIE FRAZIER, ET AL. v. RICKEY W. HELTON, ET AL.

Court: TCA

Attorneys:

Rodney M. Scott, Murfreesboro, Tennessee, for the appellants, Rickey W. Helton and Barbara B. Helton.

James B. Johnson, Nashville, Tennessee, for the appellees, Henry Eddie Frazier and Ida Frazier.

Judge: DINKINS

Buyers of a corporation filed suit against sellers for breach of contract. Buyers filed a motion for default judgment for failure to answer written discovery requests, which the trial court granted. Following a hearing on damages, the court entered a final judgment. Two of the sellers filed a motion, seeking to alter or amend the judgment, a new trial or for relief from the judgment, which the trial court denied. On appeal, they contend that the default judgment was void for failure to give them proper notice of the motion or, alternatively, that it was voidable since the sellers' failure to answer the motion for default judgment was due to their not having notice of the motion, thereby constituting excusable neglect. We affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCA/2009/frazier_050109.pdf


JOYCE HOLT, v. STATE OF TENNESSEE, Department of Children's

Court: TCA

Attorneys:

Paul Whetstone, Morristown, Tennessee, for appellant, Joyce Holt.

Robert E. Cooper, Jr., Attorney General and Reporter, and Amy T. McConnell, Assistant Attorney General, Nashville, Tennessee, for appellee, State of Tennessee, Department of Children's Services.

Judge: FRANKS

Plaintiff mother who had formally surrendered parental rights to her five children on March 21, 2007, brought this proceeding to vacate the order of surrender in September of 2007. Following an evidentiary hearing, the Trial Court determined there was no evidentiary basis to set aside the mother's surrender of her parental rights. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2009/holtj_050109.pdf


RANDALL EDGAR MANN, III v. DEBORAH JENNINGS MANN

Court: TCA

Attorneys:

Radford H. Dimmick, Nashville, Tennessee, for the appellant, Deborah Jennings Mann.

Alan D. Johnson and Mary Arline Evans, Nashville, Tennessee, for the appellee, Randall Edgar Mann, III.

Judge: CLEMENT

The father of the parties' minor children filed this action opposing the mother's request to relocate with the children to Knoxville, Tennessee, so that she could reside with her new husband. Her reasons were that her new husband, a civil engineer, lived and worked in Knoxville, his income was substantially more than hers, her husband could not obtain an equivalent income if he relocated to Nashville, and her employer had agreed that she could transfer to Knoxville and retain her present job. Because the mother was spending substantially more time with the children the criteria in Tenn. Code Ann. Section 36-6-108(d) applies. The trial court found the move was not for a reasonable purpose, it posed a specific and serious harm to the children, and it was not in the children's best interests. Based upon those findings, the trial court denied mother's request to relocate with the children. This appeal followed. We have determined that the father failed to establish that the mother did not have a reasonable purpose to relocate or that the relocation posed a threat of specific and serious harm to the children; thus, the father failed to establish an essential ground upon which the mother's request to relocate could be denied by the trial court. Because no ground exists upon which to deny the requested relocation, we reverse the judgment of the trial court and remand with instructions, as Tenn. Code Ann. Section 36-6-108(d) directs, to grant the mother's request to relocate with the children and to modify the parenting plan after affording the parties the opportunity to present evidence relevant to that issue.

http://www.tba2.org/tba_files/TCA/2009/mannd_050109.pdf


STATE OF TENNESSEE v. KENNETH S. BARTLEY

Court: TCCA

Attorneys:

Michael G. Hatmaker, (trial) Jacksboro, Tennessee and Bruce E. Poston, (on appeal) Knoxville, Tennessee, for the appellant, Kenneth Bartley.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; William Paul Phillips, District Attorney General and Mike Rippley, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

On April 10, 2007, Appellant, Kenneth S. Bartley, pled guilty to second degree murder and two counts of attempted second degree murder and received an effective sentence of forty-five years. On May 8, 2007, Appellant filed a motion to withdraw his guilty plea. He argued that his plea was not entered knowingly and voluntarily and that there was no factual basis for his plea. After conducting a hearing, the trial court denied Appellant's motion. Appellant appealed. After a thorough review of the record, we conclude that there was no abuse of discretion on the part of the trial court and, therefore, affirm the decision of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/bartleyk_050109.pdf


TIMOTHY J. TURNER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Darwin Colston, Murfreesboro, Tennessee, for the appellant, Timothy J. Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General; William Whitesell, District Attorney General; and Laural Hemenway, Assistand District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Petitioner, Timothy J. Turner, was convicted upon a jury verdict of four counts of sexual battery and four counts of sexual battery by an authority figure. For reasons that were explored at the hearing on his petition for post-conviction relief, he did not appeal. Subsequent to the postconviction hearing, the post-conviction court denied his petition. The Petitioner now appeals that decision, arguing that he received the ineffective assistance of counsel because trial counsel failed to: (1) request a mistrial or witness voir dire upon learning of possible tampering with sequestered witnesses; (2) hire an expert witness to rebut the expert testimony offered by the State; and (3) file a motion for a new trial on the Petitioner's behalf. After our review, we conclude that the Petitioner's trial counsel provided deficient representation because he failed to either file a motion for a new trial or a motion requesting withdrawal. We also conclude that the Petitioner was prejudiced by counsel's deficiency because the Petitioner was deprived of his right to a direct appeal. We accordingly grant the Petitioner a delayed direct appeal.

http://www.tba2.org/tba_files/TCCA/2009/turnert_050109.pdf


TODAY'S NEWS

Legal News
Court of the Judiciary
TBA Member Services

Legal News
Justice Souter to retire at end of term
Justice David H. Souter plans to retire at the end of the term in June, giving President Obama his first appointment to the Supreme Court. Justice Souter, who was appointed in 1990 by a Republican president, became one of the most reliable members of the court's liberal wing.
Read more in the New York Times
Speculation on replacement focuses on women jurists
The departure of Justice Souter will open the first seat for a Democratic president to fill in 15 years and could prove a test of President Obama's plans for reshaping the nation's judiciary. Lawyers and legal scholars said today that while Obama may choose a white man for a later vacancy, he would probably not do so in his first opportunity to shape the court. Names of prominent women jurists, on the other hand, were widely discussed as likely candidates.
Read more from the New York Times
Sen. Overbey honored by Knoxville Bar Association
The Knoxville Bar Association today presented its prestigious Law & Liberty Award to State Senator Doug Overbey (R-Maryville), who practices with the Knoxville firm Robertson, Overbey, Wilson & Beeler. The award was presented during the KBA's Law Day Luncheon, which featured Justice Sharon G. Lee as keynote speaker.

New law school picks up accreditation
Lincoln Memorial University's new law school in downtown Knoxville has been granted accreditation by the Southern Association of Colleges and Schools Commission on Colleges. The action follows Tennessee Board of Law Examiner approval earlier this spring, which allows graduates to be eligible to sit for the Tennessee bar exam. LMU officials are also seeking accreditation from the American Bar Association for its John J. Duncan Jr. School of Law, which would allow graduates to sit for any state bar exam.
Learn more from the Knoxville News Sentinel
Jellico moving to set up municipal court
Jellico moved closer to setting up a municipal court system this week, establishing the salary the city will pay a new municipal judge and beginning the process of hiring one of the five applicants it has for the job.
Read more in the Lafollette Press
Court of the Judiciary
Court of the Judiciary issues 2 public censures of Dickson judge
Dickson County General Sessions Judge Durwood G. Moore was issued two public censures for his recent behavior in the courtroom. In the first case, the Court of the Judiciary said that Judge Moore behaved inappropriately in his dealings with Richard T. Hansrote, who was representing a client in Judge Moore's courtroom. The inappropriate behavior included "hanging up on Mr. Hansrote and using profanity as well as the threat of criminal contempt." In the second case, Judge Moore ordered a drug test be administered to a citizen observer in his courtroom who was neither a litigant, a defendant nor a person who had business before the court. The citizen was taken into custody and not released until the drug test proved negative. Read the first public censure.
Read the second public censure
TBA Member Services
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Online legal research is now available free to all Tennessee Bar Association members through an agreement with Fastcase, a leading online legal research firm. The TBA member benefit is national in scope and offers TBA members unlimited usage, unlimited customer service and unlimited printing -- all at no cost.
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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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