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

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Court: TSC


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.



Court: TSC


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.



Court: TCA


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.


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.



Court: TCA


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.


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.


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

Court: TCA


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.


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.



Court: TCA


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.


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.



Court: TCCA


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.



Court: TCCA


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.


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.



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