Judicial Evaluation Commission offers opportunity to serve

The new Judicial Performance Evaluation Commission created by Public Chapter 517 will recommend whether to retain or replace appellate judges in retention elections. It will have nine members of whom three must be lawyers. One lawyer will be appointed by the Judicial Council and one each appointed by the speakers of the House and Senate.

The Tennessee Judicial Council has announced that it will meet on Aug. 10 to name the members of the Judicial Performance Evaluation Commission that the statute gives them the power to name -- three judges, one lawyer and one nonlawyer. A Judicial Council subcommittee chaired by Nashville lawyer Harlan Dodson will make a recommendation to the full council. Unlike the Judicial Nominating Commission, there is no formal application process for the evaluation body. The speakers will receive recommendations from interested groups and are not bound by those recommendations. The TBA Board has developed a process to make its recommendation to the appointing authorities, which is detailed here.
TODAY'S OPINIONS
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IN RE C.T.B.

Court: TCA

Attorneys:

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, M.R.B., Jr.

Derek Colson Sanborn and Richard L. Dugger, Shelbyville, Tennessee, for the appellees, D.D.D. and D.D.

Judge: BENNETT

A father challenges the trial court's decision to terminate his parental rights. Because we disagree with the trial court's conclusion that the father's failure to support or visit was willful, we reverse.

http://www.tba2.org/tba_files/TCA/2009/ctb_070709.pdf


KERRIE FROST v. JAMES SHEHANE, ET AL.

Court: TCA

Attorneys:

David Kozlowski, Columbia, Tennessee, for the appellant, Kerrie Frost.

Gary Howell, Mt. Pleasant, Tennessee, for the appellees, James Shehane and Alma Shehane.

Judge: DINKINS

Tenant filed suit against former landlords, alleging violations of the Uniform Residential Landlord and Tenant Act ("URLTA") and the Tennessee Consumer Protection Act ("TCPA"). Landlords filed a counter-claim, alleging that tenant breached the lease. The trial court awarded damages to landlords for breach of lease and awarded punitive damages under the URLTA to tenant. Finding that the trial court erred in the amount of damages awarded to landlords, the award is modified. Finding that tenant elected to pursue treble damages under the TCPA, the award of punitive damages under the URLTA is vacated and the matter remanded for the trial court's consideration of whether an award of treble damages is warranted.

http://www.tba2.org/tba_files/TCA/2009/frostk_070709.pdf


BARRY JACKSON HAYES v. PATSY ANN JENKINS HAYES

Court: TCA

Attorneys:

Robert W. Newman, McMinnville, Tennessee, for the Appellant, Barry Jackson Hayes.

Sue N. Puckett-Jernigan, Smithville, Tennessee, for the Appellee, Patsy Ann Jenkins Hayes.

Judge: STAFFORD

This is a divorce case. Husband appeals the trial court's award of alimony in futuro to Wife. Wife appeals the order requiring her to be responsible for one half of any debt owing on commercial property after it is sold. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/hayesb_070709.pdf


RICHARD STEVEN LARUE v. LAURA MICHELLE LARUE
With concurring opinion


Court: TCA

Attorneys:

Felisha B. White, Tennessee, for appellant, Richard Steven LaRue.

David H. Stanifer and Lindsey C. Cadle, Tazewell, Tennessee, for appellee, Laura Michelle LaRue.

Judge: FRANKS

In this divorce action the Trial Court awarded primary custody of the children to the mother, refused to allow overnight visitation with the father until the children were one year old, and ordered standard visitation with the father. The father appealed, insisting that the Trial Court erred in applying the "tender years doctrine" and also erred in awarding standard visitation of the children. On appeal, we affirm the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/laruer_070709.pdf

D. MICHAEL SWINEY, J., concurring.
http://www.tba2.org/tba_files/TCA/2009/laruerCON_070709.pdf


ROBERT NICELY v. BERKLINE, LLC

Court: TCA

Attorneys:

Joshua A. Wolfe, Knoxville, Tennessee, for the Appellant, Berkline, LLC.

Larry V. Roberts, Kingsport, Tennessee, for the Appellee, Robert Nicely.

Judge: SWINEY

Robert Nicely ("Plaintiff") was employed as a truck driver for Evinco Professional Services, Inc. ("Evinco"). Evinco contracted with Blue Mountain Trucking Corporation for the delivery of various goods. In March 2004, Plaintiff was injured while unloading furniture that had been loaded onto his truck by employees of Berkline, LLC. Plaintiff sued Berkline, LLC, ("Defendant") for personal injuries. Defendant filed a motion for summary judgment claiming that an employment agreement signed by Plaintiff barred this lawsuit. The Trial Court disagreed and allowed the case to go to the jury. The jury returned a verdict for Plaintiff in the amount of $500,000. Because the jury found Plaintiff 20 percent at fault for his own injuries, the judgment was reduced to $400,000. Defendant thereafter filed a motion for a new trial or for a remittitur, both of which the Trial Court denied. Defendant appeals. Finding no error, we affirm the judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2009/nicelyr_070709.pdf


JAMIE C. RUNIONS v. TENNESSEE STATE UNIVERSITY, ET AL.

Court: TCA

Attorneys:

Mark J. Downton, Nashville, Tennessee, for the appellant, Jamie C. Runions.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Jay C. Ballard, Assistant Attorney General, for the appellees, Tennessee State University, Betty Wilson, Bernadeen Fleming, Ph.D., Barbara Buchanan Covington, Ph.D, Dr. Robert Hampton.

Judge: COTTRELL

A woman enrolled in a nursing program at Tennessee State University received a grade of D in one of her courses and was dropped from the program. She appealed to the provost of the university, who led her to believe that she had been, or would be, reinstated. She learned that this was not so when she returned to class and the instructor physically escorted her from the classroom. She brought suit against the university and four of its employees, including the provost, asserting claims of battery, conspiracy to commit battery, and intentional infliction of emotional distress. The trial court dismissed her suit for failure to state a claim upon which relief can be granted. See Tenn. R. Civ. P. 12.02(6). We affirm.

http://www.tba2.org/tba_files/TCA/2009/runionsj_070709.pdf


TODAY'S NEWS

Legal News
Upcoming
TBA Member Services

Legal News
Governor to appoint court reporter board
The governor will appoint a new Tennessee Board of Court Reporting under the new licensing law for court reporters created by Public Chapter 450. This nine-member board must have two lawyer members. The Administrative Office of the Courts will provide support to the new body.

Man 'forfeits right' to attorney at trial, appeals court says
The Tennessee Court of Criminal Appeals has ruled that a man charged in the death of a young couple has forfeited his right to be represented by an attorney. The court said the case of Howard Hawk Willis will proceed without defense counsel because "the defendant used the tactic of suing his lawyers or filing complaints against them with the Board of Professional Responsibility as a means of coercing the court into discharging counsel and that the pattern was for the tactic to be employed as trial dates approached." The ruling says there have been seven different attorneys appointed for Willis and he has battled all of them.
Chattanoogan.com has more
Opinion: Civics lesson in judicial appointment process
Supreme Court Justice Stephen Breyer and retired justice Sandra Day O'Connor are working to try to educate young Americans about the role of courts in our society. O'Connor says that Americans have to realize that the nation is governed by laws and the Constitution and that judges must not be punished for deciding that lawmakers passed unconstitutional laws or that members of the executive branch of government violated the law. Both justices caution that during the nomination process for Sonia Sotomayor, "what we should be watching for is a clear indication from Sotomayor that she understands that every case is different and that every single defendant has the absolute right to a fair trial with judges who have not made up their minds ahead of time."
The News Sentinel carried this Scripps-Howard column
Fla. high court tells governor he must choose from commission's original list
The Florida Supreme Court ruled last week that Gov. Charlie Crist had no constitutional authority to refuse to seat a new judge because he only had white nominees to choose from. When Gov. Charlie Crist would not choose from the list given him by the state's Judicial Nominating Commission, the commission responded by sending back the same six names. Crist did not make a selection. The retiring judge whose seat was being filled, Robert J. Pleus, then filed suit. Crist has said in a statement that he would comply with the ruling and choose a judge from the original list.
ABAJournal.com connects you to the story
DUI offenders skip jail because of overcrowding
Hawkins County Sessions Judge David Brand sent seven DUI offenders home instead of sentencing them to the mandatory 48 hours in jail. "We just don't have any place to put them," Brand told the Times-News following court Monday. "If I'd have sent them (to jail), they wouldn't have taken them. They've run out of pads, and they're sleeping on concrete." Instead, the offenders received four days of community service.

BPR picks panel for Lockett
The Tennessee Supreme Court's Board of Professional Responsibility, which is hearing a case involving the ethics of county Law Director Bill Lockett, has selected a panel of two lawyers from Knoxville and one from Chattanooga to hear the case. In related news, Knox County Mayor Mike Ragsdale has refused to sign a resolution passed by the Knox County Commission censuring Lockett, calling for his resignation and requesting that all investigations into Lockett's misappropriation of funds be expedited.
The News Sentinel reports
ABA gives Sotomayor's qualifications a thumbs up
Supreme Court nominee Sonia Sotomayor earned a "well-qualified" rating from the American Bar Association on Tuesday as she prepared for Senate hearings next week.
NewsChannel9 carried this AP story
Upcoming
Beautiful courthouse doorknobs replicated
The Memphis Bar Association has made replicas of ornate doorknobs found in the 100-year-old Shelby County Courthouse, and will sell them at a fundraiser scheduled for Oct. 15. Call the MBA office at (901) 527-3573 for more information about purchasing a doorknob replica.
Read more about the effort in the Commerecial Appeal
TBA Member Services
Health savings accounts now available
The TBA has partnered with First Horizon Msaver Inc. to offer Health Savings Accounts (HSAs) and HSA-qualified health plans for individuals and groups to members. HSAs are tax-advantaged accounts that let you set aside money to pay for current and future medical expenses. For more information, or to obtain an instant quote for an HSA-qualified health plan, call the TBA's dedicated toll-free customer care line at (866) 257-2659 or visit the TBA member web site.
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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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