Judicial Performance Evaluation rule revamp proposed

The Tennessee Supreme Court has promulgated for comment a rewrite of its Rule 27 on Judicial Performance Evaluation. The proposal -- with a Sept. 30, 2009, comment deadline -- places more emphasis on the role of the program and its judicially created committee in conducting performance evaluations that go into the Judicial Performance Evaluation Commission recommendation. That commission, which replaces the Judicial Evaluation Commission, must recommend whether to "retain" or "replace" an appellate judge under Tennessee's revised merit selection, performance evaluation and retention election statute.

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Court: TSC



Court: TCA


Ricky L. Wood, Parsons, Tennessee, for the Appellants, Benton County, Tennessee, Decatur County, Tennessee; for and on behalf of Benton-Decatur Special Sewer District.

Robert L. Green, Memphis, Tennessee, for the Appellee, Vern Franklin Chumney.


This is an eminent domain case. The Appellants appeal the trial court's denial of a Tenn. R. Civ. P. 15.02 motion. We dismiss the appeal for failure to appeal a final judgment.



Court: TCA


John J. Heflin, III, and John Marshall Jones, Memphis, Tennessee, for the appellant, J. T. Davis.

Richard Glassman and Lewis W. Lyons, Memphis, Tennessee, for the appellees, Jon Thompson and Ed Gatlin.

Judge: KIRBY

This is an action for contribution. The two individual plaintiffs and the defendant formed a limited liability company for the purpose of owning and operating an arena football team. To fund the team, the three investors took out two loans in their individual names. The business was a losing venture, and eventually the team was sold. The proceeds of the sale were used to pay all of the business's debts except the remaining liability on the two personal loans. The two plaintiffs paid the balance of the loans out of their personal funds. The plaintiffs then filed the instant lawsuit against the defendant for contribution, alleging that he was jointly and severally liable for his pro rata share of the debt. The defendant conceded that he owed a small part of the debt, but argued that his liability should be reduced by the amounts distributed to the plaintiffs by the business. The defendant contended that the funds distributed to the plaintiffs should have been applied to the business debt. After a bench trial, the trial court held in favor of the plaintiffs. The trial court rejected the defendant's claim that his debt should be offset, finding that the distributions made to the plaintiffs constituted a repayment of loans, not a distribution of capital. It also awarded the plaintiffs attorney's fees. The defendant now appeals. We affirm the decision of the trial court in all respects.



Court: TCA


Benjamin Lauderback, Knoxville, Tennessee, for appellant, City of Clinton, Tennessee.

Tasha C. Blakney and Ronald C. Koksal, Knoxville, Tennessee, for appellees, Curtis Robin Russell and Dorothy Louise Russell.


In this wrongful death action, the Trial Court assessed 50% fault for the death to plaintiff mother, and 50% fault to defendant. The Complaint charged that the motor vehicle operator who struck decedent was at fault in the accident, but plaintiff settled with that defendant and the action was dismissed as to the defendant. The Trial Judge pretermitted the issue of fault chargeable to the dismissed defendant. On appeal, we vacate the Trial Court's Judgment and remand with instructions to rule on the pretermitted issue.



Court: TCA


Mark D. Edmonds, Jonesborough, Tennessee, for appellant, James R. Waddell.

S. Morris Hadden and Senitria A. Goodman, Kingsport, Tennessee, for appellee, Greenelawn Memory Gardens, Inc.


Plaintiff fell on defendant's property and sustained serious personal injuries. Defendant filed a Motion for Summary Judgment which the Trial Court sustained. On appeal, we hold that summary judgment was inappropriate as there were disputed issues of material fact. We vacate the summary judgment and remand with instructions for further proceedings.



Court: TCCA


Jerri D. Mauldin, Memphis, Tennessee, for the appellant, Andrew Ewing.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; William L. Gibbons, District Attorney General; and Byron Winsett, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Andrew Ewing, sought to reopen his petition for post-conviction relief. Following a hearing, the post-conviction court denied his motion to reopen, and he made an untimely appeal. After review, we conclude that the interests of justice do not require considering this untimely appeal and, therefore, it is dismissed.



Court: TCCA


Marcus Terry, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: GLENN

The petitioner, Marcus Terry, filed a petition for writ of habeas corpus, claiming that his 1997 convictions for vehicular homicide are void because, in his view, the jury instructions were erroneous and he should not have been classified as a career offender. The trial court determined that these claims were not appropriate for habeas corpus relief and denied the petition. Following our review, we affirm the denial pursuant to Rule 20, Rules of the Court of Criminal Appeals.



Legal News
Disciplinary Actions
TBA Member Services

Legal News
Details of pro bono reporting rule emerge
A draft rule requesting that attorneys report pro bono activities has been published for comment by the Tennessee Supreme Court. The proposal grew out of the Pro Bono Initiative, which the TBA filed with the court in June 2008. When the court created its new Access To Justice Commission, it asked the commission to make a recommendation on the proposal. The commission has recommended the new rule. The comment deadline for this proposal is Sept. 30, 2009. The TBA is already on record supporting pro bono reporting and is likely to comment favorably on the proposal.
Download the proposal
Appeals court says Ashcroft practice 'repugnant to the Constitution'
A federal appeals court ruled Friday that former Attorney General John Ashcroft can be sued by people who claim they were wrongfully detained as material witnesses after 9/11. The court called the government practice "repugnant to the Constitution." A three-judge panel of the 9th U.S. Circuit of Appeals ruled that the claims of a former University of Idaho student plausibly suggest Ashcroft purposely used the material witness statute to detain suspects whom he wished to investigate and detain preventively. The ruling allows Abdullah al-Kidd, a U.S. citizen, to proceed with a lawsuit that claims his constitutional rights were violated when he was detained in 2003 as a material witness in a federal terrorism case.
NewsChannel 9 carried this AP story
Norton honored as 'Judge of the Year'
Soddy Daisy Judge David Norton will be honored as "Judge of the Year" by Court Watch Partners of Hamilton County. Judge Don Poole of Criminal Court and Judge Johnny Houston of the Red Bank City Court will receive "Outstanding Judicial Service" awards on Sept. 30. The Chattanoogan.com reported the news.

Memphis mayor pro tem fires Wilkins firm
Memphis Mayor Pro Tem Myron Lowery has fired attorney Ricky Wilkins, who the city was paying to resolve the financial mess on Beale Street. Lowery said Wilkins had an oral contract with the city under former Mayor Willie Herenton but could not produce a written one. Last Thursday, Lowery appeared on television questioning large payments made to Wilkins' firm over the years -- nearly $2 million over five years. Shortly after, Wilkins sent an e-mail to Lowery in which he told the interim mayor, "If you want some other lawyer to represent the city, let me know and you can pick up all of your files tomorrow. Life is too short to represent any client that does not appreciate or value one's services."
Follow it in the Commercial Appeal
Councilman wants Herenton to repay legal fees to city
Memphis City Councilman Bill Morrison says former mayor Willie Herenton was out of bounds for having the city pay his $55,747.42 legal bill, and City Attorney Elbert Jefferson should never have authorized the payments. Morrison will ask the council next week to fire Jefferson and demand that Herenton return the money or the city will sue him for it.
WMC-TV has the story
Meanwhile, a grand jury subpoena seeks "any records relating to the payment" that was rushed this summer to Herenton's lawyer, Robert Spence, days before Herenton left office. The subpoena, obtained by The Commercial Appeal, sets a Sept. 24 deadline for the city to turn over the records.
Read the story
Fishburn working to clear out old DUI cases
Davidson County Criminal Court Presiding Judge Mark Fishburn wants to clear the backlog of DUI cases -- which have doubled in number in the past few years. To that end, all the old DUI cases have been transferred to Fishburn's court, and he is taking all the new ones, too. He'll be hearing them on Friday mornings, and he says he's putting each case on a deadline that should see them resolved within six months.
The Tennessean has the story
Thursday webcast: Learn about TBA France history tour
Join your colleagues in the Tennessee bar on an exciting history tour of France, June 19-25, 2010. You will stay in charming three-star hotels as the group travels from Paris to Giverny, Caen, Bayeux, Honfleur and other Normandy locations, sampling French cuisine, culture and architecture. Highlights of the trip include the Normandy D-Day landing beaches, the Memorial Peace Museum in Caen, the American Cemetery at Omaha Beach, the Chateau of William the Conqueror, the famous Bayeux Tapestry, the island monastery Mont Saint-Michel, and the home and gardens of Claude Monet. Learn more about the trip or register now on TBALink, or watch a webcast about the trip on Thursday, Sept. 10 from 5 - 5:30 p.m. to get detailed highlights and ask questions from tour leaders.

Disciplinary Actions
Knoxville attorney reinstated
Knoxville attorney Steven Lee Williams was reinstated to the practice of law by order of the Tennessee Supreme Court entered on Aug. 25. He was temporarily suspended on July 31, for failing to respond to a complaint of misconduct.
Read the BPR news release
Sumner County lawyer disbarred
On Aug. 18, Jocelyn D. Mims of Sumner County was disbarred by order of the Tennessee Supreme Court, pursuant to Rule 9 of the Rules of the Supreme Court of Tennessee. She pled guilty to conspiracy to introduce contraband into a penal facility and attempted introduction of contraband into a penal facility.
Read the BPR news release
TBA Member Services
Ship directly from Microsoft Office Outlook with FedEx QuickShip
Now you can ship your FedEx packages directly from the Microsoft Office Outlook application -- and save money doing it. It's a fast and convenient way to easily access some of the most popular features on fedex.com using Microsoft technology. That's why you should Think FedEx First.
Take advantage of your member discounts on select FedEx shipping services and FedEx OfficeSM business services

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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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