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Friday, February 25, 2011

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Judicial conduct rules changes proposed

New stricter standards and procedures for determining disqualification and recusal of judges, changes in restrictions on campaign activities by judges, and a new prohibition on judges presiding over cases in which they participate in judicial settlement conferences are among the changes to the Code of Judicial Conduct being recommended in a petition filed with the Tennessee Supreme Court today by the Tennessee Bar Association. The proposed rule changes come as a result of an 18-month-long study of the Code of Judicial Conduct undertaken by a task force of judges and lawyers, chaired by Chattanooga lawyer Max Bahner with Knoxville lawyer Sarah Sheppeard serving as the reporter.

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

00 - TN Supreme Court
02 - TN Worker's Comp Appeals
00 - TN Supreme Court - Rules
04 - TN Court of Appeals
05 - TN Court of Criminal Appeals
00 - TN Attorney General Opinions
00 - Judicial Ethics Opinions
00 - Formal Ethics Opinions - BPR

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES

Court: TWCA

Attorneys:

Gary H. Nichols and Mildred Sabbatini, Memphis, Tennessee, for the appellant, Correctional Medical Services.

Steve Taylor, Memphis, Tennessee, for the appellee, Prianglam Brooks

Judge: CHILDRESS

Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment. The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf

TIMOTHY RUSKIN v. LEDIC REALTY SERVICES, LTD.

Court: TWCA

Attorneys:

Joseph Michael Cook, Germantown, Tennessee, for the appellant, Timothy Ruskin.

R. Scott Vincent (on appeal and at trial), Tracy A. Overstreet (on appeal), and Candice Hargett-Laine (at trial), Memphis, Tennessee, for the appellee, Ledic Realty Services, Ltd.

Gary C. McCullough and Curtis H. Goetsch, Germantown, Tennessee, for the intervenor, Shelby County Health Care Center d/b/a/ Regional Medical Center.

Judge: HARRIS

In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf

THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY v. BARRY CONSTRUCTION COMPANY, INC., ET AL.

Court: TCA

Attorneys:

Sue B. Cain, J. Brooks Fox and Christopher M. Lackey, Nashville, Tennessee, for the appellant, the Metropolitan Government of Nashville and Davidson County.

Shawn R. Henry, Nashville, Tennessee, for the appellee, JCH Development Company, Inc.

Judge: DINKINS

This matter is before the court for a second time. The Metropolitan Government of Nashville and Davidson County initiated suit to compel two developers to complete an unfinished portion of a road in a planned unit development or to recover damages equal to the cost of completing the road if it completed the road itself. The trial court dismissed the action, finding that the amended complaint did not provide a legal basis for requiring either developer to complete the road. On appeal this Court vacated the trial court's order and remanded the case for the court to consider the appropriate allocation of responsibility for construction of the road between the two developers. While the appeal was pending, the Metropolitan Government acquired the land and subsequently completed the unfinished portion of the road. On remand, the trial court assessed costs of constructing the road to the developers equally, but assessed the land-acquisition costs entirely to one developer. The Metropolitan Government appeals. Finding no error in the trial court's allocation of responsibility, we affirm.

http://www.tba2.org/tba_files/TCA/2011/barryconstruction_022511.pdf

STATE OF TENNESSEE, EX REL. BILLIE JO FARRIS (SATTERFIELD) v. COLIN BRYANT

Court: TCA

Attorneys:

Robert E. Cooper, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Warren A. Jasper, Senior Counsel, Nashville, Tennessee, for Plaintiff/Appellee, State of Tennessee ex rel. Billie Jo Farris (Satterfield).

Virginia A. Schwamm, Schwamm, Albiston and Smith, PLLC, Knoxville, Tennessee, for Defendant/Appellant, Colin Bryant.

Judge: KIRBY

This appeal involves child support in a Title IV-D proceeding. In the parents' divorce trial, the father was not present, so income was imputed to him, and he was ordered to pay child support. In post-divorce proceedings, the State filed contempt petitions on behalf of the mother, alleging that the father was in arrears on his child support obligation. Orders were entered holding the father in contempt and ordering payments on the arrearage. The father filed a motion for modification of his child support obligation, asserting that his income was substantially less than the amount imputed to him, and that he had an additional minor dependent for whom he was required to pay child support. The trial judge denied the father's motion to modify his child support and sentenced him to jail for contempt. The father appeals the criminal contempt conviction and asserts that the trial court erred in refusing to modify his child support obligation. We vacate the criminal contempt finding and reverse the denial of the father's motion to reduce his child support obligation.

http://www.tba2.org/tba_files/TCA/2011/bryantc_022511.pdf

THOMAS E. MOORHEAD ET AL. v. JOY VAIL ALLMAN ET AL.

Court: TCA

Attorneys:

John H. Norton, III, and Liberti A. Snider, Shelbyville, Tennessee, for the appellants, Joy Vail Allman and Larry Allman.

Terry A. Fann, Murfreesboro, Tennessee, for the appellees, Clyde D. Manis, and Gregory D. Johns.

Judge: CLEMENT

The sellers of a mobile home park appeal the trial court's decision to rescind two real estate sales contracts and refund the purchasers their down payment. The purchasers asserted claims for fraudulent misrepresentation, fraud in the inducement, and breach of fiduciary duty, all of which arose from alleged misrepresentations by the sellers regarding the condition and income potential of the property at issue. Following a lengthy and convoluted procedural history, including a jury trial, the granting of a new trial, and several waves of amended pleadings, the parties filed competing motions for summary judgment. The sellers asserted various defenses including, inter alia, that the purchasers' claims were time barred. Finding that the sellers fraudulently induced the purchasers into buying the property, and that the statute of limitations had been tolled due to the sellers' concealment of material facts, the trial court denied the sellers' motion, granted summary judgment to the purchasers. For relief, the trial court rescinded the sales contracts and awarded the purchasers a refund of their down payments. We affirm.

http://www.tba2.org/tba_files/TCA/2011/moorheadt_022511.pdf

IN RE: SARAH E. L., ET AL.

Court: TCA

Attorneys:

Jennifer R. McKinnish, Sevierville, Tennessee, for the appellant, Melissa G. M.

Robert E. Cooper, Jr., Attorney General and Reporter, Joe Whalen, Solicitor General, and Marcie E. Greene, Assistant Attorney General, Nashville, Tennessee, for the appellee, Kenneth S. L.

Judge: MCCLARTY

The State of Tennessee, on behalf of Kenneth S. L. ("Father"), filed a petition for child support against Melissa G. M. ("Mother"). The hearing for child support was continued on three separate occasions. With each continuance, the trial court instructed Mother to bring medical documentation verifying her inability to work. At the fourth scheduled hearing, Mother failed to produce documentation from her medical providers. The trial court proceeded to set monthly child support payments and imputed a gross income of minimum wage to Mother. Mother appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2011/sarahl_022511.pdf

CONAL DECKER v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Conal Decker, Atlanta, Georgia, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The Petitioner, Conal Decker, filed a pro se petition for writ of error coram nobis or writ of habeas corpus challenging judgments in cases from 1994 and 1998 which were used to enhance the federal sentence he is currently serving. He claims in the cases he is challenging that he was never provided counsel or that his waiver of counsel was improper. The coram nobis court dismissed the petition. The State filed a motion requesting that this court affirm the coram nobis court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was properly dismissed. Accordingly, the State's motion is granted and the judgment of the coram nobis court is affirmed.

http://www.tba2.org/tba_files/TCCA/2011/deckerc_022511.pdf

STATE OF TENNESSEE v. KARIM EL-AMIN

Court: TCCA

Attorneys:

William Francisco, Johnson City, Tennessee, for the appellant, Karim El-Amin.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Cristel D. Ledford, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: OGLE

The appellant, Karim El-Amin, pled guilty in the Washington County Criminal Court to two counts of fraudulent use of a credit card involving a value more than five hundred dollars but less than one thousand dollars, a Class E felony, and one count of fraudulent use of a credit card involving a value equal to or less than five hundred dollars, a Class A misdemeanor. Pursuant to the plea agreement, the appellant was to receive an effective four-year sentence with the manner of service to be determined by the trial court. On appeal, the appellant challenges the trial court's denial of his request of alternative sentencing. Based upon the record and the parties' briefs, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/el-amink_022511.pdf

STATE OF TENNESSEE v. JIM HUNTER

Court: TCCA

Attorneys:

Jonathan Thomas Turner, Chattanooga, Tennessee, for the appellant, Jim Hunter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; William H. Cox, III, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The Defendant, Jim Hunter, was indicted for attempted first degree murder and domestic aggravated assault. After a jury trial, the Defendant was convicted of reckless endangerment and reckless aggravated assault. The trial court sentenced the Defendant to concurrent sentences of eight years for the reckless aggravated assault conviction and 11 months and 29 days for the reckless endangerment conviction. In this appeal as of right, the Defendant contends (1) that the trial court violated his Sixth Amendment right to a jury trial by basing his sentence on enhancement factors not determined by the jury and (2) that one of his convictions should not have been considered in determining his status as a multiple offender because of its age. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/hunterj_022511.pdf

STATE OF TENNESSEE v. AMADO RUBIO TAVERA

Court: TCCA

Attorneys:

Dawn Deaner, District Public Defender; Emma Rae Tennent (on appeal) and Jason Gichner (at hearing), Assistant Public Defenders for the Defendant-Appellant, Amado Rubio Tavera.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Amado Rubio Tavera, has filed a petition for writ of certiorari seeking review of the Davidson County Criminal Court's order denying his motion to expunge. The indictment charged Tavera with one count of vehicular assault and one count of aggravated assault. For the charge of vehicular assault, Tavera pled guilty to the lesser included offense of driving under the influence, a Class A misdemeanor. Pursuant to the plea agreement, the State entered a nolle prosequi for the charge of aggravated assault. Tavera subsequently filed a motion to expunge the charge of aggravated assault from all public records. He now appeals the denial of this motion. Upon review, we reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2011/taveraa_022511.pdf

ANDREW THOMAS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Steven M. Schwartz, Melissa A. Gabriel, Jennifer N. White, Signe B. Purup, pro hac vice, New York, New York; and Sara Willingham, Nashville, Tennessee, for the appellant, Andrew Thomas.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; James E. Gaylord, Assistant Attorney General; William L. Gibbons, District Attorney General; Amy Weirich, Assistant District Attorney General; and John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner Andrew Thomas appeals as of right the judgment of the Shelby County Criminal Court denying his petition for post-conviction relief. A Shelby County jury found Petitioner guilty of felony murder based on the killing of James Day during an attempt to perpetrate a robbery. The jury found that Petitioner had previously been convicted of one or more felonies for which the statutory elements involved the use of violence to the person. See T.C.A. section 39-13-204(i)(2). The jury further found that this aggravating circumstance outweighed mitigating circumstances beyond a reasonable doubt. The jury then sentenced Petitioner to death. Petitioner's conviction and sentence were affirmed on direct appeal by the Tennessee Supreme Court. See State v. Thomas, 158 S.W.3d 361 (Tenn. 2005). On January 3, 2006, Petitioner filed a pro se petition for post-conviction relief. On November 13, 2006, Petitioner filed a petition for writ of error coram nobis and an amended petition for post- conviction relief. The post-conviction court held an evidentiary hearing in October 2007. On August 4, 2008, the post-conviction court entered an order denying Petitioner post-conviction relief. On appeal to this Court, Petitioner presents a number of claims that can be characterized in the following categories: (1) Petitioner's trial counsel were ineffective; (2) Petitioner's appellate counsel were ineffective; (3) Petitioner is entitled to a new trial based upon newly discovered evidence; and (4) Tennessee's death penalty statutory scheme is unconstitutional. Following a thorough and exhaustive review of the record and the applicable law, we affirm the judgment of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2011/thomasa_022511.pdf

TODAY'S NEWS

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Legal News

Grads of unaccredited law schools cannot sit for Tennessee bar, court rules

A proposal to permit lawyers who graduate from unaccredited schools but who are admitted in other jurisdictions to sit for the Tennessee bar exam was rejected today by the Tennessee Supreme Court. The TBA in December filed a comment opposing adoption of the proposed rule change.

Download the order denying the petition

High court grants review of four cases

Review of four new cases has been granted this week from the Tennessee Supreme Court. This includes criminal cases addressing a conviction for the "wrong offense" and an analysis of the "Curative Admissibility" Doctrine. The two civil cases include an important question on the "made whole" doctrine as it relates to Underinsured Motorist Coverage. The final civil case concerns procedure governing de novo judicial review of county landfill decisions.

Read about them in the Raybin-Perky Tennessee Supreme Court Hot List

Sherrard & Roe to reopen Monday in new location

The Nashville law office of Sherrard & Roe PLC was closed today (Friday) to complete its move to The Pinnacle at Symphony Place. On Monday the new mailing address will be 150 3rd Avenue South, Suite 1100, Nashville, TN 37201. Phone numbers and email addresses will remain the same.

Shelby's Youth Court serves up justice

Shelby County's new Youth Court is up and running, involving about 60 teens. They serve in rotating roles as attorneys or jurors to help decide the fate of teens who are in court for the first time on nonviolent offenses. The jury then makes a recommendation to a judge who has the final say, but who will typically follow the jury's recommendation. Memphis attorney James Sanders volunteered his time to serve as the judge. "Peers can often be harder on you than anyone else," he said.

Read some of their stories from the Commercial Appeal

Lawyer delivers sweet revenge for Vols fans

In every lawyer's career, he or she should get the kind of praise given Mike Glazier recently. Glazier has been working for the University of Tennessee athletic program through its maze of allegations from the NCAA, and "is worth his weight in gold," writes sports columnist and attorney Clay Travis. "Whatever legal fees the Vols paid him in 2010 and '11, Tennessee got the best bargain for its money in college football this side of Cam Newton." Vol football fans who suffered the sudden departure of former coach Lane Kiffen will enjoy that Glazier "worked his magic" and not only "managed to avoid a direct hit to the football program, but he delivered Lane Kiffin's head on a silver platter to the NCAA."