Group to consider updates to judicial conduct rules

TBA President Gail Vaughn Ashworth has appointed a task force to study Tennessee's judicial ethics rules and consider whether revisions are needed. The Task Force on Judicial Conduct Rules will be chaired by Chattanooga lawyer T. Maxfield Bahner. Other members are reporter Sarah Y. Sheppeard, Albert C. Harvey, Buck Lewis, Barbara Mendel Mayden, Lucian Pera, and judges Jerri S. Bryant, Angelita Dalton, Thomas R. Frierson II, Alan E. Glenn, Walter C. Kurtz, Joe G. Riley and Thomas G. Stovall. TBA staff members are Allan Ramsaur and Jenny Jones. The task force is to submit its report with any recommendations to the TBA Board of Governors, which will consider the findings at its June 2010 meeting.

Tennessee's judicial ethics rules were last amended in 1997, and that revision was broadly based on the 1990 American Bar Association Model Code of Judicial Conduct. The Tennessee Supreme Court amended the judicial speech provisions of the code in 2005, but those amendments were limited to the comments. The 2007 revisions to the ABA Model Code of Judicial Conduct are significant and revisions to the Model Code are now under consideration in 35 jurisdictions. In addition to considering whether the Tennessee Code of Judicial Conduct -- contained in Tennessee Supreme Court Rule 10 -- should be amended, the task force is to consider (1) any needed procedural reforms for how motions to disqualify or recuse judges are handled, and (2) any needed revisions of statutory provisions that relate, directly or indirectly, to judicial ethics.
TODAY'S OPINIONS
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BRENDA BREWER v. KENNY BREWER, SR.

Court: TCA

Attorneys:

Scottie O. Wilkes, Memphis, TN, for Appellant.

No brief filed on behalf of Appellee.

Judge: HIGHERS

This is a divorce case. On appeal, Husband argues that certain settlement monies, which he claims Wife failed to disclose, should be considered marital property subject to equitable division. Such monies include Wife's personal injury settlement, Wife's payment for past SSI benefits, and Wife's car insurance settlement proceeds. Husband also contends that Wife's share of the marital home should be reduced based on the discovery of these additional assets. Finally, Husband argues that he should not have been required to pay rehabilitative alimony and alimony in futuro to Wife. We affirm.

http://www.tba2.org/tba_files/TCA/2009/brewerb_090309.pdf


DOUG GOSS, ET AL. v. TOMMY BURNEY HOMES, INC.

Court: TCA

Attorneys:

Todd E. Panther and Stephen A. Lund, Nashville, Tennessee, for the appellants, Doug Goss and Bethany Goss.

Mart G. Fendley, Clarksville, Tennessee, for the appellee, Tommy Burney Homes, Inc.

Judge: DINKINS

Purchasers contracted with a builder to construct and sell them a semi-custom built home; purchasers were permitted to make certain material selections, but were required to pay in advance for any upgrades. During construction, there were several delays some of which were caused by the builder while others were caused by the purchasers. One particular delay was caused by the purchasers' decision to select a quartz material for the kitchen counter-tops. When the construction was completed, the builder assessed the purchasers an overage charge of $3,047.69 for interest which had accrued on the builder's construction loan as a result of the delay caused by the purchaser's selection of the quartz counter-tops. The purchasers refused to pay this charge and asked the builder to correct certain things in the home prior to closing. Without giving any notice or attempting to reschedule, the purchasers failed to attend the closing and subsequently filed suit against the builder for breach of contract and conversion of property. The builder denied that it had breached the contract and filed a counter-claim alleging that the purchasers had breached the contract. At trial, the jury found that the purchasers breached the contract. The purchasers appeal, asserting that the weight of the evidence does not support the jury's verdict; purchasers also appeal certain evidentiary rulings made by the trial court. We affirm the jury's verdict and the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2009/gossd_090309.pdf


SHERRILL JOHNSON, INDIVIDUALLY AND AS NEXT FRIEND OF VICTORIA JOHNSON V. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY

Court: TCA

Attorneys:

Henry S. Queener, Nashville, for the Appellants.

Sue Cain, Lora Barkenbus Fox, and Jeff Campbell for the Appellee.

Judge: KURTZ

This matter is before us on remand from the Tennessee Supreme Court for reconsideration in light of Martin v. Norfolk Southern Ry., 271 S.W.3d 76 (Tenn. 2008) and Hannan v. Alltel Publ'g Co., 270 S.W.3d (Tenn. 2008). After reconsideration, we are of the opinion that the appellee should still prevail. A bystander in a parking lot was injured by a ricocheting bullet fired by a police officer. The officer and a fellow officer had been confronted in the parking lot by an armed assailant who fired his handgun at or towards the officers. The bystander, contending that one of the officers was negligent when he fired his weapon in self-defense, sued the Metropolitan Government of Nashville and Davidson County under the Tennessee Governmental Tort Liability Act. The trial judge dismissed the case on summary judgment. We find that the police officer acted reasonably under the circumstances confronting him, and we therefore affirm the trial judge.

http://www.tba2.org/tba_files/TCA/2009/johnsons_090309.pdf


KIMBERLY RENEA SMITH v. STEPHEN WARD SMITH, SR.

Court: TCA

Attorneys:

Paula Ogle Blair, Nashville, Tennessee, for the appellant, Stephen Ward Smith, Sr.

Brenda Rhoton Clark, Nashville, Tennessee, for the appellee, Kimberly Renea Smith.

Judge: DINKINS

Father filed a Petition to Modify Visitation and Child Support based upon a change in circumstances; Mother filed a Counter-Petition for Criminal Contempt based on Father's failure to comply with aspects of the Final Decree of Divorce. Father appeals the trial court's application of an upward deviation to his modified child support obligation; order to obtain and provide health insurance for a minor child; failure to order Mother to obtain a life insurance policy for the benefit of the minor child; monetary award to Mother for reimbursement of child's contribution to the purchase of an automobile; failure to apply his modified child support obligation retroactively; award of attorneys' fees to Mother; and denial of a post-trial petition for modification to further reduce his child support obligation based on post-trial changes in circumstances. Finding that the trial court erred in applying an upward deviation to Father's modified child support obligation, in awarding Mother a monetary judgment for child's contribution to the purchase of an automobile and in awarding Mother attorneys' fees, the judgment is reversed. The judgment denying Father's post-trial petition for modification is vacated and the case remanded for further hearing thereon. The trial court's judgment is affirmed in all other respects.

http://www.tba2.org/tba_files/TCA/2009/smithk_090309.pdf


LAURA LEA SPARKMAN v. DAVID JEREMY LYLE
Corrected Opinion: On page 1 the name of the trial judge is corrected to be Judge Larry B. Stanley, Jr.


Court: TCA

Attorneys:

Jonathan L. Miley, Old Hickory, Tennessee, for the appellant, David Jeremy Lyle.

Thomas F. Bloom, Nashville, Tennessee, for the appellee, Laura Lea Sparkman.

Judge: CLEMENT

This appeal concerns Mother's petition for contempt against Father for failing to pay child support pursuant to the Final Decree of Divorce, and Father's counter-petition to modify the parenting plan. At the time of the divorce, Father was unemployed but seeking employment. The Final Decree of Divorce required Father to pay child support of $100 per week "until such time as [Father] obtains employment, at which time the amount of child support to be paid will be 21% of current income." When Father obtained employment, he paid child support in the amount of 21% of his income, which was less than $100 per week. No order was entered modifying the child support obligation in the Final Decree. Months later, the petitions at issue were filed. Following a hearing, the trial court found that Father was in contempt for failing to pay the specified amount of $100 a week until the date an order was entered modifying his child support obligation. The trial court also dismissed Father's counter-petition finding no material change in circumstances existed for modification. Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2009/sparkmanl_corr_090309.pdf


ALFRED EUGENE BRADLEY v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ardena J. Garth, Richard Kenneth Mabee, and Jonathan Turner, Chattanooga, Tennessee, for the appellant, Alfred Eugene Bradley.

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

Judge: OGLE

The petitioner, Alfred Eugene Bradley, filed a petition for post-conviction relief challenging his convictions of four counts of attempted first degree murder, aggravated arson, false imprisonment, assault, and theft under $500. After a hearing, the post-conviction court dismissed the petition without entering a written order and without setting forth its findings of fact and conclusions of law with respect to each of the grounds raised in the petitioner's post-conviction petition. The State concedes that this case should be remanded to the post-conviction court for factual findings and entry of a written order. We agree and remand the case for entry of a final order in compliance with Tennessee Code Annotated section 40-30-111.

http://www.tba2.org/tba_files/TCCA/2009/bradleya_090309.pdf


DEAN F. SHOEMAKER V. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Dean F. Shoemaker, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and Victor S. (Torry) Johnson III, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, Dean F. Shoemaker, appeals the trial court's denial of his petition for writ of habeas corpus. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/shoemakerd_090309.pdf


TODAY'S NEWS

Legal News
TBA Member Services

Legal News
Senior lawyers in Memphis recommit to pro bono work
Allen Malone, a member of Burch Porter & Johnson PLLC in Memphis, is spearheading a group of senior lawyers -- the Gray Knights -- to do more pro bono work for Memphis Area Legal Services. Those who agree to join the group are asked to perform 15 hours of pro bono work a year. In an email to prospective members, Malone suggested that since they no longer have to complete annual CLE requirements, the group could spend that time working for MALS.
The Memphis Daily News reports
Supreme Court honors Don Paine for service
The Tennessee Supreme Court today honored Knoxville attorney Donald Paine for 35 years of service on the Advisory Commission on the Rules of Practice and Procedure. Paine, who had served as reporter for the commission, retired today. He was presented with an order of commendation by Chief Justice Janice Holder and named "Reporter Emeritus" for his many years of service. The court also recognized Paine's long-time assistant, Karen Roberts. Commission members are appointed by the court to consider proposed amendments to the rules of appellate, civil, criminal and juvenile procedure and the rules of evidence.
Read the court's release
Hamilton County clerk retiring after 45 years
Veteran Hamilton County deputy court clerk Richard Darwin will retire tomorrow after 45 years of public service, including 30 years as deputy court clerk for Chattanooga City Court and almost 15 years as bench clerk to Judge Bob Moon. A ceremony for Darwin will be held at 9 a.m. Friday in Courtroom 6. Chattanooga City Court Judge Sherry Paty, County Mayor Claude Ramsey, Mayor Ron Littlefield and Moon will make presentations. Friends and family are invited to attend.
Read more on Chattanoogan.com
ALCOA settles asbestos suit
A Maryville family and ALCOA Inc. have reached a settlement in an asbestos exposure and cancer lawsuit. The amount of the settlement and terms of the agreement were not revealed. The case was brought by Amanda Satterfield following her diagnosis with mesothelioma. Satterfield, who died four years ago, claimed her cancer was caused by exposure to her father, who transported asbestos for the company.
The Maryville Daily Times has more
Knox school board rejects Lockett's services
The Knox County school board approved a resolution Wednesday stating it no longer wants to be represented by Knox County Law Director Bill Lockett. Board members said the unanimous vote reflected their feelings that their legal advisor should be above reproach. The board still wants to be represented by the law department, but will ask that other lawyers in the office be assigned.
The News Sentinel reports
Former ABA president to head diversity group
Former ABA president Robert J. Grey Jr. has been selected to serve as interim executive director of the Leadership Council on Legal Diversity, an organization formed this summer by general counsel and managing partners of law firms to promote diversity throughout the legal industry. Grey, who is a former president of the American Bar Association, is a partner in the law firm of Hunton & Williams. The move comes less than a month after President Obama nominated Grey to serve on Legal Services Corporation board. The National Law Journal reported the news.

Jurors concerned that service will cause financial hardship
Potential jurors are increasingly citing fears that jury service could cause financial hardship, causing some court administrators to increase the number of people called to serve. According to the New York Times, several judges and court officials are reporting an increase in people seeking to avoid jury service. Some of the reasons cited include being the sole wage earner in the family, inability to afford transportation to the courthouse due to unemployment, or for business owners, being short staffed due to lay-offs.
Learn more about how the economy is affecting jury service
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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