Committee OKs judges' plan for new ethics board

The state Senate Government Operations Committee approved legislation Wednesday that replaces the current Court of the Judiciary with a Board of Judicial Conduct made up of 10 judges and six citizens. It then referred the bill to the Senate Judiciary Committee. Tennessee Criminal Appeals Court Judge Jeff Bivins, who is the Judicial Conference's point person on the issue, was on hand to present the conference's proposal for handling judicial complaints. The package, introduced in the Senate by Sen. Mike Faulk, R-Church Hill, as SB 2671, would, according to TNReport, shift responsibility for rejecting complaints to board members rather than staff. In addition, the new board would produce quarterly public reports instead of the current yearly statistics, establish a legislative liaison and operate with a lower threshold for pursuing an investigation.

Read more from TNReport

TODAY'S OPINIONS
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EAGLES LANDING DEVELOPMENT, LLC. v. EAGLES LANDING APARTMENTS, LP., ET AL.

Court: TCA

Attorneys:

Robert L. Crawford and Joseph B. Reafsnyder, Memphis, Tennessee, and Charles L. Perry, Dallas, Texas, for the appellants, Eagles Landing Apartments, LP, PNC Multifamily Capital Institutional Fund XXX, LP, and Columbia Housing SLP Corporation.

Dedrick Brittenum, Jr., and Kenya S. Hooks, Memphis, Tennessee, for the appellee, Eagles Landing Development, LLC.

Judge: STAFFORD

This is a breach of contract case. Following a bench trial, the trial court awarded Appellee Developer the remaining balance due under a Development Agreement that was entered by and between Appellee and the Appellants, a partnership and its limited liability partners, for construction of an apartment complex. Appellants contend that Appellee was not entitled to final payment because the general partner, who is not a party to this appeal, had not funded the development fees that were contemplated under a Partnership Agreement, to which Appellee was not a party. Specifically, Appellants argue that the payment under the Development Agreement is contingent upon satisfaction of the funding requirements specified in the Partnership Agreement. We conclude that the conditions precedent under the Development Agreement were met, and that the Appellee was, therefore, entitled to its full fee under the Development Agreement. The trial court assessed judgment against the limited liability partners and the partnership. Under the Tennessee Revised Uniform Partnership Act, Appellants' status as limited partners protects them from liability for the debts of the partnership. Appellee contends that it is a third-party beneficiary under the Partnership Agreement and may, therefore, have judgment against the limited partners who were parties to that agreement. We conclude that the third-party beneficiary issue is waived and that the trial court erred in entering judgment against the limited partners. Affirmed in part, reversed in part, and remanded.

http://www.tba2.org/tba_files/TCA/2012/eagleslanding_020212.pdf


GARY PAUL v. DENNIS WATSON and DARLENE WATSON d/b/a DOUBLE D LAWN CARE AND LANDSCAPING

Court: TCA

Attorneys:

Michael R. Hill and Pamela G. Vawter, Milan, Tennessee, for the appellant, Gary Paul.

John W. Whitworth, Camden, Tennessee, for the appellees, Dennis Watson and Darlene Watson, d/b/a Double D Lawn Care and Landscaping.

Judge: STAFFORD

This case involves an alleged oral contract for landscaping work. The homeowner paid a considerable amount of money to the landscaper during the project, but when the landscaper failed to complete the project, the homeowner demanded a refund. When the landscaper refused to refund any money, the homeowner sued, alleging breach of contract, a violation of the Tennessee Consumer Protection Act, conversion, and negligent and intentional misrepresentation. The trial court ruled that the homeowner was entitled to a refund only of his last payment to the landscaper before the landscaper left the job, as well as attorney fees. The homeowner appealed. Following an order from this court directing the homeowner to obtain a final judgment, the trial court entered an amended judgment denying the homeowner's claim pursuant to the Tennessee Consumer Protection Act. Because we conclude that the trial court failed to rule on the homeowner's claims for conversion and misrepresentation, we dismiss this appeal for lack of a final judgment.

http://www.tba2.org/tba_files/TCA/2012/paulg_020212.pdf


KATIE J. ROUNTREE v. JOSHUA ROUNTREE

Court: TCA

Attorneys:

Mart G. Fendley, Clarksville, Tennessee, for the appellant, Joshua Rountree.

Wesley Mack Bryant, Columbia, Tennessee, for the appellee, Katie J. Rountree.

Judge: STAFFORD

This is a divorce case involving issues related to the permanent parenting plan and the division of marital property. The trial court adopted Mother's proposed permanent parenting plan, which provided that the child would attend preschool, against Father's wishes, even though prior to trial Father had been the primary caregiver of the child while Mother worked. The trial court also adopted Mother's proposed division of marital property. We conclude that the trial court erred in finding that Father's desire to care for the child during the day was based on a self-serving motive. Accordingly, we vacate the parenting plan and remand for the establishment of a new permanent parenting plan. We further conclude that Mother was improperly assigned her attorney fees as a marital debt, and we reverse that award. In addition, we reverse portions of the trial court's findings regarding the marital property, but affirm the overall division as equitable. Affirmed in part, reversed in part, vacated in part, and remanded.

http://www.tba2.org/tba_files/TCA/2012/rountreek_020212.pdf


BRIAN DOUGLAS SPIVEY v. DAVID N. KING ET AL.

Court: TCA

Attorneys:

R. D. Hash, Maryville, Tennessee, for the appellant, Brian Douglas Spivey.

Glenna W. Overton, Knoxville, Tennessee, for the appellees, David N. King and Anthony G. Brown.

Judge: SUSANO

The plaintiff Brian Douglas Spivey ("the Plaintiff") alleges that the defendants, his former business partners, David N. King and Anthony G. Brown (collectively "the Defendants"), engaged in a conspiracy, and, pursuant to that conspiracy, took actions that include forcing him into bankruptcy and harassing him in the bankruptcy case, expelling him from a business entity, defaming him, and initiating unwarranted criminal charges that were dismissed. The Defendants filed a motion to dismiss asserting that this was simply an attempt to relitigate issues that had been determined in the Plaintiff's bankruptcy and in a chancery court case the Defendants had pursued. They also filed a motion for sanctions. It turns out that the bankruptcy court did not issue its opinion until after the complaint in this case was filed and that the chancery court action was stayed as to the Plaintiff as a result of his bankruptcy filing. The trial court dismissed the complaint in an order that states that the dismissal was for "failure to state a claim." The trial court also awarded sanctions against the Plaintiff and his attorney. The Plaintiff appeals. We affirm that part of the judgment dismissing the claims related to forcing the Plaintiff into bankruptcy and harassing him in bankruptcy as well as the claims related to expelling him from the business entity. We vacate that part of the judgment dismissing claims related to defamation and the allegedly unwarranted criminal prosecution. We also vacate that part of the judgment sanctioning the Plaintiff and his attorney.

http://www.tba2.org/tba_files/TCA/2012/spiveyb_020212.pdf


STATE OF TENNESSEE v. ANTWAN DEEMEEK HUDSON

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee, (on appeal) and Richard A. Tate, Assistant Public Defender, Blountville, Tennessee, (at trial) for appellant, Antwan Deemeek Hudson.

Robert E. Cooper, Jr., Attorney General and Reporter, Nicholas W. Spangler, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General, and Amber Massengill, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Appellant, Antwan Deemeek Hudson, was convicted by a Sullivan County Jury of two counts of rape of a child. The trial court sentenced him to two, concurrent sentences of twenty-five years. On appeal, Appellant argues that the evidence was insufficient to support his convictions, the trial court erred in allowing a doctor to testify as to a statement made to him by the victim's parents, and the trial court erred in excluding Appellant's testimony regarding the results of a medical test. After a thorough review of the record, we conclude that Appellant's argument regarding the sufficiency of the evidence is actually a plea for this Court to reweigh the evidence, which we are precluded from doing. In addition, we conclude that the evidence is more than sufficient to support his convictions. We also conclude that the statement made by the parents to the doctor was erroneously allowed into evidence under an exception to the hearsay rule, but the error was harmless. Due to errors on the judgment forms, we remand for the correction of the judgment forms to reflect that Count 1 and Count 3 will run concurrently to each other. In all other respects, the judgments are affirmed.

http://www.tba2.org/tba_files/TCCA/2012/hudsona_020212.pdf


STATE OF TENNESSEE v. BETHANY JEAN O'DONNELL

Court: TCCA

Attorneys:

Steve McEwen, Mountain City, Tennessee; Stephen M. Wallace, District Public Defender; and William A. Kennedy, Assistant Public Defender, for the appellant, Bethany Jean O'Donnell.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Bethany Jean O'Donnell, appeals the Sullivan County Circuit Court's revocation of her probationary sentence. Pursuant to a negotiated plea agreement to multiple charges, the defendant was sentenced to five consecutive terms of eleven months and twenty-nine days, to be served on supervised probation. A violation warrant was subsequently issued and, at the following hearing, the defendant acknowledged that she had committed the violation. The trial court then found the defendant to be in violation of the terms and conditions of her probation and ordered that the remainder of her sentence be served in confinement. On appeal, the defendant contends that the decision was error and, further, that the court erroneously concluded that she would not be entitled to good conduct credits when serving her misdemeanor sentences at seventy-five percent. Because we conclude no error has occurred and because the case holds no precedential value, we affirm the ruling of the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

http://www.tba2.org/tba_files/TCCA/2012/odonnellb_020212.pdf


IN RE SCOTT DOUGLAS FLETCHER, BPR 021832

Court: TSC-Disciplinary_Order

Judge: KOCH

Request for Response

http://www.tba2.org/tba_files/TSC/2012/fletchers_020212.pdf

TODAY'S NEWS

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General Assembly News
Passages
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Legal News
Apply now for Chattanooga judgeship
Candidates interested in applying for the Hamilton County General Sessions judge seat left vacant by the death of Judge Bob Moon have until noon on Feb. 10 to file applications and resumes with the Board of Elections. Individual interviews will take place between Feb. 13 and 29, with a final decision expected on March 1. In addition to identifying the appointment process, the county commission also passed a resolution to add the judicial seat to the Aug. 2 county ballot.
Nooga.com has more
Suit against Judge Taylor amended
A lawsuit filed Wednesday in Hawkins County Circuit Court alleges that Judge James "Jay" Taylor "extorted" $16,000 from a client in 2008, after claiming he needed to bribe officials to keep her out of prison. The allegation was added to an existing suit filed by the client in December, which alleged that Taylor borrowed $90,000 from her while representing her in an adoption case. Taylor has 30 days to file a response to the new allegations.
The Times News reports
Former Vanderbilt law staff faces theft charges
Former Vanderbilt Law School employee Jason Hunt appeared in Davidson County Criminal Court Wednesday on charges that he stole more than $600,000 from the university. Hunt, who was the school's administrative services manager, pleaded not guilty and asked the court to appoint him a public defender.
Read more in the Tennessean
Pot arrest hits former medical examiner hard
Former state medical examiner Bruce Levy, arrested in March 2010 for marijuana possession and official misconduct, now resides in Boston and has reportedly filed for bankruptcy. He also is facing a civil suit accusing him of misappropriating funds from the medical company he helped create. "The consequences of that mistake have been devastating," said his attorney Ken Jones.
Read more from The Tennessean
12 more law schools sued over job data
A group of eight law firms have announced they are filing class action suits against 12 law schools alleging that the schools falsely inflated graduate employment rates and based salary figures on too small a sample of graduates. The schools are located in New York, California, Illinois, Florida and Delaware. See the list and read about the claims in this press release from the firms.
Read more in the ABA Journal
Mississippi Supreme Court to review Barbour pardons
The Mississippi Supreme Court will hold a hearing Feb. 9 on whether a lower court has the authority to block pardons issued by former Gov. Haley Barbour. Barbour sparked an uproar when he granted more than 200 pardons as he left office in January. The state attorney general has suggested that more than a 100 pardons do not meet a state constitutional requirement that notice be published for 30 days.
Read the latest development from WREG-TV Memphis
Bradley County judge under investigation
The Tennessee Bureau of Investigation confirms that it began an investigation in September 2011 of Bradley County General Sessions Court Judge Sheridan Randolph. The issue allegedly involves a warrant that Randolph signed that may have been based on either incomplete or false information. Unnamed sources told News Channel 9 that he is also under federal investigation for what they said is a possible abuse of power.
Chattanooga News Channel 9 reports
Law firms raiding each other for business
Law firm partner defections are on the rise and legal experts predict the trend will continue as firms seek to grow their business in a time of waning demand for legal services, The Wall Street Journal reports. As law firms cut back on entry-level hires, they have resumed chasing growth by luring partners from other practices. One reason, according to the paper, is that stealing talent and clients is a speedy path to growth, while investing in business development could take years to bear fruit.
Learn more [subscription required]
General Assembly News
House panel moves against Nashville 'Occupiers'
Tennessee lawmakers moved Wednesday toward ousting the Occupy Nashville encampment from the grounds of the state capitol, after a legislator said action is needed to stop the "theft" of a public place. A House subcommittee approved a measure that would bar camping on state property without permission, taking the first step toward removing the approximately four-dozen tents on War Memorial Plaza. The proposed law would ban tents, tarps, sleeping bags and camp stoves on state property that has not been designated for camping. Both the House and Senate Judiciary committees are scheduled to take up the matter next Tuesday.
The Tennessean has more
Passages
Memphis lawyer dies after long illness
Memphis lawyer Valerie Walsh Johnson, 53, died at Methodist Hospice Residence Jan. 31 after an extended illness. She spent most of her professional career with Baker, Donelson, Bearman, Caldwell & Berkowitz, where she practiced intellectual property and corporate law. A 1993 graduate of the University of Memphis School of Law, she was active in the state legal community serving as president of the Association of Women Attorneys (1998), chair of the TBA Intellectual Property Section (2004- 2005), and co-chair of the ABA Section of Intellectual Property Law's Women in the Profession Committee (2007-2008). A memorial service will be held at the Church on the River Feb. 4 at 3 p.m. Following the service, the family will greet friends at a reception at the church. Memorial donations may be made to the United Methodist Neighborhood Centers of Memphis, 3000 Walnut Grove, Memphis, 38111, or the Methodist Alliance Hospice Memphis, 6423 Shelby View Dr., Memphis 38134.
Read more about her life here
Upcoming
Moot court final round set for Friday
Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit, Judge Kermit Lipez of the U.S. Court of Appeals for the First Circuit and Judge Jane Branstetter Stranch of the U.S. Court of Appeals for the Sixth Circuit will preside over the final round of the Bass Berry & Sims Intramural Moot Court Competition Friday at Vanderbilt University Law School. More than 140 students participated in this year's competition, arguing a complex First Amendment question about the interaction of the Government Speech Doctrine and the Establishment Clause. The final round will begin at 6 p.m. in Flynn Auditorium.
Get details here
O'Connor to speak at MTSU
Retired U.S. Supreme Court Justice Sandra Day O'Connor will help MTSU celebrate its centennial year during a special visit next week on Feb. 8. O'Connor will present her free public lecture at 6:30 p.m. in the Hinton Music Hall inside the Wright Music Building. She will appear as part of the university's renowned Windham Lecture Series.
Learn more in the Murfreesboro Post
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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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