Coin Toss Sparks Complaint Against Judge

By Andy Meek

CONFLICT AND CONTROVERSY: The Chancery Court lawsuit involving a car leased to former Memphis City Council member Edmund Ford (shown here at a council meeting last year) and a real estate developer's claim that his signature was forged on the lease is heating up. PHOTO BY BILL DRIES

A coin toss was performed during a recent hearing in Shelby County Chancery Court that was intended to solve a logistical dispute in a high-profile case brought late last year by real estate developer Rusty Hyneman.

Flipping the coin, which was proposed by Chancellor Walter Evans, was supposed to determine which of two depositions scheduled in Hyneman's case would be allowed to take place first. But that coin toss also had the unintended effect of sparking a sharply worded clash among the attorneys involved in the case.

And it appears to be the reason why one of those attorneys filed a terse motion last week requesting that Evans recuse himself from hearing the case.


Tails, you lose

Such episodes might have been expected when Hyneman - whose path has intersected frequently with some of Memphis' most influential political and business figures - filed his complaint in November, which quickly attracted attention.

The developer insisted in that lawsuit that his name had been forged and he had unwittingly been made a co-signer on documents that allowed former Memphis City Council member Edmund Ford to lease a car from Bud Davis Cadillac in 2004.

The suit lists Bud Davis, GMAC Financial Services Corp. and the credit reporting service Equifax Inc. as defendants. Hyneman's attorney as well as the defendants' attorneys all either declined comment or were not available to discuss the recent dustup over the coin toss.

A spate of recent court filings, however, gives some context to the incident.

"The issue didn't amount to a hill of beans," argued Hyneman's attorney Allan Wade in a response to the motion for Evans' recusal filed by Buck Lewis, the attorney representing GMAC.

"GMAC's motion for recusal emanates from GMAC's expedited motion ... to alter the sequence of scheduled depositions so that GMAC's depositions noticed for Feb. 14, 2008, would be allowed to proceed prior to plaintiff's deposition ... noticed for Feb. 6, 2008."

GMAC had been trying for several weeks to schedule a time to take Hyneman's deposition in the case. Hyneman's attorney was attempting to depose a representative of Bud Davis. GMAC argued that it should be allowed to schedule the deposition it wanted first since it had been attempting to do so for a longer amount of time.

The solution devised by the court to solve the dispute was supposed to be a neutral one - the coin toss.

"Rather than summarily deny GMAC's discovery motion," Wade continued in his response, "the court observed that what was presented was competing trial strategies and then resolved the impasse by favoring neither party."


Heads, you lose, too

But something about the way the order of those depositions was chosen by coin toss apparently did not sit well with Lewis, a noted local attorney who was among the finalists for the recent vacancy on the Tennessee Supreme Court. Lewis' late father also was a Chancery Court judge at one point.

Lewis filed a complaint about the matter with the 16-member Tennessee Court of the Judiciary. By law, that complaint is confidential during the early investigation stage. Such complaints, however, are supposed to spell out exactly what a judge did that was allegedly unfair or biased.

And the filing of that complaint appears to be the reason Lewis then filed a motion in Chancery Court Feb. 12 asking that Evans recuse himself from the case.

Attorney Ernest Norcross, who represents the car dealership in the Hyneman matter, filed a motion of his own with the court stating he would not be party to an effort to have Evans recused. Bud Davis and GMAC are basically on the same side in the case, but up to a point.

Their goals are slightly different. One of Bud Davis' goals in the suit is to fight Hyneman's claim that the dealership processed paperwork in Ford's car lease that included Hyneman's forged signature. GMAC still is owed several months' worth of payments once Ford became delinquent on the car loan.

Wade, meanwhile, disputes Lewis' reasoning for the recusal he asked for.

"GMAC's motion should be denied because Tennessee case law is absolutely clear that the filing of a complaint with the Court of the Judiciary is not grounds for a chancellor's recusal," Wade said in his response to the recusal motion.

If the recusal effort is successful, Hyneman's case seemingly would have to be given to Chancellor Arnold Goldin. Of the two other Chancery Court judges besides Evans, Chancellor Kenny Armstrong has a conflict of interest in the Hyneman case that the attorneys already have acknowledged: Armstrong bought a lot from the real estate developer in 2007.

Lewis' recusal motion is short and to the point. It reads, simply: "As grounds for this motion, defendant GMAC would state that there are collateral proceedings related to this matter which require the recusal of the trial judge and the reassignment of this matter to another trial court."