Nashville judges and candidates judged

The Nashville Bar Association recently conducted a candidate evaluation poll for the upcoming vacancies in General Sessions and Circuit Courts, as well as the Davidson County Criminal Court Clerk, Juvenile Court Clerk and Metropolitan Public Defender. Read the results from the 880 members who responded.

http://www.surveymonkey.com/DisplaySummary.asp?SID=1842508&U=184250829064

TODAY'S OPINIONS
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SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist032706.pdf


IN RE AUSTIN S.

Court: TCA

Attorneys:

Stephen W. Pate, Murfreesboro, Tennessee, for the appellant, Amanda M.

M. Keith Siskin, Murfreesboro, Tennessee, for the appellee, Kevin S.

Judge: WILLIAM C. KOCH

This appeal involves the custody of an eight-year-old child. The Rutherford County Juvenile Court initially granted the parents equal custody. However, after the child was diagnosed with Attention Deficit Hyperactivity Disorder, the child’s mother filed a petition asserting that a material change of circumstances existed and that she should be designated the child’s primary residential parent. The child’s father agreed that the circumstances had changed and also sought to be designated as the child’s primary residential parent. Following a bench trial, the juvenile court found that a material change of circumstances had occurred and that the child’s interests would be best served by designating the father as the child’s primary residential parent. The mother has appealed. We affirm the juvenile court.

http://www.tba2.org/tba_files/TCA/2006/austins032706.pdf


ROGER BENNETT and RICHARD ALLEN COMBS, on behalf of themselves and all others similarly situated in the State of Tennessee, v. VISA U.S.A. INC., and MASTERCARD INTERNATIONAL, INC.

Court: TCA

Attorneys:

William T. Gamble, Kingsport, Tennessee, Stephen V. Bomse, San Francisco, California, and Robert C. Mason, New York, N.Y., for appellant Visa U.S.A. Inc.

S. Morris Hadden, Kingsport, Tennessee, R. Dale Grimes, Nashville, Tennessee, and Kenneth A. Gallo, Washington, D.C., for appellant MasterCard International Incorporated.

Gordon Ball, Knoxville, Tennessee, for appellees Roger Bennett and Richard Allen Combs.

Judge: HERSCHEL PICKENS FRANKS

Plaintiffs’ action charged defendants with violation of the Tennessee Trade Practices Act, the Tennessee Consumer Protection Act, and unjust enrichment for monies had and received. Responding to Motions to Dismiss, the Trial Court dismissed the statutory violations claims, but retained jurisdiction over the common law violation claims. We granted the parties’ interlocutory appeals and dismiss the action.

http://www.tba2.org/tba_files/TCA/2006/bennettr032706.pdf


PAULA B. BOWMAN v. STATE OF TENNESSEE

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellant, Paula B. Bowman.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn Jordan, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAM C. KOCH

This appeal involves a visitor who was injured when she slipped and fell in an icy parking lot at a State office building in Nashville. The visitor filed a claim with the Tennessee Claims Commission pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(C) (Supp. 2005) asserting that the State had negligently failed to monitor the local weather forecasts and to initiate timely protective measures to prevent or to remove ice from the parking lot. Following an en banc hearing, the Commission found that the State did not have sufficient notice of the icy parking lot and had no duty to constantly monitor weather conditions. The Commission dismissed the visitor’s claim, and the visitor appealed. We affirm the Commission’s order dismissing the claim.

http://www.tba2.org/tba_files/TCA/2006/bowmanp032706.pdf


C. NOELLE CHAFFIN v. MARCUS ELLIS

and ORDER WITHDRAWING OPINION

Court: TCA

Attorneys:

Martin S. Sir and Donald Capparella, Nashville, Tennessee, for the appellant, Marcus Ellis.

J. Nick Shelton and R. Reid Street, Franklin, Tennessee, for the appellee, C. Noelle Chaffin.

Judge: HOLLY M. KIRBY

This is a divorce and child custody case. The husband and the wife were married in February 1998. Throughout the marriage, they lived together with the husband’s mother. The parties’ relationship began to deteriorate soon after the wedding. The wife felt that the husband and his mother were controlling and oppressive, while the husband felt that the wife was unfit. One child was born of the marriage. In October 2000, the wife filed the instant petition for divorce. After a nine-day trial, the trial court granted a divorce to the wife on the ground of inappropriate marital conduct, and designated the wife as the primary residential parent of the parties’ child. The trial court also awarded the wife a portion of her attorney’s fees and discretionary costs. From that decision, the husband now appeals. We vacate a portion of the award of costs, and affirm as to the remaining issues, finding that the evidence preponderates in favor of the trial court’s opinion in all other respects. The cause is remanded for reconsideration of a portion of the award of costs for expert fees.

http://www.tba2.org/tba_files/TCA/2006/chaffincNEW032706.pdf

ORDER WITHDRAWING OPINION
http://www.tba2.org/tba_files/TCA/2006/chaffinc032706ord.pdf


MARIAN L. CRULL v. DONALD R. CRULL

Court: TCA

Attorneys:

L. Caesar Stair, III, and Margo J. Maxwell, Knoxville, Tennessee, for the appellant, Donald R. Crull.

Scarlett Beaty Latham, Albany, Kentucky, for the appellee, Marian L. Crull.

Judge: CHARLES D. SUSANO, JR.

This declaratory judgment action was filed by Donald R. Crull (“Husband”) on November 4, 2003. It seeks primarily a declaration as to the rights of Husband’s former spouse, Marian L. Crull (“Wife”), in and to Husband’s United States Department of Agriculture (“USDA”) retirement benefits, a subject addressed in the parties’ judgment of divorce entered in the trial court some 14 years and 3 months earlier, i.e., on July 11, 1989. In addition, Husband’s complaint seeks to terminate his alimony obligation effective when he retires at some unspecified time in the future. The trial court – interpreting the language of the judgment of divorce – held that the language mandates that Wife is entitled, without limitation, to one-half of Husband’s retirement benefits. The court, in its judgment, did not grant or deny Husband’s request for termination of his alimony obligation; but, in the incorporated memorandum opinion, the court did opine that Husband’s retirement, when it happens, would constitute a change in circumstances. Husband appeals, arguing that Wife’s entitlement with respect to the retirement benefits should be limited to a share of the benefits that accrued before the divorce. Wife, by way of a separate issue, contends that the trial court erred in stating that a retirement, which has not yet occurred, would constitute a change in circumstances when it takes place. We vacate this latter observation by the trial court but otherwise affirm the judgment.

http://www.tba2.org/tba_files/TCA/2006/crullm032706.pdf


STATE OF TENNESSEE, DHS, ET AL. v. CHRISTAL J. RHEA

Court: TCA

Attorneys:

Billy P. Sams, Oak Ridge, Tennessee, for the appellant, Christal J. Rhea.

Paul G. Summers, Attorney General and Reporter, and Warren Jasper, Assistant Attorney General, for the appellee, State of Tennessee, Department of Human Services, and assignee of Ashley Seeber.

Judge: CHARLES D. SUSANO, JR.

The State of Tennessee, DHS, filed a petition for civil contempt against Christal J. Rhea (“Mother”) due to her failure to pay support for her minor child in state custody, Ashley J. Seeber (DOB: December 10, 1997). Mother responded by filing a petition to modify her support obligation. Following a hearing, the trial court held Mother in contempt and sentenced her to 40 days in jail; however, the court specified that she could purge herself of contempt by paying support of $1,100. The trial court then indicated that it was modifying Mother’s support award, but it failed to set a specific amount of support. Mother appeals. We affirm in part and vacate in part.

http://www.tba2.org/tba_files/TCA/2006/rheac032706.pdf


ROBERT E. SMITH v. KWIK FUEL CENTER A/K/A MARSH PETROLEUM, INC., ET AL.

Court: TCA

Attorneys:

J. Mikel Dixon, Knoxville, Tennessee, for the Appellant, Robert E. Smith.

Louis Andrew McElroy, II, Knoxville, Tennessee, for the Appellee, Kwik Fuel Center a/k/a Marsh Petroleum, Inc.

Wade M. Boswell, Knoxville, Tennessee, for the Appellee, Olinger Trucking Co., Inc.

Judge: SHARON G. LEE

Mr. Smith, a truck driver, was terminated by his employer and charged with theft after the manager of a fuel station where plaintiff regularly purchased fuel advised his employer that Mr. Smith was misusing employer’s credit card to obtain cash and merchandise. After being acquitted of theft charges, Mr. Smith filed claims against his employer for malicious prosecution and against the fuel station owner for malicious prosecution and intentional interference with employment. The trial court granted the fuel station owner’s motion for summary judgment with respect to Mr. Smith’s claim for malicious prosecution. Subsequently, the trial court also entered directed verdict for fuel station owner as to Mr. Smith’s claim of intentional interference with employment and for his employer as to Mr. Smith’s claim of malicious prosecution. We affirm the trial court’s summary judgment and directed verdicts in favor of the defendants.

http://www.tba2.org/tba_files/TCA/2006/smithr032706.pdf


STATE OF TENNESSEE, DHS, ET AL. v. WILLIAM (BILLY) THOMASON

Court: TCA

Attorneys:

Billy P. Sams, Oak Ridge, Tennessee, for the appellant, William (Billy) Thomason.

Paul G. Summers, Attorney General and Reporter, and Warren Jasper, Assistant Attorney General, for the appellee, State of Tennessee, DHS, ex rel. Angela M. Phillips.

Judge: CHARLES D. SUSANO, JR.

The State of Tennessee, DHS, filed a petition for civil contempt against William (Billy) Thomason (“Father”), alleging that he failed to pay support for his minor children, Billy H. Phillips (DOB: January 14, 1992) and Dakota J. Phillips (DOB: May 10, 1994). At a hearing in 2004, the trial court found Father in civil contempt and sentenced him to 20 days in jail. The sentence was “suspended” so long as Father continued to pay the court-ordered support. The trial court specified in that earlier order that Father could purge himself of the contempt by paying support of $661. At a subsequent hearing in February, 2005, the trial court entered a new judgment of civil contempt; it sentenced Father to a total of 30 days in jail, which sentence included the previously-suspended sentence of 20 days. The court ordered that Father could purge himself of this most recent finding of contempt by paying a total of $916 in support, which amount included the previous purge amount of $661. Father appeals, arguing that the trial court erred in its new finding of contempt and in imposing the previously-suspended sentence. We affirm in part and reverse in part.

http://www.tba2.org/tba_files/TCA/2006/thomasonw032706.pdf


STATE OF TENNESSEE v. THOMAS EARL BRADSHAW

Court: TCCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee (on appeal) and Michael Colavecchio, Nashville, Tennessee (at guilty plea hearing) for the Appellant, Thomas Earl Bradshaw.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Thomas Earl Bradshaw, pled guilty to one count of aggravated burglary and one count of especially aggravated robbery, and the trial court sentenced him as a multiple offender to an effective sentence of thirty-six years imprisonment. The Defendant filed a motion to withdraw his guilty pleas, which the trial court denied. On appeal, the Defendant contends that the trial court erred when it denied his motion to withdraw his pleas. Finding that there exists no reversible error, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/bradshawt032706.pdf


STATE OF TENNESSEE v. CHESTER DALE GIBSON

Court: TCCA

Attorneys:

J. Liddell Kirk and Tommy K. Hindman, Knoxville, Tennessee (on appeal) and Marshall Judd, Cookeville, Tennessee (at trial), for the Appellant, Chester Dale Gibson.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; William E. Gibson, District Attorney General; Tony Craighead and Gary McKenzie, Assistant District Attorneys General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, Chester Dale Gibson, was found guilty of false imprisonment, especially aggravated kidnapping, and aggravated assault. The trial court sentenced the Defendant to an effective sentence of twenty years in prison. On appeal, the Defendant contends that: (1) the evidence is insufficient to prove that the victim suffered “serious bodily injury,” a necessary precursor to the jury finding him guilty of especially aggravated kidnapping and aggravated assault; and (2) the trial court erred by not merging his convictions for sentencing. We conclude that the Defendant’s conviction for false imprisonment should have merged into his conviction for especially aggravated kidnapping, and we therefore reverse that finding of the trial court. In all other respects, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/gibsonc032706.pdf


STATE OF TENNESSEE v. JAMES O. MCCARSON, JR.

Court: TCCA

Attorneys:

William B. “Jake” Lockert, III, Ashland City, Tennessee (on appeal) and R. Stephen Powers and Dawn Kavanagh, Ashland City, Tennessee (at trial) for the Appellant, James O. McCarson, Jr.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: ROBERT W. WEDEMEYER

The Defendant, James O. McCarson, Jr., was convicted of one count of stalking, a Class A misdemeanor. The trial court sentenced the Defendant to eleven months and twenty-nine days, to be served on probation. On appeal, the Defendant contends that: (1) the evidence is insufficient to sustain his conviction for stalking; and (2) the trial court erred when it denied him judicial diversion. Finding that there exists no reversible error, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/mccarsonj032706.pdf


JOHN L. MEDEARIS v. BONNIE BAUMGARDNER (STOLOFF)

Court: TCCA

Attorneys:

Pamela R. O’Dwyer, and Randall D. Laramore, Chattanooga, Tennessee, for appellant.

Donna L. Pierce, Chattanooga, Tennessee, for appellee.

Judge: HERSCHEL PICKENS FRANKS

The mother sued to enforce Agreement with the father to pay college expenses for adult child of the parties. The Trial Court refused to enforce the terms of the Agreement on the equitable grounds of unclean hands and the lack of cooperation and fair dealings by the mother. We affirm.

http://www.tba2.org/tba_files/TCCA/2006/medearisj032706.pdf


TODAY'S NEWS

Legal News

Legal News
Ritchie wins professionalism award
Knoxville lawyer Robert W. Ritchie was selected as the winner of the American Inns of Court 6th Circuit Professionalism Award. The award is to recognize lawyers whose life and practice display sterling character and unquestioned integrity, coupled with ongoing dedication to the highest standards of the legal profession and the rule of law. Ritchie will be recognized at the 6th Circuit Judicial Conference in Detroit in May and at the American Inns of Court Excellence Dinner in Washington,  D.C. in October. As a winner of this award, he will automatically be nominated for the Lewis Powell Jr. Award for Professionalism and Ethics.

Law students support Entman's laptop ban
Five University of Memphis Law School students respond with Letters to the Editor, regarding Professor June Entman's recent ban on laptops in her classroom and the coverage that decision received. And it's not the reaction you might expect. Read the letters in the
Commercial Appeal.
Calls with clients can be monitored
WASHINGTON - The National Security Agency could have legally monitored ordinarily confidential communications between doctors and patients or attorneys and their clients, the Justice Department said Friday of its controversial warrantless surveillance program, the AP reports. Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court. Read the story in the
Knoxville News Sentinel.
Reynolds book reviewed by NPR, Wall Street Journal
Prof. Glenn Reynolds recently spoke about his new book, An Army of Davids, with National Public Radio, the UT College of Law's Informant newsletter reports. His book was also reviewed in the Wall Street Journal, which said: "Mr. Reynolds presents his case with verve and wit. . . . The David army envisioned by Mr. Reynolds may well, in the long run, end up beating the Goliaths of big media and big government into submission. In the meantime, let's hope for a more modest goal: that it can make them a little better at doing." You can hear audio from his appearance on NPR's "Day to Day"
here.
Prof. Amy Hess receives national honor
University of Tennessee Professor of Law Amy Morris Hess is the recipient of the 2005 Treat Award for Excellence from the National College of Probate judges in recognition of her many contributions to the development of probate and trust law. Read more about it at
law.utk.edu.
Metro Juvenile Court's office in disarray, audit reports
Disappearing court files, court actions that are improperly recorded and haphazard scheduling of court clerks are creating havoc in Metro's Juvenile Court system, according to an audit ordered by the city and expected to be released next week.
The Tennessean has the story.
Drug Court hailed as a success
Six months after Hamilton County began a special court to offer drug treatment rather than incarceration for nonviolent defendants, officials said the program is meeting their expectations. The Chattanooga Times Free Press has the
story.

 
 
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