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Tuesday, August 08, 2006

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Judicial Selection Commission seeks clarification on Supreme Court vacancy; extends application deadline

The Tennessee Judicial Selection Commission is asking Gov. Bredesen to clarify his request for a second panel of candidates to fill the opening on the Tennessee Supreme Court. Meeting today, the commission reviewed Bredesen's July 24 letter that invokes Tenn. Code Ann. Section 17-4-112(a). That portion of the law allows the governor to request a second panel if he rejects the first, and requires him to state in writing the reasons for rejecting the first panel. To allow the governor time to respond, the commission also voted to extend the application deadline to a date to be determined.

In related news, Nashville lawyer Stephanie R. Reevers, who serves as claims commissioner for Middle Tennessee, and John T. Fowlkes Jr., chief administrative officer for Shelby County, today threw their hats into the ring for the appointment. They join Memphis lawyer Sean Antone Hunt of Spicer, Flynn & Rudstrom; Memphis Circuit Court Judge D'Army Bailey; and Memphis Court of Criminal Appeals Judge J.C. McLin.

TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

RODNEY SHANE CURTIS v. CHRISTY SUZANNE HILL (CURTIS)

Court: TCA

Attorneys:

C. Tim Tisher, Columbia, Tennessee, for the Appellant, Christy Suzanne Hill (Curtis).

Paul A. Bates, Lawrenceburg, Tennessee, for the Appellee, Rodney Shane Curtis.

Judge: LEE

This is a post-divorce change of custody case. The trial court changed custody of the parties' two minor children from the mother to the father. We hold that the evidence preponderates against the trial court's finding that there had been a material change of circumstances to justify a change in custody in the absence of proof that the mother's sexual indiscretions and other alleged misconduct had affected or would affect the children in an adverse way. We therefore reverse the judgment of the trial court.

http://www.tba2.org/tba_files/TCA/2006/curtisr080806.pdf

IN RE: THE ESTATE OF MARY REEVES DAVIS

Court: TCA

Attorneys:

Gregory H. Oakley, Nashville, Tennessee, for the Appellant W. Terry Davis.

R. Horton Frank, III, and Julie Hamner Johnston, Nashville, Tennessee, for the Appellees Vergie Reeves Thomas, Louis Reeves McNeese, Joe Lynn Reeves, and Linda Reeves Elliott.

Ames Davis, Nashville, Tennessee, for the Appellee Ames Davis, Administrator C.T.A. of the Estate of Mary Reeves Davis.

Judge: SWINEY

W. Terry Davis (Husband) and Mary Reeves Davis (Wife) were married in May of 1969. Two days before the marriage, Husband was asked to sign an antenuptial agreement, which he signed the following day. Husband and Wife remained married for over thirty years until Wife's death in 1999. When Wife's will was admitted to probate, Husband filed a petition for an elective share of Wife's estate plus one year's support. Various heirs and the Administrator of the Estate responded to the petition, claiming the antenuptial agreement prohibited Husband from electing against the will. The Trial Court found that the heirs and the Administrator had proven by a preponderance of the evidence that the antenuptial agreement was enforceable because Wife had made a full and fair disclosure of her assets prior to entering into the agreement. Husband appeals, and we reverse.

http://www.tba2.org/tba_files/TCA/2006/davism080806.pdf

VIRGINIA M. FITZGERALD v. CLAUDE A. FITZGERALD

Court: TCA

Attorneys:

Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, Virginia M. Fitzgerald.

Joseph Ward Henry, Jr., Pulaski, Tennessee, for the appellee, Claude A. Fitzgerald.

Judge: BLACKWOOD

Wife appeals from a final decree of divorce challenging the trial court's distribution of property. Because the wife raises factual issues and there is no transcript of the evidence in the record, we must presume the record would have supported the factual findings of the trial court and accordingly affirm.

http://www.tba2.org/tba_files/TCA/2006/fitzgeraldv080806.pdf

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. DANIEL R. HOWARD

Court: TCA

Attorneys:

Mitchell D. Moskovitz, Zachary M. Moore, Memphis, TN, for Appellant.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General, Nashville, TN, for Appellee.

Judge: HIGHERS

This case stems from a petition to terminate a father's parental rights. At trial, the chancery court terminated the father's parental rights as to his two minor children finding that grounds for terminating the father's parental rights existed under Sections 36-1-113(g)(1) and 36-1-113(g)(3) of the Tennessee Code by clear and convincing evidence and that it was in the best interest of the children to terminate the father's parental rights. On appeal, the State of Tennessee, Department of Children's Services concedes that there was not clear and convincing evidence to support a finding that grounds for terminating the father's parental rights under Section 36-1-113(g)(1) existed. However, it asserts on appeal that father's narcissistic personality disorder was sufficient evidence to support a finding that the grounds for terminating the father's parental rights pursuant to Section 36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of Children's Services failed to make reasonable efforts to reunite his family, and thus, his parental rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.

http://www.tba2.org/tba_files/TCA/2006/howardd080806.pdf

DAVID G. MILLS v. SHELBY COUNTY ELECTION COMMISSION, ET AL

Court: TCA

Attorneys:

David G. Mills, Pro Se, of Cordova, Tennessee.

Felisa N. Cox, Assistant County Attorney, for Appellee, Shelby County Election Commission.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M. Kleinfelter, Senior Counsel for Appellee, State of Tennessee Attorney General.

Judge: CRAWFORD

Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art. I, Section 5 and Art. IV, Section 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed Plaintiff/Appellant's complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.

http://www.tba2.org/tba_files/TCA/2006/millsd080806.pdf

PHOENIX INSURANCE COMPANY v. ESTATE OF MARY NAPIER GANIER, ET AL.

Court: TCA

Attorneys:

Donald Capparella and David Huff, Nashville, Tennessee, and Albert S. Nalibotsky, Charlotte, North Carolina, for the Appellant Phoenix Insurance Company.

Brenda M. Dowdle and Barbara J. Perutelli, Nashville, Tennessee, for the Appellees Estate of Mary Napier Ganier, and Bryan, Ward & Elmore, Inc.

Judge: SWINEY

Richards and Richards (the Tenant) leased a storage facility from Mary Napier Ganier (the Landlord). The lease required the Tenant to obtain personal property insurance for its own benefit. The lease also required the Tenant to obtain a comprehensive general liability policy for the benefit of the Tenant, the Landlord, and the Landlord's rental agent, Bryan, Ward & Elmore (the Rental Agent). The Tenant obtained property insurance and comprehensive general liability insurance through Phoenix Insurance Company (Phoenix). A metal shed located on property next to the leased premises caught on fire, allegedly due to the negligence of the Landlord and the Rental Agent. The fire resulted in substantial damage to the Tenant's personal property. Pursuant to the property insurance portion of the policy, Phoenix paid the Tenant over $1.1 million for the damage to the Tenant's personal property. Phoenix then filed this subrogation action against the Landlord and Rental Agent. The Trial Court granted summary judgment to the Landlord and Rental Agent after concluding they were additional insureds under the Tenant�s insurance policy and, therefore, Phoenix could not pursue a subrogation claim against its own insured. We reverse the judgment of the Trial Court and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/phoenixinsur080806.pdf

RACHEL SUMNER v. METROPOLITAN BOARD OF PUBLIC HEALTH

Court: TCA

Attorneys:

Joseph Howell Johnston, Nashville, Tennessee, for the appellants, Rachel Sumner, Eleanor Snyder, and Carol Frazier.

Eric A. Garrison and John L. Kennedy, Nashville, Tennessee, for the appellee, Metropolitan Board of Public Health.

Judge: LEE

This appeal involves the efforts of three Davidson County residents to stop the spraying of insecticide for mosquitos in the Nashville area because of the alleged toxic effects of the insecticide. After the Metro Public Health Department's Director of Health rejected the petitioners' proposal, they appealed to the Metropolitan Board of Public Health. When the Board denied their request, they filed a petition for writ of certiorari seeking judicial review of the Board's action. The trial court dismissed the case because it determined that the residents lacked standing to seek review. We conclude that because the Board did not question the petitioners' standing when they appeared before it to appeal the Director of Health's decision to resume spraying, the Board could not later avoid judicial review of its decision upon the ground that the petitioners were without standing. Accordingly, we reverse the trial court's dismissal of the petition for writ of certiorari, and remand for review of the petition upon its merits.

http://www.tba2.org/tba_files/TCA/2006/sumnerr080806.pdf

TODAY'S NEWS

Legal News
Election 2006
TennBarU CLE Programs

Legal News

Court square project is a go

With financing and lease signings in hand, developers are launching an ambitious $49 million renovation of three historic downtown Memphis buildings adjacent to Court Square. In addition to retail, offices, residential spaces and restaurants, a group of lawyers plans to open a practice called the Memphis Justice Center there.

The Memphis Commercial Appeal has more

U.S. Attorney's office adds prosecutor in Middle Tennessee

Vanderbilt University grad Brent A. Hannafan has been hired as a new assistant federal prosecutor for Middle Tennessee, the Tennessean reports today. Hannafan has been assigned to the narcotics and violent crimes unit, according to a statement from Jim Vines, the top federal prosecutor in the Midstate district. Prior to taking the position, the Washington University law grad worked as a lawyer for firms in New York and Chicago.

New ABA president lays out her agenda

Karen J. Mathis takes over the presidency of the American Bar Association today, launching her term with plans to help at-risk youth, establish a Web site to help retired lawyers volunteer their services, preserve the attorney-client privilege and promote the rule of law around the world.