Bredesen fills contested judicial post

Gov. Phil Bredesen has tapped former Middle Tennessee U.S. Attorney John M. Roberts of Livingston to serve temporarily as criminal court judge for the 13th Judicial District, the Nashville Business Journal reports this afternoon. The post was held by Judge Lillie Ann Sells, who is contesting the results of the Aug. 3 election in which she lost to challenger David Patterson by 10 votes. Roberts, who serves as executive director of the Livingston-Overton County Chamber of Commerce, is a former General Sessions judge and graduate of the University of Tennessee. When a judicial election is contested, state law requires the governor to appoint a temporary judge. A trial in the case has been set for Sept. 26 in Putnam County.
TODAY'S OPINIONS
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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

IN RE: C.A.R.

Court: TCA

Attorneys:

Ben H. Cantrell, Nashville, Tennessee, for the appellant, K.M.A.

Brad W. Hornsby and Kerry Knox, Murfreesboro, Tennessee, for the appellee, J.W.R.

Alan W. Scheflin, Santa Clara, California, and Dan R. Alexander, Nashville, Tennessee, for the Amicus Curiae, The Leadership Council on Child Abuse & Interpersonal Violence.

Judge: FRANK G. CLEMENT, JR.

In this domestic litigation regarding visitation, contempt and custody, the mother of the parties’ only child contends inter alia the trial court erred by not transferring the case to Davidson County pursuant to Tenn. Code Ann. § 36-5-3003 and the evidence preponderates against the finding it was in the best interests of the child to change custody. We have determined the evidence preponderates against the trial court’s pivotal findings and the conclusions based thereon. We have also determined that none of the parties have resided in Wilson County during the pendency of this litigation; therefore, as the mother has requested, the case should be transferred to Davidson County pursuant to Tenn. Code Ann. 36-5-3003.

http://www.tba2.org/tba_files/TCA/2006/car_083106.pdf


LEONARD FRAZIER v. DONAL CAMPBELL, ET AL.

Court: TCA

Attorneys:

Leonard Frazier, pro se, Tiptonville, TN

Paul G. Summers, Attorney General & Reporter; Arthur Crownover, II, Senior Counsel, Nashville, TN, for Appellees

Judge: ALAN E. HIGHERS

This appeal involves a petition for writ of certiorari filed by a state prisoner. After drugs were discovered in the inmate’s incoming mail, he was sentenced to punitive segregation. He sought review of his conviction in the Shelby County Chancery Court, which later dismissed his case without prejudice for lack of prosecution. The inmate filed a notice of appeal which we have determined was untimely and therefore a nullity. As a result, we must dismiss this appeal without considering the issues presented by the Petitioner.

http://www.tba2.org/tba_files/TCA/2006/frazierl_083106.pdf


BILLY R. INMON v. BRETT HADLEY, ET AL.

Court: TCA

Attorneys:

Bruce Hill, Sevierville, Tennessee, for the appellants, David Cooper and Laura Cooper.

Rebecca D. Slone, Dandridge, Tennessee, for the appellants, Brett Hadley and Tammy Hadley.

G. Wendell Thomas, Jr., and Rob Quillin, Knoxville, Tennessee, for the appellee, Billy R. Inmon.

Judge: CHARLES D. SUSANO, JR.

Brett Hadley and Tammy Hadley (“the Lessees”) entered into a lease-to-purchase agreement with an owner of property, Billy R. Inmon (“the Lessor”). The agreement pertains to the Mountain Harbor Inn located in Dandridge. It was for a period of 15 years. After operating the Inn for approximately three years, the Lessees defaulted. The Lessor filed a detainer warrant against the Lessees seeking past due rent and possession of the property. The Jefferson County General Sessions Court granted the Lessor possession of the property and a judgment for $26,399.60. The Lessees appealed to the Jefferson County Circuit Court and posted an appeal bond in the amount of $51,000.00. The appeal was dismissed because the bond was deemed insufficient. After the case was remanded to the general sessions court, the Lessees posted a cash bond in the amount of $20,250.00 after filing a petition for writ of certiorari and supersedeas to the circuit court. The $20,250.00 was loaned to the Lessees by David Cooper. The circuit court refused to issue the writ. After the Lessor filed a second lawsuit and was awarded an additional judgment of $31,187.25 for past due rent, the circuit court ordered disbursement of the $71,250.00, bond and cash being held by the court, with the Lessor receiving $57,586.85 of the total amount on deposit. David Cooper was allowed to intervene in the lawsuit and Cooper and the Lessees sought to have the $20,250.00 loaned by Cooper returned to him. The circuit court refused. The Lessees and Cooper appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2006/inmonb_083106.pdf


ALVIN KING v. SHELBY COUNTY GOVERNMENT CIVIL SERVICE MERIT BOARD

Court: TCA

Attorneys:

Darrell J. O'Neal of Memphis, Tennessee for Appellant, Alvin King

Martin W. Zummach of Germantown, Tennessee for Appellee, Shelby County Government Civil Service Merit Board

Judge: W. FRANK CRAWFORD

Employment of a Shelby County Deputy Sheriff was terminated and the decision was upheld by the Shelby County Civil Service Merit Board. The employee filed a petition for writ of certiorari in the Chancery Court of Shelby County. The administrative record was duly filed in the trial court. Subsequently, the chancery court entered an order denying writ of certiorari. We vacate the trial court’s order and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/kinga_083106.pdf


JEFF RAGSDALE ET AL. v. JERRY WAYNE DEERING, II, ET AL.

Court: TCA

Attorneys:

Wendy Lynne Longmire, Julie Bhattacharya Peak, Nashville, Tennessee, for the appellant, Unnamed Defendant, Shelter Insurance Companies.

Brian Patrick Dunigan, Michael D. Ponce & Associates, Goodlettsville, Tennessee, for the appellees, Jeff Ragsdale and Brandon Hargrove.

Judge: PATRICIA J. COTTRELL

The defendant deliberately rammed the company truck he was driving into the plaintiffs’ pickup truck, severely injuring the occupant driver and passenger. The plaintiffs sued the truck driver and his employer. They also served the complaint on the injured driver’s own insurance carrier, pursuant to Tenn. Code Ann. § 56-7-1206, to protect their right of recovery in the event that the defendants were found to be uninsured or underinsured. The defendant truck driver’s liability carrier subsequently denied coverage to him under a policy exclusion for intentional acts. The injured driver’s uninsured motorist insurance carrier then filed a motion for summary judgment asking the trial court to rule that the plaintiffs were not entitled to uninsured motorist coverage under the insurance contract. The trial court denied the insurance company’s motion, and we granted an interlocutory appeal. We affirm the trial court.

http://www.tba2.org/tba_files/TCA/2006/ragsdalej_083106.pdf


Ben C. Sloan v. NATIONAL HEALTHCORP, L.P., et al.

Court: TCA

Attorneys:

John B. Curtis, Jr., and Bruce D. Gill, Chattanooga, Tennessee, for Defendants/Appellants National Healthcorp, L.P., et al.

Brian G. Brooks and Richard E. Circeo, Nashville, Tennessee, for Plaintiff/Appellee Sarah Sloan.

Judge: HOLLY M. KIRBY

This is an arbitration dispute. The plaintiff’s deceased husband had been a resident at the defendant nursing home. The plaintiff, individually and as a surviving spouse, filed a tort and wrongful death lawsuit against the defendant nursing home. The answer filed by the defendant nursing home company asserted that the plaintiff’s claims were subject to binding arbitration. The answer also included a demand for a jury. After engaging in four months of discovery, the defendants filed a motion to compel arbitration. The trial court denied this motion, ruling that the defendants could not, pursuant to Rule 38 of the Tennessee Rules of Civil Procedure, withdraw their jury demand without the consent of the plaintiff and were therefore precluded from seeking arbitration. The defendants appeal this order. We reverse, holding that a defendant may assert that a dispute must be arbitrated and, in the alternative, demand a jury, without losing its right to arbitration.

http://www.tba2.org/tba_files/TCA/2006/sloans_083106.pdf


LOUISE SPANN ET AL. v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. ET AL.

Court: TCA

Attorneys:

J. Knox Walkup, Barbara J. Moss, Donna L. Roberts, Nashville, Tennessee; and Julia B. Strickland and Andrew W. Moritz, Los Angeles, California, for the appellants, American Express Travel Related Services Company, Inc., American Express Centurion Bank, and American Express Publishing Corporation.

George H. Nolan, Christopher E. Thorsen, and Jonathan D. Rose, Nashville, Tennessee, for the appellees, Louise Spann and Vetahmary Higgins.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute between a credit and charge card issuer and two cardholders regarding allegedly unauthorized charges to their accounts by entities affiliated with the issuer. The cardholders filed a class action complaint in the Circuit Court for Williamson County asserting that the practice of charging them for goods and services they did not agree to purchase constituted an unfair and deceptive trade practice prohibited by various state consumer protection laws and gave rise to causes of action for negligent and fraudulent misrepresentation, conversion, and unjust enrichment. The issuer and its affiliates filed a motion to compel separate arbitrations against each cardholder in accordance with the class arbitration waiver clause of the arbitration provision in the cardmember agreements. The cardholders conceded that they were required to arbitrate their claims but asked the trial court to strike the class arbitration waiver clause as unconscionable. Siding with the cardholders, the trial court struck the class arbitration waiver clause and granted the motion to compel arbitration. The issuer and its affiliates appealed. We have concluded that the trial court did not err by granting the motion to compel arbitration. However, we have also concluded that the trial court erred by finding the class arbitration waiver clause unconscionable under Utah law.

http://www.tba2.org/tba_files/TCA/2006/spannl_083106.pdf


TODAY'S NEWS

Election 2006
Legal News
TBA Member Services

Election 2006
Clayton will remain on the bench
Circuit Court Judge James Clayton will resume hearing cases following the Labor Day holiday after a visiting judge’s ruling this afternoon. The special ruling was necessary because of the vacancy created by the death of judge-elect Larry Trail two weeks ago. Clayton, who has held the office since 1984, was sworn into office today.
The Daily News Journal has more.
Bush stumps for Corker in Nashville
President Bush praised Republican U.S. Senate candidate Bob Corker's background as a businessman and former mayor while helping Corker raise more than $1.5 million at a fund-raising dinner in Nashville Wednesday evening. "I think it makes sense to send someone to Washington who's not a lawyer," Bush said in a speech to about 500 people at the $2,100-a-plate event at the Loews Vanderbilt Hotel.
Read more in the Knoxville News Sentinel.
Election suit to be heard in October
A suit by four Democratic candidates who lost by slim margins in races for clerks' positions is set to be heard by a special judge on Oct. 2. Chancellor Donald P. Harris of Franklin will preside. The special judge was requested because the three Shelby County chancellors' seats were filled in the same election.
Read more in the Commercial Appeal.
Legal News
Nashville's first black female judge sworn in
Angie Blackshear Dalton made history in Nashville on Wednesday when she was sworn in as the first elected African-American female judge. Dalton, 35, was the first of 30 newly elected judges in Nashville to be given the oath of office this week. Standing before a packed courtroom in the Justice A. A. Birch building, Dalton was given the oath by another trailblazer in the legal community, Justice Birch himself.
Read the story in the Tennessean.
New judges learn to 'run the show'
Sixty-three newly elected trial judges attended an intensive five-day Tennessee Judicial Academy in Nashville last week to learn the basics of being a judge when they take office Friday. And that involves a lot more than overruling objections and charging juries. Most have been lawyers for years. But in addition to the legal points of presiding over courtrooms, they learned that the transition from bar to bench can be difficult and lonely. "It's not just knowing the law, it's a lifestyle change," said Shelby County Criminal Court Judge Chris Craft, one of many veteran judges who teach the academy.
The Commercial Appeal has the story.
Retiring justices rose from humble backgrounds
The two men who step down today from the Tennessee Supreme Court are regarded as leaders who championed justice, reform and opening up the court system to the average citizen. Read about Adolpho A. Birch and E. Riley Anderson on this their last day on the Tennessee Supreme Court
in the Tennessean.
Birch's experience will be missed
"The end of an era is approaching in the history of Tennessee jurisprudence," Nashville's City Paper says in an editorial today. "Our state needs to rise to the occasion by thanking Justice Adolpho A. Birch Jr. for decades of the kind of distinguished, intelligent service rarely given by public officials these days."
Read the editorial.
Criminal court judge to end two decades of service today
After 24 years of presiding over trials involving many of Memphis' worst tragedies and oddest stories, Criminal Court Judge Joseph Dailey is adjourning court for good today. He has a short list of cases to hear, no trials and no regrets.
Read his story in the Commercial Appeal.
Why people confess to crimes they didn't commit
When people confess to a crime they did not commit, it's usually to put an end to coercive interrogation, several experts said. But there is a smaller group of people who become so obsessed about the smallest details of a case that they convince themselves they committed the crime. Read this analysis in the
Knoxville News Sentinel.
Reception honors Judge DeLozier
A large crowd packed a room at the Blount County Justice Center Monday to celebrate Division I General Sessions Judge Hugh E. DeLozier's retirement from the bench. DeLozier's replacement, Judge-elect Mike Gallegos, said it was an honor to follow in DeLozier's footsteps. "He was distinguished not only because of his ability as a lawyer and judge, but as a person," Gallegos said. Read the story and see pictures in
Blount Today.
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