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Friday, September 01, 2006

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Gubernatorial candidate calls for judicial elections

State Senator and gubernatorial candidate Jim Bryson, R-Franklin, said this week that the state's appellate selection process is "hopelessly mired in politics" and needs to be replaced with direct elections. His comments came in response to the current disagreement between Gov. Phil Bredesen and the Judicial Selection Commission over who should be considered for a vacancy on the Supreme Court. Read the full story in the Chattanooga Times Free Press:

http://www.emailthis.clickability.com/et/emailThis?clickMap=viewThis&etMailToID=710410440

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at http://www.tba.org/getpassword.mgi.

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Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

CLIFFORD ASLINGER v. KENNETH T. PRICE, ET AL.

Court: TCA

Attorneys:

Frank P. Pinchak, Chattanooga, Tennessee, for the Appellant, Clifford Aslinger.

Sam D. Elliott, Chattanooga, Tennessee, for the Appellees, Kenneth T. Price and Pamela G. Price.

Judge: LEE

This is an action for specific performance under a contract for sale of approximately 3.31 acres of real estate. Clifford Aslinger contracted to purchase the 3.31 acres from Geoffrey Giesemann, who was acting on behalf of his father's estate. Subsequently, Mr. Giesemann, acting for the estate, sold a larger tract of real estate that included the 3.31 acres to Kenneth T. Price. Mr. Giesemann thought that the agreement with Mr. Price included Mr. Price's assent to convey the 3.31 acres to Mr. Aslinger. When Mr. Price refused to sell, Mr. Aslinger sued for specific performance. The trial court held that the contract between Mr. Aslinger and the Giesemann estate was valid, and that Mr. Price was on inquiry notice of the existence of the prior contract, but declined to order Mr. Price to sell the 3.31 acres to Mr. Aslinger because Mr. Price did not assent to sell it to Mr. Aslinger as part of his agreement with Mr. Giesemann and the estate. We find the evidence does not preponderate against the trial court's factual findings, but based on these findings, we hold that Mr. Price was not a bona fide purchaser without notice, and therefore took the deed from the Giesemann estate subject to Mr. Aslinger's prior interest. We further find that the evidence preponderates against the trial court's award of $4,700 to Mr. Aslinger against Mr. Price based on its finding of unjust enrichment. We therefore reverse the trial court's monetary award to Mr. Aslinger and remand for entry of an order requiring Mr. Price to transfer the 3.31 acres to Mr. Aslinger at a price of $4,000 per acre. We affirm the trial court's judgment declining to award either party attorney's fees.

http://www.tba2.org/tba_files/TCA/2006/aslingerc_090106.pdf

AUTO CREDIT OF NASHVILLE v. MELISSA WIMMER
With Dissenting Opinion

Court: TCA

Attorneys:

James B. Hawkins, Steven J. Christopher, Gallatin, Tennessee, for the appellant, Melissa Wimmer.

James D. R. Roberts, Janet L. Layman, Nashville, Tennessee, for the appellee, Auto Credit of Nashville.

Judge: COTTRELL

A woman bought a used automobile, financing the purchase with a loan from the plaintiff credit company. The loan was secured through a UCC Article 9 security interest in the vehicle. When the buyer fell behind in her payments, the creditor repossessed the car and sent her notice by certified mail that it intended to sell the car and that she would face a deficiency judgment if the sale price was less than the amount she still owed. She did not receive the notice, and the certified letter was returned unclaimed to the creditor the day after the sale. The creditor sued for a deficiency of over $3,400, and the circuit court granted it judgment for the amount claimed. The buyer sought statutory damages under Tenn. Code Ann. Section 47-9-625 arguing that the attempted notice was inadequate, and the trial court dismissed her counterclaim. The buyer appeals this dismissal. We reverse the trial court because we find Auto Credit did not act reasonably in proceeding to sell the car without affirming that the notice had in fact been delivered.

http://www.tba2.org/tba_files/TCA/2006/autocredit_090106.pdf

Clement Dissenting
http://www.tba2.org/tba_files/TCA/2006/autocredit_diss090106.pdf

CHARLOTTE MCCALL v. NATIONAL HEALTH CORPORATION D/B/A MURFREESBORO HEALTH CENTER, ET AL.

Court: TCA

Attorneys:

John W. Rodgers, James P. Barger, Murfreesboro, Tennessee, for the appellants, National Health Corporation d/b/a Murfreesboro Health Center, NHC Insurance Company n/k/a Premier Group Insurance Company, and Greg Bidwell.

Larry R. McElhaney, II, Nashville, Tennessee, for the appellee, Charlotte McCall.

Judge: CAIN

This case concerns the right of an employee injured under circumstances entitling her to workers' compensation benefits to file a common law tort action against a supervisor, whose actions caused the injury. The trial court concluded that employee's right to sue her supervisor for his allegedly tortious conduct was barred under the exclusive remedy doctrine of the Tennessee Workers' Compensation Law. The judgment of the trial court is reversed in part, affirmed in part, and remanded to the trial court for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/mccallc_090106.pdf

IRVIN EUGENE MURR v. ANGELINE J. MURR

Court: TCA

Attorneys:

M. Andrew Hoover, Pulaski, Tennessee, for the appellant, Angeline J. Murr.

Paul A. Bates, Lawrenceburg, Tennessee, for the appellee, Irvin Eugene Murr.

Judge: CAIN

In this appeal, Mother challenges the trial court's designation of Father as primary residential parent of the parties' only child after the termination of a two and a half year marriage. The judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2006/murri_090106.pdf

STATE OF TENNESSEE v. JUDGE BROOKS
With Dissenting Opinion

Court: TCCA

Attorneys:

Garland Erguden and Robert Wilson Jones (on appeal) and Tim Albers and Donna Armstard (at trial), Memphis, Tennessee, for the appellant, Judge Brooks.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: OGLE

A Shelby County Criminal Court jury convicted the appellant, Judge Brooks, of first degree premeditated murder, and the trial court sentenced him to life imprisonment. In this appeal, the appellant claims (1) that the trial court improperly admitted the victim's prior statements into evidence under the hearsay rule's forfeiture by wrongdoing exception, Tennessee Rule of Evidence 804(b)(6), and in violation of the Confrontation Clause; (2) that the trial court erred by admitting evidence of the appellant's prior assault on the victim pursuant to Tennessee Rule of Evidence 404(b); and (3) that the evidence is insufficient to support the conviction. While we conclude that the trial court improperly admitted hearsay into evidence, we conclude that the error was harmless and affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/brooksj_090106.pdf

Tipton Dissenting
http://www.tba2.org/tba_files/TCCA/2006/brooksj_diss090106.pdf

TODAY'S NEWS

Legal News
BPR Actions
TBA Member Services

Legal News

Greenebaum attorneys jump to Alabama firm

Six attorneys from the Nashville office of Greenebaum Doll & McDonald are moving to the Birmingham-based firm of Burr & Forman, the Nashville Post reported today. Lawrence Ahern, W. Davidson Broemel, Kevin M. Doherty, Darlene T. Marsh, David W. Houston IV and Sandra A. Keifert are joining Burr's Nashville office, which opened in 2005. Additionally, Atlanta-based attorney Maria Sheffield and a total of five administrative staff and one paralegal are making the switch. Burr plans to take over Greenebaum's office space on West End Avenue. A Greenebaum spokesman stated that despite the departures, the firm will maintain a strong presence in Nashville under the leadership of Harry Buckley "Buck" Cole.

Bowers charged with DUI; party leaders to choose replacement candidate

After resigning from the state Senate and ending her re-election bid this week, Kathryn Bowers was charged by Memphis police with DUI, reckless driving and failure to maintain control of a vehicle following a traffic collision yesterday afternoon. Her withdrawal from the race means that the Shelby County Democratic Executive Committee must choose a new nominee by Sept. 28 to face Republican Michael Floyd in the November election.

The Commercial Appeal has more

Smithville police chief resigns citing ethnic slurs

After only five months on the job, the man believed to be the first Hispanic police chief in Middle Tennessee has resigned, accusing local officials of meddling in police business and ridiculing him with slurs about his ethnicity. Agustin Clemente Jr. is the town's fourth police chief in as many years.

The News Sentinel has the story

Nations taps interim juvenile referee

Ending weeks of speculation, Williamson County General Sessions and Juvenile Judge Al Nations appointed outgoing Judge Lonnie Hoover to serve as interim juvenile court referee through Dec. 31. The referee vacancy was created when Judge Robbie Beal resigned to take office as circuit court judge. Nations promised he would work with newly elected Judge Denise Andre, who defeated Hoover, to fill the position permanently.