Bredesen prevails in dispute over Supreme Court vacancy

Chancellor Ellen Hobbs Lyle today ruled that Gov. Bredesen prevailed on all issues in his suit with the Tennessee Judicial Selection Commission regarding the process for filling an open Supreme Court post. As a remedy to the situation, she orders the Commission to select a third nominee to replace Houston Gordon on the panel that is before the governor. Read the chancellor's opinion


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


Court: TSC


Thomas O. Helton, Chattanooga, Tennessee, Lawrence S. Eastwood, Jr., and Preston A. Hawkins, Nashville, Tennessee, for the petitioners, Cambio Health Solutions, LLC, Triad Hospitals, Inc., Quorum Health Resources, LLC, and Intensive Resource Group, LLC

James F. Sanders and W. David Bridgers, Nashville, Tennessee, for the respondent, Thomas R. Reardon


In federal district court, a jury awarded an employee compensatory damages against his employer for breach of contract and punitive damages against his employer’s parent corporations for intentional interference with contract. The employer and parent corporations appealed to the United States Court of Appeals for the Sixth Circuit, which certified a question of law to this Court: Whether a parent company’s qualified privilege to cause a wholly-owned subsidiary to breach a contract without incurring tort liability applies when the parent company only has a majority interest in the subsidiary. We hold that it does not.


Court: TCA


Thomas J. Drake, Jr., Nashville, TN, for Appellant

Kirk L. Clements, Goodlettsville, TN, for Appellee


This case involves the repossession of two vehicles – a car and a truck. The buyer sued the seller claiming that he had repossessed the vehicles in violation of the sales contracts and violated the Tennessee Consumer Protection Act, and he sought punitive damages. The seller counterclaimed that the buyer had first breached their contract by making late payments. The trial court directed a verdict in the seller’s favor on the Consumer Protection Act claim and the request for punitive damages. The court also directed a verdict for the seller on the issue of wrongful repossession of the truck because the buyer had told the seller to take the truck. A jury found that the car was wrongfully repossessed because the seller had routinely accepted the buyer’s late payments, and he had thereby waived his right to repossess for late payments. The jury also found that, after repossession, the seller had not provided written notice to the buyer before he resold the vehicles. As a result, the trial court ordered the seller to pay a statutory penalty to buyer which is available in “consumer goods” transactions. The court also awarded damages to the buyer for the wrongful repossession of the car. After the jury determined the fair market value of the car when it was repossessed, the trial court awarded the buyer damages for the difference in the car’s value and the amount the buyer still owed. The sale of the truck did not produce enough money to cover what the buyer had owed on it. The jury determined the deficiency existing on the truck to be awarded to the seller. The trial court incorporated all these damage awards into a final award to the buyer. On appeal, the seller contends that he did not wrongfully repossess the car because the sales contract specifically provided that he could waive any default without impairing his right to declare a subsequent default. Also, he argues that the evidence does not support the jury’s finding that he did not send the required notices before he sold the vehicles. In addition, he claims that the evidence does not support a finding that the car was bought in a “consumer goods” transaction because the buyer testified that he used it in his business. He also challenges the jury’s valuation of the fair market value of the car and the deficiency owed on the truck. The buyer claims that the trial court erred in directing a verdict on his Tennessee Consumer Protection Act claim. For the following reasons, the trial court’s judgment is affirmed as modified.


Court: TCA


John B. Enkema, Nashville, Tennessee, for the Appellants, Autumn and David Manning, Lance McKerley, and Natasha Holt

C. Dewey Branstetter, Jr., James G. Stranch, III, and Joe P. Leniski, Jr., Nashville, Tennessee, Plaintiffs' Co-Lead Counsel; George E. Barrett, Douglas S. Johnston, Jr., and Edmund L. Carey, Jr., Nashville, Tennessee; John A. Cochrane, St. Paul, Minnesota; Kenneth A. Wexler and Elizabeth Fegan Hartweg, Chicago, Illinois; Phillip North and A. Gregory Ramos, Nashville, Tennessee; Michael Stoker, La Crosse, Wisconsin; Daniel E. Gustafson, Minneapolis, Minnesota; Marc H. Edelson, Doylestown, Pennsylvania; Richard D. Holper, Fountain Hills, Arizona; Daniel R. Karon, Cleveland, Ohio; Charles A. Schneider, Washington, D.C.; Richard L. O’Meara and Crystal L. Bulges, Portland, Maine; David M. Foster, Farmington Hills, Michigan; Mark G. Wermerskirchen, Willmar, Minnesota; Michael R. Comeau, Jeffrey R. Brannen, Santa Fe, New Mexico; Allan R. Tarleton, Asheville, North Carolina; Michael S. Montgomery, Fargo, North Dakota; Michael D. Bornitz, Sioux Falls, South Dakota; John C. Skinner, Jr., Charles Town, West Virginia; Robert C. Gilbert, Coral Gables, Florida, for the Appellees, settling Plaintiffs

Paul A. Alexis, James A. DeLanis, Andree Blumstein, and R. Dale Grimes, Nashville, Tennessee; Michael L. Denger, Daniel W. Nelson, and Paul A. Allulis, Washington, D.C.; Thomas Gallatin, New York, New York, for the Appellees, settling Defendants International Paper Company, Panolam Industries International, Inc., and Pioneer Plastics Corporation

Judge: LEE

This is a class action involving antitrust claims brought by indirect purchasers of high pressure laminates (HPL) and products containing HPL in twelve states and the District of Columbia. Following extensive discovery and negotiations, settlements were reached between the settling Plaintiffs and several of the Defendants: International Paper Company, Panolam Industries International, Inc., and Pioneer Plastics Corporation. Four individual Tennessee Plaintiffs filed objections to the settlements, arguing that the trial court should not approve them because the settlements allocate benefits in a population-based approach without regard to the alleged differences in the antitrust laws of the various states. The trial court approved the settlements, finding them fair, reasonable, and adequate under the circumstances. We agree with the trial court that the settling parties were not required to reach an agreement using an approach that analyzes and takes into consideration all of the various differences in state antitrust laws and that allocates benefits accordingly. We affirm the judgment of the trial court approving the settlements over the individual Plaintiffs' objections.


Court: TCA


Colleen Denise Hitch and John S. Golwen, Memphis, Tennessee, for the Appellants, Highwoods Properties, Inc., Highwoods Realty Limited Partnership, Highwoods/Tennessee Holdings, LP, and AP Southeast Portfolio Partners LP

Jonathan C. Hancock, Sara L. Hall and Ross Emerson Webster, for the Appellees, City of Memphis, Memphis City Council and its members, E.C. Jones, Brent Taylor, Tajuan Stout Mitchell, Dedrick Brittenum, Jr., Carol Chumney, Edmund Ford, Barbara Swearengen Holt, Joe Brown, Rickey W. Peete, Myron Lowery, Scott McCormick , Tom Marshall, Jacks Sammons, and Dr. W. W. Herenton


The trial court dismissed Plaintiffs’ cause of action as time-barred under Tennessee Code Annotated §§ 6-51-102(a)(1) & 103. We affirm.


Court: TCA


Stephen L. Hughes, Milan, Tennessee, for the appellant, States Resources, Inc.

Robin H. Rasmussen, Memphis, Tennessee, for the appellee, Holiday Hospitality Franchising, Inc.


The issue presented in this priority dispute between a first deed of trust holder and a judgment lien creditor involves the legal effect of the inadvertent and erroneous release of the deed of trust. States Resources Corporation (SRC), Defendant/Appellant, holds two liens on the same real property: one as successor-in-interest to a judgment creditor and the other as assignee of a promissory note for a construction loan, secured by a deed of trust originally held by Trust One Bank. Plaintiff/Appellee Holiday Hospitality Franchising (Holiday) also holds a judgment lien that, in relation to SRC’s filings, was filed last in time. SRC appeals summary judgment entered in favor of Holiday and contends that as assignee of Trust One’s note and first-filed deed of trust, it occupies the most senior lien position, notwithstanding the mistaken release of the deed prior to the assignment. Because Trust One’s release was inadvertent and unintended, and because restoring the deed of trust to its original priority position would not prejudice the rights of Holiday, an intervening judgment lien creditor, we hold that, as a matter of law, the mistaken release should be cancelled in part and the deed as to Lot 30 should be restored to its position as first deed of trust. Accordingly, we reverse and remand.


Court: TCA


Kendra J. Mansur, Knoxville, Tennessee, for the Appellants, Arthur Jack Ross and Barbara Wheeler Ross

Donald K. Vowell, Knoxville, Tennessee, for the Appellee Broadway Towers, Inc.


Broadway Towers, Inc. (“Broadway Towers”) provides federally subsidized housing for the elderly and disabled. Applicable federal regulations permit Broadway Towers to conduct criminal background checks on applicants and their family members or caretakers who will be residing with the applicant at the facility. Mr. Jack Ross applied for residency at Broadway Towers and also sought permission for his live-in aid, Ms. Barbara Wheeler, to reside on the premises with him. Ms. Wheeler signed an authorization for Broadway Towers to conduct a criminal background check using the name “Barbara M. Wheeler.” Both Mr. Ross and Ms. Wheeler were approved to live on the premises. Broadway Towers later discovered that Ms. Wheeler had a felony forgery conviction under the name “Barbara M. Norwood.” The felony forgery conviction resulted from Ms. Wheeler’s attempt to obtain money illegally from her elderly mother’s bank account by using forged legal documents. Upon learning of Ms. Wheeler’s felony forgery conviction, Broadway Towers served a notice of noncompliance on Mr. Ross requiring him and Ms. Wheeler to vacate the premises. When Mr. Ross and Ms. Wheeler refused to vacate the premises, this lawsuit was filed. The Trial Court ordered Mr. Ross and Ms. Wheeler to vacate the premises. We affirm.


Court: TCCA


J. Liddell Kirk (on appeal) and Bruce E. Poston (at trial), Knoxville, Tennessee, for the appellant, Demetrius Holmes

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald and Del Holley, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: MCLIN

The defendant, Demetrius Holmes, was convicted of facilitation of aggravated robbery and sentenced to six years in the Tennessee Department of Correction as a standard offender. On appeal, he challenges the length of the sentence imposed by the trial court. Upon our review of the record and the parties’ briefs, we affirm the judgment of the trial court.


Court: TCCA


Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale Austin

Robert E. Cooper, Jr., Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General; William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee

Judge: WITT

The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5, 1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the basis of newly discovered evidence in the form of recanted testimony. Without holding an evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this appeal challenging the action. Upon review, we affirm the judgment of the lower court.


Court: TCCA


Edward Cantrell Miller, District Public Defender, and James Lee Deaton, Assistant Public Defender, for the appellant, David Lee Bishop

Robert. E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Tim Arrants, Assistant District Attorney General, for the appellee, State of Tennessee


The defendant, David Lee Bishop, was convicted at a jury trial in the Grainger County Circuit Court of four counts of rape of a child, a Class A felony. The defendant was sentenced to serve twenty-five years for each conviction, with the sentences imposed consecutively, for an effective 100-year sentence. The trial court later granted the defendant’s request to modify the sentence and imposed twenty-year sentences, for an effective eighty-year sentence. The defendant then filed this appeal from the modified sentences, in which he contends that the trial court erred in enhancing the sentences and in imposing consecutive sentences. Because the record before us is inadequate for review of the issue, we affirm the judgments of the trial court.


Court: TCCA


James W. Brooks, Jr., Wartburg, Tennessee, for the appellant, Timothy E. Higgs

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Scott McCluen, District Attorney General; and Frank Harvey and John H. Bledsoe, Assistant District Attorneys General, for the appellee, State of Tennessee

Judge: MCLIN

The petitioner, Timothy E. Higgs, appeals from the criminal court’s denial of his petition for writ of habeas corpus. On appeal, he essentially argues that his sentence of ten years as a persistent offender is illegal because the state did not timely file a notice to seek an enhanced punishment, and he did not have the requisite number of prior convictions to qualify as a persistent offender. Following our review of the parties’ briefs and applicable law, we affirm the criminal court’s judgment.


Court: TCCA


John E. Saulsberry, Appellant, Pro Se

Robert E. Cooper, Jr., Attorney General & Reporter; and Brian Clay Johnson, Assistant Attorney General, for the Appellee, State of Tennessee

Judge: WITT

Aggrieved of the Lauderdale County Circuit Court’s summary dismissal of his petition for habeas corpus relief, the petitioner, John E. Saulsberry, appeals. The habeas corpus court denied the petition, finding that the petitioner’s negotiated plea agreement was valid because “[his] voluntary guilty plea waive[d] any irregularity as to offender classification or release eligibility,” that the petitioner’s sentences had not expired, and that the trial court had jurisdiction to sentence the petitioner. We affirm the lower court’s order of dismissal.


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During 2007, officers, governors and delegates of the Tennessee Bar Association (TBA) will be elected. Open seats include a vice president, district governors, grand division governors, TBA delegates to the ABA House of Delegates and delegates to the TBA House of Delegates. To qualify for any of these offices, a candidate must file a nominating petition, containing the names of 25 members of the association in good standing. The petition must be received at the TBA headquarters on or before Feb. 15, 2007. This notice is in accordance with bylaws of the TBA Sections 15 and 40 through 46.
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Legal News
Court seeks comments on proposal for appellate mediation
The Tennessee Supreme Court is soliciting comments on the proposed Provisional Supreme Court Rule 48, which sets out the process and procedure for appellate mediation. The proposal comes out of work done by the Court's Task Force to Study Appellate Mediation, which reported its findings and recommendations to the court this summer. The deadline for submitting written comments is March 15, 2007. They should be addressed to: Mike Catalano, Clerk, Tennessee Appellate Courts, 100 Supreme Court Building, 401 7th Avenue North, Nashville, TN 37219-1407.
Read the proposed Provisional Rule 48
Carter County commission approves new jail
The Carter County Commission voted 16-4 during a special session this week to build a 500-bed jail adjacent to the current county jail estimated to cost upwards of $17 million, reports the Knoxville News Sentinel.

Vanderbilt Law adds new development director
Vanderbilt University Law School has named Alyssa M. Wilcox as Assistant Dean of Development and Alumni Relations.
Learn more about the appointment
Amundsen new VP at Memphis Bar
Newly elected Memphis Bar President Amy Amundsen talks about her plans to work with the University of Memphis Law School and other topics in an interview with the Memphis Daily News.
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8 vie to replace Cohen in Senate
The vacant state Senate seat formerly held by Congressman-elect Steve Cohen has attracted eight candidates seeking an interim appointment.
Read more in the Commercial Appeal
Regulators overturn Pruitt fine
State regulators have overturned a $10,000 fine they had previously assessed to state Rep. Mary Pruitt. Officials at the state Registry of Election Finance said state regulators issued the fine when neither Pruitt nor her attorney attended the hearing to defend the matter but decided to take it up again after a reconsideration was requested.
Read more in the Tennessean
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