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Monday, April 09, 2007

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Seat on Judicial Evaluation Commission to be filled, deadline to apply is April 13

The Tennessee Bar Association is accepting applications from members interested in being nominated for a seat on the Judicial Evaluation Commission. The position is currently held by Sarah Sheppeard of Knoxville, who is not eligible for reappointment.

The TBA nominates three people and the Speaker of the House of Representatives chooses one of the nominees to serve on the commission. Interested individuals should contact TBA Executive Director Allan F. Ramsaur by mail at 221 Fourth Ave. North, Suite 400, Nashville, TN 37219. Include a letter of interest and a resume. Applications must be received by April 13. The Board of Governors will choose the TBA's nominees at its April 28 meeting. Complete details about the nomination process may be found on the TBA web site at:

http://www.tba.org/BOG/elexhandbook.html#Anchor-Judicial-23522

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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00 - TN Supreme Court - Rules
08 - TN Court of Appeals
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00 - Formal Ethics Opinions - BPR

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi

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

GINA ANDREWS v. FIFTH THIRD BANK

Court: TCA

Attorneys:

August C. Winter, Brentwood, Tennessee, for the appellant, Gina Andrews.

J. Timothy Street, Franklin, Tennessee, for the appellee, Fifth Third Bank.

Judge: CAIN

Ex-wife of debtor, who had a recorded final judgment against debtor's real property, filed action against Bank, who obtained two recorded default judgments against debtor, in order to determine which party was entitled to the excess proceeds resulting from the foreclosure sale of debtor's real property. The trial court determined that (1) Ex-wife's failure to execute on her judgment denied her the right to claim priority pursuant to Tennessee Rule of Civil Procedure 69.07(3); and (2) Ex-wife could not collaterally attack the validity of Bank's judgments. We reverse and remand.

http://www.tba2.org/tba_files/TCA/2007/andrewsg_040907.pdf

CLEAR CHANNEL OUTDOOR, INC. v. A QUALITY, INC, D/B/A MR. PRIDE, ET AL.

Court: TCA

Attorneys:

Robert L. J. Spence, Jr. and Carrie C. Thomas of Memphis, Tennessee for Appellant, Clear Channel Outdoor, Inc.

Robert E. Craddock, Jr. and Kacey L. Faughnan of Memphis, Tennessee for Appellees, A Quality Inc., d/b/a Mr. Pride and A Quality, PMM, Inc.

Judge: CRAWFORD

This case involves the interpretation of a lease agreement as it pertains to ownership of an advertising sign structure. The trial court found that Defendant/Appellee, the Lessor under the lease, is the owner of the sign structure pursuant to the terms of the lease. Plaintiff/Appellant contends that the plain language of the lease indicates that it is the owner of the disputed sign. We affirm and remand.

http://www.tba2.org/tba_files/TCA/2007/clearchannel_040907.pdf

N. C. EDWARDS, II v. CARLOCK NISSAN OF JACKSON, LLC, ET AL.

Court: TCA

Attorneys:

Jeffrey P. Boyd of Jackson, Tennessee for Appellants, Carlock Nissan of Jackson, LLC, Grover Clayborn Carlock, Sr., and Grover Clayborn Carlock, Jr.

William H. Shackelford, Jr. of Memphis, Tennessee for Appellee, N. C. Edwards, II.

Judge: CRAWFORD

Lessor/Appellee sued Lessee/Appellant for breach of contract due to Lessee/Appellant's alleged failure to maintain the leased building as required under the lease. The trial court entered Judgment in favor of Lessor/Appellee, which Judgment included damages for repairs to the building, lost rent, and attorney fees. Lessee/Appellant appeals. On appeal, Lessor/Appellee asks for attorney fees in defending this appeal. We affirm the judgment of the trial court and remand for a determination of appropriate appellate attorney fees.

http://www.tba2.org/tba_files/TCA/2007/edwardsn_040907.pdf

JOHNNY GANT v. SANTA CLARITA LABORATORIES

Court: TCA

Attorneys:

Johnny Gant, Nashville, Tennessee, appellant Pro Se.

Santa Clarita Laboratories, appellee, not represented on appeal.

Judge: COTTRELL

The plaintiff was a Nashville man who bought a bottle of mail order vitamins from a California company and directed the company to send the order to one of his relatives. The plaintiff was unsatisfied with the product and mailed it back to the company and asked for a refund. When no refund was immediately forthcoming, he filed suit in General Sessions Court. The company sent the plaintiff a full refund after it was served with the lawsuit. The plaintiff continued to pursue his suit through an appeal to the Circuit Court, which dismissed the case. We affirm the Circuit Court.

http://www.tba2.org/tba_files/TCA/2007/gantj_040907.pdf

TARVIE GILBERT v. CHOO-CHOO PARTNERS, L.P.

Court: TCA

Attorneys:

Grace E. Daniell, Chattanooga, Tennessee, for appellant.

Karen M. Smith and Maury Nicely, Chattanooga, Tennessee, for appellee.

Judge: FRANKS

In this action, plaintiff alleged that he suffered two demotions with his employer due to his age. The Trial Judge granted the employer summary judgment, finding that there was merit in plaintiff's Complaint as to the first demotion, but the statute of limitations had run before the action was filed. As to the second demotion, the Trial Court held that the plaintiff failed to make out a prima facie case of age discrimination, because there was no showing that he was replaced by a younger worker. On appeal, we affirm the Trial Court's Judgment.

http://www.tba2.org/tba_files/TCA/2007/gilbertt_040907.pdf

GLOBE LIFE AND ACCIDENT INSURANCE COMPANY v. MARIE NICHOLSON AND PAM OLIVER

Court: TCA

Attorneys:

Kenneth K. Crites, Centerville, Tennessee, for the appellant, Marie Nicholson.

Jerry W. Hamlin, Ashland City, Tennessee, for the appellee, Pam Oliver.

Judge: COTTRELL

This appeal involves a determination of whether a now-deceased insured substantially complied with requirements for a change of beneficiary on his life insurance policy from his former wife to his daughter. Because the evidence does not preponderate against the trial court's ruling that the decedent had substantially complied, we affirm the judgment of the trial court awarding the proceeds of the policy to the daughter.

http://www.tba2.org/tba_files/TCA/2007/globelife_040907.pdf

VICKI MICHELLE MARLETT V. WILLIAM BLAKE THOMASON and OPAL THOMASON

Court: TCA

Attorneys:

Mark Walker, Springfield, Tennessee, for Plaintiff/Appellant Vicki Michelle Marlett.

Roger A. Maness, Clarksville, Tennessee, for Defendant/Appellee William Blake Thomason.

Judge: KIRBY

This is a contract case. The plaintiff's grandmother died in April 2002. Shortly after the decedent's death, a dispute arose between the parties regarding the validity of the decedent's will. In August 2002, the parties entered into a settlement agreement and release, which distributed the decedent's estate and released all claims relating to the validity of the will or to the distribution of assets in the estate. After entering into this agreement, the plaintiff was appointed administratrix of the decedent's estate. In administering the estate, the plaintiff discovered that, at the time of her death, the decedent owned four substantial financial accounts and that, between February 1997 and January 1999, the defendant was made a joint owner of these accounts. The plaintiff, as administratrix, then filed the instant lawsuit to bring the financial accounts into the estate for distribution to the decedent's intestate heirs. The defendant filed a motion for summary judgment. The trial court granted the motion based on the settlement agreement executed by the parties. The plaintiff now appeals. We reverse and remand, finding that there is a genuine issue of material fact with regard to what was within the contemplation of the parties when the settlement agreement was executed.

http://www.tba2.org/tba_files/TCA/2007/marlettv_040907.pdf

JASON R. STANFORD v. NICOLE L. SYLVAIN

Court: TCA

Attorneys:

Jason R. Stanford Pro Se.

H. Scott Saul of Nashville, Tennessee for Nicole Layrain Sylvain, Appellee.

Judge: CRAWFORD

This is a child custody case involving the issue of which state, Tennessee or Texas, has jurisdiction under the UCCJEA. The trial court determined that the child's extended stay in Tennessee was a visit in this State and not a change of residence so as to give Tennessee home state jurisdiction to modify a foreign decree of custody that had previously been entered in Georgia. Father/Appellant appeals asserting that Mother/Appellee forfeited her status as custodial parent by sending the child to live with him in Tennessee. We affirm.

http://www.tba2.org/tba_files/TCA/2007/stanfordj_040907.pdf

STATE OF TENNESSEE v. DONNA W. BARNES

Court: TCCA

Attorneys:

Stephen M. Wallace, District Public Defender, and Leslie S. Hale, Assistant Public Defender, for the appellant, Donna W. Barnes.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Kent L. Chitwood, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Donna W. Barnes, was found guilty by a jury of theft of property under $500, a Class A misdemeanor. She appeals the sufficiency of the evidence to support her conviction. We conclude that sufficient evidence was presented for a rational jury to find, beyond a reasonable doubt, the defendant�s guilt. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2007/barnesd_040907.pdf

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Legal News

Jury selection difficult
in Ford trial

Jury selection promises to be slow-going in the corruption trial of former state Sen. John Ford. With 93 jurors from Shelby and surrounding counties in the pool, most were familiar with the situation already. "Who all here has heard stuff in the press about this case?" Ford's attorney, Michael Scholl, asked the prospective jurors. Each of the 12 men and women in the jury box raised their hands. Scholl said this morning he expects the trial to last three weeks.

Follow the story in the Commercial Appeal

Court says cockfighting is gambling, not a sport

In a court document filed April 5, U.S. Magistrate Judge Dennis Inman recommended that a motion to dismiss federal gambling charges against five Newport men be denied. The judge said they were gambling, although the men contend cockfighting is a sport.