Tennessee Plan on track for extension; funds OK'd
for new assistant district attorneys, public defenders


The Senate Government Operations Committee today, by an 8-0 vote, recommended a one-year extension of the Judicial Selection Commission. Early action is expected by the full Senate to concur with similar House action, thus giving approval to the essential elements of the Tennessee Plan for selection, evaluation and retention of judges.

In other news, the governor's supplemental budget amendment proposed yesterday includes several items affecting the judicial branch including (1) a $205,000 appropriation to provide for a fully-staffed Court of the Judiciary, and (2) a $28.6 million crime package including an additional 32 assistant district attorneys and 28 assistant public defenders to aid in criminal justice administration.

As of press time today, it was unclear whether legislative leaders would press to finish their business this week or return the week of June 4 or June 11 to wrap up the session.
TODAY'S OPINIONS
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Editor-in-Chief, TBALink

KENNETH BUCKNER, ET AL. v. CHARLES YARBER

Court: TCA

Attorneys:

William J. Brown, Cleveland, Tennessee for the Appellant, Charles Yarber

Robert B. Wilson, III, Cleveland, Tennessee for the Appellees, Eugene Buckner and wife, Linda Buckner

April Perry Randle, Chattanooga, Tennessee for the Appellees, Kenneth Buckner and wife, Brenda Buckner

Judge: SWINEY

Kenneth Buckner and his wife, Brenda Buckner, and Eugene Buckner and his wife, Linda Buckner, sued Charles Yarber seeking, among other things, to reform or rescind certain deeds pertaining to real property located in Bradley County, Tennessee. The case was tried without a jury and the Trial Court entered an order finding and holding, inter alia, that certain deeds from Charles Yarber and Pearl Yarber to Kenneth and Brenda Buckner, and to Eugene and Linda Buckner were void and were set aside, and that fee simple title was vested in the heirs of Anderson Yarber. All parties filed motions to alter or amend the judgment. After hearing argument on the motions to alter or amend, the Trial Court entered an order finding and holding, inter alia, that fee simple title vested in the heirs of Anderson Yarber per capita, that the property at issue had been reduced by a valid conveyance of 11.3 acres, and that certain deeds from Pearl Yarber to Charles Yarber were set aside. All parties appealed to this Court. We modify the Trial Court's order, in part, to show that a one-half undivided interest in the 57.5 acre tract at issue vested in the heirs of Anderson Yarber by representation. We reverse the Trial Court's order, in part, and hold that the deeds from Pearl Yarber to Charles Yarber were valid conveyances, as reformed, and are not to be set aside, and we further hold that the 57.5 acre tract was not reduced by a conveyance of 11.3 acres. We further affirm the Trial Court's order, in part, holding that the deeds from Pearl Yarber and Charles Yarber to Kenneth and Brenda Buckner, and to Eugene and Linda Buckner were void and are set aside. We remand this case to the Trial Court for a partition of the 57.5 acre tract pursuant to this Opinion.

http://www.tba2.org/tba_files/TCA/2007/bucknerk_053007.pdf


THOMAS G. ERICKSON v. RUTH CHRISTINE ERICKSON-MITCHELL

Court: TCA

Attorneys:

Thomas F. Bloom, Nashville, Tennessee, and Mary Catherine Kelly, Franklin, Tennessee, for the appellant, Thomas G. Erickson

Donald Capparella and Amy J. Farrar, Nashville, Tennessee, for the appellee, Ruth Christine Erickson-Mitchell

Judge: CLEMENT

In this divorce action, Husband appeals the trial court's decision to invalidate the parties' Prenuptial Agreement and the decision to award alimony in the form of attorney's fee to Wife. The trial court found that Husband inadequately disclosed his financial position. The trial court also found that Husband materially misrepresented to Wife, prior to the marriage, that he was a social drinker and not an alcoholic. Finding the evidence preponderates against the trial court's findings, we reverse the trial court's decision to invalidate the Prenuptial Agreement. We also find the Prenuptial Agreement bars an award of attorney's fees to Wife.

http://www.tba2.org/tba_files/TCA/2007/ericksont_053007.pdf


MATTHEW FLORY and CHRISTI FLORY v. JOHN ARNOLD FITZGERALD

Court: TCA

Attorneys:

Andrew F. Tucker, Dayton, Tennessee, for appellant

John R. Anderson and Robert S. Grot, Chattanooga, Tennessee, for appellees

Judge: FRANKS

Plaintiffs purchased property from defendant by Warranty Deed which stated the property contained 15 acres. Plaintiffs subsequently learned in litigation with a neighbor over the boundary line, that the parcel only contained 10.66 acres. Plaintiffs then filed this action against defendant to recover damages and the Trial Court held that plaintiffs were entitled to damages under the warranties in the Deed in the amount of $6,660.00 for the shortage of acreage plus costs and the judgment they incurred in the boundary line dispute with their neighbor. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2007/florym_053007.pdf


DONNA FUNK v. TARGET NATIONAL BANK/TARGET VISA

Court: TCA

Attorneys:

Donna Funk, Knoxville, Tennessee, pro se

Nicholas H. Adler, Nashville, Tennessee, for appellee

Judge: FRANKS

In this suit on a credit card debt, the Trial Court granted plaintiff summary judgment on the amount claimed. On appeal, we affirm.

http://www.tba2.org/tba_files/TCA/2007/funkd_050307.pdf


DIANA B. HANNAHAN v. TERRY Q. HANNAHAN

Court: TCA

Attorneys:

John E. Appman, Jamestown, Tennessee, for the appellant, Terry Q. Hannahan

Brett A. York and Kevin R. Bryant, Crossville, Tennessee, for the appellee, Diana B. Hannahan

Judge: LEE

The trial court held Husband in contempt because he failed to comply with the terms of a post-divorce agreed order which modified the terms of the divorce decree regarding the disposition of the marital residence. On appeal, Husband argues that the agreed order was void because the trial court was without jurisdiction to modify the divorce decree after it became final. We hold that the agreed order, which was a modification of the divorce decree by the parties, was valid and enforceable. Accordingly, the trial court did not err in enforcing the terms of the agreed order by holding Husband in contempt of court for noncompliance with the order.

http://www.tba2.org/tba_files/TCA/2007/hannahand_053007.pdf


DANNY R. KING v. TENNESSEE BOARD OF PAROLES

Court: TCA

Attorneys:

Danny R. King, pro se Appellant

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and Bradley W. Flippin, Assistant Attorney General, Nashville, Tennessee, for the Appellee, Tennessee Board of Paroles

Judge: SWINEY

Danny R. King (Plaintiff) committed the offenses of aggravated kidnapping and aggravated rape in 1981 and was sentenced to two concurrent life sentences. Plaintiff first became eligible for parole in 2004. The Tennessee Board of Paroles (the Board) denied parole. After unsuccessfully appealing the parole denial administratively, Plaintiff filed a petition for writ of certiorari with the Trial Court. Plaintiff's primary argument is his claim that the Board improperly applied a version of the statute governing parole of sex offenders which was amended after he committed the crimes. Plaintiff claims the version of the statute as it existed when he committed the crimes should have been applied and application of the statute as amended resulted in an ex post facto violation. The Trial Court determined there was no ex post facto violation and dismissed the petition. We affirm.

http://www.tba2.org/tba_files/TCA/2007/kingd_053007.pdf


PATRICK McGEE v. TIMOTHY BEST, ET AL.

Court: TCA

Attorneys:

G. Kline Preston, IV, Nashville, Tennessee, for the appellant, Patrick McGee

Timothy K. Garrett, Nashville, Tennessee, for the appellees, McGee, Best, Frank & Ingram LLC, Timothy Best, Robert Frank, and Ingram Entertainment, Inc.

Judge: SUSANO

The plaintiff filed this action against a limited liability company and some of its members following the termination of his membership in and employment with the company. This is the third lawsuit filed by him arising out of the same set of facts. The plaintiff filed a notice of voluntary dismissal in this third case -- a dismissal which the trial court ultimately found to be an adjudication on the merits. The court awarded the defendants a judgment against the plaintiff in the amount of $2,475 for fees and costs associated with their defense of this action. The plaintiff appeals this monetary award. We reverse.

http://www.tba2.org/tba_files/TCA/2007/mcgeep_053007.pdf


DENISE ELIZABETH BAILEY PRICE v. GREGORY ROSS PRICE

Court: TCA

Attorneys:

Grayson Smith Cannon, Goodlettsville, Tennessee, for the appellant, Denise Elizabeth Bailey Price

John R. Phillips, Jr., Gallatin, Tennessee, for the appellee, Gregory Ross Price

Judge: SUSANO

Denise Elizabeth Bailey Price (Wife) filed an amended complaint seeking a legal separation from Gregory Ross Price (Husband). Husband responded with a counterclaim requesting an absolute divorce. Following a bench trial, the court declared the parties divorced and awarded Wife "transitional" alimony in a gross amount of $1,821 per month for 36 months. The trial court also decreed that each party would be responsible for the party's own attorney's fees. Wife appeals, challenging the trial court's failure to grant her a legal separation. Wife also raises an issue with respect to the type and amount of alimony awarded by the trial court. She also challenges the trial court's refusal to award her any portion of the fees of her counsel. We modify the trial court's alimony award to make it an award of alimony in futuro to terminate upon the death or remarriage of Wife. The judgment of the trial court, as modified, is affirmed.

http://www.tba2.org/tba_files/TCA/2007/priced_053007.pdf


CHARLES SMITH, EXECUTOR OF THE ESTATE OF ETHEL ROGERS SMITH v. JERRY SMITH

Court: TCA

Attorneys:

Christopher P. Capps, Morristown, Tennessee, for the Appellant, Charles Smith, Executor of the Estate of Ethel Rogers Smith

Douglas R. Beier, Kingsport, Tennessee, for the Appellee, Jerry Smith

Judge: LEE

The issue in this case is whether the trial court erred in denying the plaintiff's Tenn. R. Civ. P. 60.02 motion for relief from judgment. Following a bench trial and judgment in favor of the defendant, a third party provided additional materials pursuant to an agreed discovery order, which were not previously disclosed to the parties before trial. The plaintiff filed a motion pursuant to Rule 60.02, requesting that the judgment be set aside based on this newly discovered evidence. The plaintiff also argued that the doctrines of equitable estoppel and judicial estoppel should be applied to grant relief from the judgment. The trial court denied the motion, and the plaintiff appealed. After careful review, we find that the trial court incorrectly applied the law in deciding on the plaintiff's Rule 60.02 motion. Therefore, we vacate and remand.

http://www.tba2.org/tba_files/TCA/2007/smithc_053007.pdf


Constitutionality of Proposed Amendment to Tenn. Code Ann. Section 37-1-159

TN Attorney General Opinions

Date: 2007-05-29

Opinion Number: 07-81

http://www.tba2.org/tba_files/AG/2007/ag_07-81.pdf

Certificates of Attendance

TN Attorney General Opinions

Date: 2007-05-29

Opinion Number: 07-82

http://www.tba2.org/tba_files/AG/2007/ag_07-82.pdf

TODAY'S NEWS

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TBA Member Services

Legal News
Ruling on pay bias reverses years of interpretation
Labor attorneys say a U.S. Supreme Court decision from Tuesday could limit workers' ability to prove pay discrimination cases by redefining the amount of time they have to file lawsuits. While federal law requires suits be filed within 180 days, lower courts have interpreted that to mean 180 days from the worker's last paycheck. The high court found that the clock starts when the employee learns of the discrepancy.
The Tennessean covered the story
Juvenile judge to appeal to high court
Shelby County Juvenile Judge Curtis Person has argued that the creation of a second juvenile judgeship by the county commission is an unconstitutional delegation of legislative authority. Now his attorneys indicate they will ask the Tennessee Supreme Court to hear the matter without the case first going through the state court of appeals. Meanwhile, the county commission was to meet today to discuss how to proceed in light of the lawsuit.
The Memphis Daily News has more
Moncier guilty of contempt
U.S. District Judge Ronnie Greer today found Knoxville defense attorney Herbert S. Moncier guilty of contempt of court. Moncier is expected to file motions later today asking Greer, among other things, to reconsider and remove himself from the bench.
The News Sentinel has the story
Judge's memo creates rumble
Fayette County General Sessions Judge Mike Whitaker issued a memo instructing police officers to waive some offenses and not incarcerate some DUI offenders, creating a controversy across the county. The memo limits police to no more than two warrants or cases of misdemeanor charges per arrest or citation without the permission of the court. The judge's reasoning? He says the practice of filing multiple charges generates a lot of meaningless paperwork.
The Commercial Appeal has more
Hamilton County court watchers say bonds too low
Court Watch Partners, a group that monitors the courts in Hamilton County, said there is a "revolving door" for criminals there and that low bonds set by judicial commissioners are a large part of the problem.
Read more on Chattanoogan.com
Jury selection begins in revived civil rights case
Jury selection began today in a case that's haunted Mississippi for more than four decades: that of James Seale who is charged with kidnapping and conspiracy in connection with the killings of two black teenagers. Seale was arrested in 1964 but the FBI turned the case over to local authorities who threw out all charges. Federal prosecutors re-opened the case in 2005.
Learn more from WMC-TV
Judge caught running light, pays up
Automated traffic cameras in the Memphis suburb of Germantown recently caught Municipal Court Judge Ray Clift slipping through a red light. To show that no one is above the law, Clift paid the ticket soon after the city notified him of the violation, reports the Commercial Appeal.

Baker Donelson names pro bono attorney of the year
Baker, Donelson, Bearman, Caldwell & Berkowitz PC has named Memphis lawyer Kristine L. Roberts as its pro bono attorney of the year. Roberts was honored for her work as a volunteer with the Attorney of the Day Courthouse Advice Clinic, Memphis Area Legal Services and the Memphis Bar Association's Access to Justice Committee. The award was reported by the Memphis Daily News.

Upcoming
Retirement reception for legal aid attorney
The Legal Aid Society is hosting a reception on June 18 at the Nashville and Davidson County Metro Courthouse from 4:30 to 6:30 p.m. to honor the work and legacy of Ashley Wiltshire, who is retiring as director of the society after 37 years of service. Those who want to honor him may also make contributions to the Legal Aid Society/Ashley Wiltshire Fund, 300 Deaderick St., Nashville, TN 37201.
Learn more about Wiltshire's career
TennBarU CLE
Beat the May 31 CLE compliance deadline; avoid late fee
If you still need CLE hours to complete your 2006 requirements, the TBA's TennBarU is ready to help. The service has a full slate of online ethics and other courses.
View all available courses
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TBA, Bank of America team up for no-fee credit card
The TBA Rewards American Express Card from Bank of America places a new world of rewards, privileges, and service at your command -- with no annual fee.
Click here to learn more

 
 
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