TBA to increase efforts to win renewal of Tennessee Plan

TBA President Marcy Eason said today that the TBA will be stepping up its efforts to win long-term renewal of the Tennessee Plan in the next two to three weeks. The TBA has supported merit selection for Tennessee Appellate Judges since the Plan was instituted in 1971.

Eason said the efforts will focus on the following:
-- The Yes/No Retention Election is an election. Even opponents of this merit selection plan acknowledge that every Tennessee and Federal Court that has looked at the question has concluded the Plan is constitutional under the Tennessee Constitution.
-- A survey performed by the University of Tennessee shows preference by 69% of the voters for a merit selection and retention plan over partisan, political elections.
-- Tennessee's merit selection plan has resulted in a more diverse bench.
-- The diverse and hardworking panel of citizens and lawyers who make recommendations to the governor are appointed on a non-partisan basis.

Eason also said that the TBA will increase efforts to foster better public understanding about the Tennessee Plan. Part of that effort will be led by the newly appointed Judicial Campaign Conduct Committee, which will encourage judicial candidates to subscribe to a fair campaign code of conduct.

"Our justice system works because the focus is on fair and impartial judges. Experience in 2006 when all judges were up for election emphasized the need to protect the courts from political controversies. If judges were pressured to make public statements on positions or issues, they would have to recuse themselves from cases in which those issues were raised," Eason said.

The Judicial Campaign Conduct Committee will assist the public to have a better understanding of the proper qualifications for judges, and to have awareness of sources for information through the evaluations from the Judicial Evaluation Commission. Ultimately this effort will aid the public to better understand the process, and to determine which candidates should be elected to judicial positions.
TODAY'S OPINIONS
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LINDA JEAN COOK (RAMSEY) v. LARRY DEAN COOK
With Dissenting Opinion


Court: TCA

Attorneys:

Denise Terry Stapleton, Morristown, Tennessee, for the Appellant, Linda Jean Cook (Ramsey).

P. Richard Talley and Christopher D. Brown, Dandridge, Tennessee, for the Appellee, Larry Dean Cook.

Judge: SWINEY

In this post-divorce action, Linda Jean Cook (Ramsey) ("Wife") requested the Trial Court to order her ex-husband, Larry Dean Cook, ("Husband") to execute a Qualified Domestic Relations Order ("QDRO") dividing his retirement plan according to the Property Settlement Agreement incorporated into the parties' divorce decree more than ten years ago. The parties had previously drafted -- and the Trial Court approved -- several QDROs that were rejected by the plan's administrator. Wife maintained that she was supposed to receive her one-third of the plan in shares of stock, which had appreciated considerably since the divorce. Husband asserted that Wife was entitled to a specific dollar amount instead. Following a trial, the Trial Court found that Wife's portion of the plan was one-third of the cash value of the plan at the time of the divorce, and then awarded her an additional six-percent interest, for a total of $46,184.27. We find no error in the Trial Court's judgment, and we affirm.

http://www.tba2.org/tba_files/TCA/2008/cookl_022908.pdf

SUSANO dissenting
http://www.tba2.org/tba_files/TCA/2008/cookl_DIS_022908.pdf


ESI COMPANIES, INC. v. RAY BELL CONSTRUCTION COMPANY, INC., ET AL.

Court: TCA

Attorneys:

Gregory L. Cashion, S. Joe Welborn, Nashville, TN, for Appellant.

Scott B. Ostrow, Memphis, TN, for Appellee.

Judge: HIGHERS

This appeal involves the applicability and enforceability of a forum selection clause in a construction contract. The contract was for the design and construction of a Kentucky correctional facility. The contract between the Commonwealth of Kentucky and the general contractor, a Tennessee corporation, provided that all actions on the contract must be filed in Franklin County Circuit Court in Frankfort, Kentucky. The general contractor entered into a subcontract with another Tennessee corporation for the performance of certain work on the Kentucky correctional facility. The subcontract incorporated all terms of the original contract by reference and contained a "flow-down" provision. The subcontractor later sued the general contractor in Shelby County, Tennessee. When the general contractor moved to dismiss for lack of venue, the subcontractor contended that the forum selection clause did not apply to its claims. The subcontractor also contended that the forum selection clause was unenforceable under the facts of this case. The trial court found in favor of the subcontractor. We granted the general contractor's Rule 10 application for extraordinary appeal. We reverse and remand, finding that the forum selection clause was applicable and enforceable, and the lawsuit should have been filed in Kentucky.

http://www.tba2.org/tba_files/TCA/2008/esi_022908.pdf


CLARK E. FRIERSON v. ROBERT C. JOHNSON

Court: TCA

Attorneys:

Ralph McBride, Jr., Shelbyville, Tennessee, for the appellant, Robert C. Johnson.

Mary C. White, Shelbyville, Tennessee, for the appellee, Clark E. Frierson.

Judge: BENNETT

The trial court entered a default judgment in favor of the plaintiff and dismissed the defendant's countercomplaint pursuant to Tenn. R. Civ. P. 37.02 based upon the defendant's failure to respond to the court's orders regarding discovery responses. The defendant claims that his failure to provide the discovery responses and to appear at several hearings resulted from his mistaken belief that an attorney was handling the matter for him. The trial court denied the defendant's Rule 60 motion. Because the defendant did not receive proper notice of the hearing on the plaintiff's motion for default, we have determined that the trial court erred in denying the defendant's Rule 60 motion.

http://www.tba2.org/tba_files/TCA/2008/friersonc_022908.pdf


IN THE MATTER OF: THE ESTATE OF JAMES F. GEARY, DECEASED JAMES SAMUAL GEARY v. CONNIE S. GEARY

Court: TCA

Attorneys:

Besty Hesselrode and Jeff Mueller, Jackson, TN, for Appellant.

R. Bradley Sigler, Charles Exum, Jackson,TN, for Appellee.

Judge: HIGHERS

This appeal involves a petition to construe a will and ademption by extinction. The decedent had a non-retirement cash brokerage account that contained four municipal bonds worth approximately $340,000. Five percent of the account was held in mutual funds and cash. The decedent executed a holographic will that included a specific bequest of the contents of the brokerage account to his wife. The will identified the account by its account number and brokerage firm, and it specifically described the contents of the account being bequeathed to the wife. After the decedent executed the will, his brokerage firm assigned a new account number to his brokerage account. The decedent subsequently arranged an "in-kind" transfer of all the contents of the account to another brokerage firm. The contents of the new account were the same as the contents of the old account: the same four municipal bonds and a small amount of cash and cash equivalents. When the decedent died, he was survived by his wife and his son from a previous marriage. The son contended that because the brokerage account number named in the will held no assets, the bequest was extinguished. He argued that the brokerage account with the new brokerage firm should pass by intestate succession, and therefore he should receive seventy percent of the asset. The probate court held that the change in account number and broker did not materially change the subject of the specific bequest, and therefore the wife was entitled to the contents of the brokerage account. The son appeals. We affirm.

http://www.tba2.org/tba_files/TCA/2008/gearyj_022908.pdf


TOWN OF HUNTSVILLE, TENNESSEE, ET AL. v. SCOTT COUNTY, TENNESSEE, ET AL.

Court: TCA

Attorneys:

David L. Buuck, Knoxville, Tennessee, and John Beaty, Huntsville, Tennessee, for the appellant, Scott County, Tennessee, A Municipal Corporation of the State of Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Ellen Knack, Assistant Attorney General, for the appellant, Commissioner of Revenue of the State of Tennessee.

Andrew R. Tillman, Knoxville, Tennessee, for the appellee, Town of Huntsville, Tennessee.

Judge: CLEMENT

The dispositive issue on appeal in this annexation dispute by the annexing municipality against the county and Tennessee Commissioner of Revenue is which tax allocation statute controls the allocation of Local Option Revenue derived from the annexed territory, the one in effect when the municipality passed the annexation ordinances upon final reading or the one in effect when quo warranto litigation challenging the ordinances was concluded. The county and Commissioner of Revenue contend the statute in effect when the quo warranto actions challenging the validity of the ordinances were concluded applies, because that is the date the annexations became operative. The municipality contends that the tax scheme in effect when the ordinances were passed by final reading applies became the quo warranto actions challenging the ordinances were dismissed due to the petitioners' failure to effect sufficient service of process on the municipality. The Chancellor ruled in favor of the municipality, finding in pertinent part that the quo warranto litigation that was filed but not followed by sufficient service of process had no effect on the operative dates of annexation. We reverse, finding that the statute in effect when the quo warranto litigation was concluded controls the allocation of tax revenue from the annexed territories.

http://www.tba2.org/tba_files/TCA/2008/huntsville_022908.pdf


STATE OF TENNESSEE v. JAMES DAVID JOHNSON

Court: TCCA

Attorneys:

Gary F. Antrican, District Public Defender; and Julie K. Pillow, Kari I. Weber, and W. Ray Glasgow, Assistant Public Defenders, for the appellant, James David Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, James David Johnson, was convicted of premeditated first degree murder; felony first degree murder; aggravated robbery, a Class B felony; and theft over $10,000, a Class C felony. The felony first degree murder conviction was merged with the premeditated first degree murder, and a life sentence was imposed. The defendant was sentenced to eighteen years as a multiple offender for aggravated robbery and to fifteen years as a career offender for theft over $10,000. The theft offense was set as concurrent to the aggravated robbery, but the two, together, were consecutive to the life sentence. This resulted in an effective sentence of life imprisonment plus eighteen years. On appeal, the defendant submits three issues: (1) the evidence was insufficient to support the convictions; (2) the trial court erred in failing to suppress the defendant's statements; and (3) the trial court erred in admitting hearsay testimony. After review, we affirm the convictions.

http://www.tba2.org/tba_files/TCCA/2008/johnsonj_022908.pdf


TODAY'S NEWS

Legal News
Legislative News
Disciplinary Actions
Upcoming
TBA Member Services

Legal News
Supreme Court OK's third party billing of indigent fees
The Tennessee Supreme Court has adopted amendments to its Rule 13 permitting lawyers to assign their payments for indigent fees to a third party. The move came in response to a petition by Billable Hours Inc. to permit lawyers to continue to employ their program to file and collect fees. The TBA, several judges, individual lawyers and bar groups supported the proposal.
Read the order
U.S. prison rate continues to climb
The nation's prison population continues to grow and has, for the first time, reached a point where more than one in 100 American adults is behind bars. A new study from the Pew Center on the States says that rate is even higher among certain groups: one in 36 Hispanic adults is behind bars, based on Justice Department figures for 2006, while one in 15 black adults is, too.
Read more in the Commercial Appeal
Noteworthy opinions are markers in judge's career
Since his appointment to the Tennessee Court of Appeals in 1978, Judge Herschel Franks has built a record of strong decisions in noteworthy cases. Read more about the man who now serves as presiding judge in this biographical sketch from the Hamilton County Herald.
Download the full story (PDF format)
Appeals court to hear 2006 contested election case
The loser of a contested 2006 Gallatin municipal election will make his case before the Tennessee Court of Appeals next week, hoping to win a new election. Attorney Lance Wray won the seat by 18 votes over incumbent alderman Mark Skidmore in 2006 and has been serving as the Ward 3 representative.
Read more about the case in the Hendersonville Star News
Jackson desegregation agreement still in talks
Parties involved in revising the 2000 desegregation agreement of Jackson-Madison County Schools will review proposed changes to the deal in a telephone conference with a federal judge today. The consent agreement has been in the revision process since last year, and plaintiffs' attorney Richard Fields of Memphis says the major difference between the 2000 agreement and the revised one is a binding commitment to build a new Jackson Central-Merry High School.
Read more about the negotiations in the Jackson Sun
Legislative News
Track legislation of interest to Tennessee attorneys
The TBA Action List tracks bills in the General Assembly that the TBA has a direct interest in. This means it has either initiated the legislation, taken a postiion on the bill or has a policy on the issue. The TBA Watch List is a broader list of bills of interest to the Tennessee legal community.
TBA Bill Tracking Service
Disciplinary Actions
Two lawyers reinstated
Jeffrey Dotson Seidman of Memphis (formerly of Germantown) and Jeffrey Lamont Warfield of the Northern Mariana Islands have been reinstated to the practice of law in Tennessee after paying the annual BPR fee and any delinquent fees and penalties. They were both suspended in 2005.
View all attorneys suspended for 2005 fee violations
Upcoming
Corporate Counsel Pro Bono Gala set
The Second Annual Corporate Counsel Pro Bono Initiative Gala will be May 22 at the Loew's Vanderbilt Hotel in Nashville. The event will celebrate the pro bono partnership among Tennessee's corporate legal departments, law firms and access to justice organizations. Nominations for the awards must be received by April 4.
Find our more about Tennessee's Corporate Counsel Pro Bono Initiative
Chattanooga memorial service set for March 4
The Chattanooga Bar Association's annual memorial service honoring attorneys and judges who have died this past year will be held March 4 at 11 a.m. in the Hamilton County Courthouse. The Honorable Don W. Poole, Criminal Court, Division III, will preside at the services.

TBA Member Services
Have you activated your FedEx shipping discounts?
TBA members are entitled to discounts on FedEx shipping. Did you know that TBA members are saving an average of $83 per quarter by utilizing their FedEx Association Advantage program discounts? Here's what some members have to say about their FedEx savings:

"Our firm took advantage of the Tennessee Bar Association FedEx discounts and saved over $200 on FedEx Express shipments last quarter alone. It's the best $200 we've ever saved," says member Bill Cameron of Cameron & Young in Cookeville. Start saving on your shipments today! For more information on how to enroll, call 1-800-923-7089 or
visit the TBA Web site

 
 
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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