Is Tennessee Plan a good way to elect judges?

The "Tennessee Plan," the state's system for selecting and retaining judges, is coming under attack. State Sen. David Fowler, R-Signal Mountain, says it is "the worst of all worlds" for choosing appellate judges. Fowler, who recently engineered an effort to question all incumbent judges, argues that the system fails to provide the right kind of information for voters. TBA President Larry Wilks disagrees. He supports the Tennessee Plan as a high-quality selection process and responds to Fowler's arguments in a story by the Knoxville News Sentinel.

http://www.knoxnews.com/kns/election/article/0,1406,KNS_630_4881848,00.html

TODAY'S OPINIONS
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Howard H. Vogel
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Editor-in-Chief, TBALink

SUPREME COURT DISCRETIONARY APPEALS

Court: TSC

http://www.tba2.org/tba_files/TSC/2006/certlist073106.pdf


ADMINISTRATIVE RESOURCES, INC., ET AL. v. BARROW GROUP, LLC, ET AL.

Court: TCA

Attorneys:

Arthur M. Fowler, Johnson City, Tennessee, for the appellants, Administrative Resources, Inc., Rick Thomason and Sharon Thomason dba Payroll Transfer.

H. Frederick Humbracht, Jr., Nashville, Tennessee, for the appellees, Barrow Group, LLC and Robert G. Barrow, Jr.

Judge: CHARLES D. SUSANO, JR.

The plaintiffs sued their insurance agent and his company, under theories of breach of contract and negligence, claiming damages resulting from the agent's alleged failure to procure and maintain for the plaintiffs a master workers' compensation insurance policy at a discounted rate. At a bench trial, the court granted the defendants' motion for involuntary dismissal made at the conclusion of the plaintiffs' proof. They appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2006/administrativeresource073106.pdf


CHRISTOPHER ANDERSON v. A & F ELECTRICAL COMPANY, INC.

Court: TCA

Attorneys:

W. H. (Steve) Stephenson, II, Nashville, Tennessee, for Appellant, A & F Electric Company, Inc.

David Cooper, Nashville, Tennessee, for Appellee, Christopher Anderson.

Judge: DONALD P. HARRIS, SR.

Appellant, A & F Electric, Inc., appeals from a judgment entered against it on a claim of retaliatory discharge raising essentially three issues: (1) whether the jury verdict was excessive; (2) whether the court and jury erred in finding that the Plaintiff's cause of action was filed within the one-year statute of limitations period; and, (3) whether the trial court erred in allowing the Plaintiff to play before the jury portions of a witness's earlier testimony for the purposes of impeachment. The Plaintiff raises as error the trial court's granting a directed verdict with regard to a claim for punitive damages. We find no error concerning the issues raised by the Appellant but reverse the trial court's ruling as to punitive damages and remand the case for further proceedings on that issue.

http://www.tba2.org/tba_files/TCA/2006/andersonc073106.pdf


ARNOLD ALPHONSO BUENO v. PATTIE LYNETTE BUENO TODD

Court: TCA

Attorneys:

Karen W. Tyler, Memphis, TN, for Appellant.

Bradley W. Eskins, Memphis, TN, for Appellee.

Judge: ALAN E. HIGHERS

This appeal stems from criminal and civil contempt charges brought by a father of two minor children because of the mother's failure to pay child support. The father brought his criminal contempt charge based on Section 36-5-104 of the Tennessee Code. In this appeal, we are asked to determine whether the chancery court violated the mother's due process rights during the criminal contempt hearing. The mother asserts on appeal that the chancery court violated her due process rights by (1) allowing the father's attorney to try the case against her for criminal contempt; (2) failing to provide proper notice to her pursuant to Rule 42 of the Tennessee Rules of Criminal Procedure; (3) failing to provide her with a right to a jury trial; and (4) applying the wrong legal standard when it found her guilty of criminal contempt. Also, we are asked to determine whether the chancery court properly terminated the mother's visitation rights with her children based on the chancery court's findings that the mother committed perjury, that the mother was in criminal contempt for violating Section 36-5-104 of the Tennessee Code, and that the mother was in civil contempt. We vacate the portions of the chancery court order (1) finding Appellant in criminal contempt, (2) sentencing Appellant to serve six months in jail for criminal contempt, and (3) terminating Appellant's visitation with her children until they attain the age of eighteen years, and we remand this case to the chancery court for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/buenoa073106.pdf


CITY OF JACKSON v. MOHAMED SHEHATA

Court: TCA

Attorneys:

Danny R. Ellis, Jackson, TN, for Appellant.

Lewis L. Cobb, Sara E. Barnett, Jackson, TN, for Appellee.

Judge: ALAN E. HIGHERS

A businessman purchased a house in Jackson, Tennessee for the use of his employees. While he did not live at the residence, the businessman allowed the employees to park the equipment used in the furtherance of his business at the residence. The equipment consisted of parking lot sweepers, pickup trucks, and trailers holding lawn-care equipment. The house is located in an area of the city zoned for residential use only. After receiving complaints from the neighbors, the city discussed the situation with the businessman in an effort to have him remove the equipment. When he failed to do so, the city sent him a letter asking that he remove the equipment or face further action. When this did not produce results, the city issued the businessman a citation for violation of the applicable residential zoning ordinance. The city court ruled that the businessman's conduct violated the ordinance. The businessman appealed to the circuit court, which likewise entered a ruling in favor of the city. The businessman has appealed to this Court arguing that the applicable ordinance is impermissibly vague and that the citation failed to notify him that storing business equipment at the residence constituted a violation of the ordinance. We affirm.

http://www.tba2.org/tba_files/TCA/2006/cityofjackson073106.pdf


SHARON FAYE BROWN HARTMAN v. LEONARD LEE HARTMAN

Court: TCA

Attorneys:

David B. Hamilton, Knoxville, Tennessee, for the appellant, Leonard Lee Hartman.

Timothy R. Wilkerson, Kingsport, Tennessee, for the appellee, Sharon Faye Brown Hartman.

Judge: CHARLES D. SUSANO, JR.

This is a post-divorce case. Following the trial court's entry of the judgment of divorce, Leonard Lee Hartman (Husband) filed a Tenn. R. Civ. P. 60.02 motion for relief, asserting error with respect to the trial court's treatment of a debt owed by the parties. Husband later filed a motion to modify his spousal support obligation to his former wife, Sharon Faye Brown Hartman (Wife). The trial court denied Husband's Rule 60.02 motion, finding that the motion was untimely because it was filed more than one year after the entry of the judgment of divorce. The trial court also found that, with respect to Husband's motion to modify his alimony obligation, the financial status of the parties constituted a material change in circumstances warranting a reduction in, but not the complete elimination of, Husband's alimony obligation. Husband appeals these findings, arguing (1) that the evidence preponderates against the trial court's refusal to completely eliminate his spousal support obligation; and (2) that the trial court abused its discretion when it denied his Rule 60.02 motion in view of the fact that, according to Husband, (a) Wife misrepresented facts to the trial court and (b) there is ambiguity in the divorce judgment. Husband also takes issue with the trial court's denial of his request for attorney's fees and expenses incurred by him as a result of Wife's alleged discovery abuse. We affirm.

http://www.tba2.org/tba_files/TCA/2006/hartmans073106.pdf


ANNIE E. HYDE JOHNSON ET AL. v. JOHN HANCOCK FUNDS ET AL.
Corrected Opinion


Court: TCA

Attorneys:

H. Naill Falls, Jr., Nashville, Tennessee, for the appellants, Annie E. Hyde Johnson, Linda D. Johnson, and Mary Anne Howland.

Hugh C. Howser, Jr. and Kevin C. Baltz, Nashville, Tennessee, for the appellee, Signator Investors, Inc.

Judge: WILLIAM C. KOCH, JR.

This appeal involves a dispute between a registered investment advisor and three of its clients regarding the investment advice the clients received from one of its agents. The clients filed suit against the advisor in the Chancery Court for Davidson County. The trial court dismissed the clients' Tennessee Consumer Protection Act claim for failure to state a claim upon which relief can be granted. After excluding the testimony of the clients' financial expert, the trial court also granted the advisor a summary judgment dismissing the investors' claims based on common-law fraud and misrepresentation, negligence, and breach of fiduciary duty. The investors have appealed. We have determined that the trial court erred by dismissing the investors' Tennessee Consumer Protection Act claims, by excluding the testimony of the plaintiffs' expert, and by granting a summary judgment dismissing the investors' remaining claims. Accordingly, we vacate the orders and remand the case for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/johnsona073106_corr.pdf


JAMES F. MEEK v. HEALTHSOUTH REHABILITATION CENTER OF CLARKSVILLE, ET AL.

Court: TCA

Attorneys:

Mark R. Olson, Clarksville, Tennessee, for the appellant, James F. Meek.

Frank Grace, Jr., and Terrence O. Reed, Nashville, Tennessee, for the appellees, HealthSouth Rehabilitation Center of Clarksville, Tennessee, and Lisa T. Odle.

Judge: FRANK G. CLEMENT, JR.

The appeal arises from the summary dismissal of a medical malpractice action against a physical therapy clinic. The plaintiff alleges he was injured during post-surgery physical therapy. The trial court dismissed the claim finding the plaintiff did not establish a prima facie case of liability for failure to establish proximate cause. The plaintiff contends the evidence was sufficient and, in the alternative, he was entitled to the rebuttable presumption afforded by res ipsa loquitur, Tenn. Code Ann. Section 29-26-115(c). Finding no error, we affirm.

http://www.tba2.org/tba_files/TCA/2006/meekj073106.pdf


NORA ELIZABETH KILBY MOORE v. RONNIE DALE MOORE

Court: TCA

Attorneys:

John T. Rice, Chattanooga, Tennessee, for the appellant, Nora Elizabeth Kilby Moore.

Roger E. Jenne, Cleveland, Tennessee, for the appellee, Ronnie Dale Moore.

Judge: CHARLES D. SUSANO, JR.

Nora Elizabeth Kilby Moore (Mother) and Ronnie Dale Moore (Father) were divorced in 1991. Father's child support obligation was set at $100 per week. As part of a divorce settlement, Father was awarded all of his common stock in Ed's Cycles, Inc., Father's employer at the time of the divorce. Mother filed a petition to modify in 1999, which petition was settled upon Father's payment to Mother of $4,000. In June, 2001, Father sold all of his stock in Ed's Cycles, Inc., to his sister for $687,550, plus an additional $100,000 for a covenant not to compete for five years. Father received 20% of the total sale price at the 2001 closing, with the remainder, including interest, to be paid over time in sixty monthly installments of $11,758.66 each. Mother filed a second petition to modify in December, 2001, claiming a significant variance in Father's income and asserting that her child support should be increased. Mother also claimed that the settlement of the 1999 petition to modify was not valid. The trial court determined that the settlement of the first petition to modify was valid, and that the capital gain realized by Father as a result of the sale of his stock in Ed's Cycles, Inc., was a "one-time capital gain" and, as such, should not be considered in calculating Father's income for child support purposes. The trial court denied Mother's petition in toto. She appeals, raising issues with respect to the trial court's treatment of Father's capital gain and other matters. We affirm in part, reverse in part, and remand with instructions.

http://www.tba2.org/tba_files/TCA/2006/mooren073106.pdf


PENN-STAR INSURANCE COMPANY V. RICHARD A. WILLIS, WOODY ASHLEY D/B/A WOODY'S TREE SERVICE, AND DAVID ASHLEY

Court: TCA

Attorneys:

Jeffrey D. Ridner, Tullahoma, Tennessee, for Defendant/Appellant Richard A. Willis.

Thomas J. Smith, Nashville, Tennessee, and Michael J. Vetter, Nashville, Tennessee, for Plaintiff/Appellee Penn-Star Insurance Company.

Judge: HOLLY M. KIRBY

This is a declaratory judgment action on an exclusion in an insurance policy. The plaintiff insurance company provided a commercial general liability policy to a tree trimming service, excluding coverage for events causing bodily injury arising out of the use of an automobile. An innocent bystander was injured when an employee of the tree service used his personal vehicle at a work site to remove a log lodged under a piece of equipment. The innocent bystander filed a lawsuit against the tree service alleging that the tree service was negligent in removing the log. Subsequently, the insurance company filed this declaratory judgment action seeking a declaration that the exclusion in the insurance policy applied to the innocent bystander's injuries. The trial court granted the insurance company's motion for summary judgment, finding that the policy exclusion was applicable to the innocent bystander's injuries because they arose from the use of an automobile. We affirm.

http://www.tba2.org/tba_files/TCA/2006/penn-star073106.pdf


MICHELE SAFA v. MARTHA A. LOVING

Court: TCA

Attorneys:

Michele F. Safa, Memphis, TN, Pro Se.

Kevin D. Bernstein, Memphis, TN, for Appellee.

Judge: ALAN E. HIGHERS

This appeal stems from a negligence suit arising from an automobile accident. At trial, the circuit court entered two separate orders dismissing the case. One order dismissed the case based on the statute of limitations. The other order dismissed the case for a failure to prosecute based on the plaintiff's failure to comply with a previous court order awarding discretionary costs to the defendant that was granted when the plaintiff voluntarily dismissed her first filing of the instant suit. On appeal, the plaintiff asserts that the circuit court erred when it dismissed her claims because the applicable statute of limitations was tolled pursuant to section 28-1-106 of the Tennessee Code as she was of "unsound mind." The defendant has also asserted that the circuit court properly dismissed the case for a failure to prosecute based on the plaintiff's failure to comply with a court order. We affirm.

http://www.tba2.org/tba_files/TCA/2006/safam073106.pdf


SULPHURIC ACID TRADING CO., INC. v. GREENWICH INSURANCE COMPANY, ET AL.

Court: TCA

Attorneys:

Joel J. Henderson and Edward D. Lamar, Greenville, Mississippi, and David F. Hensley, Chattanooga, Tennessee, for the appellant, Sulphuric Acid Trading Company, Inc.

Michael E. Richardson, Chattanooga, Tennessee, for the appellee, Xavier Chemical Company.

Charles Platto and Sarah Shelburne North, Norwich, Vermont, and Shelby Grubbs, Leah Gerbitz, and Robert F. Parsley, Chattanooga, Tennessee, for the appellee, Greenwich Insurance Company.

Judge: CHARLES D. SUSANO, JR.

The plaintiff, Sulphuric Acid Trading Company, Inc., (the Owner), entered into an agreement with the defendant, Xavier Chemical Company (the Loading Company), by the terms of which the Loading Company was to transload the Owner's product, sulphuric acid, from railcars to tanker trucks. The Loading Company subcontracted with Bulkmatic Transport, Inc., to accomplish the transfer of the sulphuric acid for subsequent distribution to the Owner's customers. James Gregory Johnson was employed by Bulkmatic and was in the process of transferring the sulphuric acid when a transloading coupling on top of the rail tank car allegedly broke. Approximately 1,800 gallons of sulphuric acid were sprayed into the air and onto the surrounding area. Johnson was severely injured when the sulphuric acid was sprayed on his face and body. The Loading Company was insured under a comprehensive general liability policy issued by the defendant Greenwich Insurance Company (the Insurance Company). After Johnson sued Owner and the Loading Company, the Owner filed a declaratory judgment action against the Insurance Company asserting that Johnson's claims were covered under the policy. The suit also named the Loading Company as a defendant. The trial court granted the Insurance Company's motion for summary judgment, finding that the Absolute Pollution Exclusion in the policy excluded coverage for Johnson's claims. The Loading Company and the Owner appeal. We affirm.

http://www.tba2.org/tba_files/TCA/2006/sulphuricacid073106.pdf


TERRA AQUA GABIONS, INC. v. MIDWEST CONSTRUCTION PRODUCTS CORPORATION

Court: TCA

Attorneys:

Malcolm L. McCune and Michael D. Hornback, Nashville, Tennessee, and Peter W. Brolick and Sharon K. Weaver, Tulsa, Oklahoma, for the appellant, Terra Aqua Gabions, Inc.

J. Brent Moore, Nashville, Tennessee, for the appellee, Midwest Construction Products Corporation.

Judge: DAVID R. FARMER

Plaintiff/Appellant filed its cause of action alleging interference with prospective business relations and violation 15 U.S.C. Section 1125 (the Lanham Act). The trial court granted Defendant's Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss. We affirm in part, reverse in part, and remand for further proceedings.

http://www.tba2.org/tba_files/TCA/2006/terra_aqua_gabions073106.pdf


JESSE WILLIAMS, Sr., and wife JANET WILLIAMS v. LINKSCORP TENNESSEE SIX, L.L.C., d/b/a NASHBORO GOLF CLUB
With Dissenting Opinion


Court: TCA

Attorneys:

Luvell L. Glanton, Nashville, Tennessee, and Tusca R. S. Alexis, Nashville, Tennessee, for Plaintiff/Appellants Jesse Williams and Janet Williams.

Scott D. Carey, Nashville, Tennessee, and Mary Ann Miranda, Nashville, Tennessee, for Defendant/Appellee Linkscorp Tennessee Six, L.L.C.

Judge: HOLLY M. KIRBY

This is a premises liability action. While playing golf in the rain, the plaintiff slipped and fell on stairs on the golf course made of railroad cross ties. The plaintiff claimed that the stairs were covered with mud and some variety of moss or algae, making them dangerously slippery. The plaintiff sued the golf course for negligence. The defendant golf course filed a motion for summary judgment, which the trial court granted, finding that the plaintiff failed to proffer evidence of notice, either actual or constructive. The trial court also found that the plaintiff's evidence of a dangerous condition was speculative. We reverse, finding sufficient evidence to create a factual issue on whether a dangerous condition existed and whether the defendant golf course had constructive notice.

http://www.tba2.org/tba_files/TCA/2006/williamsj073106.pdf

DAVID R. FARMER, J., dissenting.
http://www.tba2.org/tba_files/TCA/2006/williamsjDIS073106.pdf


JOHN A. BOATFIELD v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

John G. McDougal, Chattanooga, Tennessee, for the appellant, John A. Boatfield.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Bill Cox, District Attorney General; and Bates Bryan, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: DAVID H. WELLES

This is an appeal from denial of post-conviction relief. The Petitioner, John A. Boatfield, was convicted upon a jury verdict of premeditated first degree murder and abuse of a corpse. He received concurrent sentences of life imprisonment and two years, respectively. This Court upheld his convictions on direct appeal. See State v. John A. Boatfield, No. E2000-01500-CCA-R3-CD, 2001 WL 1635447 (Tenn. Crim. App., Knoxville, Dec. 20, 2001). The Petitioner subsequently filed for and was denied post-conviction relief. He now appeals the trial courtís denial of post-conviction relief, claiming that his trial counsel provided ineffective assistance of counsel and that his constitutional rights to due process were violated when the State withdrew its plea agreement. We affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2006/boatfieldj073106.pdf


Terms on Judicial Evaluation Commission

TN Attorney General Opinions

Date: 2006-07-28

Opinion Number: 06-119

http://www.tba2.org/tba_files/AG/2006/ag_06-119.pdf

TODAY'S NEWS

Election 2006
Legal News
Passages
BPR Actions
TBA Member Services

Election 2006
Election nears, with term limits on hold
The question of term limits is on a lot of minds in Knox County, but as in the May 2 primary, the issue is not yet settled. It probably is closer to being settled than it was three months ago, but it will not be settled by Thursday. Read the story in the
Knoxville News Sentinel.
MBA judicial ratings need qualification some say
Several Commerical Appeal letter writers respond to the Memphis Bar Associaton's judicial candidate qualification ratings; point out what they see as ethical violations; and disagree with the National Bar Association/Ben Jones' Chapter's endorsement for Circuit Court judge.
Read the opinions.
Be prepared for unfamiliar names on ballot
TriCities.com points out to Sullivan County voters that there will be some names on Thursday's ballot they haven't seen on campaign signs, noting that voters will get a chance to decide whether to retain 27 judges and justices statewide. Perhaps voters just don't care whether judges they've never met get to keep their jobs, the publication suggests. They should care, though, said Sue Allison, a spokeswoman for the state's courts.
Find out why.
Legal News
So much crime, it's getting personal
It's no secret that violent crime in Memphis has risen dramatically since hitting record lows in 2004. Early last week, the city had its 100th homicide, and the violence involving children and young adults in June created anguish and outrage. In this story, the Commercial Appeal checks in with people who have experienced many different types of crime.
Read the story.
Yard sale supports custody fight
People usually turn out early for yard sales -- and the one held this weekend to help a Bell Buckle family with legal costs stemming from a long custody battle had folks lining up to pitch in. Read about the sale and the custody fight in the
Shelbyville Times-Gazette.
Passages
Crossville attorney Hugh Hendricks dies
Hugh William Hendricks, retired attorney of Crossville, died July 20. He graduated from UT Law School in 1948. For 25 years, he served as attorney for the city of Pleasant Hill, was attorney for and served on the board of the Teen Ranch from 1988-1995, and served as attorney for the Cumberland County Bank from 1962 to 2000. Read more about him in the
Crossville Chronicle.
BPR Actions
Memphis lawyer publicly censured
On July 24 the Tennessee Supreme Court publicly censured James F. Schaeffer Jr., a Memphis lawyer. Pursuant to Section 16.1 of Tennessee Supreme Court Rule 9, Schaeffer submitted a conditional guilty plea in exchange for the public censure.
Read the BPR release.
TBA Member Services
Let JobLink help you with your next career move
A career service for Tennessee attorneys and law students, TBA JobLink is a job seeking and recruitment tool available at no charge. Whether you have a position to fill or are seeking employment, this site will guide you through a simple process to post your information.
Visit the site

 
 
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