Judicial Selection Commission seeks clarification on Supreme Court vacancy; extends application deadline
The Tennessee Judicial Selection Commission is asking Gov. Bredesen to clarify his request for a second panel of candidates to fill the opening on the Tennessee Supreme Court. Meeting today, the commission reviewed Bredesen's July 24 letter that invokes Tenn. Code Ann. Section 17-4-112(a). That portion of the law allows the governor to request a second panel if he rejects the first, and requires him to state in writing the reasons for rejecting the first panel. To allow the governor time to respond, the commission also voted to extend the application deadline to a date to be determined.
In related news, Nashville lawyer Stephanie R. Reevers, who serves as claims commissioner for Middle Tennessee, and John T. Fowlkes Jr., chief administrative officer for Shelby County, today threw their hats into the ring for the appointment. They join Memphis lawyer Sean Antone Hunt of Spicer, Flynn & Rudstrom; Memphis Circuit Court Judge D'Army Bailey; and Memphis Court of Criminal Appeals Judge J.C. McLin.
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Howard H. Vogel
RODNEY SHANE CURTIS v. CHRISTY SUZANNE HILL (CURTIS)
C. Tim Tisher, Columbia, Tennessee, for the Appellant, Christy Suzanne Hill (Curtis).
Paul A. Bates, Lawrenceburg, Tennessee, for the Appellee, Rodney Shane Curtis.
This is a post-divorce change of custody case. The trial court changed custody of the parties' two
minor children from the mother to the father. We hold that the evidence preponderates against the
trial court's finding that there had been a material change of circumstances to justify a change in
custody in the absence of proof that the mother's sexual indiscretions and other alleged misconduct
had affected or would affect the children in an adverse way. We therefore reverse the judgment of
the trial court.
IN RE: THE ESTATE OF MARY REEVES DAVIS
Gregory H. Oakley, Nashville, Tennessee, for the Appellant W. Terry Davis.
R. Horton Frank, III, and Julie Hamner Johnston, Nashville, Tennessee, for the Appellees Vergie
Reeves Thomas, Louis Reeves McNeese, Joe Lynn Reeves, and Linda Reeves Elliott.
Ames Davis, Nashville, Tennessee, for the Appellee Ames Davis, Administrator C.T.A. of the Estate
of Mary Reeves Davis.
W. Terry Davis (Husband) and Mary Reeves Davis (Wife) were married in May of 1969. Two
days before the marriage, Husband was asked to sign an antenuptial agreement, which he signed the
following day. Husband and Wife remained married for over thirty years until Wife's death in 1999.
When Wife's will was admitted to probate, Husband filed a petition for an elective share of Wife's
estate plus one year's support. Various heirs and the Administrator of the Estate responded to the
petition, claiming the antenuptial agreement prohibited Husband from electing against the will. The
Trial Court found that the heirs and the Administrator had proven by a preponderance of the
evidence that the antenuptial agreement was enforceable because Wife had made a full and fair
disclosure of her assets prior to entering into the agreement. Husband appeals, and we reverse.
VIRGINIA M. FITZGERALD v. CLAUDE A. FITZGERALD
Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, Virginia M. Fitzgerald.
Joseph Ward Henry, Jr., Pulaski, Tennessee, for the appellee, Claude A. Fitzgerald.
Wife appeals from a final decree of divorce challenging the trial court's distribution of property.
Because the wife raises factual issues and there is no transcript of the evidence in the record, we
must presume the record would have supported the factual findings of the trial court and accordingly
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v. DANIEL R. HOWARD
Mitchell D. Moskovitz, Zachary M. Moore, Memphis, TN, for Appellant.
Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General,
Nashville, TN, for Appellee.
This case stems from a petition to terminate a father's parental rights. At trial, the chancery court
terminated the father's parental rights as to his two minor children finding that grounds for
terminating the father's parental rights existed under Sections 36-1-113(g)(1) and 36-1-113(g)(3) of
the Tennessee Code by clear and convincing evidence and that it was in the best interest of the
children to terminate the father's parental rights. On appeal, the State of Tennessee, Department of
Children's Services concedes that there was not clear and convincing evidence to support a finding
that grounds for terminating the father's parental rights under Section 36-1-113(g)(1) existed.
However, it asserts on appeal that father's narcissistic personality disorder was sufficient evidence
to support a finding that the grounds for terminating the father's parental rights pursuant to Section
36-1-113(g)(3) of the Tennessee Code existed. On appeal, the father asserts that the Department of
Children's Services failed to make reasonable efforts to reunite his family, and thus, his parental
rights may not be terminated as yet under section 36-1-113(g)(3). We reverse.
DAVID G. MILLS v. SHELBY COUNTY ELECTION COMMISSION, ET AL
David G. Mills, Pro Se, of Cordova, Tennessee.
Felisa N. Cox, Assistant County Attorney, for Appellee, Shelby County Election Commission.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Janet M.
Kleinfelter, Senior Counsel for Appellee, State of Tennessee Attorney General.
Plaintiff/Appellant filed suit under the Tennessee Declaratory Judgment Act asserting that
the legislation authorizing the use of electronic voting machines in some jurisdictions violated Art.
I, Section 5 and Art. IV, Section 1 of the Tennessee Constitution. The Shelby County Chancery Court dismissed
Plaintiff/Appellant's complaint pursuant to Tenn. R. Civ. P. 12.02(6). We affirm.
PHOENIX INSURANCE COMPANY v. ESTATE OF MARY NAPIER GANIER, ET AL.
Donald Capparella and David Huff, Nashville, Tennessee, and Albert S. Nalibotsky, Charlotte, North
Carolina, for the Appellant Phoenix Insurance Company.
Brenda M. Dowdle and Barbara J. Perutelli, Nashville, Tennessee, for the Appellees Estate of Mary
Napier Ganier, and Bryan, Ward & Elmore, Inc.
Richards and Richards (the Tenant) leased a storage facility from Mary Napier Ganier (the
Landlord). The lease required the Tenant to obtain personal property insurance for its own benefit.
The lease also required the Tenant to obtain a comprehensive general liability policy for the benefit
of the Tenant, the Landlord, and the Landlord's rental agent, Bryan, Ward & Elmore (the Rental
Agent). The Tenant obtained property insurance and comprehensive general liability insurance
through Phoenix Insurance Company (Phoenix). A metal shed located on property next to the
leased premises caught on fire, allegedly due to the negligence of the Landlord and the Rental Agent.
The fire resulted in substantial damage to the Tenant's personal property. Pursuant to the property
insurance portion of the policy, Phoenix paid the Tenant over $1.1 million for the damage to the
Tenant's personal property. Phoenix then filed this subrogation action against the Landlord and
Rental Agent. The Trial Court granted summary judgment to the Landlord and Rental Agent after
concluding they were additional insureds under the Tenantís insurance policy and, therefore, Phoenix
could not pursue a subrogation claim against its own insured. We reverse the judgment of the Trial
Court and remand for further proceedings.
RACHEL SUMNER v. METROPOLITAN BOARD OF PUBLIC HEALTH
Joseph Howell Johnston, Nashville, Tennessee, for the appellants, Rachel Sumner, Eleanor Snyder,
and Carol Frazier.
Eric A. Garrison and John L. Kennedy, Nashville, Tennessee, for the appellee, Metropolitan Board
of Public Health.
This appeal involves the efforts of three Davidson County residents to stop the spraying of
insecticide for mosquitos in the Nashville area because of the alleged toxic effects of the insecticide.
After the Metro Public Health Department's Director of Health rejected the petitioners' proposal,
they appealed to the Metropolitan Board of Public Health. When the Board denied their request,
they filed a petition for writ of certiorari seeking judicial review of the Board's action. The trial
court dismissed the case because it determined that the residents lacked standing to seek review. We
conclude that because the Board did not question the petitioners' standing when they appeared before
it to appeal the Director of Health's decision to resume spraying, the Board could not later avoid
judicial review of its decision upon the ground that the petitioners were without standing.
Accordingly, we reverse the trial court's dismissal of the petition for writ of certiorari, and remand
for review of the petition upon its merits.
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