Appeals court affirms dismissal of merit selection challenge

The U.S. Sixth Circuit Court of Appeals has affirmed dismissal of a lawsuit challenging the constitutionality of Tennessee's system for appointing judges. The suit was filed by Drew Johnson of the Tennessee Center for Policy Research, a conservative think tank in Nashville, and John J. Hooker in February 2008. It challenged the plan on federal constitutional grounds that the retention election feature violated Equal Protection and Due Process guarantees of the U.S. Constitution. The district court dismissed the case in June 2008. The three-judge appeals panel was unanimous in its decision filed Tuesday, with Ohio District Judge Michel Barrett, sitting specially, writing the opinion.

TBA President Gail Ashworth applauded the court's action saying, "We are gratified that every challenge to the constitutionality of merit selection and retention elections in Tennessee has been turned back. The TBA has been an advocate for merit selection since 1966, and the Tennessee legislature as recently as a month ago reaffirmed its stance that merit selection and retention elections are best for Tennessee."

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TODAY'S OPINIONS
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HIGHWOODS PROPERTIES, INC. ET AL.
CORRECTION: On page 1 of the majority opinion, the spelling of attorney Jonathan C. Hancock's first name is corrected


Court: TSC

Attorneys:

John S. Golwen, Colleen Denise Hitch, and Amy Charlyne Worrell, Memphis, Tennessee, for the appellant, Highwoods Properties, Inc., Highwoods Realty LP, Highwoods/Tennessee Holdings, LP, and AP Southeast Portfolio Partners, LP.

Jonathan C. Hancock, Ross Emerson Webster, Don Lester Hearn, Jr., Memphis, Tennessee, for the appellee, City of Memphis.

Judge: WADE

The Plaintiffs filed an action for declaratory judgment seeking to set aside a consent judgment entered in a lawsuit between property owners in an area of a proposed annexation and the City of Memphis. The earlier lawsuit, which the Plaintiffs failed to timely join, was a quo warranto challenge to an ordinance purporting to annex certain territory contiguous to the boundaries of the City. The consent judgment provided for the annexation of the territory described within the ordinance in two stages, with a portion of the area having an effective annexation date in 2006 and the remainder having an effective date in 2013. The trial court dismissed the complaint and the Court of Appeals affirmed. We granted permission to appeal in order to determine the propriety of the challenge to the consent decree approving of the two-step annexation. We hold that (1) the Plaintiffs are not authorized to file a declaratory judgment action challenging the consent judgment as violative of the terms of the annexation ordinance; and (2) the consent judgment did not create an unconstitutional taxing structure. The judgment of dismissal is, therefore, affirmed.

http://www.tba2.org/tba_files/TSC/2009/highwoods_CORR_072909.pdf


BAPTIST MEMORIAL HOSPITAL and BAPTIST MEMORIAL HEALTH CARE CORPORATION v. ARGO CONSTRUCTION CORPORATION, HANSON PIPE & PRODUCTS SOUTH, INC., and ETI CORPORATION and ARGO CONSTRUCTION CORPORATION v. HANSON PIPE & PRODUCTS SOUTH, INC.

Court: TCA

Attorneys:

James B. Summers and Heather W. Fletcher, Memphis, Tennessee, for the Cross-Plaintiff/Appellant Argo Construction Corporation.

Stephen D. Crawley and Mary C. Hamm, Memphis, Tennessee, for the Cross-Defendant/Appellee Hanson Pipe & Products South, Inc.

Judge: KIRBY

This appeal involves a cross-claim for indemnity. The cross-plaintiff construction company served as the general contractor on a drainage improvement project for a hospital. The cross-defendant subcontractor manufactured and provided concrete pipe for the project, which was installed by the general contractor. After completion of the project, a sinkhole developed in the hospital's parking lot. An investigation revealed that the internal steel reinforcement for the concrete pipe was improperly positioned. The hospital sued, among others, the general contractor and the pipe subcontractor. The general contractor then filed a cross-claim against the pipe subcontractor for indemnity in the event the hospital received a judgment against the general contractor. The subcontractor filed a motion for summary judgment as to the general contractor's indemnity claim, arguing that the claim was barred by (1) the one-year limitations period contained in the parties' contract, as permitted under Tennessee Code Annotated section 47-2-725, and (2) the exclusive remedy provision in the parties' contract, which provided that the only remedies available to the general contractor were repair, replacement, or refund of the purchase price of the pipe. The general contractor argued that the one-year contractual limitations period was not applicable to its indemnity claim, and that the exclusive remedy provision did not preclude its indemnity claim. In the alternative, the general contractor argued that, because the defect in the pipe was latent and not discoverable upon reasonable inspection, the exclusive remedy in the contract failed of its essential purpose and the general contractor was not bound by it. The trial court granted the subcontractor's motion for summary judgment, concluding that the indemnity claim was barred by the one-year contractual limitations period and the exclusive remedy provision, and also that the latency of the alleged defect in the pipe did not cause the exclusive remedy to fail of its essential purpose. The general contractor appeals. We affirm, finding that the exclusive remedy provision applies to bar the indemnity claim and that the exclusive remedy in the contract does not fail of its essential purpose.

http://www.tba2.org/tba_files/TCA/2009/baptist_072909.pdf


IN RE B.R.M.

Court: TCA

Attorneys:

Gregory D. Smith, Clarksville, Tennessee, for the appellant, C.M.

Deborah S. Evans, Clarksville, Tennessee, for the appellee, W.D.

Judge: BENNETT

Mother challenges the juvenile court's decision to adopt a parenting plan making father the primary residential parent and giving him more residential parenting time once the child starts school. We affirm the decision of the juvenile court.

http://www.tba2.org/tba_files/TCA/2009/brm_072909.pdf


BILLY JOHN INZER, SR. v. GAIL MARIE INZER

Court: TCA

Attorneys:

David W. Garrett, Nashville, Tennessee, for the appellant, Billy John Inzer, Sr.

Eric J. Burch, Manchester, Tennessee, for the appellee, Gail Marie Inzer.

Judge: BENNETT

This is a divorce action concerning the termination of an eighteen-year marriage. Husband appeals the trial court's valuation of the couple's ownership interest in a limited liability company and Sonic Drive-In, the award of both rehabilitative alimony and alimony in futuro to Wife, and the distribution of Husband's cash withdrawal from a joint savings account after the couple's separation. Wife appeals the denial of attorney fees. At trial, both parties offered expert testimony regarding the value of the Sonic with Husband's expert valuing the interest at $33,201 and Wife's expert valuing the interest at $509,263. We find the Sonic operating agreement signed by Husband and Wife is dispositive on the valuation issue and binding on Wife. The case is remanded for determination of the value in accordance with the agreement. We also modify the judgment entered against Husband to account for child support payments made after the parties' child reached the age of majority. The judgment of the trial court is affirmed in all other respects.

http://www.tba2.org/tba_files/TCA/2009/inzerb_072909.pdf


STATE OF TENNESSEE v. JOE RUSSELL ANGLIN

Court: TCCA

Attorneys:

Michael J. Flanagan, Nashville, Tennessee, for the Appellant, Joe Russell Anglin.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Melissa Roberge, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Kyle Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

After a bench trial, the trial court found the Defendant, Joe Russell Anglin, guilty of driving under the influence ("DUI") per se. On appeal, the Defendant contends that the trial court erred when it denied his motion to suppress evidence against him because the police had no legal justification to stop his vehicle. After a thorough review of the evidence and the applicable authorities, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2009/anglinj_072909.pdf


STATE OF TENNESSEE v. CARL ALLEN FARRIS

Court: TCCA

Attorneys:

Donna Orr Hargrove, District Public Defender; Michael J. Collins, Assistant Public Defender, Shelbyville, Tennessee, for the defendant-appellant, Carl Allen Farris.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Charles F. Crawford, Jr., District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

Defendant-Appellant, Carl Allen Farris ("Farris"), pled guilty to two counts of driving under the influence, fifth offense, and two counts of driving on a revoked license, seventh offense, with the length and manner of service of the sentence to be determined by the trial court. The trial court sentenced Farris as a Range II, multiple offender to an effective term of seven years in the Tennessee Department of Correction. On appeal, Farris contends the sentences imposed by the trial court for the driving under the influence convictions are excessive. Following our review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/farrisc_072909.pdf


ROMAN REYES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Roman Reyes, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney General, Nashville, Tennessee, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The pro se petitioner, Roman Reyes, appeals as of right the Davidson County Circuit Court's summary dismissal of his petition for a writ of habeas corpus challenging his conviction for second degree murder. The petitioner alleges that the judgment is void due to an illegal sentence imposed in contravention to Blakely v. Washington. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2009/reyesr_072909.pdf


STATE OF TENNESSEE v. ORLANDO SMITH

Court: TCCA

Attorneys:

George M. Googe, District Public Defender; Paul Meyers, Assistant Public Defender, Jackson, Tennessee, for the defendant-appellant, Orlando Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and James Thompson, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCMULLEN

The Defendant-Appellant, Orlando Smith ("Smith"), appeals the revocation of his probation and community corrections sentences by the Madison County Circuit Court. He contends that the trial court abused its discretion in revoking both of his alternative sentences. Following our review, we find no abuse of discretion. Accordingly, the orders of the trial court are affirmed.

http://www.tba2.org/tba_files/TCCA/2009/smitho_072909.pdf


Adjusting Wildlife Resources License and Permit Fees

TN Attorney General Opinions

Date: 2009-07-29

Opinion Number: 09-132

http://www.tba2.org/tba_files/AG/2009/ag_09_132.pdf

Appointment of Judges

TN Attorney General Opinions

Date: 2009-07-29

Opinion Number: 09-133

http://www.tba2.org/tba_files/AG/2009/ag_09_133.pdf

Legality of a Guest Workers Program

TN Attorney General Opinions

Date: 2009-07-29

Opinion Number: 09-134

http://www.tba2.org/tba_files/AG/2009/ag_09_134.pdf

Scanning Motor Vehicle License Plates to Determine Financial Responsibility Compliance

TN Attorney General Opinions

Date: 2009-07-29

Opinion Number: 09-135

http://www.tba2.org/tba_files/AG/2009/ag_09_135.pdf

Statute of Limitations Applicable to Challenges to Zoning Changes

TN Attorney General Opinions

Date: 2009-07-29

Opinion Number: 09-136

http://www.tba2.org/tba_files/AG/2009/ag_09_136.pdf

TODAY'S NEWS

Legal News
TBA Member Services

Legal News
UT Law launches dispute resolution program
The Center for Advocacy and Dispute Resolution at the University of Tennessee has entered into an agreement with the Institute of Conflict Management at Lipscomb University to provide graduate level instruction in conflict management and dispute resolution at the UT College of Law. Beginning this fall, law students, graduates and other executives and professionals will be able to receive instruction in the growing discipline of conflict management and dispute resolution through courses in negotiation, mediation, arbitration, system design, facilitation and public policy formation. Interested students also will be able to simultaneously pursue a law degree and masters degree in conflict management.
Learn more about the program
Assistant DA appointed to manage office
Nineteenth Judicial District Attorney General John Carney, who has been out of the office for five weeks with an undisclosed health problem, has appointed Assistant District Attorney Dan Brollier to oversee the office in his absence. Brollier downplayed any impact Carney's absence might be having saying the office is "pretty self-sufficient."
The Leaf Chronicle has the story
Missing attorney sentenced to probation, community service
Former Nashville attorney Bill Grothe was sentenced to five years probation, given 32 hours of community service per month, and ordered to pay the Metro Government $13,000 for the cost of a search undertaken to find him last year when he disappeared. Grothe testified at the sentencing hearing that he suffered a break with reality after losing his job and felt like he was "dead to the world."
WKRN News 2 reports
Analysis: Sotomayor vote signals future battles
A piece in the Los Angeles Times analyzes the U.S. Senate Judiciary Committee's near-party line vote yesterday approving Judge Sonia Sotomayor for the Supreme Court. The authors suggest that the vote sends two messages: that nominees cannot be assured of winning support even if they have solid legal credentials and a moderate record, and that President Obama could face an all-out confirmation battle if he were to nominate a more liberal candidate in the future.
The Tennessean carried the piece
Domestic violence group offers legal clinic
The Tennessee Coalition Against Domestic Violence recently announced it is accepting new clients for its immigrant legal clinics, which assist victims of domestic violence, sexual assault, stalking and trafficking with immigration matters. For more information about the program call the organization at (615) 386-9406 or visit their web site at http://www.tcadsv.org.

Putnam election commissioners hire attorney
Three Putnam County election commissioners being sued in federal court have hired a Nashville attorney to represent them in a suit they plan to file against the county and the state. The three are being sued for replacing the commission's long-time administrator just two months shy of her 30th year of service. Their suit is expected to ask a judge to determine whether they are state or county employees and exactly who should be footing the bill for their legal defense. Putnam County attorney Jeff Jones has said the county is not responsible for legal fees and expenses associated with the matter.
The Cookeville Herald Citizen reports
Federal Bar Association chapters name officers
Three Federal Bar Association chapters in Tennessee have named officers for the current bar year. For the Chattanooga chapter, Leslie A. Cory with Ortwein & Cory is president; Neil Brunetz with Miller & Martin PLLC is president-elect; Tonya Cammon with Grant, Konvalinka & Harrison PC is secretary; and Chris Varner with Gearhiser, Peters, Lockaby, Cavett & Elliott PLLC is treasurer. The immediate past president is Rita LaLumia with Federal Defender Service of Eastern Tennessee.

For the Memphis chapter, William Ryan with the Donati Law Firm is president; Amy Pepke with Butler, Snow, O'Mara, Stevens & Cannada PLLC is president-elect; Michael E. Gabel with FedEx Express is vice president; J. Gregory Grisham with Leitner, Williams, Dooley & Napolitan PLLC is secretary; and Thomas L. Henderson with Ogletree, Deakins, Nash, Smoak & Stewart PC is treasurer.

For the northeast Tennessee chapter, Marvin Neil Smith Jr. with the U.S. Attorney's Office for the Eastern District of Tennessee in Greeneville is president; F. Braxton Terry with Terry, Terry & Stapleton in Morristown is president-elect; and H. Scott Reams with Taylor, Reams, Tilson & Harrison in Morristown is secretary/treasurer. The immediate past president is Margaret B. Fugate with Anderson, Fugate & Givens in Johnson City.

Madoff reveals scheme details
Convicted financier Bernard Madoff revealed details of his investment fraud to two San Francisco plaintiffs lawyers yesterday from his prison cell. The lawyers say they will use the information to add defendants to two lawsuits filed on behalf of investors. Madoff is serving a 150-year prison sentence after pleading guilty to running a Ponzi scheme that bilked investors out of as much as $65 billion.
Read more from the ABA Journal
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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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